Simplification of the Immigration Rules [2020] EWLC 388 (January 2020)

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Law W Commission

Reforming the law

Simplification of the Immigration Rules: Report

Law

Commission

Reforming the law

Law Com No 388

Simplification of the

Immigration Rules: Report

Presented to Parliament pursuant to section 3(2) of the Law Commissions Act 1965

Ordered by the House of Commons to be printed on 13 January 2020

© Crown copyright 2019

This publication is licensed under the terms of the Open Government Licence v3.0 except where otherwise stated. To view this licence, visit nationalarchives.gov.uk/doc/open-govemment-licence/version/3.

Where we have identified any third party copyright information you will need to obtain permission from the copyright holders concerned.

This publication is available at www.gov.uk/official-documents.

Any enquiries regarding this publication should be sent to us at enquiries@lawcommission.gov.uk.

ISBN 978-1-5286-1712-3

CCS1219728816   01/20

Printed on paper containing 75% recycled fibre content minimum

Printed in the UK by the APS Group on behalf of the Controller of Her Majesty’s Stationery Office

The Law Commission

The Law Commission was set up by the Law Commissions Act 1965 for the purpose of promoting the reform of the law.

The Law Commissioners are:

The Right Honourable Lord Justice Nicholas Green, Chairman

Professor Sarah Green

Professor Nick Hopkins

Professor Penney Lewis

Nicholas Paines QC

The Chief Executive of the Law Commission is Phil Golding.

The Law Commission is located at 1st Floor, Tower, 52 Queen Anne's Gate, London SW1H 9AG.

Professor Sarah Green and Professor Penney Lewis were appointed Law Commissioners on 1 January 2020. The terms of this report were agreed on 24 October 2019 when Stephen Lewis and Professor David Ormerod QC were Law Commissioners.

The text of this report is available on the Law Commission's website at http://www.lawcom.gov.uk/project/simplifying-the-immigration-rules.

Contents

CHAPTER 1: INTRODUCTION

Terms of reference

The causes of complexity

The cost of complexity

Proposals for simplification

Consultation events

Consultation analysis

Overview of our report and recommendations

Strengthening the simplified structure

Impact assessment

Acknowledgements

Project team

Principles underpinning the simplification project

Accessibility of the Rules to the non-expert user

The effect of complexity on applicant error

Projected savings in the event that the Rules are simplified

Applicant savings

Non-monetary savings for applicants

Savings for HM Courts and Tribunals Service

Home Office savings

Business savings

Discussion

RULES

Views on the causes of increased length and complexity

Views on our example of successive changes in Appendix FM-SE

Other examples of frequent changes to evidentiary details

Discussion

Advantages and disadvantages of a less prescriptive approach

Comparing different approaches to prescription

Consultation questions on prescription

Views on the discretionary elements in Appendix EU and Appendix V (Visitors)

Length as a price worth paying for the benefits of transparency and clarity

Views on the advantages and disadvantages of prescription

Reducing prescription as to evidential requirements

Other areas of the Rules in which prescription could be reduced

Factors suggesting that a particular provision should be less

prescriptive

Demonstrating requirements “to the satisfaction of the decision-maker” 62

Discussion

The structure of the Rules

A fresh division of material

Discussion

Presentation of the material in the Rules: a single set of Rules including one set of common provisions, or booklets?

An audit of overlapping provisions

Views on the need for an audit

The advantages and disadvantages of the booklet and common provisions approaches

Options for the presentation of the Rules

Views on the best approach to the presentation of the Rules: Option 1, 2 or 3?

Other advantages and disadvantages of the booklet approach

Other advantages and disadvantages of the common provisions approach

Discussion

Giving reasons for modifications of common provisions

The location of definitions

Location of definitions sections

Identification of definitions

Other suggestions for definitions

A consistent approach to titles and subheadings

Subheadings

Overviews and tables of contents

Do tables of contents and overviews aid accessibility?

Preferences between tables of contents and overviews

Overviews as an aid to interpretation

Numbering system

Views on a three-level numbering system

Numbering of Appendices

An interim renumbering?

Scheme for subsequent insertions

Views on our proposed scheme for insertions

Dealing with heavily amended portions of the Rules

Ordering of eligibility and evidential requirements within each category of application

Definitions

Should definitions contain substantive eligibility requirements?

Self-standing clauses

Should clauses be self-standing?

Signposting

Views on signposting

Repetition within Parts

Views on repetition

Our drafting guide

Views on our drafting guide

Specimen redrafting work

Views on our specimen redrafting

What worked well and what did not

RULES

Keeping the Rules under review

The impact of the unique status of the Rules

Alternative proposals for scrutiny

Whether informal consultation has benefitted the Rules

Informal consultation or review of the drafting of the Rules as a means of reducing complexity

Discussion

Clearer presentation of changes

The presentation of statements of changes

How to make it easier to understand the effect of statements of changes

Discussion

Frequency of changes

The impact of frequent changes

Fixed points in time for statements of changes

Discussion

Transitional provisions

The temporal application of Rules

Clarifying the temporal application of statements of changes

Discussion

Archiving

Improvements to the archiving system

Discussion

Superseded Rules

Removing superseded provisions from the Rules

RULES, GUIDANCE AND APPLICATION FORMS

The publication, presentation and updating of guidance

Difficulties with volume and scope

Difficulties in locating guidance

Confusion between different sets of guidance

Confusing titles

Difficulties caused by frequency of updates, failure to update or delays in updating, updating at short notice, and in identifying the relevant version to use

Archiving: difficulties in locating previous versions of guidance

The positive aspect: where guidance makes it easier to understand the Rules

The relationship between guidance and the Rules

Discussion

Instances where guidance contradicts the Rules or causes difficulty in practice

Guidance contradicting the Rules

Guidance misinterpreting the Rules

Guidance importing requirements not found in the Rules

Erroneous cross-references

Absence of guidance for applicants

Causes of error and inconsistency

Overlooking of guidance

The accessibility of application forms and the application process

Finding application forms

Knowing which is the right application form to use

Lack of an appropriate application procedure

Inability to view the online version of the application form in full

Design

Linking the Rules, guidance and application forms

Discussion

The effect of hyperlinks on the choice of structure for the Rules

Effective operation of hyperlinks

Index page

Discussion

Interface between the Rules and guidance

Impact of the approach taken to the structure of the Rules

Approaches to linking

Additional mechanisms

Discussion

Online application forms

Benefits of the online application system

Problematic aspects of the system

Discussion

Future Technology

Signposting alternative application routes

Improvements to the end-to-end process

Assisted decision-making

Discussion

RULES

Guidance for the drafting of the Immigration Rules

General drafting style

Formatting

Numbering

Contents pages

Cross-referencing

Definitions

Simplification of the Immigration

Rules: Report

To the Right Honourable Robert Buckland QC MP, Lord Chancellor and Secretary of State for Justice

TERMS OF REFERENCE

THE CAUSES OF COMPLEXITY

THE COST OF COMPLEXITY

PROPOSALS FOR SIMPLIFICATION

CONSULTATION EVENTS

CONSULTATION ANALYSIS

OVERVIEW OF OUR REPORT AND RECOMMENDATIONS

Recommendation 1.

STRENGTHENING THE SIMPLIFIED STRUCTURE

IMPACT ASSESSMENT

ACKNOWLEDGEMENTS

PROJECT TEAM

PRINCIPLES UNDERPINNING THE SIMPLIFICATION PROJECT

Our provisionally proposed principles

However, the detailed responses revealed varying degrees of agreement. A total of 12 respondents agreed without qualification while the remaining 10 broadly agreed with our proposal but made several suggestions, including additional principles.

Additional principles

Clarity works to the benefit of migrants as well as immigration judges and lawyers, because clear rules make for more consistent application by decision-makers and judges. The Home Office benefit from applications which properly understand the Rules.

Clarifying the “target audience”

ILPA submits that the target audience for the Immigration Rules are an incredibly diverse array of groups, ranging from, for example, legal practitioners, immigration judges, Home Office caseworkers, Home Office Presenting Officers to prospective and existing migrants, as well as their families and friends. Each of these groups, it is submitted, will have different aims as to what makes the Immigration Rules more “suitable” for them.

The need for balance between the principles

It is suggested that, in common with all other forms of legislation, the fundamental principle is that the Rules should be an accurate articulation of the policy of the person responsible for making them; namely, the Secretary of State. Whilst drafting the Rules in a way that can be readily understood by someone directly affected by them is plainly desirable and may often be compatible with the fundamental principle, it is that principle which must predominate. Therefore, if the policy the Secretary of State seeks to achieve is complex, then the Rules will necessarily be complex.

Many of our service users, whether approaching us through our advice line, outreach or training, find the Immigration Rules and wider immigration system far too complex. With significant cuts to legal aid, social services budgets and support services over the last few years, many of our service users no longer have access to legal advice and support. Many of our service users, who are some of the most vulnerable members of our society (care leavers, destitute families and homeless young people), are having to make applications with limited or no legal support. It is therefore essential that the Immigration Rules are accessible and understandable.

Additional comments

Discussion

ACCESSIBILITY OF THE RULES TO THE NON-EXPERT USER

Lack of access to legal advice and support

Yes - we agree that everyone who must apply under the Immigration Rules should be able to understand the requirements they must meet for their applications ... This would be the case in any event, but is particularly important when most applicants cannot afford immigration lawyers and/or have no access to them.

Solicitors are accountable, and if they get anything wrong you have someone to blame. Making an application on your own is fearful because you don’t have anyone to fall back on and you don’t know what to expect. Unfortunately, I have to do the application myself as I cannot afford the lawyer. The fees are just too high and my hope is that the immigration application online is simple enough for me to use.

The Immigration Rules govern cases where the State brings its considerable power to bear against individuals, often highly vulnerable, poor, sometimes with limited English, limited social connections and capital in the UK. It governs decisions which can change the course of lives, separate children from their families, and can mean the difference between life and death. Legal aid is essential in all immigration matters.

We do not believe it would be fair to our clients for the government to assume that asylum and immigration applicants will be able to navigate the system on their own once a consolidation of the Immigration Rules (and policy Guidance and Forms) has taken place. There are applicants who will always need the additional, expert advice and support provided by specialists, including immigration solicitors. Even a simpler set of Rules and more streamlined application system will not bypass that need in every case.

The need for non-experts to understand the Rules

Another reason the clarity is needed is to create greater public awareness as to what is contained in the Rules for example to dispel notions that migrants are abusing the system, or that Rules favour migrants, etc.

Benefits for other groups

Stakeholders consistently inform us that the complicated Rules are a hindrance to their ability to recruit through the Tier 2 visa system. They find it confusing and overly complex and many do not understand the current system. Many firms have reported that they have had to hire immigration lawyers to undertake the task of dealing with Tier 2 recruitment as the task is too complex for them to do it themselves.

I work as a Senior Presenting Officer, representing the Secretary of State in immigration appeals in the Upper Tribunal. An inordinate amount of time is taken up in the UT dealing with appeals where a First-tier Judge has erred in their understanding of the Rules, often because they have been misled by the advocates for one or both parties. If Judges sometimes struggle to understand the Rules, there is a clear problem. It is no wonder that non-experts are frequently confused.

Defining the non-expert user

We agree in principle but we believe that requires a shared understanding of who that ‘non-expert user’ might be. The consultation paper asserts the Rules should be accessible ‘to those who are affected by them’ (para 1.34). However, both the government and the Law Commission need to recognise that redrafting Rules, Guidance and Forms in plain English may not be enough to make complex material accessible to asylum-seekers and vulnerable migrants who struggle with filling in forms in English, and have a range and multiplicity of vulnerabilities with which to cope including mental health problems and the effects of trauma. In addition, many of our clients are unaccompanied or separated children under the age of 18.

ILPA submits that it is unclear as to whether the Law Commission are envisioning migrants who have English as their first language when they pose this question. It is further unclear as to whether children are envisioned as falling within the scope of this question. Arguably, it is a matter of good law that the Immigration Rules be understandable by children, especially refugee children who may go on to sponsor family members. Given the breadth of people who could fall within the scope of ‘nonexpert user’, ILPA would welcome further clarity as to who the Law Commission have in mind as ‘non-expert users’.

Sources of complexity for the non-expert user extrinsic to the Rules

From our students’ perspective, although the Rules are publicly accessible, they are for the main part not known to exist. Students rely more on the policy guidance as these are the links also on the various immigration routes.

Even though I was educated in the UK there were a lot of technicalities/words I couldn't quite understand which were anxiety-inducing and made the whole application take a lot longer than necessary. I can't even begin to guess how difficult the process would be if I had a complicated case or English wasn't my main language. In the end I had to submit my application with so many uncertainties and hope for the best.

Other ways to cater for a non-expert audience

Discussion

accessing and applying them. We have concluded that the overhaul of the Rules should take place alongside simplification of the system within which they operate.

Recommendation 2.

THE EFFECT OF COMPLEXITY ON APPLICANT ERROR

Mistakes by applicants

Evidential requirements

In our experience most of the refusals of student visas we see relate to mistakes regarding the meeting of evidential requirements. It is complex to identify exactly what a student has to provide. Without assistance and guidance it would be nearly impossible for a student to be able to identify this for themselves. This is only due to the complexity of the Rules. The introduction of document checklists would greatly assist. We know this is due to mistakes made by applicants because on analysis the applicant did, for example, hold the relevant funds for the relevant period of time, they simply did not provide the required evidence of this, e.g. insufficient bank statements, or statements in an incorrect format.

Eligibility criteria

As untrained individuals, the students may also be prone to misapplication of the Rules. For example, there is a standard visitor visa rules which is different from the family visitor visa rules. It may not be immediately apparent to students that the two routes are different and one can only imagine the consequences of applying an incorrect route to one’s immigration situation which may ultimately lead to a refusal and mar on one’s immigration history.

Guidance and application forms

As the UK Council for International Student Affairs identify, the definition of ‘established presence’ in Appendix C was amended five times while not added to the Rules until 2010 and removed in 2013. While the definition was set out in the policy guidance, it was not reproduced in the Immigration Rules until 2011, carrying significant implications since many students were refused leave.

When I was applying for my mum's renewal, I initially thought I had the right form which I did in the end anyway but my mum was saying that her friend who recently did a renewal didn't have these questions that she was getting. This made me really scared as her leave was about to expire especially when I found out there were two forms, and the names were so similar. Thankfully I was able to be put in contact with a lawyer who clarified what the names of the forms meant.

Mistakes by others including the Home Office

When we hired a lawyer for our case, my dad was on the path to receiving Indefinite Leave to Remain (ILR), which he did receive. However, the lawyer gave me, my mom and brother the wrong advice on the application and told us to apply with my dad, although my dad had been in the UK much longer than us. Unfortunately, due to poor advice, myself, mum and brother were rejected by the Home Office on more than one occasion. We ended up going to court and having to fight for our lawful stay in the UK. When we arrived in the UK, we had lawful status under my dad, and we would have finished our route to settlement a while ago, had we not been wrongly advised. We now have to start the 10-year long settlement process again and it’s painful.

The complexity of the Rules has also resulted in misinterpretation by Home Office officials in written and verbal correspondence through the helpline advice with applicants and sponsors and in policy answers. There are many examples within the Higher Education sector of misinterpretation of the Rules by caseworkers particularly with regard to relationship and family visas.

Discussion

PROJECTED SAVINGS IN THE EVENT THAT THE RULES ARE SIMPLIFIED

Applicant savings

Non-monetary savings for applicants

Savings for HM Courts and Tribunals Service

Past experience suggests that any change in the Rules will lead to a short to medium-term spike in litigation, as the new provisions ‘bed in’. Whilst there may not be a rise in the number of appeals lodged overall, it is possible that cases would remain in the system for longer, as practitioners and the judiciary understand and assimilate the changes. For instance, the current provisions relating to deportation were introduced as long ago as July 2012 but a key issue in their interpretation has only recently been settled in the Supreme Court in KO (Nigeria) [2018] UKSC 53. Even more recently, UTIAC has issued further guidance on their application: MS (Philippines) [2019] UKUT 00122 (IAC).

