Examination of Witnesses (Questions 60
- 79)
TUESDAY 13 DECEMBER 2005
MS MARY
COUSSEY, MS
FIONA LINDSLEY
AND DR
ANN BARKER
Q60 Mr Clappison: If we could find
some way of making advances to prevent surreptitious immigration
but facilitate family reunions on a short-term basis.
Ms Coussey: I think it is worth
saying that the people who abuse immigration controls, the ones
that we do have statistics on, are a very tiny, tiny proportion
of the numbers coming in. Of course it is the area that gets a
lot of the public focus but it is a tiny, tiny proportion and
I do not think that is emphasised sufficiently.
Q61 Mr Malik: How do you think that
race equality can be built into future immigration policy?
Ms Coussey: I think a lot can
be done at the very early stages with the race equality impact
assessments, and I am sorry to say that IND have not been in the
forefront in doing these and have not actually done them to my
mind as effectively as they should be done. But since I wrote
my report there has been a session with some IND officials to
try to get a more effective system of impact analysis. They have
the data there, they could do it; they could look at new immigration
policy, proposed laws and so on and make an assessment of which
nationalities would be disproportionately affected—certainly
they can do it for nationality—and consider whether there
are alternative ways of reaching the policy aim without having
that impact. So I think that is one thing at policy level that
ought to be done much more rigorously than it has been up to now.
But I think at the level of decisions, I have already answered
that; you have to have a lot more transparency, a lot more monitoring,
a lot more attention to inconsistencies and that has to be fed
back into briefings and into training and so on, so that the quality
of decision-making is more open and transparent and as objective
as possible. Of course, under the present system it is never going
to be objective because there is always a question of intention
and that is a subjective factor.
Q62 Mr Malik: So you are confident
that effective race quality impact assessments could actually
deal with some of the concerns you have?
Ms Coussey: I think it could deal
with some of the concerns that the new proposals are raising,
yes, if it were done effectively.
Q63 Mr Malik: Are you confident that
it could be done effectively?
Ms Coussey: I am confident it
could be; I am not confident it would be.
Q64 Mr Malik: Instead of a separate
monitor with a limited role should the proposed Commission for
Equality and Human Rights take over your particular role?
Ms Coussey: I have not given that
any thought but off the top of my head I think that is certainly
worth looking at.
Q65 Mr Malik: Of course the new independent
Inspector of Immigration Services is one of the areas that I think
you were speaking about as a possibility.
Ms Coussey: I think there are
a number of possible models. I think the important thing would
be whether it was remaining independent, whether it was effectively
resourced and, the most important of all, with what authority
the recommendations are made and how they are followed up and
whether they are implemented. So I think there are a number of
ways of achieving that.
Q66 Mr Malik: This is really to everybody
and anybody, as it were. Do you think the correct balance is being
struck in the immigration system between efficiency, security
and then avoiding race discrimination? It is a difficult one.
Ms Coussey: Yes, it is a difficult
one. They always say there is not a refusal culture but all the
performance indicators they produce are about how quickly cases
are dealt with and how many are refused, et cetera. There is no
so much focus on the quality of decisions, which would perhaps
indicate that they are giving more priority to speed and throughput
than fairness and quality. So I think there has to be a balance
struck between those things, and the more you emphasise targets
and throughputs there is a danger of overlooking quality. I cannot
comment on security though.
Q67 Mr Malik: You say then that the
resources would have an impact, i.e. more resources would lead
to a better balance, to better quality decisions.
Ms Coussey: I think there need
to be more resources to quality decision-making, yes.
Ms Lindsley: I would echo that.
My reports very much say that I felt UKvisas had, from the reports
of my predecessors, moved on in efficiency; that there were not
the endemic delays that previous Monitors had focused on; that
generally people were getting decisions within reasonable periods
of time. But now the focus we need to shift to quality of decisions.
Dr Barker: We do see complaints
about racism. I think the curious thing is that there are so few
of them, and most of them come through the immigration side, the
nationality side, through visa sides, rather than asylum seekers.
