The Post-Brexit Immigration Rules: Law Commission’s Simplification Recommendations Ignored
By Jonathan Collinson (University of Huddersfield)
The government have published a Statement of Changes to the Immigration Rules to change the UK’s immigration system from 1 January 2021. These new rules put in place the UK’s post-Brexit immigration system, once migration from the EU is no longer determined by EU law. Another aspect of these changes, directly cited in the accompanying Explanatory Memorandum, is to take:
“a further step in realising the Home Office commitment to simplifying the rules, implementing the recommendations of the Law Commission to ensure we provide greater clarity to migrants, employers and all other users of the rules.”
In this post, I use some examples to highlight that the Home Office’s ‘commitment to implementing the recommendations of the Law Commission’ appears to be entirely absent in practice. Instead, key aspects of the Law Commission’s recommendations have been simply ignored.
Simplification and the Rule of Law
The ability for potential migrants to be able to use the Immigration Rules to make applications without specialist legal assistance was highlighted as an important guiding principle for the Law Commission’s recommendations. The Commission concluded that ‘the Rules should be drafted with the needs of the non-expert user in mind.’
This post does not consider whether the substance of the Immigration Rules have been amended to be more accessible, and instead focusses on three presentational recommendations related to: definitions; overviews and content pages, and; cross-cutting parts of the rules. I focus on the presentation of the rules rather than their substance on the grounds that even if the rules are written in plain English, if they are not accessible it is difficult to determine whether one had correctly identified all the rules relevant to one’s situation.
Accessibility for lay users should be pursued as a matter of principle. Bingham suggested that the first principle of the rule of law is that, ‘The law must be accessible and so far as possible intelligible, clear and predictable’. Complexity in presentation and difficulties in navigating the rules contributes substantially to whether or not the law is accessible, intelligible, clear and predictable.
Immigration law is subject to a plethora of legal jargon. To make these intelligible the Law Commission recommendation 10 was that:
“(1) definitions should be grouped into a definitions section, either in a single set of Immigration Rules or in booklets, in which defined terms are presented in alphabetical order;”
However, the new Immigration Rules does both. Pages 5-29 of the Statement of Changes (Immigration Rule Intro.6) is a series of definitions relevant to all the rules. They define everything from “Working day” to “Swiss citizens’ rights agreement” to “Applicant”.
However, with respect to the Appendices dealing with the entry of EEA nationals (Appendix EU) and their families (Appendix FP), each contain a booklet-style set of definitions unique to those Appendices:
“Immigration Rule EU7 & FP9: (1) Annex 1 sets out definitions which apply to this Appendix. Any provision made elsewhere in the Immigration Rules for those terms, or for other matters for which this Appendix makes provision, does not apply to an application made under this Appendix.”
I am relatively sympathetic to the (unstated but presumed) logic of treating these Appendices differently: EU law has a series of unique features (such as the definition of a child). But a booklet approach would have been the better approach to adopt consistently across all the Parts and Appendices of the rules. This is not least because the other aspects of the Law Commission’s recommendations for making the use of definitions more accessible and user-friendly have been ignored:
“Recommendation 10: […] (3) terms defined in the definitions provision should be identified as such by a symbol, such as #, when they appear in the text of the Rules;”
Definitions are disappointingly not identified in this way. This makes the last aspect of this recommendation all the more important to implement:
“Recommendation 10: (4) in the online version of the Rules, hyperlinks to the definitions section or, technology permitting, hover boxes should be provided where a defined term is used.”
Given that it would have also been useful to make the PDF of the Statement of Changes navigable through the use of hyperlinks, but was not done, I hold out little hope that this will be introduced to the presentation of the Immigration Rules when the changes come into effect on 1 January 2021.
Finally, with respect to definitions, the Law Commission recommended that:
“Recommendation 17: We recommend that definitions should not be used in the Immigration Rules as a vehicle for importing requirements.”
