Immigration complaints (part 3)
Robert Thomas (University of Manchester Law School)
This is the third blog on immigration complaints. The second blog highlighted the paucity on data on complaint outcomes. This blog presents some new data on immigration detention complaints acquired through an FOI request. It also considers scope for improving the handling of immigration complaints.
Detention complaints
The first blog considered ‘ordinary’ immigration complaint-handling. The handling of complaints made by people in immigration detention is somewhat separate and different. The Home Office has separate guidance on handling detention complaints. Immigration detention complaints are also different in that the management of Immigration Removal Centres is contracted out by the Home Office to private contractors. Consequently, private contractors have a role in investigating complaints. Service and Minor conduct complaints are investigated by Supplier Centre Manager and the Home Office Immigration Enforcement Manager. As with ‘ordinary’ non-detention immigration complaints, serious conduct complaints are investigated by the Home Office Professional Standards Unit. Complaints about healthcare in detention go to the NHS. Onward complaints go to the Prisons and Probation Ombudsman.
While the Home Office does not collect data on the outcome of ‘ordinary’ immigration complaints, it does collect data on complaints outcomes made by people in immigration detention. The Home Office released data on immigration complaints in its response to my FOI request. Given the importance of this data and in the interests of transparency, I have put this data here and compiled it into the figures below.
Figure 5 shows the number of detention complaints received.
There are some interesting questions here. Why has the number of service complaints declined? Another issue concerns those complaint that are then withdrawn. Between 2015 and 2020, there were a total of 3,621 service complaints. Significantly more service complaints (199) were withdrawn compared with minor and serious misconduct complaints. Why is this? Empirical research would be required to find out.
What then of outcomes? Figure 6 shows the percentage of service, minor, and serious complaints that were substantiated and partially substantiated. Substantiated and partially substantiated complaints are categorised separately in the FOI data, but I have put them together: a partially substantiated complaint is still a substantiated one.
The data shows that a significant proportion of all types of detention complaints are upheld. The average proportion of complaints that were substantiated and partially substantiated are as follows:
Having 24 per cent of service complaints made that are then substantiated/partially substantiated does not suggest that the complaints process is mere window-dressing. On the other hand, it would be necessary to look at individual complaints – both those substantiated and unsubstantiated – before drawing clearer conclusions.
Another important point concerns the proportion of serious misconduct complaints that are fully or partially substantiated. When looking at figure 6 and the above table, it is important to bear in mind that serious misconduct complaints are defined by the Home Office as including any unprofessional behaviour by its officers which, if substantiated, could lead to serious or gross misconduct proceedings. These are very serious types of complaints and include some very bad types of behaviours from officials and contractors: criminal assault; sexual assault; theft; fraud or corruption; racism or other discrimination; unfair treatment (e.g. harassment); and other unprofessional conduct. The Home Office’s FOI response also notes: “One complaint may contain various aspects/ allegations (for example an allegation of assault and an allegation of rudeness)”.
If service complaints are bad and minor conduct complaints are pretty bad, then serious conduct complaints are entirely beyond the pale. The 10 per cent of serious misconduct complaints is comprised of 44 substantiated/partially substantiated complaints. This breaks down as: 24 complaints substantiated and 20 complaints partially substantiated over the period 2015-2020.
Having 10 per cent of serious misconduct complaints made by immigration detainees that were then substantiated and partially substantiated is significantly higher proportion that what should be the case. It is not possible to compare with the outcomes with non-detention complaints because, as explained in the second blog, there is no data on the outcomes of those complaints. But what we can say is that it would be wholly wrong simply to assume that having ‘only’ one out of ten such complaints upheld is not too bad. These complaints are about unacceptable serious unprofessional misconduct by the state and its agents.
The following two other points are also important. First, what of those people who do not complain? As with complaint-handling in general, it seems entirely reasonable to assume that the number of complaints lodged will never fully reflect the full total of grievances that people have. It is a very common feature of complaint-handling that many people with grievances do not actually pursue them. It seems highly likely that some potential complainants in immigration detention are discouraged from making complaints because they fear it will harm their immigration case or lead to more bad treatment.