But there is a problem in terms of the detention centres, for
instance, identified by Anne Owers, Her Majesty's Chief Inspector
of Prisons, who goes into the detention estate both short-term
and long-term policy. Also Stephen Shaw went in, for instance,
after there was a television programme about Oakington and the
key to that was that there was an endemic culture of racism allied
to a tolerance of violence. We had seen evidence of this in the
files; we had seen solicitors identifying the problems and saying
that something must be done about it, and saying, "We are
going to go to television," and there certainly was action
taken afterwards. But if you look at Stephen Shaw's quite comprehensive
report you do see, curiously, a detention centre which had been
saluted the previous year by Anne Owers as being in many ways
a model of good practice, and yet underneath that and undetected—until
some reporter went in and posed as somebody who was working for
the contractor—and below what was being seen at inspection
level there was a culture which was generating racism and was
generating violence. So I think it is a hard one to tackle. And
this had nothing to do with timeliness, it had nothing to do with
efficiency; it had to do with in these instances we are concerned
about, in detention centres, that the contract monitors are responsible,
our officials in IND are responsible for seeing that the contract
is managed properly. But when complaints have arisen they have
been handed over in the first instance to the contract managers
who then ask questions of their staff and they obviously do not
have a stake in a full investigation, and indeed a partial one,
and we have suggested that they in fact should not be undertaking
any of the investigation into allegations. Secondly—and
I think this is important—what Anne Owers has discovered
is that in the detention estate it is very hard to get hold of
complaint forms, it is hard to make a complaint. In many instances
it is left to the individual asylum seeker to complain to an official,
and many of these people come from countries in which the officials
are seen as oppressive and they are obviously reluctant to voice
their complaints for fear that it will jeopardise what happens
to them next. So it is a bigger problem.
Q68 Mr Winnick: Ms Lindsley, your
position goes back—not yourself but the position which you
occupy as the independent monitor—to when the previous administration
did away with appeals. Is that correct?
Ms Lindsley: That is correct.
Q69 Mr Winnick: So around 1994?
Ms Lindsley: The 1993 Act, yes.
Q70 Mr Winnick: Your present position
involves looking at cases again where there is no right of appeal,
though the present administration restored family appeals. A rather
leading question, but be that as it may: do you feel on the whole
that entry clearance officers do a good job of trying to enforce
the immigration control rules? It is a leading question.
Ms Lindsley: Most people get the
visas they apply for; 19% of people are refused visas across the
board, so in the majority of cases there is a high customer satisfaction
in roughly 80% going into an entry clearance post to getting the
visa. And, as I say, there have been improvements with what is
called streamlining, which has meant that they are getting the
visa within a reasonable period of time in the majority of cases.
So I would say that yes, the majority of decisions made by entry
clearance officers are made reasonably quickly and positively
for the applicant and therefore I would have no reason to complain
about them. Entry clearance officers work very hard, they make
maybe 40 decisions a day and they are generally committed to giving
a service to the public. But obviously my remit is not to look
at the vast majority who are granted visas; my remit is to look
at those who are refused, so my reports are about them.
Q71 Mr Clappison: Can I ask one quick
question to clarify? The figure that you have given us, of 19%,
is that of those of the visas where there is no right of appeal?
Ms Lindsley: No, that is for non-settlement
cases overall.
Q72 Mr Winnick: I will come to refusals
in a moment, Ms Lindsley, but there has been a view that entry
clearance officers in certain posts, where refusal rates are pretty
high, nearly 50%—and I will mention those in a moment—become
somewhat cynical. They say in effect that they have heard this
story many, many times about wanting to come for some wedding
or other, and why should they be believed when the applicant is
on a relatively low income, even on the standards of the Indian
sub-continent? Why should they spend so much money, why should
the sponsor in the UK want to spend so much money on the visit,
and the rest? Do you feel that if ECOs in certain posts stay in
those posts for a long time they do become—at least some
of them, however much they may not want to do so—so cynical
that an objective assessment is not really possible on applications?
Or you would not say that?
Ms Lindsley: I do not see the
problem as being entry clearance officers in specific posts. Entry
clearance officers in any case move around a lot; the longest
any entrance clearance officer stays in a post is three years
but many are moving much faster than that. But I do think there
is an issue of institutional attitudes potentially to certain
nationalities. And we do have rising refusal rates. Until about
the year 2000 it was a very steady 6.5%; since then it is going
up and going up and we are now at three times that. I have speculated
as to whether that refusal rate is due to lower quality applications
and therefore justified, or whether other less justifiable factors
are involved, and what I have put forward is that statistics should
be kept on appeals. Whilst we still have appeals we have an assessment
of the quality of decision-making, and we could see whether in
relation to certain posts they lost more appeals than others.