This also appears to have been substantially ignored. Without having to look too far down the alphabetised list, there are clear examples of definitions importing substantive requirements:
““Adequate” and “adequately” in relation to a maintenance and accommodation requirement means that, after income tax, national insurance contributions and housing costs have been deducted, there must be available to the person or family the level of income or funds that would be available to them if the person or family was in receipt of income support.”
Similarly, we can look to the definition of ‘amateur’. There may be semantic debate as to whether this is a substantive requirement or merely a definition, and the line between the two may be unclear in practice:
““Amateur” means a person who engages in a sport or creative activity solely for personal enjoyment and who is not seeking to derive a living from the activity.”
Even if we allow that this is genuinely a mere definition rather than a substantive requirement, a prospective visa applicant in one of the amateur categories would be well advised to take note of the definition and seek to demonstrate through whatever evidence is available that their activities are solely for personal enjoyment and that they do not (or do not intend to) derive a living from their art or sport. Because success in the visa categories to which it relates depends on the meaning of ‘amateur’ it is imperative that words associated with a definition are highlighted throughout the rules in the ways suggested by the Law Commission. Without doing so, the prospective applicant risks a refusal for lack of understanding of how the Home Office will judge their application: the antithesis of predictable decision-making.
Overviews and Contents Pages
At page 94 of the Commission’s report, it stated that ‘we are persuaded, for the reasons given by respondents and in the light of the risks identified in our consultation paper, to recommend the use of tables of contents at the beginning of each Part of the Rules, and to recommend against the use of overviews.’ This recommendation has been ignored completely and the Statement of Changes includes overviews instead of tables of contents.
However, even the form of inclusion of overviews is inconsistent. For example, at the start of Appendix ECAA (ECAA is not in fact defined or described anywhere I can find in the Immigration Rules other than, unhelpfully ‘“ECAA route” means Appendix ECAA Extension of Stay or under the ECAA rules in force on 30 December 2020’), there is an italicised overview, which is presented without a rule number, and which describes the purpose of the Appendix:
“This route is for ECAA workers, business persons and their family members who are in the UK and already hold permission in that capacity and are seeking an extension of their permission. It also covers children of ECAA workers and business persons who can apply for entry clearance to come to the UK as a dependent child. A person with permission on the ECAA route can apply for settlement under Appendix ECAA Settlement.“
In contrast, Appendix FP starts with the ‘Purpose’ of the Appendix, but given an Immigration Rule number, FP1:
FP1. This Appendix sets out the basis on which a person will, if they apply under it, be granted an entry clearance: (a) In the form of an EU Settlement Scheme Family Permit – to join a relevant EEA citizen or a qualifying British citizen in the UK or to accompany them to the UK; or (b) In the form of an EU Settlement Scheme Travel Permit – to travel to the UK. FP2. This Appendix has effect in connection with the granting of entry clearance for the purposes of acquiring leave to enter or remain in the UK by virtue of Appendix EU to these Rules.”
As with the differing approaches to definitions, discussed above, these sets of rules were clearly generated by different teams within the Home Office, but the lack of a consistent style suggests that there has been limited editorial control exercised at a higher level. The lack of consistency of approach will likely be a key driver of future complexity to the Immigration Rules if different policy teams are permitted to work to different principles when drafting their parts of the rules. Someone at the Home Office needs to take editorial control and impose the consistent application of accessibility principles if there is any chance of the Law Commission’s simplification proposals gaining any traction.
Furthermore, there is a legal interpretation point which is unresolved in this inconsistency. The Law Commission’s consultation question 29 asked:
“Do consultees consider that tables of contents or overviews at the beginning of Parts of the Immigration Rules would aid accessibility? If so, would it be worthwhile to include a statement that the overview is not an aid to interpretation?”
The consultation’s respondents were split over the use of overviews as an aid to interpretation and the Commission itself expressed only a limited opinion, referring back to its work on Welsh Assembly legislation where it ‘cautioned against the risk of one [an overview] being used as an aid to interpretation’ (Commission Report, p.93).