Home Office savings

Business savings

Currently, the lack of accessibility demands unnecessary costs and resourcing from HEIs to ensure the correct immigration advice is provided for applicants. In regards to staff sponsorship, Russell Group universities, for example, spent around £7.3 million on supporting immigration applications for staff with £172K on fees paid directly to UK Visas and Immigration and £98K on staffing costs during the academic year of 2017-18. Furthermore, on average, £712K is spent on supporting immigration applications for students. Universities UK conducted a survey investigating the financial burden of Tier 4 sponsorship to universities. Survey results suggest that the sector spends over £40m per year on Tier 4 compliance duties, which translates to an average of £240k per institution. Accessing the Rules, particularly in more nuanced, context-specific cases, should not be strongly dependent on UK Visas and Immigration assistance or legal specialist advice for a non-legal user.

Additional non-monetary benefits

Discussion

VIEWS ON THE CAUSES OF INCREASED LENGTH AND COMPLEXITY

Frequency of change

The Rules have become lengthier and more complex by frequent additions and alterations with lettering and numbering that does not follow sequentially.

Policy and changes of policy

The complexity in the Rules and immigration law more broadly is at least in part attributable to the uniquely controversial position the topic of immigration holds in domestic political discourse. The consultation paper rightly identifies a number of specific drivers of complexity in the Rules: the introduction of a “points based system”, the attempted codification of article 8 ECHR within the Rules, the requirement, in line with the Supreme Court’s decision in Alvi v Secretary of State for the Home Department [2012] 1 WLR 2208, to move extensive qualifying criteria from Home Office guidance into the Rules. Underpinning all of this, however, is the fact that the policy which the system of immigration control in the United Kingdom is intended to reflect is in a state of perpetual flux. Current indicators are that this is likely to continue and quite possibly accelerate. Whilst this remains the case, there are in our view limits to what can be achieved through restructuring and redrafting the Rules, however necessary that process may be in itself.

Policy is itself a significant cause or potential source of complexity. How policy is made and implemented (questions of consultation, notice, transition, timing and frequency of change) are also a cause or potential source of complexity. Moreover, leadership and culture (or policy) regarding how decision-makers are directed, encouraged or licensed to implement policy (including around questions of discretion/flexibility or prescription) impact upon the aims of simplification ....

We recall the observation of Lord Scott of Foscote in his short opinion on the appeal of Chikwamba v Secretary of State for the Home Department [2008] UKHL 40 (paragraph 4):

"... policies that involve people cannot be, and should not be allowed to become, rigid inflexible rules. The bureaucracy of which Kafka wrote cannot be allowed to take root in this country and the courts must see that it does not”.

The observation has more general application as it highlights the importance that policy and rules do not achieve justice if they are made and applied without due consideration to their impact on people - most particularly, the applicants to whom they apply and their families. Any project of the sort to which this consultation relates must keep that well in mind. The fundamental reason why policy and rules have become so complex (both in their drafting and their application) is, in our view, that this has not been in the mind of those responsible for setting policy; for drafting rules, guidance and other instruments by which policy is to be implemented; and for applying policy.

The analysis seems to be correct. However, a wider point would be that the complexity and length of the Rules helps to reduce the numbers of successful applications in certain categories and allows caseworkers more opportunities to refuse applications. This may be an end in itself, reducing the number of successful immigration applications from certain categories. For instance, the Adult Dependent Relative (ADR) category is now extremely complex and only a few hundred applications are successful per year. This complexity therefore reduces the successful applications under this route. However, it can be said the ADR route is still open, it is simply so complex it may as well be closed.

The rate at which secondary legislation (the necessity of which is highly questionable) is produced is a significant contributing factor, but to be frank I think there is actually a deliberate intention to make the Rules impenetrably complex. As an (EU) immigrant myself and as the member of staff at an FE college faced with the unhappy task of supporting Tier 4 applicants and students with a very wide range of other immigration statuses, I get the distinct impression that the government does not want me to be able to understand immigration law even as it pertains solely and specifically to my situation. The Immigration Rules have become a barrier which helps further the government's agenda to reduce migration.

The ISM believes that while the analysis is correct, it does not address how austerity and the need to cut costs have impacted on the Immigration Rules. Clearly a system that is prescriptive and based on a tick-box format means that the Home Office decision-maker can make decisions more quickly and with less thought, which could mean that a lower-grade, less-skilled civil servant can be employed to make the decision.

the recent increase of the length and complexity of the Immigration Rules is as a consequence of conscious political decisions by the Secretary of State, rather than as an unfortunate side effect of the Supreme Court in Alvi.

The consequence has been a complex scheme of ‘permitted purpose or activities’.. .and ‘permitted paid engagements’... This is a classic example where “simplification” (turning nine visas into one) has created instead a complex web of Immigration Rules. This is because the comprehensiveness and prescription of each former category has been reproduced within the Rules for a single visa category, at the expense of user-friendliness and clarity.

It is necessary that the Home Office ... recognise and address the need to avoid introducing or increasing complexity by policy. We note that during the evidence sessions of the Immigration and Social Security Co-ordination (EU Withdrawal) Bill public bill committee, Ministers repeatedly responded to general concern regarding complexity in the Immigration Rules by emphasising to witnesses (and others) the need to respond to this consultation. While that was an entirely appropriate suggestion, there is a risk that the Commission's review of the structure and drafting of the Rules is taken to provide the opportunity to fully address complexity. If so, we do not agree. We do not agree because policy .. is a significant source or cause of complexity.

VIEWS ON OUR EXAMPLE OF SUCCESSIVE CHANGES IN APPENDIX FM-SE

Prescription can undermine the purpose of a policy

For example, the requirements to have a bank statement in a certain format undermine the purpose of the Rules as, anecdotally, banks are unwilling in some circumstances to provide documents that meet the requirements. Also, the requirement to have wages deposited into banks and shown on bank statements does not actually correspond with a legal requirement for wages to be paid in that way.

The relationship between judicial decisions and drafting

Appendix FM-SE is a paradigm example of what might be said to be reactive drafting, leading to highly prescriptive and arguably overly-detailed requirements. The underlying policy aim is that persons who seek to remain in the United Kingdom on family life grounds are able to integrate, and that they will place no additional burden on the state.

. As cases on it came through the system, it became apparent that the drafters had been unable to legislate for each and every situation in which people earn money and support themselves.

Thus, the changes identified in the consultation paper became necessary, as

waiters, construction workers, gardeners, lottery winners, the self-employed and, in fact, anyone who is paid in cash fell foul of the Rules. UTIAC saw a large number of appeals in which it was accepted by all concerned (including First-tier Tribunal Judges and Home Office Presenting Officers) that the applicant or sponsor was certainly earning over the required amount, but where the appeal nevertheless fell to be dismissed because, for instance, wages paid ‘cash in hand’ had not immediately been paid into a bank account. It is in recognition of such matters - and the fact that the strict evidential requirements appeared to undermine the purpose of the rule -that many of the piecemeal changes identified in the Paper have been introduced.

The attempt to be prescriptive, and therefore consistent, has led to constant tweaking to clarify original intent, in light of appeal decisions where a different interpretation is adopted by judges. I fully understand the desire for more prescription, having seen at first hand the wildly different interpretations of the same Rule by different judges over time, but I do wonder whether we have caused greater problems than have been solved with this approach.

Need for specialist help

Policy objectives underlying prescription

OTHER EXAMPLES OF FREQUENT CHANGES TO EVIDENTIARY DETAILS

With the exception of recent changes in respect of EU nationals, virtually all recent changes to the Rules - whether in Appendix FM or elsewhere - have been either to modify evidential requirements or to refine definitions contained in the Rules whilst the underlying immigration objective has stayed the same.

There are repeated additional requirements of technical details (devolving to the level of the number and location of telephone numbers being printed on contracts) with little or no relation to the substantive requirement to genuinely invest in a business in the UK.

The evidentiary requirements for Tier 4 maintenance, set out in Appendix C, have been amended at least 14 times since April 2010, including three times since January 2018. The underlying immigration objective has remained the same, ie students must provide evidence that they hold fixed sums of money to cover their fees and living costs in the UK.

DISCUSSION

ADVANTAGES AND DISADVANTAGES OF A LESS PRESCRIPTIVE APPROACH

COMPARING DIFFERENT APPROACHES TO PRESCRIPTION

CONSULTATION QUESTIONS ON PRESCRIPTION

Views on the discretionary elements in Appendix EU and Appendix V (Visitors)

Appendix EU

The way Appendix EU appears to be operating in practice demonstrates that a move away from a highly prescriptive approach to a more flexible and purposive approach to ascertaining whether relevant criteria are satisfied can be operated successfully.

The use of cross-departmental data in theory is a good idea, but there should be an opportunity for applicants to cross-check any data before the Home Office uses it in order to ensure that it is the data belonging to the applicant, it is correct, and does not lead to unforeseen and unintended consequences.80

Appendix V (Visitors)

We were told that holding a particular national citizenship on its own could be enough for the application to be deemed high risk and subject to increased scrutiny and requirements.

We also observed immigration officers conducting assessments of cases flagged as high risk and in one example saw a visit visa application by the elderly mother of a man who was originally from Nigeria being refused because she had failed to provide a birth certificate to prove the relationship. It is important to note that a birth certificate is not a requirement in the Immigration Rules in such circumstances and we have seen numerous applications from other countries where that would not have been a reason for refusal in a case of this sort. It is clear to us that restrictions on applications beyond those set out in the Rules are being applied in practice and in the absence of a clear framework it is impossible for applicants to prepare in order to ensure that they can be issued visas.81

It is apparent in practice that the wording of the Immigration Rules [in relation to] ... the visit visas has become almost irrelevant. Where documents such as those listed . are not provided by applicants they will almost inevitably receive a refusal of the application querying their intention to return home at the end of the visit.

It seems the discretionary elements in these applications have had the opposite effect of giving caseworkers too much free rein which results in high numbers of refusals in visitor visa applications, with little in the way of recourse against decisions.

Our view is that in general, provisions allowing discretion have the potential to be useful, but in practice they are not used consistently or indeed well by Home Office decision-makers (for example the ability to request additional documentation to corroborate financial information submitted as part of a visa application is rarely used).

When rules which are not published are being applied, and where there is no effective means of redress or accountability by way of appeal or administrative review a less prescriptive system such as is operated with the visit visa regime at the current time can be highly unfair.

Any words that carry a discretion should be clearly defined. There should be a clear right where the rule is discretionary to allow an applicant to address concerns or submit further evidence before a decision is made. The “minded to” approach to decision-making considered in Balajigari and Others85 might be an appropriate model.

The difference between an appeal and a judicial review in this context lies in the fact that, in an appeal, the judge can form his or her own assessment of whether the applicant is genuine; whereas, on a judicial review, the judge may be confined to deciding if the decision was reached rationally, in public law terms. As a result, judicial scrutiny is unlikely to reveal whether some Entry Clearance Officers might be setting the bar unnecessarily high in their subjective assessment of whether a visitor is genuine.

Length as a price worth paying for the benefits of transparency and clarity

Reduced length is not in and of itself a sufficient or necessary goal. If the Rules are clear and accessible ... whatever length is necessary to achieve that will likely be worthwhile.

This system was designed to bring transparency and clarity. However, the length of the Points-Based System, coupled with its interactions with Guidance and lengthy, complicated Appendices, led to:

Views on the advantages and disadvantages of prescription

Advantages of prescription

We consider that there are considerable benefits to a prescriptive approach to the drafting of the Immigration Rules if it ensures consistency ... A version of the Immigration Rules which was numbered simply and numerically in numerical order would be far easier to navigate than what we have now.

From our perspective prescription can provide a necessary degree of protection for applicants against arbitrary and poor decision making, especially where independent appeal rights have been stripped away .

We would be concerned to see wide discretionary powers given to caseworkers in the current environment and urge caution here. This is particularly so whilst the primary underlying policy imperatives include vehement pursuit of the net migration target and the maintenance of a “hostile” or “compliant” environment which in our experience extends to both legal and illegal migrants.

There is a concern amongst practitioners . that extending discretion in the Rules beyond simply relaxing evidential prescription would lead to less transparent decision making, and to arbitrary and inconsistent outcomes. Individuals raising these concerns point to criticism of Home Office decision making as indicative of dangers in this regard, and also note, correctly in our view, that this issue cannot be approached without taking into account the very limited appeal rights which exist and the limited nature of challenges by way of judicial review.

The main advantage of prescription in the Immigration Rules is that we are usually given three weeks’ notice of changes, whereas we do not know what will appear in guidance until it is published. Guidance is not published until the day it comes into force, and often it is published after then. The way in which caseworkers exercise discretion is not known until leave is granted or refused.

Whilst on the face of it a more discretionary approach provides greater flexibility in practice it is likely to reduce clarity for the applicant. All factors should be taken into account such as the high costs of making these applications where the applicant is relying on a discretion and cannot be sure as to the outcome.

[In the] pre-2009 Immigration Rules the decision-making for student visas was discretion based and this left it open to abuse by both students and the decisionmakers. Post-2009 the introduction of the Points-Based System gave students a set of clear criteria to meet. This had provided clarity for applicants.

In our experience the discretionary element which is currently in place for ... credibility interviews to assess credibility of students poses lack of clarity and introduces subjectivity into the system which is problematic. Given how problematic our experience is of the exercise of this discretion we are very hesitant to support an approach that moved to a less prescriptive approach.

A less-prescriptive approach will deliver a net benefit, compared with the present system, only if the subjective tests are applied in a broadly consistent manner. This may require UK Visas and Immigration staff to have appropriate training, and for their decisions to be subjected to internal moderation. This is particularly important in the light of the present appellate regime and the constraints of judicial review.

I feel a prescriptive approach remains desirable, as immigration policy should remain in the hands of elected representatives in parliament, and not the judiciary as it had often felt in the past where the broadest possible interpretation of article 8 in particular was routinely given.

Disadvantages of prescription

We do not consider that the Rules dealing with an immigrant’s article 8 ECHR rights, and Appendix FM, have worked well by being highly prescribed. These are matters that require a more nuanced approach, balancing numerous factors in a way that cannot be done satisfactorily within highly prescribed Rules: a more holistic approach is required that a prescriptive system does not allow.

Overly detailed prescription, as currently found in (for example) Appendix FM-SE, leads to individuals whose circumstances in fact satisfy the criteria which underpin the Rule being refused on technical grounds for failing to evidence this in the precise form required by the Rules.

Chambers is of the view that discretion is essential as decision-makers currently have not been afforded enough freedom to interpret evidence within the spirit of the Rules and policy, which in turn has led to extensive and expensive litigation on flexibility. This is specifically encouraged in respect of evidentiary matters.

Chambers agrees that this would encourage a more ‘common sense’ approach to decision making, which is currently absent in the Rules.

This would obviously confer greater discretion on decision-makers, who might well derive more satisfaction from their jobs in consequence. But this would have to be balanced by an adequate system of appealing to an independent tribunal against their decisions. It is not easy to restore rights of appeal once they have been taken away, but it has happened in the past, e.g. when appeals for family visitors were restored by New Labour in 1997.

That really would be a fundamental reform of the Immigration Rules, as opposed to tinkering around the edges, which a lot of the Commission’s proposals necessarily are.

I note that the majority of members are not in favour of more discretion and less prescription in the Immigration Rules, considering that this would give even more scope for bad decision-making by caseworkers, with even less opportunity for correcting those bad decisions. That is a powerful argument. But unless the Rules do allow more scope for discretion - perhaps “evaluation” would be a better term -there is little chance of making the Rules significantly shorter and simpler.

Ideally, one would like to go back to the state of affairs before the Points-Based System was introduced in 2008 when, for example, the Rules just required maintenance to be “adequate”, without specifying in awesome detail what documents were needed to prove adequacy. Entry clearance officers and Home Office caseworkers just had to decide on the evidence before them whether the applicant could be adequately maintained, with Income Support as a judge-made benchmark of minimum adequacy. Of course, in those days there were full rights of appeal to adjudicators and the Immigration Appeal Tribunal, enabling bad decisions to be challenged before an independent body. The elaboration and expansion of the Rules which followed upon the introduction of the Points-Based System went in tandem with the reduction in appeal rights.

Other causes of complexity are more important

Reducing prescription as to evidential requirements

Support for reducing prescription

There is a strong case for removing high levels of evidential prescription from the Rules and adopting a more flexible and purposive approach to identifying whether qualifying criteria in the Rules are satisfied.

