Immigration administration under the microscope
Administrative Law in Action: Immigration Administration homes in on the operation of the immigration department in the Home Office as a case study and examines how the law is delivered through its processes on the ground. The book takes the reader on a journey through the multiple steps of administration that individuals must navigate when interacting with immigration law in the UK. The complexity and scale of these processes are unpicked and held against the standard of instrumental rationality, considering whether policy is implemented as effectively as possible (p.6). The book is structured as if taking the reader on a journey through the administrative process, starting with the structure of the department, the policy, rules and adopted guidance. It then works its way through casework decision making, reviews and legal challenges of these decisions and ultimately the use of alternative methods of challenge and the role of bureaucratic oppression. The immigration department’s limitations are fairly acknowledged and carefully grounded in context, including institutional re-arrangements, capacity, over-reliance on short-term policy goals and the politicisation of migration. It is through this systematic approach that the scale of administrative barriers and operational failures impacting the lives of millions of people and their families are exposed.
For each administrative process, Thomas identifies the potential for feasible reforms to improve the effectiveness of the immigration department. The recommendations offered are often practical and focused on efficiency (an annual immigration plan for parliament to scrutinise, improving operations and internal administrative oversight or setting policy goals with administrative capacity in mind) and sometimes ambitious (separating the operational functions of the Home Office into a body that is independent of ministers). Creating a “more competent, effective and humane government” (p.268) and concerns over individuals’ access to justice are clearly at the forefront of these recommendations.
Held against the backdrop of Home Office culture and political obstacles, there is a stark contradiction between the expectation of competent and effective administration to deliver a migration policy that seeks to implement uncomfortable and ineffective administration for those seen as “undesirable” migrant populations. This tension is acknowledged early on in the book (p.21) but plays less of a role when critiquing Home Office practice. For example, the difference in the success of caseworking operations for student, work and tourist visas over those for asylum, domestic violence, statelessness and human rights applications (p.99), is partly explained through the decision-making processes involved and the different levels of subjectivity and judgment required. However, it must also be acknowledged that the creation of the criteria to be met, the awarding of resources for caseworking, attention to staff training, levels of quality assurance and the willingness to address problems will all be at the mercy of these other tensions. It would seem that impenetrable rules alongside slow and incompetent administration are, if not intentional, widely tolerated in certain areas of immigration policy.
Another reoccurring issue identified is the lack of data made available by the Home Office. Not only does this hinder transparency and the ability of others to hold the department to account, but it also prevents the department being able to properly scrutinise the efficiency of its operations and identify reoccurring mistakes that can be targeted through training. While many promises have been made in light of the Windrush Recommendations and several investigations from ICIBI, issues with transparency and data still remain. Additionally, the increase in digital systems should, in theory, improve this. Data from digital applications should be easier to gather, analyse and publish. Yet, in the context of the EU Settlement Scheme (a largely digital-only application) and the rolling out of a digital immigration status, the Home Office continues to be slow to publish data and often requires prompting through parliamentary committees, stakeholder pressure and FOI requests, to acknowledge that the relevant data exists and can be shared. Time will tell if easier access to data from digital processes will result in any meaningful review and improvement of systems.
It is not clear to what extent these challenges and the other issues identified in the book are limited to the immigration department or if they represent wider trends across UK administration. Those interacting with the Home Office to organise or confirm their immigration status may experience additional difficulties than other administrative processes in the UK. Some may be navigating the system in a second language and, as pointed out in the book, are likely to experience higher levels of bureaucratic oppression. Some of this may be unique to the Home Office. Yet decisions on eligibility for non-UK nationals to access benefits, housing and healthcare can be plagued by complex and frequently changing rules, inconsistent guidance, presumptions of ineligibility and bureaucratic oppression. A similar toolkit, analysing the administrative practices of DWP, HMRC or even local authorities would be a valuable exercise in this regard. It may be that many of the challenges captured by Thomas speak to a broader picture of migrant experiences of administration in the UK.
Overall, the book makes the case to broaden the approach to administrative law beyond the more traditional court-centric focus. While this is not necessarily a new idea, Thomas’ attention to the contextual and operational side of the immigration department offers a fresh and vital insight into how poor administration can mangle how law is experienced on both an individual and systemic level.
This case is most strongly made when the book explores how law is delivered on the ground, first through the construction of the incoherent immigration rules and then the melting down of those rules into inconsistent and poorly communicated guidance. Overworked and undertrained caseworkers are then tasked with applying this to individual cases where mistakes, if overturned at the point of review or tribunal challenge, are not fed back to improve the system. Many individuals will be exposed to this process of decision making without representation or support of any kind. Decision letters or trends in the reasons to grant or refuse are not reported. This journey of administrative failings demonstrates how far-removed court-focused scholarship can be from the reality of most individual interactions with immigration law in the UK. Similarly, drawing on larger scale events, such as Windrush, the books captures the real and potential scale of damage from maladministration, especially where these problems remain hidden and kept at arm’s length from legal oversight. Through Thomas’ experience and expertise, the book is an essential tool that pulls back the curtain on the inner workings of the immigration department and provides a valuable benchmark which should be revisited as future challenges for the Home Office come to light.
Dr Alice Welsh is a Research Fellow at the EU Rights and Brexit Hub, University of York.
Administrative Law in the Common Law World 