Simplifying the Immigration Rules: the government response makes the solution sound so simple
By Jonathan Collinson (University of Huddersfield)
The government has released its response to the Law Commission’s report on simplifying the Immigration Rules. Gemma Manning and I commented on this report for this blog.
Summary of the Government’s Response
The Law Commission made 41 recommendations for change. The government claim to have accepted 24 of the recommendations in full, and to have partially accepted the other 17 recommendations. It has a stated its aim for the newly consolidated and simplified Rules to be in force from January 2021 (Government Response, page 3). The government has accepted the Law Commission’s seven principles for underpinning the redrafting of the Immigration Rules, although it remains to be seen whether the government shares the same understanding of what these mean in practice:
‘(1) suitability for the non-expert user; (2) comprehensiveness; (3) accuracy; (4) clarity and accessibility; (5) consistency; (6) durability (a resilient structure that accommodates amendments); and (7) capacity for presentation in a digital form.’ (Government Response, page 10)
The government response sets out its action plan for simplifying the Immigration Rules:
- reviewing the current Rules for each route
- removing inconsistent, overlapping and redundant provisions
- reviewing cross-cutting themes to clarify and consolidate where possible
- considering the right balance between prescription and discretion
- drafting new Rules in plain English and putting them into a simplified structure.’ (Government Response, page 8)
Some of the ideas suggested by the Law Commission have been kicked down the road to future trialling and ‘discussion’:
‘We want to test in future drafts for discussion whether we can have route-specific definitions at the end of each route, and common definitions at the end of the Rules. We will also explore hyperlinks and other ways of highlighting definitions as part of this work.’ (Government Response, page 8)
A significant Law Commission recommendation was that changes to the Immigration Rules should be limited to twice a year. The government response effectively pours cold water on this recommendation in practice:
‘We will continue to provide some predictability, with two main changes each year coming into force in April and October. However, we will need to be able to continue to make changes at other times.’ (Government Response, page 9)
The Law Commission had already noted that this was a pre-existing policy goal: ‘the Home Office policy intention has been to confine statements of changes to two each year, generally in April and October.’ However, this is a policy goal that the government has consistently missed and, ‘Since December 2018, however, there have been six statements of changes to the Rules, amounting to 548 pages of text.’ (Law Commission Report, para 8.68). Frequent substantive changes to the Immigration Rules are likely to remain a feature of this area of law.
The brevity of the government’s response and its apparent general acceptance of the Law Commission’s recommendations suggests that the simplification of the Immigration Rules is itself simple. However, whilst the response gives the impression that the simple cosmetic changes recommended by the Law Commission are likely to be made, the harder to address issues will remain untouched.
For example, the Law Commission’s report identified causes of complexity in the Immigration Rules and found that:
‘the shift towards a policy of detailed prescription as one of the recent and most significant drivers of complexity. Our analysis of Appendix FM-SE showed that the prescriptive approach itself has had a tendency to generate increasing amendments supplying more detail. We presented, in other words, a vicious circle which generated more detail, longer Rules, and more frequent changes.’ (Law Commission Report, para 5.1)
Gemma Manning and I argued that this shift to detailed prescription within the Immigration Rules was a conscious political choice and that ‘increased prescription and less discretionary decision-making have clearly been identified as a means to reduce the number of successful immigration applications in furtherance of a political goal [to reduce net migration]’.
The government’s response skims over the issue of prescription within the Immigration Rules. In its action plan, the government state that ‘We are … considering the right balance between prescription and discretion’ (Government Response, page 8, emphasis added). As we argued, a preference for prescription will be hard to dislodge if it is a conscious political choice.