So if a particular post lost 90% of its cases then you could conclude
that it was refusing people badly and that there was a poor quality
of decision-making there. Not only did I propose that, the National
Audit Office proposed that as well. As far as I know UKvisas did
collect some data but they told me they did not have enough time
to analyse it. So they collected some data on the main family
visit posts—I think the top ten—but it was never processed
in any way. To me this is an ideal and easy way to assess whether
we are treating some people less fairly than others. All decisions
by immigration judges as they are now, adjudicators as they were,
are headed up name of the Appellant against ECO, the place. It
would be a very simple administrative exercise to keep that data,
to record that data and to come out with, versus this post Appellants
are winning this much, and this post this much. I did a little
bit of analysis in my reports using data from the Immigration
Advisory Service and I did get very disparate success rates. For
instance, I think in relation to Polish students IAS only won
9% of cases, whereas in relation to other groups they were winning
something like 70% of cases. That was a very small sample so I
cannot be sure that that data would be reflected overall—and
Poles are obviously a thing of the past in any case—but
it is worth doing and the data is there and I really do not think
it would be expensive, and I am very disappointed that that has
not happened.
Q73 Mr Winnick: It is quite likely
that the Committee, when it comes to its conclusions, will want
to pick up a very interesting suggestion, Ms Lindsley. But when
we look at the position of refusals in some parts of the globe
applications that come to the United Kingdom are very high indeed—in
Accra, for example, Ghana, it is over 56% refusal rate, Uganda
53%, Kingston Jamaica 48%, Slovakia nearly 48%, Islamabad 45%
and so on. Then if you re-look at the figures connected with the
United States and Australia it is well under 1%. I suppose the
justification for the difference would be, would it not, as far
as the immigration officers are concerned, the pressure to come
and stay in the United Kingdom as opposed to people from Australia
and the United States who would have no particular economic incentive
to want to stay here? What would be your comment on that?
Ms Lindsley: You are right, I
am sure that would be a generalised statement that might be made
about why there was a disparity, that simply you get better quality
applications made by Americans—although of course they do
not have to apply for visas so I do not look at their files. But
from a richer nation that does have to apply for visas, for instance
Russians, a relatively low refusal rate of Russians, because they
are economically better off then they present better applications
and therefore they get granted. When I have looked at decision-making
though I am concerned that we have two issues basically: in a
visit case we have the issue of does the person have enough money
and we have the issue of will they leave the UK? I find that the
decision-making on those issues is not good enough in relation,
very simply put, to money. There is no consistency; how much money
does somebody need is not formulated, and I do not think it is
very difficult to say how much money, as a minimum, is needed
to come to the UK. Travel guides do it, for instance; you buy
the Rough Guide and it says how much you need to spend a day in
London, and the information is out there and very quickly you
could come to a figure. And there is no systematic approach to
finance. But finance is a minor point in the sense that most cases
do not focus on the money aspect. Most cases focus on the intention
to return and it is there that things get very complicated because
basically an entry clearance officer has ten minutes to decide
whether somebody is going to go back—they have a ten-minute
interview or roughly about the same amount of time if they are
looking at some pieces of paper—and I do not think they
are given any sensible criteria on which to do that. I am not
sure how easy it would be to formulate sensible criteria anyway,
but the ones presently used are not, and I think the courts have
said that as well, but entry clearance officers just carry on.
So what we get is people refused because they have not travelled
before. Obviously if we then take the set of Ghanaians and the
set of Americans the set of Americans have travelled a lot more
than the set of Ghanaians, ipso facto the Ghanaians are
going to be refused more often. But is that a sensible way of
addressing a question as to whether somebody will go home? I do
not think so; everyone has to travel for the first time.
Q74 Mr Winnick: The immigration rule
in question—and I do not have it in front of me—it
is quite clear, is it not, that the entry clearance officer or
indeed any other immigration officer must be satisfied that the
person intending for a visit will stay only for the visit? It
is quite clear and explicit. I started off with a leading question
and I am going to put another leading question to you, fairly
or unfairly, Ms Lindsley. With your experience of having undertaken
this job do you feel that had you been in the position of the
entry clearance officers in the posts where there is the highest
rate of refusal—I said this would be a leading question—do
you think it is likely that your decision would be much different,
if any, from those reached by the ECOs, again, where I have already
quoted the refusal rate is over 50%, and bearing in mind the relevant
immigration rules and the rest of it?
Ms Lindsley: Often when I review
a file I do not make a decision that the decision was wrong, I
make a decision that the decision was made badly because I do
not have the information that I would want to make the decision.
