By Robert Thomas and Joe Tomlinson
The Independent Chief Inspector of Borders and Immigration (ICIBI) recently published his second report on the Home Office’s administrative review process. This blog provides some context for this report and also analyses its contents.
The new immigration administrative review process
In recent years, government has reformed administrative redress processes. A general trend has been a shift from traditional tribunal rights to administrative (or internal) review systems. This has happened in major policy areas, notably immigration and social security.
The idea behind administrative review is to allow administrative bodies to review their own decisions before they are scrutinised by any external redress body. Through such internal review, the stated intention is for incorrect decisions to be detected quickly, reducing the volume of costly and slow tribunal appeals.
In 2014, all existing immigration appeal rights – save for those concerning asylum and human rights grounds – were abolished. They were replaced with an administrative review system (see section 15, Immigration Act 2014, s 15; Appendix AR, Immigration Rules). The result of this move was that, of the 3.5 million immigration decisions taken per year, only around 12% of decisions have a right of appeal. As may be expected, this reform was criticised by many immigration representatives, it generally being viewed as another way of undermining fairness.
With the 2014 reform, the traditional role of tribunals was undercut. The Upper Tribunal subsequently responded. Some previously unappealable decisions can now be appealed despite the contrary policy intention (Sheidu v Secretary of State for the Home Department (Further submissions; appealable decision)  UKUT 000412 (IAC)). The Upper Tribunal also held that when it had a choice between different decision-making powers, some attracting appeal rights and others not, the Home Office abused its power by depriving individuals of appeal rights (R (Mohibullah) v Secretary of State for the Home Department (TOEIC – ETS – judicial review principles)  UKUT 00561 (IAC)). Despite these rulings, appeal rights have been thoroughly watered-down.
Ministers gave assurances, at the time of the reforms, to allay concerns. These assurances included that administrative reviews would be undertaken by fully trained and experienced staff, that reviewers would be independent of the original decision-maker, and that reviewers would be located in a separate operational unit. Assurances were also given that feedback mechanisms would be established. The Home Office stated that it would monitor the overturn rate on administrative review and investigate any discrepancy with the appeal success rate.
The ICIBI’s first report
During the passage of the 2014 Immigration Bill and in response to the concerns of some MPs and peers, section 16 of the 2014 Act required the Home Secretary to commission a report from the ICIBI that addressed: the effectiveness of administrative review in identifying caseworking errors; the effectiveness of administrative review in correcting caseworking errors; and the independence of persons conducting administrative review (in terms of their separation from the original decision-maker).
In the first report, published on 26 May 2016, the ICIBI found that administrative reviews were being undertaken by low-level, untrained, and temporary staff with limited or no experience of immigration law. It was also found that quality assurance was minimal and ineffectual, and that valid applications had been incorrectly rejected without being detected.
The report noted that, to ensure some level of independence, in-country reviewers were located within a functionally separate unit from initial decision-makers. However, the unit had been staffed with junior and inexperienced officials, and more complicated issues were not referred onward to more experienced, higher-level officials. In respect of overseas reviews, reviewers worked alongside decision-makers. The report found no evidence of bias, but it was difficult to claim reviewers were independent.
Review decisions displayed ‘an over-reliance on the initial refusal decision letter’, often not dealing with the applicant’s points of challenge. New evidence was not normally considered, even if it was of significance.
Success rates were far lower than those seen in tribunal appeals: 49% of appeals were successful. The Home Office had concluded that 60% of allowed appeals succeeded due to caseworking errors. This is to be contrasted to the success rate for in-country administrative reviews: 8%. The assurances given to investigate such differences were not fulfilled. The only assurance met was that reviews would be processed within 28 days.
Overall, there had been poor implementation. The ICIBI concluded that there was ‘there was significant room for improvement in respect of the effectiveness of administrative review in identifying and correcting case working errors, and in communicating decisions to applicants’. The ICIBI made 14 recommendations (see figure 1). The Home Office accepted that the ‘quality has not consistently been of the standard to which we aspire’. It accepted 13 of the recommendations, and partially accepted the other.
