16. Memorandum submitted by the Immigration
Advisory Service
1. IMMIGRATION
ADVISORY SERVICE
(IAS)
1.1 IAS has been publicly funded to represent
immigrants in their appeals since modern immigration controls
were introduced in 1970. The IAS caseload now consists of roughly
50% immigration work and 50% asylum work. IAS specialises in entry
clearance appeals and during 2004, for example, was instructed
in 616 family visit appeals and 455 student appeals as well as
many spouse, children, work permit, working holiday and other
immigration appeals. Of the family visit cases that went forward
to appeal, 82% were successful and of the student appeals, 65%
were successful. IAS strives to provide independent and constructive
comment on and criticism of information, laws and policies that
affect its clients. To that end, IAS is engaged with various government
stakeholder groups and the Entry Clearance Officer (ECO) training
programme.
1.2 This response to the inquiry concentrates
on quality of decision making and the problems that contribute
to poor quality decision making. The themes that run through these
comments are justice, efficiency and security. For the government,
the first appears very much secondary to the second and third.
In our view it is important in its own right and we believe that
the government fails to recognise that it is also a prerequisite
for success in achieving efficiency and security.
2. QUALITY OF
DECISIONS
2.1 Quality of decision making, and therefore
justice for individual applicants, does not appear to be a priority
for the immigation authorities. For example, quality is barely
mentioned in targets for UKvisas: in the UKvisas business plan
2005-06, the PSA (Public Service Agreement) targets make no reference
to quality or justice. Where quality is referred to in planning
documents, no measures of success are proposed. The improvements
in decision-making time are admirable but they should be only
one part of the equation.
2.2 IAS continues routinely to encounter
poor immigration decisions, as does the Independent Entry Clearance
Monitor. The most frequent and recurring problem is that the reasons
given for refusal do not relate to the permissible reasons for
refusal—they are logic non sequiturs. Paragraph 49 of the
Independent Monitor report for 2004, about refusal of family visit
applications, is sadly typical. Examples of recurring problems
from IAS's recent caseload include:
(a) Refusals based on being a young single
man (the Independent Monitor also comments on this phenomenon,
at paragraph 66 of the 2004 report), where most of those granted
visas are also young and single and it is not therefore a distinguishing
factor.
(b) Bangladeshi and Pakistani work permit
cases where investigation into the background by the ECO is routine.
This is in contravention of the caseworking instructions to ECOs,
the Diplomatic Service Instructions, and is a clear discriminatory
practice.
(c) Refusals on intention to return to Ghana
where several standard paragraphs on the Ghanaian economy are
inserted into refusals but have no specific bearing on the individual
applicant (similar issues were observed by the Independent Monitor
for several other Posts—see paragraphs 76 to 78 of 2004
report).
(d) The low-skilled Sector Based Scheme decisions
where Bangladeshi applicants were rejected for being low-skilled.
(e) Inconsistent usage of circumstances where,
for instance, one ECO will refuse one student or visitor on the
grounds that an applicant has insufficient family ties to indicate
a reason to return while another will refuse on the basis that
the applicant has a family to support and therefore has no intention
to return. This approach amounts to a Catch-22 and arises in other
circumstances, for instance where one applicant does not have
an itinerary for a visit, another has learned it, one applicant
has no knowledge of the examination process for a proposed course,
another is reciting it from memory, one applicant has too little
money in the bank, another has too much and must have borrowed
it. All are refused.
2.3 The Independent Monitor report for 2004
provides many further examples, for instance at paragraphs 63-70.
Therefore, the IAS experience would appear to be typical. These
kinds of refusals indicate symptomatic of the use of "gut
instinct" by ECOs, who then dress up their refusals with
assumptions that bear little or no relation to the immigration
rules themselves and do not offer legitimate means of differentiating
between valid and invalid applications. The assumptions are based
on an ECO version of received "common sense" that in
fact involves potentially racially discriminatory informal profiling.
The Ghana and Bangladesh examples above illustrate how easy it
can be to slip from supposed common sense into this type of national
or racial profiling. The assumptions are certainly neither research
nor intelligence led.
2.4 Permitting this approach to continue
(and arguably designing the system to encourage this subjectivity,
a point returned to below in the proposals section) creates a
situation where valid applications are refused and ones that should
have been refused get overturned on appeal because such weak and
unsupported reasons are given. This is inimical to justice but
it is equally inimical to efficiency and security.