Often I do not know whether it was the wrong decision. For instance,
a refusal may be that the trip was disproportionate to the socio-economic
circumstances of the applicant, but I do not understand the socio-economic
circumstances of the applicant; I severely doubt that the ECO
understood the socio-economic circumstances of the applicant either,
but certainly I do not have that information, and I find it very
difficult to think whether it is disproportionate for that person
to spend that amount of money. In my forthcoming report I discuss
an example of a Chinese girl who wishes to come to the UK to study
English and both her parents work at academic institutions in
China and she is refused because it is a disproportionate expenditure
of money. I cannot do that calculation and I do not think an ECO
can do that calculation. So if you are saying would I have given
that girl the visa I do not think I would have started with the
investigation upon which the ECO has embarked upon, I probably
would have started with slightly different questions, and I simply
do not know because I have not been put in the position. I also
think that ECOs are not trained to interview in a way conducive
to a ten-minute period. I do not think they look at the pieces
of paper, decide what the issues are and put them; they do a general
sort of trawl—which they do not need to do, in my opinion—and
it takes up too much time and then they have no questions left
for the key issues. So there are various problems with what is
going on, but thinking of myself trying to do it, I do think it
will be very difficult despite my many years of interviewing practice,
and I am not sure how it easy it is to make a good quality decision—in
fact I am sure it is very difficult—but I do think we need
to look at how to do it.
Q75 Mr Winnick: This ten minutes
which entry clearance officers have, where is this ten minutes
from?
Ms Lindsley: They have to make
50 decisions in a day; they cannot go home until they have dealt
with them.
Q76 Mr Winnick: They are totally
limited, no flexibility at all on this ten minutes?
Ms Lindsley: I do not say there
is no flexibility at all, I presume, if someone presented and
there were some very particular reasons, but in the overwhelming
majority of cases they have to be dealt with within that sort
of timeframe.
Chairman: It sounds very similar to our
advice surgeries.
Mr Winnick: I give my constituents more
than ten minutes, even if you do not Mr Chairman!
Chairman: You spend the time reading
the transcript of the ECO's interview! Janet Dean.
Q77 Mrs Dean: Fiona Lindsley, if
we could carry on with this theme of questions. You have suggested
one or two ways where decisions could be improved but in general
how do you think the quality of initial decisions could be improved,
without slowing down the system—and again you mentioned
the ten minutes. Are there any other suggestions you could make?
Ms Lindsley: I have put forward
a formula, a plan of approach for ECOs where they would go through
a series of steps to make a decision in the report and basically
looking at issues of money first and focusing in on those. Then
intention to return I think has to be dealt with in terms of the
ECO to be given issues which should ring alarm bells and to put
these and to say to the applicant, "I do not think you are
going to go back because you do not have any property in your
country and you do not have a stable job," and then for the
person themselves to be able to refute that. This is the main
way I would change it, I suppose, that the ECO would then have
to be shrewd and quick enough to think, "What I am really
worried about here is this person owns nothing and does not have
a good job," so he puts to the person, "You own nothing,
you do not have a good job." That involves someone with a
considerable amount of intelligence and speed but also a lot of
confidence because it is quite difficult to say to someone, "You
do not have a very good job and you do not have any property,
I do not think you are going to leave the UK at the end of your
visit." A lot of ECOs are a bit more polite than that, I
suppose; they do not like to do that. But, nevertheless, I think
that gives natural justice to the system because then the applicant
can come back and say, "I may not have what you think is
a good job but in my community that is a really respectable job;
and although I do not own a property neither do 70% of people
who live in this town. I am also looking after my auntie next
door and if I do not come back the neighbour is not going to look
after her and she is going to die. So I will come home."
Then you have the material to make your decision and you are focusing
on the individual reasons why that person may go back.
Q78 Mrs Dean: So you are suggesting
that by a more direct challenge at interview that you will get
a better decision in the first instance?
Ms Lindsley: What I then have
to say though is that interviews are going, and that in 30% of
cases about—maybe a million, I am not sure of the figure,
sorry.
Q79 Mr Winnick: A proportion though
is.
Ms Lindsley: As a proportion of
my sample it went up from 3% last year to 30% this year I have
dealt with on the papers. I really do not know, and I would like
to see UKvisas write it down how entry clearance officers assess
intention to leave the UK at the end of the visit on paper. I
have asked them to do that as one of my recommendations is to
give guidance to ECOs as to how they are to do that. They have
said they will but it has not happened, and I think it is because
it is very difficult to articulate.
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