The ICIBI’s second report
In his recent, second report, the ICIBI found that the handling of in-country reviews had improved considerably, but that progress with overseas and ‘at the border’ reviews had been slower. Six of the 14 recommendations from the first report were found to have been followed and stated to be ‘closed’ (the progress on specific recommendations is set out in figure 1). However, the report also stated that the ‘Home Office was not yet able to demonstrate that it had delivered an efficient, effective and cost-saving replacement for the previous appeals mechanisms’. The report suggested that the Home Office should consider appointing ‘a senior responsible owner for the overall system’ to ‘ensure consistency and benefits realisation’.
Figure 1: ICIBI’s recommendations – current status
|1||The Home Office should make it clear to applicants in published guidance and on the online application form that the deadline for applying for an AR is calculated from the deemed date of receipt of the eligible immigration decision unless the applicant can demonstrate they received this on a later date.||Closed|
|2||Ensure caseworkers take all reasonable steps to check the actual date of receipt of the eligible decision before rejecting applications on the basis that they are out of time.||Closed|
|3||Ensure that CID notes and AR invalidity notices state clearly why an AR application was determined to be invalid.||Remains open for in-country AR; closed for ‘at the border’ and overseas ARs|
|4||Where the applicant failed to qualify for a fee waiver, ensure the invalidity notice informs them they may reapply with the fee within seven days.||Closed|
|5||Provide training for AR reviewers that is consistent with the training provided to original decision-makers.||Closed|
|6||In light of its performance to date, revisit the structure, grading and staffing (in terms of knowledge and experience) of the AR Team in Manchester to ensure its effectiveness in identifying and correcting case working errors.||Closed|
|7||Produce a revised statement about the processes for overseas and ‘at the border’ ARs explaining how independence and separation from the original decision-maker are ensured where there is no ‘separate, dedicated team of reviewers’.||Remains open in relation on to overseas ARs; closed for ‘at the border’ ARs|
|8||Ensure that all AR reviewers address all substantive issues raised by the applicant and that CID (or CRS) notes and decision notices accurately reflect this.||Closed for ‘in country’ ARs; remains open for ‘at the border’ and overseas ARs|
|9||Clarify guidance regarding the requirement for reviewers to correct all errors contained in the original decision (not just those identified by the applicant in their AR application), including carrying out further checks where they identify these were not done correctly by the caseworker who made the original decision.||Closed|
|10||Consider the scope to prioritise the processing of ARs to meet the needs of the applicant in terms of timeliness (as in the case of some Tier 4 ARs).||Remains open|
|11||Put in place formal, robust Quality Assurance procedures for all ARs (including decisions regarding the validity of applications) that takes account of the grade and experience of the reviewer and the complexity of the original decision.||Closed for in-country ARs; remains open for overseas and ‘at the border’ ARs|
|12||Record and use the results of QA to improve the quality and consistency of AR outcomes by feeding back to reviewers and their managers.||Remains open for overseas and ‘at the border’ ARs; closed for in-country ARs|
|13||Capture and feedback in a structured form to original decision-makers the learning from ARs where the reviewer has withdrawn the original decisions and/or amended the reasons.||Remains open for overseas and ‘at the border’ ARs; closed for in-country ARs|
|14||Ensure that all data relevant to demonstrating how the AR system is functioning is captured and used to effect the continuous improvement of both ARs and original immigration decisions, including where Pre-action Protocols or judicial reviews cases are conceded and why.||Remains open|
There are some reasons to be optimistic following the ICIBI’s second report, but concerns about the immigration administrative review system are far from resolved, and only a handful of recommendations have been fully met by the Home Office. From the ICIBI’s report alone, there appear to be serious weaknesses still remaining in respect of reason-giving, the lack of a dedicated team for overseas reviews, and the variable level of quality assurance for overseas and border reviews. In its response to the report, the Home Office, noting that in-country reviews have improved, accepted that progress has been slower for overseas and border administrative review reviews.
Analysing the Chief Inspector’s report
The Chief Inspector’s report provides a good assessment of the operation of the immigration administrative review system. However, there are some areas in which the Chief Inspector could have subject the system to closer scrutiny.