2.5 It also harms the public purse through
direct costs and indirect opportunity costs. The direct costs
are the additional resources that the refusals absorb (the Independent
Monitor observes in the 2004 report that it takes far more resources
to refuse an application than to allow it) and the lengthy appeal
process. Perhaps more important are the indirect opportunity costs
to business and educational institutions. For example, one Further
Education college in Birmingham promoted itself in India and Nepal
on the back of the Prime Minister's drive to attract foreign students
to UK educational establishments. 124 deposits of £3,000
were received from prospective students who had been admitted
onto courses. Many of these courses would have led naturally on
to degree studies for those concerned, presumably also at UK institutions.
Only two of these students ever arrived in the UK. Some pulled
out because of the July 7 bombings and for other reasons but the
vast majority withdrew either because they were refused visas
or because they could see what was happening to everyone else.
That college is now making staff redundant because of a shortfall
in expected income. It is believed the students will have applied
to study elsewhere in the world: they were short of neither funds
nor ability.
3. CULTURE
3.1 At the Posts with the highest refusal
rates and at the Immigration and Nationality Directorate there
exists a clear culture of disbelief. Even in training before being
sent to posts, future ECOs with whom one talks seem to think of
themselves as a modern Thin Red Line rather than modern service
providers. The lack of a service mentality (indeed, often the
very opposite, a bunker mentality) is also a problem at the Immigration
and Nationality Directorate, despite the massive increases in
fees.
3.2 One of the core problems behind poor
decisions at Posts is that many ECOs are possessed with a distorted
idea of "average" human behaviour. Any deviation from
this norm engenders a refusal—with all the subjectivity
such judgments involve and the inherent risk of racial discrimination
and stereotyping. In ECO parlance, this idea of average behaviour
is referred to as "credibility", an abuse of the English
language that has been repeatedly criticised by the Independent
Monitors (eg 2005 report paragraphs 84-86).
3.3 Typical examples of the above attitude
encountered by IAS include:
— paying what an ECO considers to be
a lot of money to travel to UK to see one's sister after 20 years
separation or to attend a family wedding or funeral;
— the cost of studies in the UK not
being "commensurate" with the ECO's view of the benefits;
— proposed studies not being in the
ECO's view a logical extension of past studies;
— a younger man marrying an older woman;
and
— a Jamaican man getting married at
all.
All of these behaviours are considered to be
"not credible" or, worse, "incredible". This
last example led to a finding of racial discrimination against
the ECO.
3.4 The culture of disbelief—"disbelief"
being the apposite word where "credibility" is so often
a reason for refusal—is a particular problem with regards
to documentation provided with applications. Locally produced
documents are routinely rejected at some posts (in Pakistan, for
example). Allegations of dishonesty, forgery and counterfeiting
are similarly routine. However, ECOs give little or no consideration
to how a genuine applicant might actually meet the expectations
that are imposed. The root problem is that the expectations are
unrealistic and unreasonable given local conditions. For example,
bank statements are required even where use of banks is uncommon,
or birth certificates are required where they are not commonly
acquired at birth. In this latter example, a genuine applicant
will go to the local registration office and legitimately get
an up-to-date retrospective certificate for presentation to the
ECO. The ECO then refuses on the grounds that it was not obtained
at birth and also takes this as reinforcement of his or her belief
that documents are easy to obtain and must be rejected.
3.5 An arms race or escalation situation
develops, where unreasonable requirements become local practice
at a Post, to which applicants then have to respond. When they
do, the requirements are ratcheted up yet further on the basis
that the earlier requirements were too lenient and accessible.
For example, in visit visa applications, ECOs will sometimes request
an itinerary for the visit. Where the applicant cannot recite
detailed plans the ECO will refuse the application as being "not
credible". However, word will get around that an itinerary
is needed, so applicants will make more detailed plans. ECOs will
then use recitation of a learned itinerary as a reason for refusal.
3.6 One of the features of the decision
making process that encourages the circular and self-reinforcing
pattern of refusals is the absence of a right of reply for applicants.
ECOs believe that a genuine immigrant will know the answers to
certain types of questions. The visit itinerary is one example.
Others would include a student knowing the method of assessment
on a course or a spouse knowing about the sponsor's business affairs
and accommodation. ECOs will ask background questions similar
to these which are in truth designed to elicit reasons for refusal.
The ECO's concerns about whether the applicant actually meets
the official requirements of the Immigration Rules will not actually
be put to the applicant. The visitor, student or spouse will not
have an opportunity to explain what reasons they have for claiming
to have an intention to return, an intention to study or an intention
to live together. Instead the ECO will deduct from indirect questions
whether the requisite intention is established. Worse still, ECOs
will directly as well as indirectly trick an applicant into providing
a reason for refusal—for instance, where a student is offered
an interpreter, accepts, is interviewed and is refused on the
basis of an inability to speak adequate English.
