Reports by the Independent Chief Inspector of Borders and Immigration, David Bolt, now follow a familiar pattern. Mr Bolt and his team carry out an inspection of a certain area of Home Office activity. A report on possible areas of improvement is drawn up and sent to the department for publication. Officials sit on the report for, say, nine months. They eventually publish the report alongside a list of reasons why they couldn’t possibly follow many of the recommendations, terribly sorry. Mr Bolt, evidently forewarned, issues a caustic press release rebutting the Home Office response.
This month’s tit for tat concerns the system of administrative review, an often risible internal appeal process in which the Home Office marks its own homework. Mr Bolt’s opening salvo:
I understand that in responding to my reports the Home Office will always want to accentuate the positives. But, this can give the appearance of selective hearing… some of its responses to this latest report suggest only a qualified acceptance of the need to be more open and more adaptable.
Mr Bolt reviewed the administrative review process in 2016, finding “significant room for improvement”. He returned for another look in 2017, only to find that fewer than half the recommendations from the previous year had been implemented.
His latest report points to some further improvements, but also “several areas where ARs are not working”.
“After almost five years”, the inspector sighs, “the Home Office should be thinking beyond merely tweaking its processes”. This could also sums up Mr Bolt’s experience over his entire term as inspector, which comes to an end in October 2020.
The Administrative Review Unit is part of a team called Appeals, Litigation and Administrative Review. Bureaucracy fans will be no doubt be fascinated to learn that this is “an SCS-level command within UKVI’s Immigration & Protection (I&P) Directorate” and was formerly known as “Appeals, Litigation and Subject Access Request (ALS)”.
The point is that this structure gives reviewers some separation from the colleagues whose decisions they are checking. But this separation becomes “blurred” once a decision is overturned and goes back for reconsideration. Some teams have the original decision-maker carry out the reconsideration as a “learning opportunity”, rather than given to a fresh (and unbiased) pair of eyes.
The report also finds that there is a target of 28 days for getting to the point of agreeing that a refusal should be withdrawn and reconsidered. But there is no target for a fresh decision to be issued, so some people “wait months more for a new decision”. This, Mr Bolt points out,
effectively frustrates the purpose of AR, which is not just to identify case working errors but also to correct them.
The inspector’s conclusions come with the considerable health warning that data on administrative reviews is “neither reliable nor comprehensive”, making meaningful analysis difficult. One way to avoid independent scrutiny, in other words, is to render your operations so inscrutable that even experts can’t work out what you’re doing and why.
Insofar as the figures tell us anything, they show a fall in the number of administrative reviews over the past few years. The Home Office thinks this is evidence that it is making fewer glaring mistakes, but Mr Bolt points out that there might be other reasons — such as migrants realising that spending months waiting for the Home Office to conclude that it was right all along, actually, is a waste of time.
On the substance of review, the report finds that “reviewers were generally effective at identifying and correcting ‘objective’ errors, such as the misapplication of the Immigration Rules, the overlooking of relevant evidence or the granting of the wrong length or conditions of leave”. That praise is rather undermined in the very next paragraph:
the process was geared more towards demonstrating that the Home Office had not made an error rather than in reaching the most appropriate outcome for the applicant.
Reviews of domestic violence settlement applications and those involving the Genuine Student Rule come in for particular criticism. So too does the Border Force attitude to administrative review, “amounting in some cases to an abuse of process”.
The more the report goes on, the more restrained Mr Bolt’s press release appears. The Home Office argued that replacing proper appeals in front of a judge with administrative review via the Immigration Act 2014 would save a specific sum of money (£261 over ten years). Since the 2017 inspection, it has been promising to actually do the work required to find out if these savings have resulted. No analysis has yet appeared.
As usual, the EU Settlement Scheme (which was created from scratch and is less infected by the Home Office culture of disbelief) performs better. The inspection found “evidence of good collaboration” between the relevant teams and a higher overturn rate, “explicable because of the ability of the reviewer to accept new evidence and by the determination of the Home Office to provide every assistance to EUSS applicants”.
The report makes five detailed recommendations for improvements. The Home Office has accepted two, “partially accepted” two more and rejected the fifth.