The Immigration Rules are just too complicated
09 February 2019
It is often said, not least by us, that the Immigration Rules - the rules which by and large govern UK immigration - are too large and too complicated. Let us put this into context. In 1973 the Rules apparently covered some 40 pages. But the horrible truth is that now they cover more than 1,100 pages, which is quite a healthy increase.
Does this mean that the law has become 27 times more complicated since 1973? Well up to a point. Some of us will remember the old spouse/partner Immigration Rules, which covered just a couple of pages. Spouses and partners - then as now - had to satisfy a financial requirement. But the wording in this respect was extremely simple: the parties had to be able to maintain themselves “adequately”.
These days, with the advent in 2012 of the dreaded Appendix FM family visa rules, there are strict mathematical requirements for this, which are exhaustively presented over many pages. If the money earner works in employment they are governed by one set of rules but if they are self-employed they are governed by a different (and more complex) set of rules. Sometimes earnings and savings can be added together to meet the financial requirement and sometimes they cannot. And the requirements for evidence are commensurately detailed and prescriptive.
But it is not just that these rules are complex. An intricate nomenclature of acronyms for the various paragraphs was created, but one which does not really engage with the normal human mind. A small sample will suffice:
EC-P.1.1.; S-EC.1.1.; E-ECP.1.1.; D-ECP.1.1.; R-LTRP.1.1.
And so on, for page after page. This makes an already complex scheme even more impenetrable.
And it is not just the family rules that have become so dense. Student and visitor visa rules for example have been similarly affected, and the Tier 1 Entrepreneur visa rules constitute a sort master class of complexity. To put it short, workers, family members, businesspeople, students and visitors have all now been stung by this intimidating complexity. It is fair to say that a migrant (for whom English may not be a first language) is likely to get very confused and it is also fair to say that some lawyers and judges may be struggling somewhat.
Most people would accept that the increase in size of the rules reflects to some extent the increase in their prescriptiveness. The financial requirements for spouses/partners referred to above are a good case in point. Government has said, and Parliament has agreed (for better or worse), that the rules in that area should be more prescriptive, and the Home Office has the task of writing the rules to make the more prescriptive system operate.
But could they have written them to make them easier to understand? There is a definite “Yes” hanging in the air, and this is not just our opinion.
Former Home Secretary Ms Amber Rudd thought so and in 2017 she ordered a review of the subject, to be carried out by the Law Commission, who have now published a consultation paper which has the appealing title “Simplifying the Immigration Rules” (https://www.lawcom.gov.uk/project/simplifying-the-immigration-rules/).
One of the main points that the paper makes - and which is undoubtedly a good one - is that in some cases rules on the same subject are not grouped together. The points-based system (Tiers 1, 2, 4 and 5) is a notorious example of this. You have the Immigration Rules, which are grouped into Parts, and within the Parts there are Paragraphs. This is not too bad: in fact is is quite logical and systematic.
But then, additionally, you have the Appendices to the Rules, which contain a lot of the law that you need to understand in order to grasp the relevant requirements. But the Appendices are located in a different part of the rules from the Paragraphs.
So you have to constantly flick from one document to another document to get the whole picture. This is a difficult exercise which additionally taxes the brain, which is already under some pressure because of the overarching complexity of the content.
The consultation paper makes the important point that on occasion the rules have been increased in size because of decisions in the higher courts to the effect that they did not contain all the information that they needed to for them to have legal effect. Previously, some important rules were only contained in published policy guidance (which has not been through Parliament), not the rules themselves.
There is, for reasons such as these, an overarching feeling that the rules nowadays necessarily have to be on the larger side, but the paper states here and there that “length is not in itself necessarily a cause of complexity”. The implication of this is presumably is that even if they cannot reduced very much in size they can at least be made easier to understand.
The Law Commission’s remit, as they put it, is to “pave the way for the introduction of Rules that are clear, comprehensible and organised logically”.
We wish them luck with this; they have certainly taken on a formidable task.