3.7 The lack of transparency and the absence
of a right to answer direct questions or concerns generate a considerable
number of unnecessary refusals.
4. INSTITUTIONAL
STRUCTURES AND
CO -ORDINATION
4.1 Communication problems are inevitable
within the current architecture of immigration control. Problems
might as well have been designed into the system: the Foreign
and Commonwealth Office is responsible for entry clearance staff,
UKvisas trains them and manages the entry clearance process, the
Immigration Service is responsible for enforcement within the
UK, the Immigration and Nationality Directorate is responsible
for in-country immigration decisions and Home Office Presenting
Officer Units defend all the decisions in the courts but are a
separate team within IND with no apparent links to the decision-makers.
Finally Work Permits (UK) makes the managed migration decisions
that are then enacted by the FCO, UKvisas, Immigration Service
and IND. This is not a sensible way of organising a modern system
of immigration control.
4.2 There is no common reference number
to enable tracking of cases and each appears to use a different
information technology system.
4.3 The gaps inherent in this approach inevitably
cause a number of serious problems. The system certainly militates
against justice, efficiency and security. From the perspective
of the applicant, a bewildering array of different types of application
needs to be made to a perplexing range of organisations. There
appears from outside to be very little or no communication between
staff at different stages of the process, meaning that there are
no proper feedback loops and little scope for improving the quality
of decisions. There are serious delays between an appeal being
lodged and being heard and between an appeal being allowed and
entry clearance being granted. Rather than resources being directed
at making a correct initial decision which is then facilitated
or enforced by various necessary immigration personnel, the initial
decision is checked and re-checked at each stage of the process.
It is not an effective use of resources and it causes unnecessary
delays and stress for genuine applicants.
4.4 Since immigration staff are so isolated
from other stages of the process, they have very little apparent
interest in what goes on at those other stages or in the impact
of their own work on that of others. They suffer from a silo mentality
that damages the overall maintenance of effective immigration
control as well as the interests of the affected individuals.
When IAS has visited ECOs at Post we have found them openly to
express lack of concern that a decision we have just observed
will be overturned if appealed. It appears to be a common belief
amongst many ECOs that the appeal process, run by lawyers and
judges who are ignorant of local conditions, regularly overturns
"good" decisions. ECOs feel no engagement with the appeals
process and fail to take advantage of the feedback opportunities
and learning opportunities that appeal determinations offer.
4.5 This isolation from rest of the process—and
corresponding insulation from the consequences of decisions to
applicants and the public purse—also generates unwillingness
to review decisions or to negotiate. Some Posts are relatively
accessible and it is possible to telephone, fax or email and receive
a reply. Other Posts appear impervious to communication, making
it extremely difficult to negotiate or to ask for a decision to
be meaningfully reviewed. An expensive appeal then becomes necessary.
This also applies to the Immigration and Nationality Directorate,
with which it is virtually impossible to communicate by any means.
5. APPEALS AND
JUDICIAL REVIEW
5.1 Appeals are essential. They ensure accountability
for the decision makers, which is otherwise sadly lacking (see
the Independent Monitor's criticisms of the Entry Clearance Manager
review process: paragraph 128 of 2004 report). Without this accountability,
and the so far overlooked opportunities for feedback, improvements
in quality will be all but impossible. Granting effective impunity
to decision makers who already have serious problems with making
legally sound decisions will not help to improve matters.
5.2 This is equally true for entry clearance
and for in-country variation appeals. The worst affected countries
will be those with the high refusal rates, such as Uganda, Ghana
and Jamaica. It is the experience of IAS that many work permit
visa refusals are simply incorrect and are overturned on appeal,
as are working holiday maker refusals and student refusals. These
appeals will be abolished under proposals in the Bill currently
before Parliament. Judicial Review would be the only available
remedy, but it is expensive, unwieldy and, where it is pursued
(by the rich, not the poor), it will be a significant drain on
the public purse.
5.3 If appeals are to be abolished or restricted
it is imperative that the appeal success rate is substantially
diminished and appropriate replacement supervisory mechanisms
put in place. It is clear that ECM reviews and the Independent
Monitor have not been effective thus far.
6. PROPOSALS
6.1 There is no obvious long term strategy
behind UK immigration control, only responses to events which
entail the hasty adaptation of existing institutions and structures.
The current panoply of disconnected structures is palpably unsuitable
for modern immigration control needs and requires wholesale review.
6.2 Structural changes are needed. IAS proposes
that the immigration operation is unified and integrated. Specific
ways in which this could be achieved are:
(a) Utilising a common file reference system
so that, even if information technology systems cannot directly
interface with each other, it is possible to track what has happened
to a particular applicant.