Second, what is the quality of complaint-handling? Views differ on the effectiveness of the handling of detention complaints. In 2016, the Medical Foundation produced a report which concluded that the immigration detention complaint process was ‘biased and unjust’. By contrast. in a 2018 report for the Home Office, Stephen Shaw (the former Prisons and Probation Ombudsman) concluded that ‘it would be difficult to argue that the formal complaints process is not a robust one. There is a good system for monitoring and responding to complaints, and the emphasis is on dealing with them at a local level’. It is also important to bear in mind that there is currently a public inquiry into the abuse of immigration detainees at Brook House Immigration Removal Centre uncovered by the BBC Panorama programme in 2017.
I am not in a position from which to make a judgement on the quality of the detention complaint-handling. I have not undertaken detailed research into it. On the one hand, some complaints are upheld; on the other hand, there are legitimate concerns about the quality of the complaints process. I would though be surprised, to be put it mildly, if the handling of detention complaints could win a distinguished achievement award or if it was some sort of exemplar in this respect. Overall, we might then reasonably conclude that if immigration complaint-handling as a whole is problematic, then immigration detention complaint-handling is probably amongst the most acutely problematic area.
Short-term holding facilities
There is another aspect of immigration detention to mention. When we think of immigration detention, we often think of the large removal and detention centres, such as those attached to Heathrow (Harmondsworth) and Gatwick (Brook House). But there are smaller facilities, such as short-term holding facilities (STHFs). These are smaller and short-term units for detaining people who have arrived as car or foot passengers after arduous and often dangerous journeys concealed in lorries and containers. This is an area that attracted some recent negative publicity. What of complaints here? Until 2018, there were no rules governing STHFs. But in 2018, the Short-term Holding Facility Rules SI 2018/409 rules and these rules introduced a complaints process.
In 2020, an inspection by the HM Inspector of Prisons (HMIP) found that STHFs had not been at all managed well by the Home Office. Senior Border Force managers could not even tell HMIP which ports had such facilities, thereby suggesting ‘an alarming lack of oversight and accountability’. Border Force staff working at the facilities felt like they had been ‘forgotten’ about. Some did not even know that the 2018 rules applied to them. Those who did know that the 2018 rules existed had a poor understanding of them. Poor data collection, record keeping, and accountability meant that these problems were largely unmanaged.
As regards complaints, HMIP found that in the previous 12 months, no written complaints had been submitted at any facility. At Harwich, forms were available in 20 different languages, but elsewhere they were usually in English only. Too often, detainees were unable to submit complaints confidentially, and in some facilities there were no complaint forms or boxes at all. HMIP recommended that detainees, including those who do not speak English, should have effective access to a confidential complaints process.
A more positive future?
Is it possible that immigration complaint-handling will improve? There have been various recent developments post-Windrush.
First, the Home Office has introduced new internal policies and procedures as regards how it treats people. In 2018, Immigration Enforcement introduced a vulnerability strategy, available here: https://administrativejusticeblog.files.wordpress.com/2021/08/immigration-enforcement-vulnerability-strategy-2018.pdf. This policy focuses on safeguarding and vulnerability. It emphasises values immigration enforcement staff should operate by, such as: a person-centred approach; professional curiosity; culture; engagement; and heath check mechanisms. For instance, there is a safety-valve mechanism by which staff can raise concerns about a case. I acquired this policy through an FOI and in the interests of transparency it is available here.
Second, there are intended changes to the structure of complaints. The Windrush Lessons Learned Review recommended that the Home Office commission an urgent review of the immigration complaints procedure and noted that options for reform include establishing an Independent Case Examiner as a mechanism for immigration and nationality applicants to have their complaints reviewed independently of the department. In its response to the Windrush Lessons Learned Review, the Home Office stated that it would make further improvements to its complaints system by providing robust, independent assurance and by creating an independent complaints examiner function.
Other large-scale systems – benefits and tax – have long had both had their own a second-tier complaints handling bodies: the Independent Complaints Examiner as regards benefits and the Adjudicator’s Office as regards tax. The immigration system has not had an equivalent body, but it seems that this will now change. Having a second-tier adjudicator/examiner for immigration complaints will provide independent assurance, enable people to escalate their complaint if they are dissatisfied with its initial handling. The examiner will be able to review the administration of the complaint, including the timeliness and quality of the Home Office’s response and make recommendations for improvement.