Given that there is no statement in Appendix ECAA that the overview should not be considered an aid to interpretation, are we to assume that this implies an intention by the drafters that it ought to be so treated? Is the fact that the ‘Purpose’ in FP1 is a numbered Immigration Rule indicative that it should be treated as an aid to interpretation, or not? Does the granting of an Immigration Rule number to the ‘Purpose’ of FP1 indicate a different legal status to the overview in Appendix ECAA, or not?
This is a clear example where the complexity of the Immigration Rules has legal as well as practical consequences for users. Litigation to resolve these questions is all but inevitable.
Cross-cutting parts of the rules
There are a number of areas where the same sets of rules apply between a number of different visa categories. The general grounds of refusal are a good example: rules which can cause an application to be refused but which are not specific or unique to an individual category, such as where false representations or documents have been used in the visa application.
The Commission consulted on whether these sorts of requirements should be repeated in each part of the rules dealing with each different visa category, or whether they should be only referred to by cross-reference. The Commission was in favour of repetition in order to make the rules more user friendly, despite it lengthening the rules overall:
“Recommendation 20: We recommend that repetition within portions of the Immigration Rules should be adopted where desirable in the interests of clarity.”
This recommendation has not been followed. Instead, the Part 9 Grounds for Refusal is a single part, which is not user-friendly. In the overview to the Part, we are told that ‘Some routes have their own, or additional, suitability requirements’. But we are not told which. In ‘Section 1: Application of this Part’ it states, for example:
“9.1.1. Part 9 does not apply to the following: (a) Appendix FM, except paragraphs 9.2.2, 9.3.2, 9.4.5, 9.9.2, 9.15.1, 9.15.2, 9.15.3, 9.16.2, 9.19.2, 9.20.1, 9.23.1 and 9.24.1. apply, and paragraph 9.7.3 applies to 35 permission to stay; and paragraph 9.8.2 (a) and (c). applies where the application is for entry clearance […]”
Clear, intelligible, and user-friendly it is not. This section only tells us when and which suitability requirements don’t apply. To find out where there might be additional suitability requirements, we have to trawl through each provision. This has to be a manual process as there is no quick look-up function or guide. Even a search function a tool of limited assistance: the term ‘visit’, for example, appears 325 times in the Statement of Changes. Within Appendix V on visit visas itself, instead of cross referencing specific rules which do apply, we are told only that ‘V3.1. The applicant must not fall for refusal under Part 9: grounds for refusal.’
The unique grounds of refusal are also inconsistently presented. For example, rule 9.4.4 contains a refusal ground unique to visit visas. Although it is unique to visit visa, it is presented within a section which is sub-headed generically as ‘Criminality grounds’. In contrast, only a few paragraphs down, refusal grounds unique to asylum and humanitarian protection are given their own sub-headed and numbered section (9.5.1-9.5.2). This inconsistency will inevitably lead applicants to miss important aspects of the rules which apply to them.
The complexity of the general grounds of refusal is staggering. By rejecting the Law Commission’s recommendations, the Immigration Rules retain their Byzantine structure.
The Statement of Changes of new Immigration Rules for after Brexit present the rules in ways which remain as unintelligible, unclear, and Byzantine as the pre-Brexit rules. In fact, the post-Brexit rules are worse as they introduce a series of inconsistencies of presentation in the new, Brexit related, Appendices EU and FP.
Given that many of the Law Commission’s recommendations have been ignored, the claim that the Statement of Changes demonstrates ‘a further step in realising the Home Office commitment to simplifying the rules’ is not credible. It would be laughable if it wasn’t such as serious issue for individual users of the Immigration Rules, particularly those hundreds of thousands of EU nationals whose right to enter and reside in the UK is now determined by the Immigration Rules, and for the rule of basic law principles upon which the Law Commission’s report was based.
Although it might pale in significance to some of the other offences against the rule of law alleged to have been perpetrated by the government recently, it is a further indication that some of the basic principles of good governance need to be revitalised at all levels of the UK state.
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