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“Computer says no”: facing up to the full implications of a digitised immigration system
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“Computer says no”: facing up to the full implications of a digitised immigration system

In addition to the deluge of new Immigration Rules and legislation we faced in the May years, and now the looming Brexit iceberg, a major (if inevitable) change of recent times has been the digitisation of immigration applications.

Unlike with Rules and legislation changes, there was little opportunity to scrutinise the detail of what are in fact significant changes to the immigration system prior to their coming into force (bar selective ‘user testing’, which is rarely transparent to all). And, as with so many tech developments, as the process or ‘app’ itself increasingly takes centre stage over the content (in this case the law) that underpins it, there are risks.

This article looks at some of the practical and legal aspects of the move to digital immigration applications, both positive and negative; and speculates on some of the biggest concerns as to the road ahead. While the new systems can bring efficiencies in terms of procedure, and as regards the types and extent of evidence that must be provided, their roll-out is often accompanied by poor communication and practical/technical glitches. There are wider concerns about whether online forms and systems can remain fully in tandem with, and sufficiently cover all aspects of, the law which underpins them. In addition, it is likely that digitisation will usher in an increase both in the extent of automated or digitally assisted decision-making, and in data-sharing, both of which have some worrying implications.

The move to digital

Digitisation has come in several waves, initially commencing a few years ago with a rather basic online application form system for overseas visa applications (visa4uk). That was followed by the introduction of a more sophisticated user-tested application system for certain in-country applications, then a similar new out-of-country system for particular application types (AccessUK).

The beginning of November 2018 saw a major switch-over to online forms, so that the majority of immigration applications can (and in many cases must) be made online.

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The new settled status scheme being introduced to give EEA citizens domestic immigration status after Brexit is taking things a few steps further. A mobile phone app (currently limited to Android devices) reads passport chips, and digitisation is encroaching further into the decision-making process, as a new tool automatically searches HMRC and DWP digital records for evidence of previous residence.

These developments have been accompanied by significant changes in application procedures for the receipt by the Home Office of biometric information (photographs and fingerprints), payment, and documents. Much of this is now handled by third party contractors, at visa application centres overseas, or in the UK by the French-based IT firm Sopra Steria in conjunction with an additional provider, BLS International.

For the applicant and adviser, even where there has been intensive prior Home Office ‘stakeholder engagement’, the changes can be swift and highly stressful. There will inevitably be hours of non-chargeable fun finding out how do you apply, where you need to go, what you need to include, how much does it cost. There are inevitably technical glitches. Of course, such is always the way with large projects, and the technological and operational challenges on these projects will have been significant.

The immigration White Paper, which was issued on 19 December 2018, makes clear that digitisation is a key priority of the government’s plans for post-Brexit immigration.

Online applications have benefits

For the Home Office, the practical benefits of these new systems are clear. Many of the operational aspects and headaches involved in application procedures are significantly reduced or passed on to third parties. The Home Office receives its fees and its caseworkers are served up with all the raw materials they need to decide an application (the biometric information, the required information from the form, and the documents in easily digestible scanned formats). No more files taking up acres of space in storage; or documents which can be easily lost. Just kilobytes and kilobytes of PDFs and data. (Of course, there will be new challenges for them instead, such as the safe and efficient storage of electronic data.)

For the applicant, there are practical benefits too. The forms can be much quicker to fill in than the old hard copy forms. They won’t change version number, so applications will no longer be invalid on that ground. They are often automated, so that they shouldn’t ask you the same question several times, and should focus on the questions that are relevant to your situation.

This has one downside, which is that there is no list of all the questions that are asked until you get to the very end of completing the form and confirm your answers. If you don’t have all of the relevant information to hand when completing it, you need to go through putting in ‘dummy’ answers in order to move ahead with a first draft.

You cannot submit the online application until payment has been taken — thus hopefully drawing a line on future Basnet style litigation on application invalidity due to non-payment. And the ability to provide scanned rather than original documents, and to retain passports, are both a massive improvement on the old system. The former ensures that documents will not be lost during the process; the latter allows for a degree of travel (although care must still be taken in that regard). It is also to be hoped that more efficient digital processes lead to quicker decision-making.

But there are practical concerns

On the negative side of the ledger, the two foremost practical concerns are the additional costs and problems finding information that come with using outsourced providers.

There are now a range of ‘value added’ and priority services, all for an additional (often significant) cost. The worry is that priority services become the norm. Those who cannot afford them, in addition to the now very high visa fees, and, where relevant, Immigration Health Surcharge, will languish at the back of the queue — unable to obtain appointments within a reasonable time. It also appears that only a small number of the new UKVAS centres offer free appointments.

The issue of poor or inconsistent provision of information by third party providers was, and continues to be, a live one in relation to overseas applications. You can struggle to navigate out-of-date or incomplete web pages in order to find key information such as where to send your application documents. The fact that you have to pay further charges to a call centre when you have a basic process query is particularly galling in these circumstances.