Taking evidence of wages, outside the Rules employers have been required to provide “real time information” to employees and others since 2013. In relation to the Rules, applicants ought to be able to ask online for current earnings and the duration of employment, with this information available (with consent) to the decision-maker or the Tribunal. There should be no impediment to documents being photographed on laptops or mobile devices and used as evidence. This would result in great savings in time and other resources by applicants, the parties and the Tribunal.

HM Revenue and Customs has introduced quarterly electronic submission of accounting information by self-employed persons. A less prescriptive approach to specified evidence might allow evidence in this form to be relied upon. Some employees now receive e-payslips and bank online and reliance on printed documents should be discouraged where the decision-maker or the Tribunal can receive the evidence.

The ways in which gross annual income is calculated at paragraphs 13-20A Appendix FM SE would sit more appropriately within the guidance. All that is required in the Rules is a reference to the need to calculate gross annual income based on the length of time in employment, the nature of the employment and the type of income. Calculations would then be more accessible in the guidance, with workable examples provided. The current Immigration Directorate Instructions are much more accessible on this and could be cross-referenced. Again, this would not compromise the legal position, but would make the Rules and guidance more accessible.

Staff in the new UK Visa and Citizenship Application Service (UKVCAS) centres ... do not always scan documents brought by the applicant which the applicant considers relevant but the staff have been advised may be irrelevant. They do not provide the client with a list of which documents they have scanned, and that can place the client and/or their solicitor at a disadvantage if they are asked for further information/documentation without knowing what has already been scanned . (and therefore regarded as acceptable documentation). Also, the check box requirements on the application forms do not always tally with what documentation is expected [by UKVCAS staff].

Applicants are required to satisfy the decision-maker that they will leave the UK at the end of their visit, however there is no further guidance within the Immigration Rules regarding how an applicant should do this. The vast majority of refusals that we see are due to the decision-maker not being satisfied that an applicant meets this requirement. Many individuals applying alone may think that if they have purchased a return ticket, this should be sufficient to show their intention to return home, when the Home Office would expect to see much more than this such as evidence of work and family ties in their home country. It would be useful for the Immigration Rules to be clear on the type of evidence that is expected where mandatory documents are not specified.

Support for a more nuanced approach

There are important distinctions to draw here. There is a difference between being prescriptive and being sensibly prescriptive. Many of the prescriptive provisions we have had in relation to Appendix FM-SE for example reflected the ignorance of the drafters in respect of how businesses or accounts work in practice. When FM-SE was introduced we had applicants in self-employment for example who simply could not produce the evidence required because it did not exist. FM-SE has effectively made it unlawful for applicants to be paid their wages in cash where there is no such prohibition in law generally.

A sensible degree of prescription is perfectly reasonable. To ask for six months of payslips and bank statements showing deposits that correspond to those payslips seems to us to be sensible as evidence of income because it not only demonstrates the income but avoids the possibility of deception. In terms of evidence of what makes a relationship genuine it may be appropriate to be less prescriptive.

Guidance must not be removed and changed at short notice, as has previously happened. Guidance should provide examples of evidence which will be accepted and, if relevant, evidence which will not be accepted. The reason for requiring evidence should be made clear so that applicants can attempt to assess whether their evidence meets the stated purpose. Student applicants and many advisers are now anxious when given flexibility, for example English language assessment by higher education institutions. Some have in the past found it difficult to know what is acceptable to caseworkers as practice can be inconsistent, sometimes apparently depending on the applicant’s nationality or the sponsoring institution, though this is not made explicit.

Such an approach ought to enable decision-makers to take a pragmatic and rounded view and alleviate the burden upon applicants who are at present obliged to keep scrupulous records and, in some instances ... artificially generate paperwork simply to comply with a rule, the substantive requirements of which they already fulfil.

It may be interesting to examine what the effects might be if UK Visas and Immigration staff had a wider remit to revert to applicants, and highlight deficiencies in applications prior to refusal. It is thought this would reduce the number of administrative review applications, and consequently judicial review claims. Many practitioners and judges in the field recall the days in which specialist teams in the Home Office could be contacted directly in order to discuss, progress and - if necessary - perfect applications. It has been remarked that this approach had many benefits. The caseworkers themselves would build up an in-depth knowledge of their specialist area, and their daily exercise of discretion gave them greater responsibility and job satisfaction. Practitioners and caseworkers shared a productive working relationship. Applicants were satisfied by an efficient system.

The MAC understands the trade-off between the tailored detail required in the system and the ease at which employers and migrants can access the system.

Wherever possible the MAC would like to see more simplification within the migration system.

Opposing views

In relation to students we believe that the Commission should be slow to remove clear evidential requirements which would render the requirements unclear. Indeed we would support a re-drafting of the Rules to ensure that these requirements are made more clear.

The prescriptive approach is better for clarity in my view. I advised students before Tier 4, and although there was far less guidance to worry about, I often encountered students who had been treated differently to friends and peers despite submitting almost identical evidence. If UK Visas and Immigration caseworkers were more plentiful, better trained and more highly paid the less prescriptive approach might work, but I'm not convinced that it would at present.

As long as the Rules can be simplified so that the specifications cannot be missed or misunderstood, there is nothing unfair in such a system. The Secretary of State does, after all, retain a residual discretion to waive any requirement if there is compelling reason to do so.

A more discretionary approach would only work if it was accompanied by further training and resourcing in UK Visas and Immigration. At present it appears that a greater level of discretion is likely to lead to a higher level of refusals.

Other areas of the Rules in which prescription could be reduced

Currently, sponsors must comply with a number of essential duties to track and monitor Tier 2 staff that have become increasingly burdensome and, in some cases, unnecessary. This also contributes to the onerous use of the sponsorship management system. Failure to comply with these duties carries high risk for sponsors which determines the rating of the sponsor and substantiates reason for audit, or in some instances, to revoke a licence. Yet these compliance duties are highly restrictive, affecting academic mobility and career progression within and between Higher Education Institutions.

UUK recommends that the new Rules relating to Tier 2 sponsorship are less prescriptive to ensure that sponsors have greater flexibility in allowing workers to undertake any additional activities that support career progression such as secondment opportunities or conducting research abroad for an extended period. It is important however to find the right balance between being less prescriptive with scope for more subjectivity as this could create more uncertainty.

This could include academic progress, which is now ridiculously complicated and can prevent students from applying in the UK to complete a course they have already started. Sponsors should also have greater flexibility in allowing students to take a relatively short break from study, for example, for health or family reasons, without withdrawing sponsorship. The maintenance provisions have become very lengthy and do not accurately reflect the format of evidence to which applicants from around the world may have access, or the sources of funds, for example family members other than parents. While the Immigration Rules could be less prescriptive, guidance on matters such as maintenance would probably need to be quite detailed in order to avoid subjective refusals on these grounds and to aid advisers.

Is it correct that prescription reduces uncertainty?

It is not the case that greater prescription necessarily reduces uncertainty. On the contrary; greater prescription increases the complexity and detail of the Rules and spawns increasingly complex and prescriptive guidance which although it is intended to increase the certainty and consistency of decision-making simply leads to confusion amongst applicants, practitioners and decision-makers as to which provisions and/or guidance should be applied in any given scenario.

It is notable that areas of the Immigration Rules which deal with rights or status being removed (e.g. revocation of leave, deportation, administrative removal) are relatively short and simple; the corresponding guidance is relatively easy to identify and understand without being unduly prescriptive. That does not in practice appear to lead to significant problems with consistency of decision-making or for individuals making representations to decision-makers.

The most complex and prescriptive parts of the Rules are those governing grants of leave to enter or remain in various categories. However, there is no reason why a decision to grant (e.g.) indefinite leave to remain is inherently more complex than a decision to revoke such leave and it is unclear why those parts of the Rules dealing with grants of status are both minutely prescriptive and bewildering in structure.

Factors suggesting that a particular provision should be less prescriptive

... for the Home Office to consider grants of leave from a purposive rather than a mechanistic viewpoint; to accord greater discretion to decision-makers in relation to evidential matters, and to provide guidance for decision-makers on procedural fairness rather than focusing on specific categories or evidential requirements.

Demonstrating requirements “to the satisfaction of the decision-maker”

Decision-making culture

This is too subjective an assessment, and a dangerous one where the decisionmaker, as we have stated above, operates in a culture of disbelief and one which is minded to refusal.

A less-prescriptive and more discretionary system requires certain things of the decision-makers. They would need to be appropriately trained, acquainted with relevant principles of public law (including procedural fairness) and, if applicable, to have specialist knowledge of the category of the Rules in which they were working. Decision-makers would also need to be given the time that is reasonably required to reach satisfactory decisions and ... to liaise with applicants, where appropriate.

Need for effective guidance

There should be some basic guideline which would give an applicant a good idea of what is required and also enable them to know on what basis/criteria a decisionmaker made a decision should they wish to challenge that decision.

Independent avenues of redress

If there were effective means of redress and review of the decision such as an appeal to an independent judge rather than an internal administrative review we might be more comfortable with it as an approach.

The cost for submission of applications is now so high that many applicants simply cannot afford a refusal. Litigation is prohibitively expensive for some applicants, particularly in refusals which do not attract a right of appeal and where administrative review and subsequently Judicial Review may be necessary.

Any form of words which permits decision-making discretion must be accompanied by effective rights of appeal against refusal. In order to support such a form of words, we would require that rights of appeal to an administrative tribunal must be made available for all categories of immigration leave (including where they have been abolished) and the appeal ground of ‘not in accordance with the Immigration Rules’ must be reinstated.

Discretionary decision-making by the executive must be accompanied by judicial oversight. As well as being a fundamental constitutional principle, it has a practical effect of ensuring good administration of the Immigration Rules at first instance by the decision-maker.

Recourse to Judicial Review is inadequate, expensive and time consuming for individuals and the judicial system. The ground of Wednesbury reasonableness (that the decision is so irrational that no reasonable decision-maker could have come to it) is too high a threshold to effectively prevent irrational decision-making.

Alternative formulations

I endorse the logic behind this approach, but the sentence would have to be "reasonable satisfaction” or "... not to be unreasonably withheld”. If not, a decisionmaker could simply dismiss any given application on their personal disbelief, howsoever irrational, and in doing so act lawfully.

We would suggest the following approach to both reduce prescription, but also to ensure greater flexibility where it is desirable.

DISCUSSION

Such systems operate at one remove from the Rules, lack transparency, and can generate bias. The clear message is that respondents favour prescription to the extent that it promotes certainty.

Recommendation 3.

Recommendation 4.

THE STRUCTURE OF THE RULES

The need for a consistent approach to structure

A FRESH DIVISION OF MATERIAL

Views on the division of material

Discussion

Recommendation 5.

PRESENTATION OF THE MATERIAL IN THE RULES: A SINGLE SET OF RULES INCLUDING ONE SET OF COMMON PROVISIONS, OR BOOKLETS?

An audit of overlapping provisions

Views on the need for an audit

It is important that alternative terminology is used if meanings differ so everyone can be clear about the desired effect, and conversely that provisions are consistent if the intention is that they should be interpreted in the same way.

There is no point in entering a new era for the Immigration Rules with such impediments as unjustifiably different definitions for the same expressions used in different parts of those Rules.

Is it really intended, for example, that a person married to a British citizen but unlawfully in the UK should show "insurmountable" obstacles to be granted leave; but a person not married to a British citizen need only show "very significant" obstacles. Wouldn't one expect the latter to be a higher test? Was it really intended that a parent of a British citizen who is party to a relationship with another British citizen would not be able to apply under the Rules in certain circumstances but a single parent would?

Recommendation 6.

The advantages and disadvantages of the booklet and common provisions approaches

Options for the presentation of the Rules

Views on the best approach to the presentation of the Rules: Option 1, 2 or 3?

Support for Option 1

ILPA submit that the most popular form of Rules remains a single set of Rules, in part because of the desire of the Law Commission to ensure internet-friendly Rules. It is submitted that a single set of Rules with an appropriate set of hyperlinks placed online can serve to ensure that applicants are guided to the relevant parts.

Those in favour of Option 1 highlight the amount of duplication that would be necessary, as well as the risk that unjustifiable differences in definitions etc would be likely to appear, as between the different booklets. Much of what is thought to be advantageous in the booklet approach could probably be addressed by suitable hyperlinks, etc, within the Rules, as they appear online.

Overall, we consider that a single set of Rules is preferable to a series of booklets. A single set might present difficulties in navigation but online presentation may overcome these. For example, the Rules might be “filtered” online into a subset containing only those Rules applicable to a particular category.

Support for Option 2

From a direct applicant’s perspective, it is considerably more straightforward to identify (or be provided with) one ‘booklet’ which contains all the rules relevant to their application. Leaving it to applicants to cross-reference which parts of the Immigration Rules apply to their case can be overwhelming, and will increase the risk that they miss relevant provisions.

Coram Children’s Legal Centre provides advice in outreach settings - we see a number of people who need to make immigration applications but do not know how to find out what Rules apply to their case. Often, we are unable to prepare applications for individuals, but instead signpost them to the relevant section of the Immigration Rules and Home Office guidance and explain how they can make the application themselves. It is normally unrealistic to expect applicants to review the Immigration Rules in their current format. Even if we do provide a link to the webpage with the most relevant Part or Appendix, most of the webpage will not be relevant, and there will be a number of other Immigration Rules which apply to their case in different Parts or Appendices.

If we were able to hand out, or link to, a booklet which contains all the relevant Immigration Rules, that would far better equip those we have seen to review and understand what Immigration Rules will be applied in their case. We notice that generally, individuals are reassured by having a hard-copy document to review, rather than having to click on links to a number of different web pages. Having all the Rules in one document would also allow the advisor to review the booklet with the individual, and answer questions the individual has.

Option 2 has the merit of enabling an applicant, caseworker, representative and judge to navigate within a smaller and more manageable physical or digital space.

Support for Option 3

We recognise that this approach has potentially significant resource implications, and that errors in the production of the booklets may result in legal challenges. To attempt this with insufficient resources in place would doubtless increase the risk of such errors. If resources permit this to be undertaken effectively, however, the option seems to us to combine the benefits of Options 1 and 2, with very limited detriment.

Whilst such an approach is likely to lead to repetition and increase the length of the Rules, such an approach is likely to be of much more assistance to applicants when they are able to see all the criteria for satisfying a particular category in one section rather than attempting to cross-reference Rules.

The involvement of editors with legal training will help to maintain the pressure on drafters to get their Rules right, and we do not see any disadvantage in applicants being able to rely on the more favourable approach if a booklet and the Rules laid in Parliament contradict one another.

This seems to be the most clear and understandable route with the only disadvantages based on potential human error in the transposition of the Rules. This should be easily overcome by efficient and thorough editing and auditing.

Opposition to particular options

A fourth option

Other advantages and disadvantages of the booklet approach

Other advantages and disadvantages of the common provisions approach

Discussion

Recommendation 7.

Recommendation 8.

GIVING REASONS FOR MODIFICATIONS OF COMMON PROVISIONS

We currently have to query with the policy team whether such departures are deliberate. A requirement to highlight and explain departures would be very helpful, as it is not always acknowledged that they exist and can create difficulties.

Recommendation 9.

THE LOCATION OF DEFINITIONS

Location of definitions sections

It would be good to have definitions in one section and identify them with a symbol. However it is equally helpful to have definitions that are relevant to one kind of application or a particular section explained in that section or in the guidance accompanying that type of application. This sectional definition could be a quick list that is hyperlinked to the definitions. Scrolling down a long list of general definitions could prove tedious if that's the only reference applicants have to use.

Should the booklet model be adopted, it would be important for all terms in need of clarification used within that booklet to be defined within the same document - and not in a separate ‘definitions’ booklet.

Identification of definitions

It may be unclear to a non-expert user whether, in the phrase “being an illegal entrant#”, the term for which a formal definition exists is “illegal entrant” or “entrant”. This could be addressed by combining the symbol with, e.g., the use of bold type to identify the word or phrase.

Other suggestions for definitions

Recommendation 10.

