Select Committee on Home Affairs Written Evidence

16.  Memorandum submitted by the Immigration Advisory Service


  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.


  2.1  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.


  3.1  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.


  4.1  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.


  5.1  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.


  6.1  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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