It is unfortunate that many of these same themes are raising their heads again in the recent in-country switch-over, with applicants and advisers often struggling to find out how much the different services cost, which centres are opening, what the relevant processes are, and who to contact when things go wrong. The Financial Times carried a story on problems with the roll-out of the Sopra Steria/BLS International contract just before Christmas and immigration lawyers regularly on Twitter will have seen many more examples.

Another big concern, which is being raised in relation to the settled status scheme, is the ‘digital divide’. Some people (the elderly, those with low financial resources and other vulnerable groups) will simply not have the technological know-how (or hardware) to be able to deal with this new world of digital form filling, numerous passwords, and uploading documents. The Home Office does acknowledge this, eg with an Assisted Digital Service; we will see how that goes now that so many people will be forced to go digital.

More generally, there is always the practical reality of ‘computer says no’, where the technology simply does not work or there are incompatibility issues (early reports from the settled status trial report problems for example with the recognition of hyphenated names, and size restrictions on uploaded documents).

Process-wise, in a best case scenario, and putting aside the fees issues, the operational aspects would bed down and we would see in the future a much quicker, more streamlined and efficient process than used to be the case. This is certainly the Home Office’s stated intention.

And legal concerns

One size does not fit all

There are wider concerns about the move to online applications.

One is the risks that can arise in the use of oversimplified, one-size-fits-all forms. Making forms simple and easy to understand for the lay applicant is of course an important aim, but one that carries the risk of nuances/less common circumstances being engineered out. Another issue is where a form has wrong or misleading information, or sends you down the wrong path. In both cases, unlike paper forms — which give you the flexibility to qualify responses with handwritten notes and cross-references — you are almost totally at the mercy of the online architecture. You have to answer all questions to move forward; you have to tick either yes or no even if the answer is actually not applicable; you have to put in an exact date for an inconsequential detail that you can’t remember, and so on.

The online form for permanent residence EEA(PR) is a good case in point. The base assumption which seems to underlie the architecture is that an applicant commenced their eligibility period for EU law permanent residence as soon as they first came to the UK, and they are now applying to confirm that permanent residence five years later. So, it asks: ‘when did you arrive in the UK?’ and then goes on to ask you to give details of all of the activity you have carried out since then. If you are relying on a continuous five-year period other than the period immediately after your initial arrival, then what you did in your other periods of residence is of no relevance whatsoever. While this may assist some lay users, in many cases it will not: they can spend hours detailing years of study and work and everything else when it is just not relevant to the application.

A cynic might also wonder whether the Home Office is trying to obtain as much information on applicants as possible, such as the blanket question asking whether nationals from accession states worked without authorisation during their accession period. The A8 accession period ended on 30 April 2011, but, according to the Court of Appeal in Gubeladze, was unlawfully extended from 1 May 2009 to 30 April 2011. As such, in relation to A8 nationals this question will only have relevance to people who are seeking to rely on time spent as a worker before 1 May 2009 (or, if the Home Office is able in the New Year to persuade the Supreme Court that the Court of Appeal and Upper Tribunal were wrong, 30 April 2011).

Worse is where the form goes down routes which are not relevant to you due to what appear to be errors in the coding. On the same form I was recently asked a number of questions (and required by the form to provide evidence) in relation to dependency of a child, who despite now being over 21, was below that age during the qualifying period. This is just wrong: as there is no requirement for dependency to be shown for children under 21 prior to their acquiring permanent residence.

Fortunately, there still remains on the online EEA(PR) form an ‘Additional Information’ free text box where the user is able to qualify their previous answers/explain why they think the form is wrong on something. But this requires quite sophisticated interplay by the user between the free text box and the prior question. A lay applicant may unknowingly provide false information, when they are just, for example, answering a question that does not apply to them simply in order to move the application forward.

The wider point here is that in very many cases people do not meet exactly the most straightforward cases envisaged by Home Office rules and schemes. There is a risk that the fixed architecture of the forms may in practice give applicants much less flexibility to explain their exact situation and how it meets the relevant rules/exceptional circumstances.

Relationship between online forms and the underlying law

Linked to this concern is the relationship of the forms with the complex body of law that underpin them.

In addition to the risk of engineering out relevant considerations, there is the issue of the guidance and help text which appears on the online forms. It is important that this does not go beyond, or be inconsistent with, the Immigration Rules, in line with well-rehearsed Alvi/Munir principles. This was previously an issue with hard copy forms (see eg Bhudia), but there may be a push towards more integrated application ‘systems’ which incorporate guidance, requests for information, and documents.

Such a move would be in line with recent UVKI innovations, the White Paper, and the government’s general ‘digital by default’ plans. But such systems should just be a method of service delivery; the imperative of new technology and its related efficiencies should not wipe away the important minimum protections that Parliamentary scrutiny brings.

Digital aspects of decision-making

There is then the issue of digitised decision-making. In his recent visit to the UK, the UN special rapporteur on extreme poverty and human rights was highly critical of the use of technology in the roll out Universal Credit. For example, the government’s apparent default acceptance of information provided on the (HMRC-fed) Real Time Information system, even where the applicant’s evidence demonstrated that this was incorrect.

