Thirty Third Report Contents

Instruments drawn to the special attention of the House

Statement of Changes in Immigration Rules (HC 813)

Date laid: 22 October 2020

Parliamentary procedure: negative

Summary: This Statement of changes to the Immigration Rules in part implements simplifications requested by the Law Commission, in part deals with matters relating to the end of the Transition Period and in part deals with new policy. The instrument is lengthy, at 507 pages, and covers a large number of policy areas. We made clear our opposition to large, wide-ranging instruments when we reported on certain EU Exit instruments last year and, in debate, members of the House strongly supported that view. In reporting on this instrument, we reiterate our view that combining so many policy areas in one very large instrument is wholly unjustified.

Not only does its complexity make effective parliamentary scrutiny virtually impossible, but it ignores a key criterion of the Government’s definition of “good law”, in that it makes the law less accessible to the citizen. We have no doubt that the House will wish to press the Minister to explain why this approach was taken; why it would not have been possible to deal with the issues in a series of themed instruments; and to give an undertaking that this approach will not be repeated.

We acknowledge that the Home Office has made considerable efforts to provide a comprehensive description of the changes that are being made. It was disappointing, however, that the Explanatory Memorandum, which is itself 50 pages long, was not clearer on the policy aims of these changes and what the impact will be.

This instrument is drawn to the special attention of the House on the ground that it is politically or legally important or contains policy likely to be of interest to the House.

1.This instrument is subject to the negative procedure and has been laid by the Home Office accompanied by an Explanatory Memorandum (EM).1 Its provisions mainly come into effect on either 1 or 31 December 2020.

2.The instrument is 507 pages long and wide-ranging. In the main, it follows up the policy statement on the Future Borders and Immigration System2 and responds to the Law Commission report on Simplifying the Immigration Rules.3 It is disappointing that the EM, while providing a comprehensive description of the changes, assumes the reader is well versed in both documents and often fails to make connection between the change being made and the explicit policy ambition it fulfils.

3.The instrument also covers adjustments to do with navigating the end of the Transition Period (TP), adjustments to support three draft affirmative instruments on Citizen’s Rights,4 and provisions to implement the change in policy on Hong Kong British National (Overseas) (BNO) status announced on 22 July 2020.5

4.Our guidance to government departments,6 published on our website, has a section on “miscellaneous amendments” instruments. It states: “… Such wide-ranging instruments should only be used for tidying up the statute book and not include any major new policy developments; the Committee has been very critical in the past of SIs that attempted this mix.” (para 25)

5.This instrument illustrates why — it is very difficult to identify new policy in the mass of material that simplifies the status quo.

6.Dealing with this volume of legislation, even where it is simplifying matters, is challenging. Without an expert knowledge of the subject, and the ability to compare old and new Rules side by side, it is impossible for us — and any other lay reader — to tell whether any important protections have been lost in the course of the simplification. Although the Home Office’s ultimate goal is a simpler set of Rules, in this transitional phase this instrument ignores a key criterion of the Government’s definition of “good law” in that it makes the law less accessible to the citizen.

Simplification

7.The EM explains that this instrument restates, in a simplified form, the provision for a large number of immigration categories (for example, student, sportsperson, seasonal worker), and some of the qualifying requirements (for example, English language, continuous residence, finance). Where a route is being simplified, this instrument adds it to an appendix to reduce the need for cross-referencing. The EM states that this is a transitional measure and when the Immigration Rules are fully consolidated and simplified, the routes will be in the body of the rules as separate Parts.

8.We have frequently criticised the length and complexity of the Immigration Rules, and therefore welcomed the Law Commission’s review of them. The Home Office responded to the Law Commission report on 25 March 2020, accepting almost all of the recommendations.7

9.In that response, the Home Office set out its objectives:

“Our aim is for consolidated and simplified Rules to be in force from January 2021. They will provide the foundation for a global points-based immigration system that is fair, firm, effective and humane.

The Rules will be:

As we simplify the Rules we will look at how we strike the right balance between prescription and discretion, in line with the Law Commission’s recommendations on evidence.