A CONSISTENT APPROACH TO TITLES AND SUBHEADINGS

The principles to be applied in drafting titles and subheadings

Recommendation 11.

possible, consistently with keeping them reasonably short;

Subheadings

New paragraphs for new content are preferable to subheadings as it can become too easy to insert text which is not directly related to current contents, but doesn’t seem to fit anywhere else, if it has a subheading. The attempt to avoid subheadings, unless the relevant section really cannot be split and is very long, could help with the organisation more generally of a whole section.

Recommendation 12.

OVERVIEWS AND TABLES OF CONTENTS

Do tables of contents and overviews aid accessibility?

Preferences between tables of contents and overviews

Overviews as an aid to interpretation

Recommendation 13.

NUMBERING SYSTEM

Views on a three-level numbering system

Recommendation 14.

Numbering of Appendices

Recommendation 15.

An interim renumbering?

Fourteen respondents answered this question. Six agreed with the suggestion. Seven disagreed; one responded “other”.

SCHEME FOR SUBSEQUENT INSERTIONS

Views on our proposed scheme for insertions

It seems to us inevitable that the more new material is inserted into the Rules, the more the clarity of the structure of the revised Rules will suffer. Any gains that are achieved by restructuring the Rules may be undermined if there are extensive future amendments.

The wholesale adoption of this proposed system might be seen as lending support to an apparently never-ending series of insertions into a particular set of provisions, which is precisely one of the reasons why the existing Rules can appear forbidding and impenetrable.

Dealing with heavily amended portions of the Rules

Recommendation 16.

1AZB, 1AZC and so on;

ORDERING OF ELIGIBILITY AND EVIDENTIAL REQUIREMENTS WITHIN EACH CATEGORY OF APPLICATION

DEFINITIONS

Should definitions contain substantive eligibility requirements?

Recommendation 17.

SELF-STANDING CLAUSES

Should clauses be self-standing?

Recommendation 18.

SIGNPOSTING

Views on signposting

Recommendation 19.

REPETITION WITHIN PARTS

Views on repetition

If the elimination of repetition carries a risk of the applicable requirements not being apparent, then repetition would be preferred. Removing repetition requires clear drafting.

The key benefit of eliminating or reducing repetition is the consequential reduction in the overall length of the Rules. On balance, however, we are of the view (a) that increased length is a price worth paying for increased clarity, and (b) that, in any event, with appropriate drafting and organisation, and a well-designed online portal for accessing the Rules, the overall length of the Rules should have little or no impact on an individual user consulting them in the context of a particular case.

... whilst the repetition undoubtedly adds to the length of the Rules, it aids understanding for a user seeking to identify the provisions which apply to a particular case by limiting the number of Rules that they have to consult. This benefit outweighs any benefit that would flow from reducing the overall length of the Rules.

Requirements which apply to multiple types of applicant should be contained in a single clearly identifiable section, stating what Rules they apply to. This aids clarity and prevents unnecessary lengthening of the text.

Recommendation 20.

OUR DRAFTING GUIDE

Views on our drafting guide

We have real concerns that, with the government promoting transferring to a fully online system, clients like ours who are especially vulnerable are at risk of being left behind and suffering further disadvantage. There is a significant risk that if the Rules are only available online and therefore only updated online, any other versions will quickly be out of date - a situation that would not be clear to all applicants.

We very much hope that someone in the Home Office will have responsibility for ensuring that any guide which is adopted is applied at all times and that this is enforced before publication, including testing of hyperlinks. Over the years, we have observed many different writing styles in guidance and the Immigration Rules, to which we have had to adapt, which is not an ideal approach. Any drafting guide should be made publicly available so that others can query drafting which is not clear and/or suggest alternatives, in line with the guide.

Recommendation 21.

SPECIMEN REDRAFTING WORK

Views on our specimen redrafting

What worked well and what did not

KEEPING THE RULES UNDER REVIEW

The impact of the unique status of the Rules

The constant changes make it difficult for applicants to keep up to date and also means that the adequate scrutiny, discussion and debate does not always happen leaving there an increased chance of errors or mistakes that then later have to be corrected with further statement of changes. This happened frequently in 2015. Our view is that this has the potential to leave migrants at a heightened risk of being adversely affected by individual biases, or topical political agendas, in this area. This unusual status might also go some way to explaining the high volume of changes that have been made to the Immigration Rules in recent years in further statements of changes.

The scheme whereby they are rubber-stamped by Parliament rather than made subject to debate and/or simple policy guidance gives rise to a highly prescriptive and technical approach with inadequate flexibility, but also a rise of arbitrary and poorly considered requirements.

Alternative proposals for scrutiny

Whether informal consultation has benefitted the Rules

Some examples of the effect of consultation

We set out our questions in writing, discussed the matter with the policy team member of staff and provided sample redrafting of the provisions. Many of our suggestions were adopted and we, and hopefully others, were clearer about the policy intention.

This guidance was produced as a result of informal consultation and swept away a large number of archaic or irrelevant requirements while being generally very respectful of the Home Office's requirements.

Some of the consultations we have taken part in in the past have been of questionable quality. One got the sense that there was no actual intention to seek public opinion and input either by limiting the knowledge of the consultation taking place, the time frame it was open in, lack of guidance, and worst of all the kinds of responses available, for example by having leading questions or limited options for answers: yes, no, with no possibility of writing an explanation or selecting other. The family migration rules consultation is an example of the latter.

So while consultation is important, if it is an inadequate consultation it does not adequately inform the Immigration Rules. If furthermore the Rules are not subjected to proper parliamentary scrutiny, it feels like rubberstamping of inadequate Rules. It felt like the government had already decided what it wanted to do and just wanted to be seen to consult.

In our recent experience there has been virtually no consultation on the formulation of the Rules. The last significant change to the Rules of which we had proper advance notice was the introduction of Appendix V and the administrative review provisions.

Subsequent to that consultation there has been little formal or informal consultation about the formulation of the Rules. At the time of writing a statement of changes was published which ran to nearly 300 pages which replaced Appendix EU and effectively closed the entrepreneur visa route and introduced replacements for it. Whilst we had some awareness that the Home Office was planning to do this there had been no consultation with the Law Society, formal or otherwise. Accordingly, there can have been no benefit from such consultation as it simply did not take place. When there are changes introduced in this way there is inevitably litigation within a period of time which results in further reformulation to the Rules to ensure that they are fair. Proper consultation could avoid significant problems and significant litigation.

Informal consultation or review of the drafting of the Rules as a means of reducing complexity

Advantages of consultation at the drafting stage

The experience of lawyers and other professionals has generally been that Rules have been introduced without warning and that when obvious flaws - even glaring mistakes - in the Rules are repeatedly pointed out, it takes until the matter is tested in court for any changes to be made. This cannot possibly be of long-term benefit to the Home Office either.

Disadvantages of overly informal or sporadic consultation

It is important ... that any consultation process which is established in future with a view to improving the clarity of the Rules be transparent, and that certain stakeholders are not given access to the ... Home Office that is not available to other stakeholders.

Much depends on with whom there is consultation and how real and effective is any consultation. If consultation is ‘informal’ or ‘ad hoc’, however, there is some risk that either what is undertaken is or, over time, becomes of less substance and more a matter of mere presentation.

It could help reduce complexity if consultation takes place in a timely fashion and comments are given serious consideration. We are currently asked for comments on drafting, not policy, on occasion and usually at very short notice. Although we can point out when definitions or defined terms are needed, when references to paragraphs are incorrect or query what the intended outcome is in order to assess the effectiveness or otherwise of the drafting, there is no real discussion and it is usually too late to make changes we might have been assured on a previous occasion would be incorporated, but which have been overlooked again. Consultation or review of all provisions would be needed. When we see draft Rules (and this largely depends on who is in the policy team at any time), we are shown only study-related changes. However, other provisions, including validity and general grounds, may have at least as great an impact on our work and on our members’ clients.

every few years to get feedback from the wider public on overall changes to the Rules over longer periods. This could bring in the views of unrepresented applicants.

Better post-implementation feedback mechanisms

The residence changes which took effect on 11 January 2018 severely disadvantaged certain applicants and were applied without grandfathering provisions (a basic legal concept ignored).[188] It took extensive lobbying to have the unfair consequences mitigated in the Immigration Rules which took up to six months to effect. The Home Office almost immediately accepted the fact that the change had been unfair, but initially invited applicants to seek discretion rather than to change the rules so that they were fair.

The possible benefits of a review committee

Views on a review committee

The SSAC reviews regulation that is introduced into the benefits system, with the remit not of proposing changes to policy but rather assessing whether the proposed regulation is coherent and clear and how it will be operationalised. Something similar at the Home Office, where Immigration Rules are scrutinised by a multidisciplinary group - including lawyers and those who have worked on the front line - would help to ensure that Immigration Rules do not become unworkable again.

An independent body should be formed to monitor changes or proposed changes to the Immigration Rules, and to make recommendations for consolidation and simplification.

One of our recommendations to government in the EEA Migration in the UK: final report (September 2018) was to “Consult more systematically with users of the visa system to ensure it works as smoothly as possible”.

Discussion

Recommendation 22.

Recommendation 23.

CLEARER PRESENTATION OF CHANGES

The presentation of statements of changes

How to make it easier to understand the effect of statements of changes

The statements of changes are the means by which amendments to the Rules are made subject to Parliamentary scrutiny. If the text of the amendment itself is incomprehensible when divorced from the context of the Rule it is amending, and the explanatory memoranda lack sufficient particularity to explain the precise effect of the amendment, Parliament is necessarily hampered in its ability to scrutinise the changes. Similarly, the ability of applicants and their advisors to grasp the substance of pending amendments to the Rules is hampered. Anything that increases transparency and clarity in this regard is to be welcomed as both consistent with Rule of Law principles and consistent with reducing complexity in the Rules more generally.

Keeling schedules

A Keeling schedule would be helpful, for the sake of ease, and would provide a clear view of the amendment without the need for manual cross-referencing. This would be particularly useful where there has, for example, been a change in a conjunction, such as a change from “or” to “and”, which could significantly impact the meaning of the Rule.

Changes to the Introduction

Intro 1. In paragraph 6, for:

““Employment as a Doctor in Training” means employment in a medical post or training programme which has been approved by the Postgraduate Medical Education and Training Board, or employment in a postgraduate training programme in dentistry.”.

substitute:

“"Employment as a Doctor or Dentist in Training” means employment in a medical post or training programme which has been approved by the General Medical Council, or employment in a postgraduate training programme in dentistry.”.

Explanatory memoranda

very rarely find enlightenment in the memorandum and instead have to contact the policy team. It would save time if the memorandum explained the policy intention, which we could then more easily test against the reworded Rules.

Other mechanisms to aid comprehension

Discussion

Recommendation 24.

FREQUENCY OF CHANGES

The impact of frequent changes

Issues which arise due to frequent changes

At its most extreme, recruitment to education institutions can suffer. Refusals can rise, which is obviously unacceptable for students, but also affects the Tier 4 sponsor licence of institutions. For example, the way in which limits on periods of student leave is calculated was changed in the month of August, and English language assessment became a requirement for all courses in April, in neither case with transitional provisions although students can be recruited a year or more before they apply for leave. Students need to be able to plan their lives and immigration applications well in advance and changes to key requirements at short notice can have a serious effect on them and the UK’s reputation. The cost to sponsors of having to keep up with all changes to the Immigration Rules and their accompanying guidance is huge and missing important changes can lead to the loss of their Tier 4 sponsor licence.

Tier 4 students have often entered the UK under visa conditions which change during their period of leave .... For example, many students chose the UK as a study destination because of the attractive prospect of the Post-Study Work visa. When this was suddenly abolished, with no transition period, students felt they had been misled. More recently, the Immigration Health Surcharge has been doubled at short notice. While I appreciate that this is not part of the Immigration Rules, it still affects those on visas. Again, because there was no transition period for those already in the UK, students who applied on 7 January paid half the cost to those applying on 8 January, and we were left with little time to warn them because of the Christmas holiday.

Laws/rules are meant to be fair, clear and predictable to enable people to order their lives accordingly. When Immigration Rules are changed frequently they undermine all these core principles of legislation or a judicious governance system. Frequent or arbitrary/unpredictable changes can be similar to changing rules on people midgame. The impact this can have on people’s lives could be enormous, life changing or irreparable. For example, if they came into the country on certain criteria which is changed within the year or even a few years, they might have ordered their affairs in a way that is difficult to change.

Reducing the impact of frequent changes

UK Visas and Immigration need to appreciate that visa holders are real people, not merely numbers. The Home Office, despite its new motto of 'World Class Customer

Service' still thinks of all migrants as a burden to the system, instead of skilled people who bring huge economic benefits to the UK.

Fixed points in time for statements of changes

Annual limits on the number of changes

Restricting rule changes to a certain number per year will make the executive arm of government/ Home Secretary consider more carefully what changes are essential and most beneficial to the immigration system. It would give the government more time to consult fully (and wider) and carry out better impact assessments of the rule changes. Limiting the number of changes also give those who are likely to be affected by proposed Rules time to question, challenge or lobby against the Rule changes.

Currently, we are obliged to check every aspect of the client’s case whilst pulling together the application, and then again just before submitting it - in case we inadvertently neglect to recognise a change in the Rules, Form or policy Guidance. A more regular and predictable timetable would help prevent this.

Urgent changes

Commencement in April and October

Tier 4 confirmations of acceptance for studies (CAS) are usually assigned about three months before a student’s course start date, which is most often around September or February, meaning CAS are assigned in large numbers in June and November. This means that changes coming into effect in April and October generally work with the academic year, but at other times can create significant difficulties in recruitment and in explaining changes to students in time for their applications

Given that many users of the Rules are educational institutions, the October changes are highly inconvenient and should ideally be put back to December. Often students applying in September receive different information to those applying just a couple of weeks later due to Rule changes.

Discussion

Recommendation 25.

TRANSITIONAL PROVISIONS

The temporal application of Rules

Clarifying the temporal application of statements of changes

Signalling in the Rule itself

Explaining dates of change in annotated versions of the Rules

Alterations to previous implementation dates

Principles for transitional provisions

Discussion

Recommendation 26.

ARCHIVING

Improvements to the archiving system

Views on the existing system

The online version of the Rules gives the reader no indication that there might have been an earlier version: the Rules simply contain the version in force at the date of reading. If the user suspects that the relevant rule might have been subject to amendment, it is possible to access the statements of changes online, but working out when an amendment came into force can involve opening several different documents and working backwards.

Suggestions for improving the existing system

Incorporating dates of commencement into the Rules

This version of the Rules was in force from X date to X date and applies to applications which were made between X date and X date and to decisions made by UK Visas and Immigration on X date to X date.

Annotated versions of the Rules

Hover boxes

Reference in decisions to the version of the Rules applied

A more sophisticated archiving system

Point in time searches

A more sophisticated online portal

Law Commissions Act 1965

UK Public General Acts 1965 c. 22 ► Section 1

Table of Contents Content More Resources Q


Opening Options 0 Q

More Resources 0           1

The Law Commission.

[F3(1 A) The person appointed to be the Chairman shall be a person who holds office as a judge of the High Court or Court of Appeal in England and Wales ]

F6(5) ................................

Textual Amendments

Fl Words in s. 1(1) inserted (16.4.2007) by Justice (Northern Ireland) Ad 2002 (c. 26), s 87(1), Sch. 12 para. 8; S.R. 2007/237, art. 2, Sch para. 6(b)

F2 Words inserted by Administration of Justice Ad 1982 (c. 53, SIF 37), s. 64

F3    S. 1 (1 A) inserted (19.9.2007) by Tribunals, Courts and Enforcement Ad 2007 (c. 15), ss. 60(2), 148(1)

F4    Words in s 1(2) inserted (19 9 2007) by Tribunals, Courts and Enforcement Ad 2007 (c. 15), ss. 60(3), 148(1)

F5    Words substituted by Courts and Legal Services Ad 1990 (c 41, SIF 37), s 71(2), Sch. 10 para. 25

F6 S. 1(5) repealed (16 4.2007) by Justice (Northern Ireland) Ad 2002 (c. 26), s 87(1), Sch. 13; S.R 2007/237, art 2, Sch para 7(a)

Discussion

Recommendation 27.

Recommendation 28.

SUPERSEDED RULES

Removing superseded provisions from the Rules

Recommendation 29.