It does not appear that the results of the app which will crawl HMRC databases in the settled status scheme will be applied so rigidly, given the ability to upload other documents. The Home Office is going out of its way to stress that there will be a new, more flexible, approach to decision-making. However, the picture painted by the UN rapporteur does point to wider risks with the use of digital databases, and lack of transparency, if the Home Office were to continue further up this path in the future. This is likely to be the case, as the White Paper confirms that the Home Office intends to extend the use of inter-departmental data sharing as an alternative to the provision of evidence to other areas (eg in relation to information provided by sponsors). It also aims to make greater use of Home Office data capture, eg exit checks, in relation to compliance.

These risks could be heightened if the current, ‘post-Windrush’ environment dissipates, and priorities of speed, efficiency and restriction once again trump common sense and flexibility. The recent spate of paragraph 322(5) refusals on the grounds of alleged tax discrepancies that we have provide a rather worrying precedent where the Home Office has previously had access to raw tax data. It will be important that in relevant cases applicants are able to provide explanations for any corrections or other discrepancies/tax technicalities to ensure that incorrect assumptions are not made by Home Office decision-makers.

In any case, it is clear that some aspects of digitisation are creeping in to actual decision-making in some immigration matters. In a July 2017 report on entry clearance processing, the Independent Chief Inspector of Borders and Immigration noted the introduction of an automated “streaming tool” in the decision making of entry clearance applications:

3.6 Since 2015, UKVI has been developing and rolling out a ‘streaming tool’ that assesses the perceived risks attached to an application. The streaming tool is regularly updated with data of known immigration abuses (for example, data relating to breaches of visa conditions after entry to the UK). It streams applications ‘Green’ (low risk), ‘Amber’ (medium risk) or ‘Red’ (high risk). In Istanbul, a fourth rating, ‘Super Green’, had been in use. This was described as “Applications with evidenced low risk, where limited or no judgement was required and that could be streamed to AO6 grade decision makers.

3.7 While segmenting applications in order to manage them more efficiently is sensible given the numbers involved, there is a risk that the streaming tool becomes a de facto decision-making tool. This is a particular concern for applications streamed ‘Green’, where the benchmark is for 70-75 visit visa decisions per day per ECO, and where the quality assurance regime is geared to checking only anomalous decisions (for example the refusal of a ‘Green’ or issue of a ‘Red’). The assurance regime does not take account of the danger of ‘confirmation bias’ (an unconscious disinclination on the part of the decision maker to look for or give appropriate weight to evidence that contradicts the streaming rating, and a tendency to select and rely on evidence that supports it).

3.8 At the Croydon DMC, in the first two months of 2017, less than 4% of ‘Green’ applications were refused. Meanwhile, nearly 50% of all visit applications streamed as ‘Red’ were issued, plus over 80% of those streamed as ‘Amber’. The ‘Green refusals’ and ‘Red issues’ add up to over 3,600 decisions that ‘deviated’ from the streaming rating. With only five ECMs in post, managers will have struggled with this volume of decisions to quality assure, and this may go some way to explaining why inspectors found that other management tasks had not been completed.

The question of what factors feed into the algorithm is of course key. Given that the Home Office is able via ministerial authorisation to lawfully discriminate in some aspects of its functions, it is not too much of a stretch to guess that at least some of the recent refusals of visit visas to senior academics, artists and so on have followed the use of this ‘screening tool’. The interesting question is whether they would have faced a refusal if the tool had not been used.

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It is worth keeping an eye on the work of academics and commentators such as Paul Daly and Joe Tomlinson on the issues thrown up by the increasing use of digital technology in administrative decision-making.

The final theme of concern is, where does the electronic data go? Which other government departments (and commercial organisations, where third party IT apps and servers are used) might have access to it? Will electronic storage facilitate data sharing more than when hard copy forms were used? The issue of data sharing is highly controversial at present, eg in the context of NHS access and hostile environment measures. The direct provision of data in digital format will only increase the risk of more widespread data sharing, or worse, hacking.

Vigilance is the key

For me, the key will be vigilance and making the effort to provide feedback to the Home Office, including via ILPA, as soon as we see potential or real problems with forms and processes.

It is to the Home Office’s credit that it have been willing to engage, eg in correspondence with ILPA, in a detailed and serious way in this regard (albeit, in many cases, post-launch). The machine has the potential to transform the way that immigrations applications are processed for the better, but we mustn’t be subsumed by it, or allow it to wash away the protections that underpin the system.

In a rather chilling passage of his report, the UN rapporteur commented: “we are witnessing the gradual disappearance of the postwar British welfare state behind a webpage and an algorithm”. It is vital that the immigration system does not go the same way.

Jonathan Kingham

Jonathan is an immigration solicitor at North Star Law. He has particular expertise in EU free movement law, including Brexit-related issues, and is a co-convenor of the European working group of the Immigration Law Practitioners’ Association (ILPA). Other areas of specialism include family immigration, nationality, and all aspects of business immigration, including applications by entrepreneurs and investors, and sponsorship under Tier 2 of the Points-Based System. He was previously at LexisNexis, where he developed, wrote and edited the immigration law know-how service LexisPSL Immigration.

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