The Home Office also said that its improvements would build upon changes already made in response to recent Chief Inspector reports, National Audit Office recommendations and Home Affairs Select Committee findings. These changes will include:
– the nomination of a senior official with the responsibility for ensuring each complaint handling team is regularly
– achieving the Customer Service Standard;
publishing lessons learned from the complaints received every quarter and the changes and improvements made as a result; and
– carrying out a new survey of MPs on the department’s handling of complaints raised by MPs and their offices.
Third, the Home Office has also been engaging with the PHSO’s complaint standards framework. In response to PHSO’s recent report on the department’s appalling treatment of a member of the Windrush generation, the Home Office said that it would ensure complaint processes would be clearly signposted for customers, that the process for responding to complaints would be more efficient and informative and that they gather and use the insight they receive from customers more effectively.
I strongly suspect that the Home Office’s engagement with the PHSO on complaint standards is a direct response to Windrush. Whether it signals some sort of wider damascene conversion remains to be seen. There is also the possibility that benchmarking best practice may also serve an alternative blame-shifting purpose for the Home Office in the face of likely future criticism about poor complaint-handling. To parody the style of Home Office RFRLs (reasons for refusal letters):
“We have carefully considered the allegation you have made against the Home Office to the effect that its initial handling of your complaint was inadequate. Having carefully and scrupulously reviewed the matter and the materials that you have seen fit to submit, it has been concluded that the concerns you have raised are, on balance, nothing other than merely unevidenced assertions that do not justify the re-opening of your unsubstantiated and meritless complaint. To evidence this, we wish to highlight for the benefit of your attention the fact that Home Office complaint guidance and processes are fully compliant with the complaint standards framework developed by the Parliamentary and Health Service Ombudsman. It is indeed unfortunate that you were ignorant of this. Accordingly, it has been concluded that the allegations you have made are spurious, entirely misconceived, and wholly without foundation. We regret to inform you that we are unable to enter into any further correspondence with you on this matter.”
It is difficult not to be cynical. There is a clear difference between formalistic compliance and substantive engagement and cultural change.
But, putting parody to one side, perhaps this is the best occasion for improving immigration complaint-handling that there has been. Overall, there are positive and encouraging signs of improvement, but there is a long way to go. Establishing a credible and authoritative second-tier complaint-handling body would be a major step forward. Ultimately, good complaint-handling comes down to embedding the right culture and ethos about the value and benefit of complaints. Let’s see what happens – but don’t hold your breath either.
This blog is part of a wider piece of work on administrative law and immigration administration, which will be published as: R Thomas, Administrative Law in Action: Immigration Administration (Oxford: Hart Publishing, 2022).
UKAJI 
What we have in this country is a ‘pass the buck’ process of Administrative Justice resulting in an ineffective and inefficient Ombudsman system. I was surprised to see that people in detention who make a complaint about their health are referred to the NHS but the onward transmission of their complaint then goes to the Prison and Probation Ombudsman rather than to the PHSO who is supposed to have the expertise.
The parody three paragraphs from the end is beautiful but it has already been written in real life. When I challenged the Chair of the Audit, Risk and Assurance committee at PHSO about governance, I eventually received a letter from a PHSO employee (who I have not publicly named). The correspondence was published, in the public interest, on PHSOthetruestory. The blog is dated 25th June 2021 and is under the title “Who do you think you are kidding Mr. Behrens?” It mirrors the parody and comes from the organisation that devised the complaint handling standard in the first place!
PHSO is, itself, the organisation charged with investigating complaints into the NHS and Government Departments. It is a Corporation Sole and has proven it is unaccountable, other than to scrutiny by the Public Administration and Constitutional Affairs Committee who also fail to adequately examine and address to the evidence provided by the public ahead of each scrutiny session. As an example, despite the many written public submissions, the last scrutiny session of 2020, scheduled to last 2 hours, only lasted 90 minutes. There could not be a clearer example of political disinterest.
Politicians and Ombudsmen will give lip service to issues of culture and ethos regarding complaints but the current culture is that complaints are to be ‘handled, as opposed to ‘investigated’ but Michael Gove at the Cabinet Office has set the Government against Ombudsman reform up to and including 2023-24. An enquiry into such reform needs to be started now.
Posted by David Czarnetzki | August 11, 2021, 12:13 pm