THE PUBLICATION, PRESENTATION AND UPDATING OF GUIDANCE

The Immigration Rules no longer contain all or indeed most of the policy that is to be implemented, which is of course their primary purpose. The policy is separately provided in - if I may say so - rather dense and unconsolidated guidance that one can access through the Home Office website, but that generally does not show you the previously existing guidance on the same topic, or how the guidance has changed. If you are an unwitting litigant ... your chances of accessing any of that material and putting it together in a coherent way are negligible.

Difficulties with volume and scope

For any one immigration category there can be multiple sources of guidance, sometimes cross-cutting over a number of categories (e.g. calculating continuous residence for indefinite leave to remain purposes), or sometimes approaching the immigration category from different perspectives (e.g. Tier 2 guidance, Tier 2 and 5 sponsorship guidance) of those involved in the same immigration category process. For a legal adviser, not to mention an applicant, the risk of missing crucial guidance is always a factor, as there is no cross-indexed list of all relevant guidance pertaining to each immigration category in one place.

The diverse range of guidance, the different formats and locations combines to add to the complexity of the Rules rather than provide clarity and assistance, the main aim of guidance.

A web search for “guidance leave to remain” produces a primary link to guidance on validation, variation and withdrawal of applications for leave to remain; that guidance (25 pages) has been updated 9 times since it was published in 2013. The Home Office publishes separate guidance on various aspects of leave to remain (which is not immediately apparent on a search) including on discretionary leave to remain (26 pages), refugee leave (11 pages), settlement protection / indefinite leave (47 pages), revocation of indefinite leave to remain (21 pages), calculating the continuous period of residence for the purposes of indefinite leave to remain (19 pages), restricted leave (35 pages), considering human rights claims (33 pages), Appendix FM family life (partner or parent) (125 pages), etc. More than one guidance document may be relevant to any given application. Finding most of this guidance requires prior (expert) knowledge of the difference between various categories of leave and the basis on which applications may be refused.236

A recent analysis of the guidance, as found online, may be instructive. Users are presented with 15 different sections. Some of these are self-explanatory and a “click”’ will lead to the relevant documents: for instance the tab “visitors” will lead the reader to four discrete policy statements dealing with different aspects of decisionmaking relating to visit applications. Others are more arcane. The “modernised guidance” tab will lead the reader to 16 further sub-headings, covering areas as varied and unconnected as the armed forces and “immigration intelligence”; these sub-headings lead in turn to a total of 176 policy documents.

GOV.UK

H o me

Visas and immigration operational guidance

Asylum policy

Business and commercial caseworker guidance

Enforcement

Entry clearance guidance

Fees and forms

Immigration directorate instructions

Immigration rules

Modernised guidance

Nationality guidance

Non-compliance with the biometric registration regulations

Rights and responsibilities

Sponsorship

Stateless guidance

Visitors

Windrush caseworker guidance


See latest changes to this content

From:                 UK Visas and Immigration

A to Z                          Appeals (modernised guidance)

Applications (modernised guidance) Armed forces (modernised guidance) Common travel area (modernised guidance) Criminality and detention (modernised guidance) EE A, Swiss nationals and EC association agreements (modernised guidance)

Enforcement and criminal investigations (modernised guidance) Family of people settled or coming to settle (modernised guidance) General grounds for refusal (modernised guidance)

Identity checks (modernised guidance) Immigration intelligence

Other cross-cutting guidance (modernised guidance)

Other immigration categories (modernised guidance) Returns and removals (modernised guidance) Studying (modernised guidance) Working in the UK (modernised guidance)

Difficulties in locating guidance

The Home Office efforts to flag relevant guidance on their immigration category website pages are haphazard and often reference entirely incorrect or irrelevant guidance.

Home Office Presenting Officers and counsel alike regularly resort to typing words into a general internet search engine in the hope that a relevant policy will appear.

Unless readers are aware that the document for which they are searching is at the end of one of these paths, they may have little hope of finding it. For instance, a “retired person of independent means” would need to go to the “immigration law and operational guidance” page, from there to “modernised guidance”, and from there to “other immigration categories”, before he or she could find the relevant document.

Sarah and David, a couple who came to the UK 11 years ago as students, who have two children born in the UK aged 6 and 10, one of whom is now a British citizen, and who wish to apply for leave to remain in reliance on article 8 ECHR rights under Appendix FM, would experience the following in finding their way to the two guidance documents most relevant to their application:

If they wanted to find the relevant guidance on the gov.uk website, they would need to navigate from the home page > “Visas and immigration” > “Family in the UK” > “Visas and immigration operational guidance”. Visas and immigration operational guidance then provides links to 15 different policy and guidance topics, none of which state that they relate to applications based on family and private life.

If Sarah and David click on each link, they will eventually find that the page on “Immigration directorate instructions” provides links to two pages about family migration: “Chapter 08: appendix FM family members (immigration directorate instructions)” and “Chapter 08: family members (immigration directorate instructions)”. Maybe they will know that Appendix FM applies to their application, and so go to that page. Or maybe they will try and navigate the various pages on Chapter 08: family members (immigration directorate instructions) - which include links to six pages, such as “spouses” and “children born in the UK who are not British citizens”. If they do, for example, select the link to “children born in the UK who are not British citizens” (which would, on the face of it, appear to be very relevant to their application), they may (if they are paying attention) notice that it only applies to applications made before 9 July 2012. If they do not notice that caveat, and open the guidance, they will be reading a guidance document which does not state that it does not apply to applications made after 9 July 2012, but which is entirely irrelevant to their application.

Even if they do select the first page (Chapter 08: appendix FM family members (immigration directorate instructions)), they will be directed to a page with links to 14 different guidance documents. One of these documents is relevant to their application (Appendix FM 1.0a: Family Life (as a Partner or Parent): 5-year routes and exceptional circumstances for 10-year routes), but the other [relevant document] (Appendix FM Section 1.0b: family life (as a partner or parent) and private life: 10-year routes) [is not provided].

To find the other (more relevant) guidance document, they would have to go back to Visas and immigration operational guidance, and keep clicking through each of the 15 links on that page until they select “Modernised guidance”. There are 16 links on that page, one of which is relevant to their application: Family of people settled or coming to settle (modernised guidance). On that page, they will find a link to Appendix FM 1.0b: family life (as a partner or parent) and private life: 10-year routes.

Another way they may be able to navigate to the guidance from the home page is by following “Visas and immigration” > “Family in the UK” > Family visas: apply, extend or switch. They would then need to work through this guide, and hopefully notice that on the page on “Apply as a parent”, there is a suggestion that they should “Read the guidance for parents before applying”. That is the only page where it suggests that the applicant should read guidance (there is no link to the guidance on the pages for applying as a partner or spouse, a child, an adult coming to be cared for by a relative or on the basis of your private life). The “guidance for parents” again takes applicants to the page with the link to one of the guidance documents (Appendix FM 1.0a: Family Life (as a Partner or Parent): 5- year routes and exceptional circumstances for 10-year routes), but not the other guidance document (Appendix FM Section 1.0b: family life (as a partner or parent) and private life: 10-year routes).

I had to make a Home Office application by myself and gathered the information I needed online which was really difficult as the information online is neither clear nor easy to understand. Information about the application process is completely inaccessible, there’s too much information online and no way of knowing what's true and relevant to your case. I have made two applications, but through all my research I never once knew that there was any online guidance.237

Confusion between different sets of guidance

The modernised guidance approach may make the information more readily accessible to the general public, and the layout is preferable, but drafting guidance towards caseworkers is the easiest way to ensure that a harmonised message is conveyed to all that might have access to the guidance (caseworkers, legal representatives, the public) instead of the current situation where anyone attempting to interpret the guidance has to go through possibly three sets of guidance (for example Tier 2 guidance for applicants, Tier 2 caseworker guidance, and Tier 2 and 5 sponsorship guidance). The caseworker’s information must be definitive as it informs the casework decision-maker, so it should be possible to reduce sources of guidance to that which is made available to the caseworker. This would also help to eliminate slightly different interpretations of Immigration Rules (for example Tier 1 Entrepreneur job creation). It would also reduce the scope, or at least make it readily apparent if the caseworkers had access to restricted guidance which was not available to applicants and their legal representatives. (The modernised guidance format identifies the areas and often the reasons for the omissions. This supports greater transparency in caseworker decision-making because if there is a disparity in the interpretation the applicant/legal representative knows where the source of the disparity lies.)

The Home Office internal guidance is much more thorough and complete than the external guidance for applicants. Essentially, the information in the guidance for applicants about the required documents is very limited, and does not fit with the tests given in the guidance to the Home Office decision-maker. The two sets of guidance do not match which leaves the applicant at a disadvantage in not knowing what documents they will need to fulfil the genuineness test needed for a successful application.

Confusing titles

Difficulties caused by frequency of updates, failure to update or delays in updating, updating at short notice, and in identifying the relevant version to use

It can be hard ... to track changes to guidance... It changes frequently for reasons which are unclear, and even for experienced practitioners it can be difficult to keep track of which version is operational.

There does not appear to be in place a mechanism whereby Home Office Presenting Officers can be kept informed of relevant changes in guidance and enabled to identify what the guidance was at any particular point in time.

Guidance does not always reflect the latest Rule changes. For example, the Immigration Health Surcharge (IHS) increased on 8 January 2019 but the Tier 4 policy guidance published after this date, on 11 January 2019, did not include the revised IHS fee. Similarly, paragraph 245ZX(b)(i) of the Immigration Rules changed in January 2019 to permit part-time Tier 4 (General) students to extend their leave in the UK, but this was not reflected in the Tier 4 policy guidance either, even though there were few other amendments which came into force on that date.

Recently, it has sometimes taken over a week for guidance to be updated following Immigration Rules changes, which means that guidance relied on by applicants and caseworkers is often out of line with the legal requirements in force. For example, the Immigration Rules changed on 6 April 2019, but as of 17 April no Tier 4 guidance documents for sponsors, applicants or caseworkers have been updated. When changes came into force on 6 July 2018, the Tier 4 sponsor guidance was not amended until 13 July and the Tier 4 policy guidance for applicants was out of date until 19 July, without explanation or warnings.

The guidance is often updated at very short notice for Rule changes which have serious and highly inconvenient consequences for our students. The best (or worst) example of this was the change in Academic Progression rules. As advisers, we couldn't understand which cohorts it affected because it was so unclear. UK Visas and Immigration were clueless also - many of the staff members there have not been through higher education so have no understanding of the differences between a BEng and MEng for instance. Finally, we had to identify and email individual students who were affected due to course transfers, with no UK Visas and Immigration support, almost a month after the Rules had changed to advise them that they must now return to their home country at considerable expense and inconvenience to get new Tier 4 visas, when they had expected to simply renew in the UK.

Archiving: difficulties in locating previous versions of guidance

As with the Rules, some care is needed in relation to archiving guidance, so that the version in effect when a decision was made can be found easily.

It would be useful to have old guidances that have been superseded by newer guidances being easily accessible in one area/tab. They can be grouped by subject matter and date. A central place for old guidances is useful where a decision takes several months to reach and in the meantime the rules might have changed.

Where there have been previous versions of the guidance all of these should also be made available at the hyperlink/hover box. They should also be clearly labelled as to which application and refusal dates they apply and the dates they were in force. For example: “This guidance was in force from X date to X date and applies to applications which were made between X date and X date and to decisions made by the UK Visas and Immigration on X date to X date”. The reason why the insertion of the dates is important is that it is often difficult for the user to identify any transitional provisions which sometimes use application dates and sometimes use decision dates. At present it is very difficult to locate previous versions of guidance.

The positive aspect: where guidance makes it easier to understand the Rules

Some guidance is helpfully published and updated on a very regular basis ... In respect of presentation, guidance is frequently laid out in a format which is easy to read, text searchable and hyperlinked.

The efforts to group relevant guidance, for example for employers/educational providers, or prevention of illegal working are better examples of how the Home Office have organised and grouped relevant up-to-date guidance.

The glossary of terms and the table confirming changes made to the preceding Tier 4 policy guidance near the beginning of the document are helpful. However, the table of changes would be even more helpful if it were complete - we usually identify additional amendments which have not been noted, which means we have to check the whole document every time in spite of the table of changes.

I still sometimes struggle to find the correct guidance and, when I do, to be absolutely sure which version was in force at the relevant date. I imagine it is even harder for those outside of the department, However, in fairness to my colleagues, I do consider that there has been some progress on this in recent years, with an attempt to standardise the format of guidance documents, and to publish online archives. I think there is still some way to go on this though.

The relationship between guidance and the Rules

If the Rules are clear and complete there should be no necessity for guidance save where there is discretion to be exercised.

Discussion

Recommendation 30.

Recommendation 31.

Recommendation 32.

Recommendation 33.

Recommendation 34.

Recommendation 35.

Recommendation 36.

Recommendation 37.

INSTANCES WHERE GUIDANCE CONTRADICTS THE RULES OR CAUSES DIFFICULTY IN PRACTICE

Guidance contradicting the Rules

An example would be the guidance in respect of paragraph 276ADE, the provision relating to claims for leave on “private life” grounds. One of the requirements in the Rule is that a certain class of applicant must demonstrate that there are “very significant obstacles” to integration in the country to which they will be returned. Caseworkers seeking guidance on what that test requires are instructed that the returnee must be able to demonstrate they would be “unable to establish a private life”: if nullification of the right is what is required, there seems to be a case that the Rule itself should say so.

Guidance misinterpreting the Rules

Guidance importing requirements not found in the Rules

For example the guidance says that a person with Short-Term Student (Child) leave must intend to leave within 30 days of the end of their study. However, this is not stipulated in the Rules.

Erroneous cross-references

Absence of guidance for applicants

Causes of error and inconsistency

Overlooking of guidance

THE ACCESSIBILITY OF APPLICATION FORMS AND THE APPLICATION PROCESS

Finding application forms

You have to first select “extend your visa” from a list of options on the General Student Visa (Tier 4) page on gov.uk. Not all students understand what “extend” means in relation to renewing a Tier 4 visa. They then scroll and select “Apply online” and scroll again to select “Apply now”. These last two options are easy to miss because they are on pages which contain a lot of information. It's also not clear why the gov.uk page isn't called Tier 4 (General) Student visa, which is surely more accurate. However, once in the application it is mostly very straightforward with useful explanations by each question.

Knowing which is the right application form to use

It is often very unclear which form is supposed to be used. It is probably the most common question I get from solicitors. The titles of the forms or the categories used refer only loosely to the categories of application under the Rules. Guidance is given in the forms themselves but it is brief, inaccurate, and inadequate. There is a need for guesswork. Definitions are used with their origins in internal policy and unrelated to categories or terms in the Rules.

Application form titles are obscure, and often do not indicate clearly which kinds of valid applications can be submitted on them. For example, “Application to extend stay in the UK: appendix 1 FLR(FP) FLR(O)” was previously the correct form to submit if applying for a fee waiver, and “Application to extend stay in the UK: form FLR(FP)” was the correct form for an initial application under several Immigration Rules in Appendix FM, and not just for renewal applications.

First and foremost the mistake that I find our students sometimes make is in using the wrong application form ... Without the help of a legal practitioner, the applicant is prone to incomplete (invalid) applications or incorrect applications.

Recently, when making a renewal application, I printed off the wrong form and this could have been a terrible waste of money if I wasn't corrected by a friend who had already been through the application process. It wasn't clear what form was needed or the fact that they change every so often.245

Lack of an appropriate application procedure

The applicant is required to apply under the closest applicable Rule, pay the relevant fee for that application and rely on the decision-maker to correctly consider the application under article 8 ECHR when the “application under the Rules” is invariably refused.

Inability to view the online version of the application form in full

Design

Application forms are far from user friendly. They have the look (and probably the history) of piecemeal reconstruction via different committees without a sense-check of the overall form. There should be consistency in their structure across all forms.

Linking the Rules, guidance and application forms

If all relevant Immigration Rules and guidance were grouped together, this could benefit the structure of, and questions in, the forms. Hopefully, it would help those who create the online forms to know which questions are needed for different applicants, and which are redundant or risk leading an applicant down the wrong route. Our experience of being consulted is that we have spent many hours attending meetings and collating screen shots to show where forms go down the wrong route or ask questions which are incorrect or not clear, but our feedback and that of our many institutional members is regularly not taken into account.