(b) Creation of an independent decision-making
body for all immigration and asylum decisions.
(c) Reinforcement of the Independent Monitor's
powers and resources to enable the Monitor to become equivalent
to the Quality Initiative currently being undertaken by UNHCR
in relation to asylum caseworking decisions, whereby decisions
and interviews are continuously sampled, trends identified, feedback
and training is provided and regular reports are prepared.
(d) Creation of vertical teams between the
different bodies responsible for different parts of the process,
based on nationalities. An entry clearance Post would liaise with
a specific team of Immigration Officers, IND caseworkers, Home
Office Presenting Officers and Work Permit (UK) staff, for example.
This would enable better communication, more potential for feedback,
more case ownership and responsibility for ultimate outcomes and
would still enable horizontal opportunities for spread of best
practice within, for example, the Immigration Service. The New
Asylum Model currently being pursued by the Home Office could
provide an instructive model.
(e) Imposition of embarkation controls in
order to allow tracking of overstaying, coupled with a system
for informing applicants that breach of conditions will lead to
probable refusals in future.
6.3 The quality of decisions also needs
drastic improvements. IAS proposes the following concrete steps:
(a) Use of objective criteria in decision
making and removal of subjective judgments on "intention
to return" and "intention to live together". Objective
criteria could include income, savings, financial sponsorship,
existence of a UK sponsor, past personal immigration history,
acceptance onto a course of study at the existing approved list
of educational providers and so on. IAS hopes that the points
based scheme on which the Home Office is currently working will
follow this approach.
(b) Front loading of resources into initial
decision making. ECOs should be encouraged to take the extra steps
to achieve better decisions, such as contacting a UK sponsor if
one is named or telephoning to confirm that a funeral or wedding
is scheduled to take place on the date claimed. It would reduce
the number of unnecessary appeals and save considerable public
expenditure later on. Personal targets for ECOs would need to
be amended to include factors such as the number of appeals allowed
against their decisions.
(c) Stronger monitoring role for ECMs. ECMs
should be made accountable for the quality of decisions made by
their staff. Attempting to improve initial training at the Apollo
House training suite is pointless if there is no suitable on-going
training and supervision at Post.
(d) A service mentality needs to be ingrained
and enforced at UKvisas and at IND. Work Permits (UK) and some
Posts are very good in this respect and genuinely see their role
as facilitating valid applications. There is considerable scope
for more effective sharing of best practice. The use of courier
services in various countries appears to be a significant step
in the right direction in this respect.
(e) A programme to monitor and manage expectations
of ECOs and also of applicants to enable the latter in particular
to know what information and actual documentation is required.
The current position is disingenuous: UKvisas and ECOs claim that
documentary requirements are clearly stated on the website and
application forms. In fact, for example in Islamabad, Accra and
Dhaka, far more documentation is required in practice if a visa
is to be granted. Universal practice needs to be imposed or country
variations must be recognised and managed. The current position
is chaotic and encourages unfairness.
6.4 Appeals are essential if quality is
to be maintained or improved. Removing what little accountability
there is would make improvements impossible and remove a useful
source of feedback (albeit one that seems rarely used at present).
6.5 Work Permits (UK) should not be abolished.
It is one of the parts of the process that actually works Decisions
are made on transparent criteria, there is a genuine service mentality
and applicants have an opportunity to address any concerns. These
are not features that characterise the decision making at a number
of major entry clearance Posts.
6.6 Lastly, access to good quality legal
advice is enormously helpful to an applicant, whether the applicant
is in the UK or abroad. Legal advice enables genuine applicants
to present their applications in the best possible light and makes
the job of the immigration decision maker far easier. It discourages
unmeritorious applications, as a reputable adviser will inform
a client that the prospects of success are low or non-existent
where appropriate. IAS has an office in Syhlet, Bangladesh which
was opened to try to assist IAS clients in getting their applications
right first time, obviating the need for lengthy appeals. The
project has been enormously successful and IAS recently opened
another office in Lahore, Pakistan. If funding allows we have
plans for a number of other small offices around the world, which
we believe would help to improve the quality of decision making
and reduce the refusal rates. It is a view with which the Independent
Monitor agreed in the 2004 report:
"I recommended that IAS be given all possible
support in developing these projects abroad: the National Audit
Office findings about the difficulties that applicants have in
understanding visa requirements from written materials, along
with the non-specific position that UKvisas take on documentation
make individual advice all the more necessary. I also believe
that it would assist in reducing the use of forged documentation:
applicants who are told that this will not assist by a source
clearly on their side are more likely to take note." (paragraph
127)
2 December 2005
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