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Law Society Response To Simplifying Immigration Rules Project

The Home Office sponsored the Law Commission to review the Immigration Rules.  The consultation was published on 21 January 2019, having started in 2017.  Last month the Law Society responded to the Law Commission Consultation: Simplification of the Immigration Rules, in a report dated April 2019, published on 13 May 2019.

General Approach to the Immigration Rules

In the 26 page response the Law Society agree the rules must be reformed to be “intelligible” and “to deliver fairness and predictability”.  The Law Society acknowledge how complex the rules have become: “It is our opinion that the rules have become so complex to understand that they are inaccessible to many applicants and confuse even expert legal practitioners”.

The Law Society emphasise and agree that “an overhaul is overdue”.  

Particular focused concerns are raised about the use of “wide discretionary powers” given the “current environment”.

Online Processes, Accessibility and Application

The response agrees that the rules should be accessible, the report recognises the number of people now making applications themselves without the benefit of legal assistance.  The response acknowledges that complexity in the rules will inevitably increase mistakes.

The response suggests there is much to benefit from “better cross indexing of the guidance” thus preventing information being missed in overlap.

There has been much press recently about the changes in the new online processes for making applications whether in the UK or from outside.  The response acknowledges that forms can be prescriptive and the response encourages the introduction of “free text boxes” on forms that would allow individuals to provide further relevant information or correct information where there is no other option than to tick a box.  The response reads: “the algorithms and selection tools inherent in the forms are not sensitive or adept to catch the variety of immigration situations which can arise in any particular immigraiton category”.

The response highlights: “Whilst overall the transfer from a paper application system to an online application system has allowed many applications to be filed in a more efficient way, there remain significant issues……. Booking appointments can also be difficult depending on the location of the applicant. In some cases, it has been impossible to progress through the online booking process due to what appear to be technical issues with the platform. Applicants have had to turn up at processing centres in the hope of being able to file their documents.”

In terms of using modern technology to assist: “A more intuitive end to end system requires significantly more preparatory work and testing than we have witnessed to date and we are concerned that the sub-standard releases that we have seen to date have been the result of third parties tendering for work without fully appreciating the exact requirements in order to deliver suitable technological solutions”.

The discretionary elements in Appendix EU and Appendix VVisitor Visas are specifically considered.  The Law Society noting that “the rules themselves do not on their face contain “discretions”. What they have is an almost complete lack of specific information on what constitutes work for example and how it is to be evidenced. It is however a concern that it appears that the rules will actually take a back seat to the automated process”.  The response refers to an inspection report at Sheffield in 2017 and expresses concerns how particular national citizenships were treated: “On a visit to Sheffield in 2017 members of the Law Society had the opportunity to see how caes which have gone through the enrichment process are handled and were told a little bit about the mechanics of how it works.  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 scurinity and requirements”.  In conclusion: “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”.

Format of the Rules

The response considers in detail the format, structure and numbering of the rules.  The response concludes that the length of the rules does not increase “transparency and clarity”.  The Law Society favour a single set of consolidated rules, with self standing rules, removing the need to cross reference and one place for all general grounds of refusal.

Consultations and Frequent Changes

The response welcomes informal consultations with the Home Office as to changes, greater consistency between the statement of changes and the rules, fixed periods for those statements of changes and a broad agreement that there should be no more than two major changes each year.  

The Immigration rules totalled 1,133 pages in length as of December 2018.  The most recent statement of changes in March 2019 is 300 pages. The response expresses concerns as to whether Parliament is giving the rules the “most anxious scrutiny”.

Final Law Commission Report

The Law Commission will consider the responses and recommendations will be published later this year.  

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