Although very different in content and purpose, both are called “guidance” which could make a layperson who has been told that guidance exists simply refer to the guidance available on the form.

The streamlined system needs to link the relevant Rule(s), which needs to link to the relevant form, which needs to link to the relevant policy guidance and published instructions to Home Office caseworkers.

The whole system lacks the perspective of the immigrant who must - from a different cultural and knowledge base - navigate what guidance and forms are publicly available and make an application.

There is a potential rule of law issue. If we have expectations of applicants in making a successful application, the state should make it reasonably possible for these applicants to understand what is required with the ability and opportunity to submit an application.

Discussion

Recommendation 38.

THE EFFECT OF HYPERLINKS ON THE CHOICE OF STRUCTURE FOR THE RULES

The Rules have to be passed as a body of text and be capable of being printed e.g. in refusal letters, skeleton arguments, or appeal grounds. An over-dependence on technology is not the way to go.

Effective operation of hyperlinks

Any hyperlink needs to open as a new tab in a browser to prevent people losing where they are in the Rules as it seems likely there may be a number of tabs open at once as someone seeks to navigate across the Rules, Definitions, Guidance and Forms.

Index page

Discussion

Recommendation 39.

INTERFACE BETWEEN THE RULES AND GUIDANCE

Impact of the approach taken to the structure of the Rules

Approaches to linking

Whilst guidance documents should be available in pdf format, we would suggest that the default format when linking to guidance from the Rules should be html. This will avoid users having to switch between different programmes when considering a Rule alongside relevant guidance, which could cause particular difficulties when using a mobile device.

If guidance relevant to a particular provision spans multiple paragraphs located at various points in a lengthy guidance document (or multiple documents), this will not be practicable.

Additional mechanisms

Discussion

Recommendation 40.

ONLINE APPLICATION FORMS

Benefits of the online application system

Problematic aspects of the system

Digital exclusion

Many of the forms are online and while this is easier for some people to access, there are some individuals who have no online access and some who may struggle with computers or new technology thus cannot access forms and end up being unintentionally marginalised or discriminated against.

Although support for digital access for Home Office applicants is offered through a third party called “We Are Digital”[268], there is some cost incurred in accessing their helpline, and there is no evidence that any support can be provided for applicants who are both digitally excluded and who do not speak English. Considering the demographics of the potential users of this service, no obvious or advertised language support seems to be a serious omission.

We would resist a shift to a wholly online system. Many of our clients have very limited or no access to computers and some come into our office in order to be able to fill in their forms. Suggesting applicants can use public computers in local libraries or other public buildings is not an adequate response. Where library computers are available, they are subject to a booking system often limiting that person’s access to an hour at a time. On average, we have found that filling in an online form can take between 3 and 6 hours. Asking vulnerable people to fill in personal forms in a public space may also give rise to security risks.

I feel for the older generation because the online application is a huge change and it would be good to have a visual presentation of how to use the system. For example, video/ YouTube explanation of how to use the system would be great. The system is simple for young people like me because we’re used to navigating computers, but my dad and his friends are not.

Mechanisms to avoid exclusion

Practical issues raised by online application forms

When you try to navigate the gov.uk page, there are so many acronyms and codes, and so many things you have to get through to get to the right application. It would be nice if there was a tick list to narrow this down and get to something that applies to you.

Inability to view forms before completion

Currently, we can neither print off nor download the forms, which gives us no opportunity to share and discuss them with the client before we have to start filling them in. In our experience, this is likely to increase the amount of time we have to spend with clients to complete the form. We strongly recommend that changes. Other government online systems, including HM Revenue and Customs’ tax forms and guidance, provide both downloadable versions of the relevant forms as well as the option to complete the form online, allowing people time to prepare their online response before having to fill it in.

Goldsmith Chambers identified an additional benefit of having downloadable forms for applicants seeking advice, namely enabling advisers to provide support to applicants without having to rely on online access. CCLC and Let Us Learn added that they are no longer able to go through the forms with individuals at drop-in services because of the lack of computers there.

The need for “dummy answers”

Respondents told us of the practice of inserting some form of answer to a question, simply in order to be able to progress to the next question; they referred to these as “dummy answers”. The Law Society of England and Wales also maintained that applicants are sometimes asked questions to which no accurate answer can be given in their case and are required to provide incorrect answers.

The online form does not let you go to the next step if you do not put in the right or relevant information. Also, every time you go to the next stage, the system reminds you that everything must be accurate. And some things aren’t straightforward, such as knowing whether the head of the household is the landlord or an individual who resides in the household. I had to go back to change things that were not completely correct before I could carry on. Some people might just start completing the form and say, “I don’t have this information, I can’t go forward” so they give up at that point if they don’t have a caseworker or a lawyer. It is a good thing that there is no time limit on the form once you have started completing it.

What is needed more than anything are free text boxes on the form to allow legal advisors and applicants to provide further case specific information that can address the inconsistencies and inaccuracies in the form ... As we are aware that the document scanning process does not sufficiently flag cover letters which would normally clarify issues, we are concerned about the ability of applicants to accurately present their situation via the on-line application system and therefore avoid adverse credibility issues against applicants that the forms encourage.

Misleading information

Technical issues

This is the kind of technical glitch that someone who is not particularly digitally literate will really struggle to overcome - especially when working against tight deadlines and at risk of becoming undocumented.

Communication with the Home Office

If there are technical issues and no other method of submitting an application, this can cause serious issues if an applicant needs to submit that day due to their leave expiring. If technical issues cannot easily be resolved, this could result in out of time applications.

The EU settlement scheme works so much more smoothly. They get an automatic acknowledgement as soon as they apply. It shows that the system discriminates against people of colour.

In-person appointment system: document upload

A worrying development in the new on-line application system worth mentioning is that applicants, once they have uploaded documents on the application website, have limited, if not no ability at all to check the uploaded version is intact. With the lack of means to communicate with the Home Office, and the fact that much of the scanning could be done by its third-party partner agency (Sopra Steria, VFS, TLS) who could easily introduce errors (for example by refusing to scan each page of a passport which has actually happened to two clients in the Sopra Steria run London premium lounge) the risk to applicants against having their application fairly assessed on the documents they believe they have submitted is substantial.

Booking appointments

My mum lives in Portsmouth and she had to go all the way to Cardiff. Her application is complicated and she has anxiety therefore she couldn't go alone - she was so terrified she would make a mistake. Because of the complication of her application she then had to pay extra money for her lawyer to go with her all the way to Cardiff and for them to stay there because it's so far. It was also hard booking a date for the centre as some are more booked up than others forcing people to have to go really far and spend even more money on top of their fees.

Some Tier 4 sponsors feel that they are being forced into paying thousands of pounds to have pop-up services so that their students do not waste time and money travelling to attend appointments when they should be studying.

applicants were unable to book appointments because the Home Office failed to send them a security code following payment of their application, and the helpline was not answered for many days. UKCISA also criticised the online booking system for requiring applicants to “choose the type of service (and level of fee) before they can see the availability of appointments in different locations”.

Discussion

Recommendation 41.

FUTURE TECHNOLOGY

Signposting alternative application routes

A form that is too tailored may prevent an applicant from ever realising what other information he or she could have provided or whether there was an alternative route which may have been open.

Online application systems could be risky if they just tell you to go down one route and don’t also explain that there might be another. If you are under 18, you might be able to apply for citizenship. The system should show all the alternatives, or tell applicants to seek legal advice.

Current tools are not sufficiently sophisticated. For example, people who say they want to study in the UK for six months or less are given only the option of applying for a short-term student visa, whereas Tier 4 may be more appropriate. Similarly, the tool does not take into account that applicants often have more than one purpose in seeking to come to the UK.

Improvements to the end-to-end process

Assisted decision-making

A similar approach could be taken with immigration decisions. Highlighting cases most likely to go to appeal would prompt caseworkers to spend more time on applications, preventing them from going through an even longer and more expensive process of appeal. It could flag cases for a second look, using the layer of senior caseworkers to review and confirm. Any trends could be fed through into training, alerting new caseworkers to common issues and providing them with greater support.

Discussion

Recommendation 1.

Paragraph 1.21

Recommendation 2.

Paragraph 2.58

Recommendation 3.

Paragraph 5.133

Recommendation 4.

Paragraph 5.134

Recommendation 5.

Paragraph 6.31

Recommendation 6.

Paragraph 6.45

Recommendation 7.

Paragraph 6.91

Recommendation 8.

Paragraph 6.92

Recommendation 9.

Paragraph 6.100

Recommendation 10.

Paragraph 6.117

Recommendation 11.

possible, consistently with keeping them reasonably short;

Paragraph 7.7

Recommendation 12.

Paragraph 7.13

Recommendation 13.

Paragraph 7.27

Recommendation 14.

Paragraph 7.38

Recommendation 15.

Paragraph 7.43

Recommendation 16.

(and not 1AA and so on); and

and so on;

Paragraph 7.60

Recommendation 17.

Paragraph 7.69

Recommendation 18.

Paragraph 7.73

Recommendation 19.

Paragraph 7.77

Recommendation 20.

Paragraph 7.88

Recommendation 21.

Paragraph 7.110

Recommendation 22.

Paragraph 8.47

Recommendation 23.

Paragraph 8.48

Recommendation 24.

Paragraph 8.66

Recommendation 25.

Paragraph 8.90

Recommendation 26.

Paragraph 9.20

Recommendation 27.

Paragraph 9.49

Recommendation 28.

Paragraph 9.50

Recommendation 29.

Paragraph 9.56

Recommendation 30.

Paragraph 10.60

Recommendation 31.

Paragraph 10.61

Recommendation 32.

Paragraph 10.62

Recommendation 33.

Paragraph 10.63

Recommendation 34.

Paragraph 10.64

Recommendation 35.

Paragraph 10.65

Recommendation 36.

Paragraph 10.66

Recommendation 37.

Paragraph 10.67

Recommendation 38.

Paragraph 10.103

Recommendation 39.

Paragraph 11.18

Recommendation 40.

Paragraph 11.30

Recommendation 41.

Paragraph 11.79

This appendix presents a list of events and meetings that the Law Commission attended during the consultation period (21 January to 3 May 2019) and those held after the consultation period ended.

Date

Event

Location

05/02/2019

Upper Tribunal (Immigration and Asylum Chamber) training event

Midhurst

26/02/2019

Meeting with the Law Society of England and Wales’ Immigration Law Committee

London

08/03/2019

Meeting with Immigration Law Practitioners’ Association

London

11/03/2019

Meeting with the senior judiciary

London

13/03/2019

Meeting with the National Audit Office

London

18/03/2019

Meeting with Dr Joseph Tomlinson, Lecturer in Public Law, King’s College London

London

20/03/2019

Meeting with Coram Children’s Legal Centre and Let Us Learn

London

22/03/2019

Meeting with the Bar Council

London

01/04/2019

Meeting with the Public Law Project

London

04/04/2019

Meeting with the First-tier Tribunal (Immigration and Asylum Chamber), Taylor House judges

London

08/04/2019

Meeting with the First-tier Tribunal (Immigration and Asylum Chamber), Hatton Cross judges

London

09/04/2019

Meeting with the Joint Council for the Welfare of Immigrants

London

11/04/2019

Meeting with the Institute for Government

London

24/04/2019

Let Us Learn workshop

London

25/04/2019

Public Law Project annual conference

Cardiff

30/04/2019

Meeting with HM Courts & Tribunals Service (Luc Altmann, Deputy Head of Insight)

London

31/05/2019

Meeting at Croydon Core Service Point (UKVCAS)

London

03/06/2019

Visit to family casework teams (UK Visas and Immigration)

Sheffield

04/06/2019

Meeting with Government Digital Service, UKVI Customer Insight, and Home Office Digital Communications

London

05/06/2019

Meeting with the Independent Chief Inspector of Borders and Immigration

London

05/08/2019

Law Commission - Home Office workshop

London

Appendix 3: Poster



Introduction

Index

Common provisions

Post-decision matters: service of notices and administrative review

Deportation

Specific routes of application

Appendices

General drafting style

more;

inevitable;

inevitable;

might or might not be true;

Numbering

on);

Roman numerals.

section, the number should be preceded by a letter, starting with “A” (A1, B1, C1 and so on); a section or paragraph inserted before “A1” (or “ai”) is “ZA1” or (“zai”); for example 1.A1.1 or 1.1.A1;

paragraph (a) should be (za), (zb) and so on, and paragraphs inserted before (za) should be (zza), (zzb) and so on;

the same kind (for example, a new paragraph at the end of a Part or a subparagraph at the end of a paragraph), the numbering should continue in sequence;

between existing sections or paragraphs:

new provision between 1AA and 1B should be 1AB not 1AAA, however a new provision between 1AA and 1AB should be 1AAA);

and lettered paragraphs, for example:

and contains a potentially confusing quantity of inserted numbering, consider re-numbering the portion of text in question, even if this entails changing the numbers of existing paragraphs.

Titles and subheadings

possible, consistent with keeping them reasonably short;

in the interests of clarity;

understanding;

Part title;

Contents pages

Cross-referencing

Definitions

CCS1219728816

978-1-5286-1712-3

1

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 2.23 and 2.33. See chs 2 and 3 for a full survey of the place of the Immigration Rules in the overall system of immigration control.

2

See, for example, Pokhriyal v Secretary of State for the Home Department [2013] EWCA Civ 1568, [2014] INLR 291 at [4].

3

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 1.4 to 1.6.

4

T Bingham, The Rule of Law (2010) p 37.

5

R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33, [2012] 1 WLR 2208. The decision of the Supreme Court in Alvi determined that s 3(2) of the Immigration Act 1971 requires that anything laid down by the Secretary of State that amounts to a requirement that a migrant must satisfy as a condition of being given leave must be contained in the Immigration Rules if it is to be enforceable.

6

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, ch 5.

7

This phenomenon is not confined to the Immigration Rules. The potential for a prescriptive approach to produce complexity and uncertainty has also been observed in social security regulations: “Their complexity may increase the uncertainty that detailed prescription and greater precision were intended to minimise”. (N Harris, Law in a Complex State: Complexity in the Law and Structure of Welfare (2013) p 7).

8

  Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, ch 7.

9

  Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, chs 9 and 10.

10

  Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, ch 4.

11

  Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, ch 13.

12

  Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, ch 1.

13

  Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, ch 6.

14

  Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, ch 8.

15

  Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, chs 9 and 10.

16

  Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, ch 11.

17

  Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, chs 12 and 13.

18

  Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, ch 14.

19

This is a schedule to a piece of amending legislation setting out the text of the legislation being amended with the amendments incorporated.

20

  Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 1.27.

21

  Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 1.35.

22

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 1.19.

23

  Also see ch 5 of this report for a discussion on how prescription can lead to frequent amendment of details.

24

  See ch 8 of this report for a discussion of mechanisms for amendments to the Immigration Rules and for

keeping the amended Rules under review.

25

Rules that contravene the European Convention on Human Rights will also contravene a broader principle of legality, in that they will be unlawful under section 6 of the Human Rights Act 1998.

26

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 1.32 to 1.33. We also recognised that the legislative context of the Rules, as laid down by the Immigration Act 1971, is to provide guidance “as to the practice to be followed in the administration of this Act”. In this sense, the role of the Rules is to provide practical guidance to caseworkers. See Immigration Act 1971, s 3(2) and Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 2.20 and 3.3.

27

  Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 1.33.

28

  Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 1.34 to

1.35

29

  See below at paras 2.44 to 2.46 and 2.55 to 2.56 for a discussion of the different types of non-expert user.

30

  Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 1.20.

31

These responses were provided as part of the CCLC and Let Us Learn joint response.

32

In its formal response to the Windrush Compensation consultation, the Home Office noted that: “The Government’s position is that obtaining legal advice is not necessary in making an immigration application and that no advantage in the application process should accrue to people who choose to access, and are able to afford legal advice, over those who cannot”. See https://www.gov.uk/government/consultations/windrush-compensation-scheme (last visited on 17 September 2019) para 4.15.

33

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 1.33.

34

  The financial burden this creates for Higher Education Institutions is discussed in paras 3.35 to 3.36 below.

