Immigration Rules are not even understandable by ordinary lawyers and advisers

In a notable new judgment handed down today on changes made to applications for leave to enter or remain on the basis of an applicant’s private or family life, the Court of Appeal has criticised the complexity and lack of intelligibility of the Immigration Rules and called for them to be properly archived.

See, in particular, paragraph 59 where Lord Justice Underhill states: “Paragraph A277C, as amended by HC 760, which I set out at para. 52 above, is not alas untypical of the kind of rebarbative drafting which those trying to understand the Rules have to grapple with. I fully recognise that the Immigration Rules, which have to deal with a wide variety of circumstances and may have as regards some issues to make very detailed provision, will never be “easy, plain and short” (to use the language of the law reformers of the Commonwealth period); and it is no doubt unrealistic to hope that every provision will be understandable by lay-people, let alone would-be immigrants. But the aim should be that the Rules should be readily understandable by ordinary lawyers and other advisers. That is not the case at present. I hope that the Secretary of State may give consideration as to how their drafting and presentation may be made more accessible.”

Lord Justice Underhill also said that it is essential that the Home Office should make available an accurate archive of all previous consolidated versions of the Rules after counsel for the respondent said any current archive may not be “entirely accurate”.

Underhill stated at paragraph 58: “Counsel were asked whether previous versions of the Rules were available online, either from legal publishers or on the Home Office website. In his post-hearing written submissions Mr Malik told us that he understood that it was possible to obtain from the National Archive website consolidated versions of the Immigration Rules as they stood at any given date. Mr Blundell, however, responded that that was not the case. The Home Office produces consolidated versions of the Rules following each Statement of Changes, and publishes the current version on its website, but previous versions are not displayed and whatever may be available from the National Archive is “not entirely accurate”: the only way that a member of the public or practitioner can definitively ascertain the state of the Rules at a given time in the past is by perusal of the Statements of Changes.”

Lord Justice Underhill continued: “If that is really the case, it is unacceptable. The Statements of Changes are so frequent and so detailed that it would be intolerably laborious for anyone, even a specialist, to start with the current version and to work back, stage-by-stage, to establish how the Rules stood months or years previously. In my view it is essential that the Home Office should make available an archive of all previous consolidated versions of the Rules in a form that enables the public and practitioners to see clearly what rules were in force at any given date: if such an archive is not maintained for working purposes within the Home Office (which would be surprising) it will have to be created, though I pity whoever has to undertake the task.”