We will put in place mechanisms to make Rules changes more transparent, and we will improve the digital publication of Rules online.” (p. 3)

10.The changes made by this instrument are, however, only the first step. The Home Office states that there will be further Statements of changes before the recommendations are fully implemented. Given the stated aim of having those changes in place by January 2021, the House may wish to ask the Minister to explain how many instruments will be required to achieve this goal, when they will be laid before Parliament, and to give an undertaking that this portmanteau approach will not be repeated.  

EU Withdrawal

11.The instrument includes changes to the EU Settlement Scheme (EUSS) and EU (Family Permits) arising from the end of the TP and because EEA nationals resident in the UK before 31 December 2020 can apply under the EUSS and so do not need to apply under the Rules.

12.The introduction of new routes for S2 Healthcare Visitors (who come to the UK for authorised medical treatment) and Service Providers from Switzerland arise from the Withdrawal Agreements. The provisions on the European Communities Association Agreement (ECAA) arise because the UK will no longer be bound by that agreement to provide preferential treatment to Turkish nationals, although an appendix largely replicates arrangements for Turkish workers already in the UK.

Other matters

13.The only change that relates directly to the Immigration and Social Security Co-ordination (EU Withdrawal) Bill are the provisions on Irish Citizens in the Introduction chapter. They confirm that, as part of the Common Travel Area arrangement between the UK and Ireland, Irish citizens will have the right to enter, live and work in the UK without requiring permission and without restriction on their stay (unless they are subject to a deportation order, exclusion decision or international travel ban): any applications under the Immigration Rules will therefore be invalid.

14.The Hong Kong British National (Overseas) route has two routes — the BN(O) Status Holder route and the BN(O) Household Member route — which apply to a citizen who is ordinarily resident in Hong Kong or the UK. Both routes allow work and study in the UK and are routes to settlement. The EM states:

“The introduction of a new immigration route for BN(O)s may increase migration to the UK. Given that migration happens for a myriad of reasons, there is significant uncertainty about the number of BN(O) citizens who may migrate, as well as the characteristics of this cohort which will influence demand for public provision (age, employment status etc).”

Conclusion

15.We have long suggested that the Immigration Rules needed consolidation and simplification, and we fully support that objective. This instrument, however, is so large and wide-ranging that it is difficult to be clear about the importance and effect of each item. Many of these policy areas are individually of significant interest to the House and to the public, so they would have been presented better as a series of themed instruments that would make effective scrutiny easier.

16.In reporting on this instrument, we reiterate our view that combining so many policy areas in one instrument is wholly unjustified. We made clear our opposition to large, wide-ranging instruments when we reported on certain EU Exit instruments last year and, in debate, members of the House strongly supported that view.8 We have no doubt that the House will wish to press the Minister to explain why this approach was taken; why it would not have been possible to deal with the issues in a series of instruments; and to give a undertaking that this approach will not be repeated.



1 See also the Immigration and Nationality (Replacement of Tier 2 and Fees) (Amendment) (EU Exit) Regulations 2020 (SI 2020/1147), which amends fees for some of the items in this instrument.

2 HC Deb, 19 December 2018, col 806.

3 Law Commission, Simplifying the Immigration Rules: https://www.lawcom.gov.uk/project/simplifying-the-immigration-rules/ [accessed 28 October 2020].

4 Mentioned in our 29th Report, (Session 2019-21 HL Paper 138).

5 Prime Minister Boris Johnson MP, ‘PM Boris Johnson article on Hong Kong: 3 June 2020’: https://www.gov.uk/government/speeches/pm-boris-johnson-article-on-hong-kong-3-june-2020 [accessed 28 October 2020].

6 SLSC ‘Guidance for Departments laying instruments for the Secondary Legislation Scrutiny Committee’: https://publications.parliament.uk/pa/ld5801/ldselect/downloads/Guidance-for-departments-on-statutory-instruments-Feb-2020.pdf.

7 UK Visas and Immigration, and the Home Office, ‘Simplifying the Immigration Rules: a response’ (25 March 2020): https://www.gov.uk/government/publications/simplifying-the-immigration-rules-a-response [accessed 28 October 2020].

8 For example, the Draft Law Enforcement and Security (Amendment) (EU Exit) Regulations 2020, HL Deb, 12 March 2019, cols 185–197, with further debate on the approval motion HL Deb, 18 March 2019, cols 1310–1320.




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