35

  Our consultation paper included reference to some of the comments made by senior judges. See

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 1.5, citing criticism of the Rules as “Byzantine” in Pokhriyal v Secretary of State for the Home Department [2013] EWCA Civ 1568, [2014] INLR 291 by Jackson LJ at [4], and of their “rebarbative drafting” in Singh v Secretary of State for the Home Department [2015] EWCA Civ 74, [2015] WLR(D) 66 by Underhill LJ at [59].

36

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 1.35.

37

The first result from an official source is: https://www.gov.uk/standard-visitor-visa/apply (last visited 16 September 2019) and then https://www.gov.uk/browse/visas-immigration/tourist-short-stay-visas (last visited 16 September 2019) (which directs applicants through to the first link).

38

See chs 10 and 11 for discussion of the ways in which guidance and application forms can be made more accessible and connect better with the Rules. See paras 11.85 to 11.87 for discussion of the users’ experience of an initial online search and the “end-to-end process”.

39

See Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 1.20 and Reed Dickerson, “The Diseases of Legislative Language” (1964) 1 Harvard Journal on Legislation 11.

40

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 1.40 and see also the Home Secretary’s statement to the House of Commons on the Windrush generation (23 April 2018): https://www.gov.uk/government/speeches/home-secretary-statement-on-the-windrush-generation (last visited 21 December 2018).

41

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 2.25.

42

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 1.26. The relationship between the Rules and guidance is discussed further in ch 10.

43

This is a festival for which a certificate of sponsorship under the points-based system is not required.

44

Our draft impact assessment was not able to quantify cost savings for applicants and therefore asked practitioners and other consultees for evidence on these cost savings if the Rules were to be simplified.

45

See also para 2.38 above.

46

Sunday Times v United Kingdom (1979) 2 EHRR 245 (App No 6538/74) para 49.

47

  R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33, [2012] 1 WLR 2208.

48

  Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, ch 5.

49

On 23 October 1972 the Secretary of State laid two sets of Immigration Rules before Parliament: a Statement of Immigration Rules for Control on Entry (Cmnd 4606), and a Statement of Immigration Rules for Control after Entry (Cmnd 4792). These Rules were 17 and 20 pages long. The statements were disapproved after a debate on the floor of the House of Commons on 22 November 1972. But they were the Rules under which the Act was administered until two new sets of Rules, one for Commonwealth citizens and the other for foreign nationals, were laid on 23 January 1973: HC (1972-1973) HC 79-82. The current Immigration Rules have their origin in a Statement of Changes in the Immigration Rules (HC 395) which was laid before Parliament on 23 May 1994. This extended to 80 pages. For this account of the history of the Immigration Rules, see the judgment of Lord Hope in R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33, [2012] 1 WLR 2208 at [10 -11].

50

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 5.2 and 5.3.

51

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 5.4 and 5.5.

52

Secretary of State for the Home Department v Pankina [2010] EWCA Civ 719, [2011] QB 376.

53

  R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33, [2012] 1 WLR 2208.

54

  Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 5.14 to

5.16.

55

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 5.25 to 5.27.

56

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 5.28 to 5.41.

57

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 5.42 to

5.52.

58

See for example KO (Nigeria) v Secretary of State for the Home Department [2018] UKSC 53; [2018] 1 WLR 5273.

59

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 5.42 to

5.52.

60

For further reference to the introduction of subjective requirements into the Immigration Rules, see para 5.6 below.

61

  Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 1.22.

62

  Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 1.5.

63

  Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 6.7, 6.8

and 6.89.

64

See Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 1.10.

65

  Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, ch 3.

66

  Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, ch 5.

67

  Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, ch 6.

68

  Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 6.9 to

6.22.

69

  Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, ch 6.

70

  Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 6.23 to

6.31.

71

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 6.33 to

6.49, citing the New Zealand Operational Manual, available at https://www.immigration.govt.nz/opsmanual (last visited 5 November 2019).

72

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 6.52 to 6.64.

73

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 6.67 to 6.71.

74

  Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 6.79.

75

  Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 6.80.

76

  Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 6.73 to

6.78.

77

See Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 6.83 to 6.85 for further examples of Levels 1, 2 and 3 drawn from the entrepreneur and skilled worker routes.

78

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 6.90.

79

This is a charitable organisation who were involved in the second Private Beta Testing Phase for Appendix EU.6. They assisted 12 women and their dependants to make applications.

80

See the comments of the First-tier Tribunal (Immigration and Asylum Chamber) judges below at para 5.37 in relation to the decision in Balajigari v Secretary of State for the Home Department [2019] EWCA Civ 673; [2019] 1 WLR 4647. For further concerns about automated data checks, see also Open Rights Group and ILPA, EU Settled Status Automated Data Checks, February 2019, examining the scope of legal duties to give reasons for data check outcomes and the need for supervisory control by caseworkers. Available at https://www.ilpa.org.uk/resources.php/35141/ilpa-and-open-rights-group-briefing-paper-eu-settled-status-automated-data-checks-19-february-2019 (last visited 17 September 2019).

81

The enrichment system has been analysed by the Independent Chief Inspector for Borders and Immigration: see

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/631520/A n-inspection-of-entry-clearance-processing-operations-in-Croydon-and-Istanbul1.pdf (last visited 17 September 2019).

82

Their response also emphasised the impact on applicants of a refusal decision over time. Once an applicant has been rejected two or three times, it may be impossible for them ever to obtain a visit visa. They saw this as a further aspect of the process by which procedures and practices become more detached from the Rules themselves.

83

See the consultation analysis table for Consultation Question 13 for the full example given.

84

See the consultation analysis table for Consultation Question 13 for sources and further detail.

85

Balajigari and Ors v Secretary of State for the Home Department [2019] EWCA Civ 673; [2019] 1 WLR 4647, in which the Court of Appeal found that the Secretary of State should, before applying a discretionary ground for refusal, give applicants an opportunity to proffer an innocent explanation when discrepancies in financial information were found between figures provided by the applicant and those provided directly to the Home Office by HM Revenue and Customs.

86

See the consultation analysis table for Consultation Question 15 for the detailed figures given in this response.

87

  Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, chs 5 and 7.

88

  Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 6.84 to

6.85. Level 2 includes some minimum standards, but leaves elements beyond that to the caseworker's judgement.

89

See the consultation analysis table for Consultation Question 16 for the full detail given in the example.

90

We take no view as to the effectiveness of internal mechanisms for the administrative review of immigration decisions, but note that the Independent Chief Inspector for Borders and Immigration (“ICIBI”) has published two reports on administrative review processes. These are available at

https://www.gov.uk/government/publications/inspection-report-on-administrative-review-processes-may-2016 (last visited 17 September 2019) and https://www.gov.uk/government/publications/inspection-report-on-a-re-inspection-of-the-administrative-review-process-july-2017 (last visited 17 September 2019). In May 2019, the ICIBI commenced a third inspection of the administrative review process, which sought to review the progress made on the recommendations made in previous reports, and also to address a number of additional issues identified within the system. The report will be published in 2020.

91

For example, para 10(b)(ii) of Appendix FM, discussed in Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 5.46, referred to “a financial institution regulated by the Financial Services Authority”, which subsequently needed to be amended to the “Financial Conduct Authority (and the Prudential Regulation Authority where applicable)”. It might be sufficient to refer to “a regulated financial institution in the UK”.

92

See for example the first and second reports on administrative review of immigration decisions by the Independent Chief Inspector for Borders and Immigration (“ICIBI”) which recommend improved quality assurance as part of improved administrative review mechanisms in order to identify errors and inconsistencies. Available at https://www.gov.uk/government/publications/inspection-report-on-administrative-review-processes-may-2016 (last visited 17 September 2019) and https://www.gov.uk/government/publications/inspection-report-on-a-re-inspection-of-the-administrative-review-process-july-2017 (last visited 17 September 2019). See also the ICIBI’s discussion of quality assurance mechanisms in the entry clearance context: A re-inspection of the family reunion process, focusing on applications received at the Amman Entry Clearance Decision Making Centre, 2018. Available at https://www.gov.uk/government/publications/a-re-inspection-of-the-family-reunion-process-focusing-on-applications-received-at-the-amman-entry-clearance-decision-making-centre (last visited 17 September 2019).

93

  Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, ch 7.

94

  See Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 7.9

to 7.16 for examples of the common provisions approach and of the exclusion or modification of common provisions.

95

See Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 7.17 to 7.21 for examples of the multiple parts approach within the current Rules.

96

Appendix FM quickly ceased to constitute a single booklet with the addition of Appendix FM-SE to the Immigration Rules. See Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 7.24 to 7.28.

97

See Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 7.29 to 7.47 for examples of these types of differences in wording within the current Rules.

98

See paras 6.46 to 6.48 below.

99

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 8.10.

100

The list of categories was set out after para 8.10 of the consultation paper, with a table of destinations at appendix 5 correlating the location of subject-matter in our proposed division of material to that in the current Immigration Rules.

101

See the consultation analysis table for Consultation Question 20 for the full detail of responses on this point.

102

See the consultation analysis table for Consultation Question 20 for his further examination of problematic areas of the current Immigration Rules. This raises matters of policy on which we do not comment.

103

See for example the provision in the current Immigration Rules for the Tier One (Entrepreneur) category stating that the category is now closed to new applicants, but retaining those provisions relevant to extension and indefinite leave applications: para 245D, as amended by the statement of changes to the Immigration Rules, HC 1919, 7 March 2019. In ch 9 we recommend that once a route is no longer open for any purpose, it should only appear in the archived sets of Rules.

104

See appendices 4 and 5 to this report.

105

See Appendix W, inserted by the statement of changes to the Immigration Rules, HC 1919, 7 March 2019. Our table of destinations has been updated to incorporate these categories. See appendix 5 to this report.

106

 Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 8.17.

107

 Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 8.8.

108

 Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 8.21.

109

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 8.30 to

8.32.

110

See the consultation analysis table for Consultation Question 21 for the detailed example.

111

 Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 8.17.

112

 Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 8.19 to

8.28.

113

For the latter, see paras 6.54, 6.59, 6.62, 6.63 and 6.68 above.

114

See para 6.56 above.

115

 See paras 6.57 and 6.61 above.

116

 See paras 6.66 and 6.74 above.

117

 See paras 6.73 and 6.74 above.

118

 See paras 6.53, 6.54, 6.60 and 6.78 above. See also the responses to Consultation Questions 51, 52 and

54 discussed in ch 11 of this report.

119

See ch 8.

120

See the case of Anthony Bryan, a Commonwealth citizen who arrived in 1965 and had “deemed leave” under the Immigration Act 1971, who first applied for leave to remain on human rights grounds in 2015, and was refused and detained: Joint Committee on Human Rights, Windrush generation detention, Sixth Report of Session 2017 - 2019, HC 1034 and HL 160, 29 June 2018, available at https://publications.parliament.uk/pa/jt201719/jtselect/jtrights/1034/1034.pdf (last visited 17 September 2019).

121

See 7.107 below. See also para 10.55 for discussion of the need for centralised oversight of guidance.

122

See para 6.5 above.

123

We discuss the need for clear links between the Rules and guidance in chs 10 and 11 of this report.

124

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 8.32.

125

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 8.39 to

8.49.

126

See the guidance on accessible formats in https://www.gov.uk/government/publications/inclusive-communication/accessible-communication-formats (last visited 17 September 2019) and the amendment to our drafting guidance in relation to the identification of definitions in appendix 6 to this report and discussed at para 7.99 below.

127

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 9.3 to

9.9.

128

In primary legislation the titles of Parts, Chapters, clauses and Schedules cannot be amended in Parliament; they are settled by the drafter and can be changed as a matter of printing by agreement between the drafter and the House authorities. As a result of this, their role in interpretation is limited: Craies on Legislation (9th ed, para 26.1.9) suggests that the courts will have regard to headings to obtain support for an interpretation that is indicated by other factors, but would be unlikely to rely on them to go against substantive provisions.

129

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 9.16 to 9.17.

130

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 9.18 to 9.19.

131

Form and Accessibility of the Law Applicable in Wales (2016) Law Com No 366, para 9.40.

132

 Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 9.32.

133

 Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 9.33. For

a discussion of the proposed division of material in restructured Immigration Rules, see the discussion in ch 6 above.

134

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 9.34.

135

See the drafting guidance at appendix 6 to this report.

136

Insertions are discussed at para 7.50 below.

137

We did not receive suggestions of alternative schemes. We note that one possible qualification to the scheme, which would reduce the complexity caused by insertions, is to leave space for insertions. In other words, provisions are initially numbered 10, 20, 30, and so on, in order to leave space between them. This is not an approach which has generally been employed in UK legislation, but it has been used in some other jurisdictions.

138

See ch 11 of this report.

139

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 8.10.

140

See appendix 4 to this report.

141

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 9.36, and see the Office of the Parliamentary Counsel, Drafting Guidance (2018), available at

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/727629/d rafting_guidance_July_2018.2.pdf (last visited 17 September 2019).

142

The provision originally appeared in para 11 of the proposed drafting guide in Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 10.54.

143

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 9.44 to

9.50.

144

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 10.2 to 10.43.

145

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 10.9.

146

 See the consultation analysis table for Consultation Question 36 for the full example.

147

 These are people not having an EU nationality who derive a right to remain in an EU country from having

caring responsibilities for a child who has an EU nationality in accordance with Case C-34/09 Gerardo Ruiz Zambrano v Office national de l’emploi [2011] ECR I-1232.

148

See the consultation analysis table for Consultation Question 36 for the full example.

149

See para 6.117 above.

150

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 10.12 to

10.23.

151

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 10.24.

152

See para 14 of our recommended drafting guide at appendix 6 of this report. The provision originally appeared in para 16 of the proposed drafting guide in Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 10.54.

153

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 10.27 to 10.35.

154

See ch 6 above.

155

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 10.37 to

10.43.

156

“Where the effect of a provision can be made clearer and simpler, but to do so involves drafting a greater number of subsections or multiple provisions, we have chosen to adopt this approach. We have prioritised clarity over brevity”, Sentencing Code (2018) Law Com No 382 at para 9.10.

157

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 10.54.

158

See para 12 of our recommended drafting guide at appendix 6 of this report. The provision originally appeared in para 13 of the proposed drafting guide in Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 10.54.

159

See paras 5 and 6 of our recommended drafting guide at appendix 6 of this report.

160

See Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 10.51.

161

See para 19 of our recommended drafting guide at appendix 6 of this report. The provision originally appeared in para 21 of the proposed drafting guide in Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 10.54. In this respect, there was an inconsistency in our consultation paper, as we use the # symbol to identify a definition in our specimen redrafting work. See paras 8.46, 10.5 and 11.10 of the consultation paper for other suggestions that the # symbol be used. Para 8.45 explained that the use of bold for definitions can produce a very cluttered text, and can make reading difficult for some readers. See also the discussion in this report at 6.109 to 6.115 above of the best way to identify a definition, and our recommendation of the # symbol at para 6.117 above.

162

See the guidance on accessible formats in https://www.gov.uk/government/publications/inclusive-communication/accessible-communication-formats (last visited 17 September 2019).

163

See para 13 of our recommended drafting guide at appendix 6 of this report. The provision originally appeared in para 15 of the proposed drafting guide in Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 10.54.

164

See para 16 of our recommended drafting guide at appendix 6 of this report. The provision originally appeared in para 18 of the proposed drafting guide in Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 10.54.

165

The Home Office does not publish a hard copy version of the consolidated Immigration Rules. We discuss other attributes required of a printable version of the Rules at paras 9.15 and 9.19 below.

166

The provision originally appeared in para 16 of the proposed drafting guide in Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 10.54

167

See the discussion at paras 11.12, 11.13 and 11.15 below in relation to Consultation Question 51.

168

The need for centralised systems to control consistency was also discussed in para 6.88 above in relation to the possible presentation of the Immigration Rules in booklet form, and is considered further in paras 10.55 and 10.66 below in relation to the oversight of guidance.

169

See para 3(e) of the drafting guide at appendix 6.

170

See Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, ch 11 and appendices 3 and 4.

171

Statement of Changes to the Immigration Rules, HC 1919, published 7 March 2019.

172

These included the use of Roman numerals in place of letters in sub-paragraphs, contrary to our drafting guidelines (for example in 4.3.1 and 4.3.3 in the redrafted Grounds for Refusal), and numbering errors in the cross-references in the redrafted sections of Appendix FM (for example in 12.3.3).