First, as regards the outcomes of reviews, the Chief Inspector could have re-enforced the point that the Home Office should both investigate and explain the substantial differences between review and appeal outcomes.
In the first report, the Chief Inspector had noted that, for the period 1 April to 30 September 2015, review success rates were 8% for in-country (191 out of 2,369), 22% for ‘at the border’ (21 out of 96), and 21% for overseas (102 out of 487). The first report drew attention to the fact that the 8% in-country ‘overturn’ rate was much lower than expected ‘in light of the Home Office’s own assessment in July 2013 of the extent of caseworking errors in Managed Migration cases that had been lost at appeal’ – which had been 60%. However, there was no evidence that the Home Office had investigated the difference in upheld/overturn rates at reviews and appeals.
The second report notes a drop in the overturn rates: 3.4% of in-country reviews were allowed and 6.8% of border reviews. These overturn rates were lower than those recorded in the first report, let alone compared with appeals. However, the report does not itself investigate the reasons for this. Nor does it make any recommendation that the Home Office explain the difference in outcomes.
This is a somewhat odd position for an independent inspector to adopt. There is a substantial and unexplained difference in outcomes between reviews and appeals. During parliamentary debates of the Immigration Act 2014, it had been argued by Lord Avebury that the whole purpose of replacing appeals with reviews was not to secure fairness and justice for refused immigrants, but to reduce the number who would have succeeded had they been able to put their case to a tribunal. This argument is largely borne out by the overturn rates. Furthermore, under the Immigration Act 2014, the Chief Inspector is specifically instructed to investigate the effectiveness of administrative review in identifying and correcting case-working errors. Despite these points, the Chief Inspector has merely noted lower overturn rates rather than investigating the underlying reasons for this.
Second, the inspection could have been more emphatic as regards the importance of reason-giving. The report had found progress as regards the recording of reasons as regards ‘in-country’ reviews, but not border and overseas reviews. As regards overseas reviews, the report found that reviews continued to use broad statements – boilerplate reasons – for refusing review requests. Nonetheless, the report stated that all three areas need to improve the quality of reason-giving. Furthermore, in relation to recommendation 7, the report observes that:
UKVI document retention policy does not require all supporting documentation to be retained with an entry clearance application, only those documents ‘relevant to the original decision’. In practice, this means that only documents relating to grounds given for refusal are retained. In the absence of all of the supporting documents originally supplied, it is difficult to see how AR reviewers are able to carry out a ‘full reconsideration’.
This issue effectively prohibits a holistic review and presents a high risk of any error made in the assessment for the initial decision being replicated at the review stage. More could have been said about this. The report could have placed more emphasis on reason-giving, and appears to conflate this with mere ‘record-keeping’.
The third issue is oversight and quality assurance. In the first report, the Chief Inspector had recommended that the Home Office put in place robust quality assurance for all reviews. The second report found that this recommendation has been met for in-country reviews, but not overseas and border reviews. But the Chief Inspector could have gone further. For instance, following the first report, the Home Office considered – only to then reject – introducing external quality assurance. This option would have brought greater independent oversight of review decision-making. For instance, the previous system of the Independent Monitor for entry clearance refusals published annual reports on the quality of both initial and review decision-making. The Chief Inspector could have recommended external quality assurance, but has instead merely suggested – but not recommended – that the Home Office appoint a senior responsible officer for the overall system of administrative review to ensure consistency. In response, the Home Office is to consider whether all administrative review decisions can be brought together into a single unit.
The reports of the Chief Inspector have prompted the Home Office to improve its administrative review systems. But there is still much distance to go. The Home Office is currently undertaking an analysis of the changes made to appeals and administrative review. Yet, the overall conclusion of the Chief Inspector is that the Home Office has not yet been able to demonstrate that it had delivered an efficient, effective, and cost-saving replacement for the previous appeals mechanisms. Furthermore, the Chief Inspector could have subjected the review system to closer scrutiny.
About the authors:
Professor Robert Thomas is Professor of Public Law at the University of Manchester. Dr Joe Tomlinson is a Lecturer in Public Law at the University of Sheffield.