The Immigration Rules and gov.uk
Beyond the Immigration Rules themselves, there is a universe of policy, politics, application forms, and real-life applicants, with which they interact. Like other respondents to the Law Commission’s consultation, Gemma Manning and I identified the importance of the gov.uk website:
‘We also know from experience that the primary forms of information that most users will have about the immigration rules are not the rules themselves. Instead, the first place that many will go is the gov.uk website. For example, the first result for a Google search for ‘how to apply for UK visit visa’ from an official source is [gov.co.uk]. The Immigration Rules do not appear as a search result on the first 10 pages of Google results … We believe that most users will place reliance on the information provided in these pages (which are neither rules nor guidance) rather than on the Immigration Rules themselves. (Collinson and Manning, 2019)
The reliance placed on gov.uk by users is reflected in the government’s response:
‘In line with the Law Commission’s recommendations we are also exploring how the information on the gov.uk website and on application forms can be improved. We know that some individuals do not read the Rules, but look instead at other information about the immigration system, for example, on the gov.uk website, or Home Office guidance. The right information can sometimes be difficult for users to find, or confusing where there is no accessible single source of truth. The Rules set out the routes and the requirements which applicants need to meet. Simplification of Rules is the cornerstone of a wider set of changes that will deliver:
- a better experience of the immigration pages on the gov.uk website;
- clearer and shorter guidance that is easier to find;
- simpler application forms;
- and plain English decision letters that tell users what they need to know.
We will of course aim to create Rules that are clear enough to be understood by non-specialists, with the requirements set out clearly in one place, and links to sources of further information. We don’t expect migrants, businesses or colleges to have to read the Rules –but we will make it so they can.’ (Government Response, page 4, emphasis added)
There is also a potentially significant legal issue here. If gov.uk is expected to present a ‘single source of truth’ upon which migrants can rely without having to read the Immigration Rules, what administrative law status does gov.uk have? How should Immigration Tribunals respond to appeals or judicial reviews brought on the basis that the migrant met the requirements presented on gov.uk, but missed rules hidden in the Immigration Rules?
However, the idea that migrants will not read – or will not have to read – the Immigration Rules is undercut by the examples that the government response uses to illustrate its new, simplified approach. The response provides vignettes of fictional applicants seeking to navigate the system, with a ‘before’ description of the current, Byzantine system and an ‘after’ setting out a vision of applicants easily and simply obtaining the information that they need. The vignettes, though, give lie to the idea that future migrants (or their sponsors in education or employment) will not need to have recourse to the Immigration Rules. The vignettes assume that users seeking information will make a seamless transition from the gov.uk website to consulting the Immigration Rules themselves:
‘Ana looks at the gov.uk website. The different work routes are easy to identify with clear names relating to their purpose and information explaining the differences between them. Ana can easily understand the options. If she checks the Immigration Rules, she will find a clear structure that lists the different routes in an intuitive way. She can find the best work route for her. […] Sami looks at the gov.uk website. There is helpful general guidance but there are also links to more detailed guidance on specific subjects. He looks at the Rules’ (page 5)
It should go without saying that there needs to be consistency between the Immigration Rules and gov.uk. Plain English Immigration Rules will greatly assist this process as there is less likely to be inconsistency introduced by ‘translating’ the Immigration Rule requirements for the public-facing gov.uk website. Gov.uk must though keep pace with changes to the Immigration Rules, a task made harder if the government does not restrain the number of Immigration Rule changes. There must also be adequate live links between the gov.uk pages and the relevant Immigration Rules: something that we have found absent in the past.
The government response is also ambivalent as to how simplified Immigration Rules will deal with definitions of terms. The Law Commission flagged some suggestions:
‘Hyperlinks could also be used to take users to definitions applicable to the category in which they are applying. Alternatively, a hover box displaying a definition where it occurs in the text could remove the need to cross-refer entirely.’ (Law Commission Report, para 11.1)
The government response suggests that it will think about it:
‘We want to test in future drafts for discussion whether we can have route-specific definitions at the end of each route, and common definitions at the end of the Rules. We will also explore hyperlinks and other ways of highlighting definitions as part of this work.’ (Government Response, page 8).