173

See the consultation analysis table for Consultation Question 42 for full detail.

174

 See paras 6.35 to 6.45 above.

175

 See paras 7.78 to 7.88 above.

176

See para 7.95 above.

177

These are set out in full in the consultation analysis table for Consultation Question 42.

178

 Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, ch 12.

179

 Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 12.3 to

12.8. The related issue of the legal status of the Rules is discussed at paras 3.3 to 3.21.

180

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 12.10.

181

See https://www.parliament.uk/business/committees/committees-a-z/lords-select/secondary-legislation-scrutiny-committee/role/ (last visited 23 September 2019).

182

R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33, [2012] 1 WLR 2208.

183

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 12.11 to 12.14. See also ch 5 of our consultation paper at paras 5.12 to 5.24 and the graph at para 5.35 for illustrations of the volume and complexity of some statements of changes. More recently, the statement of changes HC 1919, laid on 7 March 2019, numbered 296 pages. This included provision to close the entrepreneur route to new applicants, and introduced two new routes, the start-up and innovator routes.

184

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 3.21.

185

Migration Watch was one of those who neither agreed nor disagreed. They did not express a view as to the impact of the status of the Immigration Rules specifically on applicants, but noted more generally that judicial disagreement as to the status of the Rules was not satisfactory and needs to be resolved more authoritatively. In their view, the Immigration Act 1971 should be amended by stating in explicit terms that the Immigration Rules are delegated legislation. See the consultation analysis table for Consultation Question 6 for other views on this question, which was interpreted in different ways by different respondents.

186

The 2018 Act allows Ministers a choice of procedure in making regulations. Most regulations are first laid as "proposed negative instruments”. Committees in each House "sift" these proposed negative instruments in order to determine whether they contain material that would be more appropriate to the affirmative procedure. In the House of Lords, the sifting work is done by the Secondary Legislation Scrutiny Committee. See https://www.parliament.uk/business/committees/committees-a-z/lords-select/secondary-legislation-scrutiny-committee/stage-1-scrutiny-sifting/ (last visited 23 September 2019).

187

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 12.15 to 12.18.

188

A grandfathering clause is a provision in a new rule which allows an old rule to continue to apply to some existing situations while the new rule will apply to all future cases.

189

 Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 12.21.

190

 Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 12.21

191

Discussed in ch 2 of this report.

192

 Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 12.22.

193

 Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 12.23.

194

See ch 2 of this report.

195

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, ch 13.

196

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 13.5 to 13.6.

197

 Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 13.7.

198

 Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 13.10. A

Keeling schedule is a schedule to a piece of amending legislation setting out the text of the legislation being amended with the amendments incorporated. For a discussion of the advantages and disadvantages of Keeling schedules, including issues of cost and technological requirements, see the 14th report of the Select Committee on the Constitution:

https://publications.parliament.uk/pa/ld200304/ldselect/ldconst/173/17306.htm (last visited on 23 September 2019) paras 88 to 98. Alternatives such as the incorporation of the amended legislation into the explanatory memorandum are also discussed.

199

The Bar Council looked further at the potential of technology to transform presentation of the Immigration Rules in response to our consultation questions concerning archiving and online systems. See para 9.39 below.

200

 (2016) Law Com No 366 paras 8.71 to 8.90. In practice there is a distinction between “formal” and “informal”

Keeling Schedules. In primary legislation a formal Keeling Schedule forms part of the Bill, and eventually of the Act. (For example, the Charities Act 1992 amended sections 4 and 20 of the Charities Act 1960. The substantive amendments were made by sections 2 and 8 of the 1992 Act, and versions of sections 4 and 20 of the 1960 Act as so amended were set out in a formal Keeling Schedule: Schedule 1 to the 1992 Act.) Our report mentioned that formal Keeling schedules were not popular with legislators and parliamentary counsel because of the work involved in amending them where a Bill is amended during its passage and of the risk of inadvertent inconsistency between the Bill’s clauses and the schedule. We noted that in 2004 the House of Lords Select Committee on the Constitution recommended that, rather than Bills having a Keeling schedule in the strict sense, an “informal Keeling-type schedule” should be included in the explanatory notes to a Bill.

201

In 2014 the Office of the Parliamentary Counsel’s Good Law Project considered how to make explanatory notes more useful to readers: see The Office of the Parliamentary Counsel, Cabinet Office, Results and analysis of the explanatory notes survey July 2013 (June 2014). They found that people want practical information to help them understand the purpose and the effect of legislation, and set out steps as to how to make explanatory notes more useful to readers. Their approach was endorsed in the Law Commission report on the Form and Accessibility of the Law Applicable in Wales (2016) Law Com No 366 para 8.102.

202

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 13.53 to 13.56.

203

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 13.53 and 5.42 to 5.47.

204

HC 1779, published 11 December 2018, 40 pages; HC 1849, published 20 December 2018, 16 pages; HC 1919, published 7 March 2019, 296 pages; HC 2099, 1 April 2019, 8 pages; HC 2631, published 9 September 2019, 102 pages; and HC 170, published 24 October 2019, 86 pages.

205

See the consultation analysis table for Consultation Question 50 and Institute for Government, Managing Migration after Brexit, 2019, pp 35 to 39 and 47 to 48, advocating more systematic oversight of operations and formal feedback mechanisms. Available at https://www.instituteforgovernment.org.uk/publications/managing-migration-after-brexit (last visited 23 September 2019).

206

They gave the example of those contained in the Immigration Directorate Instruction for Appendix FM 1.7.

207

For the use of common commencement dates in bringing statutory instruments into force, see The National Archives, Statutory Instrument Practice, 5th ed, 2017, http://www.legislation.gov.uk/pdfs/StatutoryInstrumentPractice_5th_Edition.pdf at 3.12.19 and 3.12.20. Common commencement dates are 6 April and 1 October each year.

208

Odelola v Secretary of State for the Home Department [2008] EWCA Civ 308, [2009] 1 WLR 126; see also Odelola v Secretary of State for the Home Department [2009] UKHL 25, [2009] 1 WLR 1230.

209

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 13.13 to 13.33, which includes discussion of case law concerning transitional provisions.

210

 Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 13.3.

211

 It is unusual for this to be done but it has occurred, and has provoked litigation: see Simplification of the

Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 13.23 to 13.24.

212

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 13.34 to 13.37.

213

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 13.38 and 13.39.

214

I Macdonald and R Toal, Macdonald’s Immigration Law and Practice (9th ed 2015).

215

M Phelan and J Gillespie, Immigration Law Handbook (10th ed 2018).

216

See paras 9.43 to 9.46 below.

217

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 13.42 to 13.45.

218

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 13.48 to 13.49.

219

The benefits of annotated versions of the Immigration Rules in identifying the specific statements of change and the specific paragraphs of those statements relevant to each particular Rule are discussed in relation to the temporal application of the Rules at paras 9.9 to 9.10 above.

220

Hover boxes are explained and discussed further at 11.1 below.

221

We understand that the updating of primary legislation on legislation.gov.uk is almost complete, but that some updating of secondary legislation remains outstanding.

222

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 14.6.

223

Discussed at paras 9.13 to 9.15 above.

224

See para 9.20 above.

225

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 13.51.

226

At para 9.49 above.

227

At paras 6.18 and 6.25 above.

228

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 4.1 to 4.4.

229

R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33, [2012] 1 WLR 2208.

230

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 4.6 to 4.9, and see R (Munir) v Secretary of State for the Home Department [2012] UKSC 32, [2012] I WLR 2192, Mandalia v Secretary of State for the Home Department [2015] UKSC 59, [2015] 1 WLR 4546 at [29] and [36] and Lumba v Secretary of State for the Home Department [2011] UKSC 12, [2011] 2 WLR 671 at [28 to 30].

231

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 4.10 to 4.16.

232

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 4.10 to 4.31.

233

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 4.32 to 4.45.

234

See Hossain v Secretary of State for the Home Department [2015] EWCA Civ 207, [2015] 3 WLUK 368 and Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 4.17.

235

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 4.27 and 4.32.

236

See the Bar Council’s full response set out in the consultation analysis table of responses to Consultation Question 7 for the further example given of the complexity of guidance on Appendix FM provided to caseworkers.

237

This response was provided as part of the CCLC and Let Us Learn joint response.

238

See para 10.26 above.

239

See the consultation analysis table for Consultation Question 7 for more detail of this example. In summary, in deciding whether it is reasonable for a child to leave the UK, guidance applicable in February 2018 made a distinction between a child who has been in the UK for 7 years or more, and a child who is a British citizen. In the case of a British citizen child, it was stated that it would not be reasonable to expect them to leave the UK. The presence in the UK of another carer was given as a relevant factor in deciding whether the parent should be removed. In the updated guidance published in April 2019, the distinction between the two categories of children is removed, and the guidance reformulated to state that, as a starting point, such children would not normally be expected to leave the UK, but that other factors will need to be weighed which may make it reasonable for the child to leave the UK. The guidance refers more generally to the need for evidence that it would not be reasonable for the child to leave the UK.

240

See paras 11.19 to 11.30 below.

241

As discussed at paras 8.77 to 8.90 above.

242

For all the responses, see the consultation analysis table of responses for Consultation Question 8.

243

 [2019] UKUT 00072 (IAC)

244

A beta site is a pre-release of new software that is given out to users to try under real conditions. The beta label on a website shows that it is still being tested: see https://www.gov.uk/help/beta (last visited 25 October 2019).

245

 This response was provided as part of the CCLC and Let Us Learn joint response.

246

 See the consultation analysis table for Consultation Question 8 for the full detail of this response.

247

 See Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, ch 14.

248

 Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 14.3 to

14.7.

249

A hyperlink is a piece of text which, when clicked upon, takes the user (commonly) to another document. A sidebar is a column, placed on the right or left-hand side of a computer screen, containing a particular category of information. A common example in an email system is a column displaying the contents of the user’s inbox while the main part of the screen displays the text of a selected email. Sidebars can also be used to contain lists of hyperlinks.

250

The Home Office introduced hyperlinks in Appendix W which direct users to defined terms in Annex 1. This development also works on mobile phones. The hyperlink does not open a new page. The defined terms are underlined and in a different colour (blue) to the rest of the text.

251

A hover box is a box containing text which appears while the cursor is placed over particular words on a computer screen.

252

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 14.8 to 14.9.

253

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 14.11 to 14.15.

254

 Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 14.17.

255

 Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 14.16 to

14.21.

256

This is also discussed at para 7.104 above, when we observed that the version of the Immigration Rules which appears on gov.uk is in a format which is not easy to print.

257

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 10.54, at para 16. This proposal is maintained at para 14 of our recommended drafting guide at appendix 6 to this report.

258

A hypertext document contains links referring to other parts of the document, or to other external documents. It does not have to be read serially; the fragments of information can be accessed directly via the links contained in the document. The links embedded in a hypertext document are hyperlinks.

259

See, for example, the work of the Legal Design Lab at Stanford University, which seeks to bring together law, technology and design in order to build more human-centred legal products and services. These approaches emphasise the use of visual design to transform how legal information is presented to lay people, and set out principles for effective visuals which combine discrete sections of text with strategic accents such as colour and bold type. See http://www.legaltechdesign.com/ (last visited on 23 September 2019).

260

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 14.9.

261

For more detail on this point, and the need to ensure consistency between Rules and guidance, see the discussion on reducing complexity in guidance in ch 10 of this report.

262

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 14.9.

263

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 8.49 and 14.5.

264

See paras 10.60 to 10.67 above.

265

For an analysis of the legal and practical aspects of the online application system, see J Kingham, “‘Computer says no’: facing up to the full implications of a digitised immigration system” (2019) Free Movement blog, available at https://www.freemovement.org.uk/computer-says-no-digitised-immigration-system/ (last visited 1 November 2019).

266

See the consultation analysis table for Consultation Question 53.

267

Recent research by the Law Society, published since our consultation, identifies the extent of barriers to effective internet use in the UK due to inadequate connectivity or lack of digital literacy: The Law Society, Technology, Access to Justice and the Rule of Law: Is technology the key to unlocking access to justice innovation? (September 2019) at pp 14 to 15: available at https://www.lawsociety.org.uk/support-services/research-trends/technology-access-to-justice-rule-of-law-report/ (last visited 17 September 2019).

268

“We are Digital” is one of the third-party providers of the Assisted Digital service provided by the Home Office. See https://www.gov.uk/government/collections/assisted-digital-service-uk-visas-and-immigration and para 11.40 below.

269

 https://migrationobservatory.ox.ac.uk/resources/commentaries/internet-use-by-country-of-birth/ (last visited

23 September 2019). Migration Observatory also directed us in their consultation response to further research to show that digital exclusion is particularly prevalent among older people: Low Incomes Tax Reform Group, Digital inclusion (2012) p 7, at https://www.litrg.org.uk/sites/default/files/digital_exclusion_-_litrg_report.pdf (last visited 23 September 2019). For the full Migration Observatory consultation response, see the consultation analysis table for Consultation Question 53. For a recent account of the difficulties experienced by an older person in completing an online EU settlement application, see https://www.theguardian.com/politics/2019/oct/08/ive-been-here-50-years-the-eu-citizens-struggling-for-the-right-to-stay-in-britain (last visited 10 October 2019).

270

Available at https://www.gov.uk/government/collections/assisted-digital-service-uk-visas-and-immigration (last visited 23 September 2019). There is also specific help for applicants under the EU settlement scheme: see https://www.gov.uk/contact-ukvi-inside-outside-uk/y/inside-the-uk/eu-settlement-scheme-settled-and-pre-settled-status (last visited 11 October 2019).

271

At a meeting with the Government Digital Service, UK Visas and Immigration Customer Insight, and Home Office Digital Communications on 4 June 2019, we were told that the use of videos as a tool to assist applicants is problematic due to accessibility issues, and because they are difficult to amend, do not come up well on internet searches, and users report that they find them frustrating because it is not possible to scan them to find the part they need.

272

See paras 10.78 to 10.103 above.

273

See the consultation analysis table for Consultation Question 53.

274

Meeting with the Government Digital Service, UK Visas and Immigration Customer Insight, and Home Office Digital Communications on 4 June 2019.

275

The “contact us” link points here: https://visas-immigration.service.gov.uk/contactUs (last visited 23 September 2019) which leads here: https://www.gov.uk/contact-ukvi-inside-outside-uk (last visited 23 September 2019).

276

Applicants can also telephone the Home Office. If calling from outside the UK, the designated telephone number charges £1.37 per minute on top of standard network charges.

277

See UKVCAS website at https://www.ukvcas.co.uk/home-internal for more information on the service centres (last visited 3 September 2019).

278

If applicants are missing required documents when they attend the service point, they are able to upload these to their account on the UKVCAS website until 10pm on the same day. After this point, the application will be sent to UK Visas and Immigration as it is.

279

At a meeting with the Croydon UKCVAS core service point in May 2019, we were told that applicants can now view the uploads for a short while.

280

When we visited the core service centre in Croydon, we were told that service centres will make special provisions for this surge period. Some potential options include extending opening hours or opening on a Sunday.

281

See https://www.ukvcas.co.uk/contact-us (last visited 6 November 2019). This equates to £150 per hour.

282

This is a service to provide instant communication with website visitors. HMCTS has recently agreed a contract with an IT company to make it easier for the public to contact courts for case updates and enquiries. The service will include a live chat facility. See https://www.lawgazette.co.uk/news/hmcts-strikes-16m-deal-with-tech-company/5101643.article (last visited 3 October 2019).

283

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, paras 14.16 to 14.21.

284

Simplification of the Immigration Rules (2019) Law Commission Consultation Paper No 242, para 14.12; See the findings of the National Audit Office in its report on the Windrush situation: “The Department should develop a Department-wide strategy to support potentially vulnerable customers across the immigration system as a whole. Specific actions might include allowing one claim to be considered under multiple application routes, as well as simplifying forms and guidance”, Report on the Handling of the Windrush situation (2017-2019) HC 1622, available at https://www.nao.org.uk/wp-content/uploads/2018/12/Handling-of-the-Windrush-situation-1.pdf at p 13 (last visited 3 September 2019).

285

Meeting with the Government Digital Service, UK Visas and Immigration Customer Insight, and Home Office Digital Communications on 4 June 2019.

286

European Community Association Agreement with Turkey.


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