A proposed major overhaul of the Immigration Rules has been given strong support by the Faculty of Advocates, although it warns that the cost may be greater than planned.
The Law Commission of England & Wales is consulting on simplification of the rules, and the Faculty agrees in its response that there is a need for an overhaul. A 17 page document when first introduced in the early 1970s, the rules now run to more than 1,100 pages and have been described by one senior judge as having "achieved a degree of complexity which even the Byzantine Emperors would have envied".
Faculty suggests that the primary cause of the increased length and complexity has been ever greater prescriptiveness. "The length of the rules is not necessarily a difficulty in itself… that the rules should be easy to navigate and understand is more important", it observes.
"We do not take the view that prescriptiveness is always a difficulty, nor do we take the view that it is always desirable. In some areas, prescriptive rules will allow precise applications to be made (and defective decisions in those areas to be challenged more effectively). In other areas… balancing numerous factors cannot be done satisfactorily within highly prescribed rules: a more holistic approach is required that a prescriptive system does not allow."
However it comments: "The Faculty is concerned that the likely cost of the comprehensive redrafting that it supports may not be adequately set out in the impact assessment. The current state of the law is either a result of a lack of resources or of misplaced effort. In either event, a substantial reorganisation is likely to be required to put new rules in place and maintain a consistent regime… we are not convinced that the proposed review committee of unpaid volunteers will be an adequate mechanism with which to secure the necessary outcomes."
Faculty also believes that the current state of the law might not meet the requirements of the European Convention on Human Rights, involving reputational risk for the UK. The law has to be accessible and precise, but Faculty "has concerns whether either of the requirements of lawfulness is met": "In particular, there must be a risk that the matrix of statute, statutory instrument, immigration rule, guidance and instruction does not satisfy the requirement for legality that pervades all justifications for interference with fundamental rights protected by the European Convention on Human Rights".
It adds: "We consider that this is a powerful consideration in favour of the comprehensive redrafting proposed and a significant non-monetary benefit of the proposal."
A prescriptive approach does not work well, Faculty states, when it comes to considering an immigrant's article 8 rights, which requires "a more holistic approach". More generally, it supports the idea of more discretion for decision makers, as a way of preventing inefficiencies and miscarriages of justice.