However, whether the Home Office chooses to engage with hyperlinks or hover boxes misses a more important point about simplification of the Immigration Rules. Words and phrases used in the Immigration Rules are not bestowed specific legal meaning by the Immigration Rules alone. Case law is a vital source of legal meaning, and although the courts are fond of criticising the Byzantine nature of the Immigration Rules, they are also partly complicit by adding an extra layer of complexity. Simplifying the Immigration Rules into plain English will inevitably (a) lead to litigation as to what the new Immigration Rules mean, which will (b) result in some words deviating from their normal English meaning.
For example, paragraph 322 (1A) of the Immigration Rules creates a mandatory ground for refusal if ‘false documents’ are used in an immigration application. However, case law has created a legal meaning which, arguably, departs from its literal meaning: ‘For a document to be a false document under the Immigration Rules there must have been an element of dishonesty in its creation’ (Agha (False document)  UKUT 121 (IAC)).
The Immigration Rules will never be completely understandable to the lay user unless these case law derived definitions are somehow incorporated into the Immigration Rules. One way would be to amend the Immigration Rules themselves to incorporate the new definition into a glossary (at the risk of further litigation if the transliteration is inaccurate, and the inevitability of frequent Immigration Rule changes), or by hyperlinking from the Immigration Rules to the case law (at the risk of substantially confusing the average user). There are no simple answers.
The final area of comment is about the political rhetoric that starts the government’s response in the Ministerial foreword. In it, Kevin Foster MP, Minister for Future Borders and Immigration state that:
‘I will ensure that we cut through the complexity and make the Rules clear, consistent and accessible, to encourage those who have the skills or talent to benefit the UK, and to crack down on illegal migration and remove those who abuse our hospitality by committing criminal offences.’ (Government Response, page 2)
The government’s priorities are stark. Ignored are the 37.9 million tourists who spent almost £23 billion in the UK in 2018, and whose entry are governed by the Immigration Rules. Ignored are family, asylum, and humanitarian visa applicants.
Instead the focus is on excluding or expelling ‘undesirable’ migrants: those with irregular immigration status and foreign national offenders (FNOs). The rhetoric emphasises the state of ‘eternal guesthood’ that Gibney observed as a feature of UK immigration policy. A state of eternal guesthood ignores the reality that many deported “foreign national” offenders are in fact “quasi-nationals”, either born in the UK or brought here as young children.
Gemma Manning and I argued in this blog that:
‘Where decision-makers are put under pressure because of staff cuts, and target chasing, migrants’ rights become vulnerable to a culture of disbelief and refusal culture. This culture is already well documented in the Home Office’s asylum decision-making, and in the Windrush scandal. It is a fundamental cultural shift in the Home Office that is necessary: one that reformatting the Immigration Rules cannot achieve by itself.’
The political focus on using the simplification of the Immigration Rules as an opportunity to ‘crack down on illegal migration and remove [FNOs]’ raises fears that this internal Home Office culture is likely to thrive, rather than end. The rhetorical aspects of the government’s response call to mind Slaven’s response to the Windrush Lessons Learned Review:
‘When the institutional features of the Home Office which precipitated scandal align with the immigration policy priorities of the government of the day, it raises the spectre of further scandals’
Although the complexity of the Immigration Rules is not a scandal in and of itself, the observations about the Home Office remain prescient. The Home Office’s apparent desire to prevent the Immigration Rules from descending back into Byzantine complexity will only be successful if it can effectively learn the lessons of how it got the Rules into their current mess in the first place. The simplification project will also not be a success if only the simple parts of the Law Commission’s recommendations are acted upon. But, as Slaven observes, ‘how will lessons be learned by a department whose problem is that it will not engage in learning?’
Dr Jonathan Collinson, Senior Lecturer, University of Huddersfield. Jonathan’s research interests are in immigration and asylum law, and his research and writing are informed by the methodologies of human rights law and of administrative law. He is also interested in issues related to citizenship, identity and exclusion. Email: firstname.lastname@example.org
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