The first thing to say about this book is that it has a really excellent and entirely appropriate title. The contents do not fail to deliver.
Campbell seeks to place immigration and asylum decision making by officials and judges within a wider context, taking into account not just the internalised processes and self perception of individuals operating (or being operated by) the system but also the institutional and cultural influences at work. Campbell is particularly interested in the role, direct and indirect, of the Home Office at all stages in the process, which he finds to be all pervading.
Very little academic research or writing has been done on the asylum and immigration system in the UK. Campbell spent two years researching the book, from January 2007 to January 2009. He reviewed what specific literature there is, including Travers, Bohmer and Shuman, Good and Hamlin, and brings to bear a wider anthropological approach treating law as a “semi autonomous social field” populated by actors pursuing different projects and agendas. He interviewed part time immigration judges, former officials who had worked for the tribunal, lawyers and several Home Office Presenting Officers and he sat and observed around 24 asylum cases as a member of the public, for some of which he also managed to obtain paperwork from the lawyers.
His research was thorough, but it was done principally as an outsider and without the co-operation of the immigration tribunal. One of themes of the book is the closed, insular, isolated and arguably parochial nature of the asylum system, the lawyers and the immigration judiciary.
This was exemplified by the refusal by Mr Ocktleton, Deputy President of the Tribunal for time immemorial, of Campbell’s request to “work shadow” immigration judges on the basis that
“your research is not based on a detailed and accurate knowledge of the system as it is and a genuine and open-minded attempt to discover more about it”.
Joseph Heller would be impressed. Only a person with an existing “detailed and accurate” knowledge of the tribunal would be allowed to learn more. But how would such knowledge be acquired in the first place by any outsider? One suspects that a researcher who was considered “one of us” might perhaps have fared better. After all, requests for “marshalling” and research are routinely granted in other tribunals and courts, I understand.
At least Mr Ockelton replied, though. The Administrative Court ignored requests, as did the Home Office. Although the Home Office had the bad grace to string Campbell along first, and then to mislead on and refuse his subsequent Freedom of Information requests.
It is no surprise that Campbell finds officials seek to remain “invisible” by various means and thus unaccountable and decisions are expressed in ways which are utterly unintelligible to those most affected. Officials, lawyers and judges seem to be deliberately making the system impervious to its users, never mind other outsiders.
John also looks at the intellectual tools, assumptions and mindsets that are deployed by judges and officials to determine cases, the vast majority of which turn on the euphemism of “credibility” – really, whether the witness is lying or not. One of the articles of faith, for example, is that inconsistency signals untruthfulness, despite strong evidence that this is an extremely unreliable assumption.
The closed, insular mindset is revealed not just be resistance to scrutiny and the erection of barriers to comprehension by mere mortals. Training might be expected to seek to address some of these issues but is infrequent, very limited and is provided entirely by other judges. There is no external input as far as it is possible to ascertain. The tribunal is a hermetically sealed environment. Or at least it has been.
Some might see this closed approach as arrogance: a self certainty that the immigration judiciary is doing the best possible job in the best possible way, a way which is incapable of improvement.
Another way to see it is insecurity. Despite the potential for life and death decisions being made, recruitment was traditionally from lawyers who would not qualify for other judicial posts and who had no direct experience of working with refugees or of immigration law. They were then given little in the way of training. Resistance to scrutiny is perhaps no surprise in these circumstances.
The confident, outward looking judge, I would suggest, does not hide away, engages with stakeholders and others and would positively welcome research. There certainly are some who fit this bill in the tribunal, and in my own opinion the tribunal is undergoing a period of rapid change — perhaps not rapid enough — and is more open to external input than in previous years.
We live in turbulent times. The political spectrum is said by some to be realigning away from right/left towards authoritarian/liberal or even just closed/open. The immigration tribunal has to adjudicate on one of the biggest questions of our time. By its very actions, that tribunal has in the past shown itself to be naturally closed minded, which surely tells us much about its basic approach to decision making on the very cases on which it adjudicates. It is certainly time for that to change, and Campbell’s book is an erudite, well researched and well written reminder of that.
Finally, don’t think it is just the judges who are criticised. Home Office officials and claimant lawyers get it with both barrels as well. The section on how the market for barristers works is quite excruciating.
