The byzantine complexity of the Immigration Rules, an ex-insider's perspective

Colin Yeo posted an excellent blog on Freemovement on the increasing complexity of the Immigration Rules. This complexity is something immigration lawyers have almost become inured to.

Colin notes:  “The introduction of the Points Based System in 2008 marked a turning point. The detail of the requirements for entry to the UK became almost unknowable. Brexit offers an opportunity for a reset of immigration policy and law, although it seems doubtful that the Government will be in any fit state to use it.

The trend towards tortuousness began as a result of haste and incompetence. I suspect the continued layering of new complexity on old has come to be opportunistically embraced.”

I agree with this, but I believe an additional driver to this ‘byzantine’ system of control is the Home Office’s own belief that the move towards limiting individual officers’ discretionary judgement would make cost savings and simplify their caseload.

The original Command Paper heralding the inception of the Points Based System was CM6741. It contains the following passage in the section describing the ‘current system’ (circa 2006).

“.....this is not a system that is always easily understood by those who seek to use it or by the public. Furthermore, it is not a straightforward one to administer. There is scope for inconsistency and incorrect decisions. Entry Clearance Officers abroad, Immigration Officers at ports and Home Office caseworkers are often required to assess applicants’ intentions, which is necessarily a subjective process. The lack of clarity and objectivity in the system fosters unfounded applications (both intentional and unintentional) and creates burdens for potential applicants, employers and educational institutions. The system can be inefficient: for example the two-stage process for a migrant to obtain a work permit, where the employer can be granted a work permit but the prospective migrant can subsequently be turned down for entry clearance or leave to remain in two completely separate decisions based on different criteria. In summary, the complex set of routes, combined with subjective and bureaucratic decision-making processes, is inefficient for the Home Office and users of the system.”

Reading this passage now, over ten years later, the intention within is striking. I do not believe the Home Office set out to design the hideous system we now have, but that over time, as Colin notes, it came to be embraced.

It is somewhat ironic that the original system, which often consisted of 4 or 5 relatively simple rules per immigration category, was regarded as difficult to understand.

This relative simplicity, in comparison to the rules we have now, can be seen in the original paragraph 281 relating to spouse visas, or the current ancestry rules (miraculously left untouched); a series of relatively straightforward rules which required an applicant to adduce evidence that they met the requirements.

What was demanded was an evidenced based assessment by a decision maker regarding whether a particular rule was met. On occasion, the precise meaning of a rule would be in doubt. However we had a useful appellate function, where meaning could be clarified for the benefit of all and someone who disagreed with a particular decision could have an independent review.

This is no longer the case. The rules strive towards the elimination of the exercise of individual judgement. 

From my perspective, as someone who worked for the Home Office, or rather the UK Border Agency, there was in my time a continual drive to reduce costs, to squeeze the maximum output from the minimum expenditure.

The old system referred to above, where you had well trained and pragmatic caseworkers making evidence based decisions, did involve cost. Those caseworkers had to be trained to correspond properly, to come to sound defensible decisions, to understand the law where relevant, and to maintain quality. Equally it was not immune from inconsistency or confusion.

My last job for the Home Office was working in the ‘New Asylum Model’, starting in early 2006. This was heralded as a new way of processing asylum claims. Caseworkers would be ‘Higher Executive Officers’, described in a recent case involving the personal liability of Home Office Presenting Officers (who are also Higher Executive Officers)  as the first ‘significant management grade’ within the Home Office.

The caseworkers would be trained to a high degree of competence on asylum law, they would also defend the appeals against decisions they had made, by appearing on behalf of the Secretary of State at the tribunal. The idea was that the increased competence and decision making ability, informed by experience defending decisions against appeals would significantly benefit the processing of asylum claims. There would be greater ownership of cases and all aspects of the service would benefit.

The experiment quickly failed. The original high minded ethos was quickly corrupted.

Almost immediately it became clear that the processing burden was too great. There were not enough resources. Soon, some caseworkers, not enjoying court work, became dedicated asylum decision makers, tasked with hammering through as many decisions as they could, as the backlog rose. As subsequent tranches of staff joined the training began to suffer. Originally there was a long 4 week course of asylum law training at a nice hotel; by the end this was significantly curtailed.

Shortly after I left, I learned that the decision had been accidentally leaked that since many of the caseworkers were never near the court, and this was handled as it was traditionally by dedicated Home Office Presenting Officers, there was no need to have staff at the Higher Executive Officer grade, and everyone could be dropped to a lesser grade, with a subsequent pay cut.

Dozens of highly trained officers then left to other government departments, unwilling to have a pay cut and demotion.

The system then lurched back to the old way of doing things; compartmentalised, with no individual officer really having responsibility throughout the process. The process of becoming a more effective decision maker was constrained; someone else handled the appeal, no lessons were learned. Further down the line the case was someone else's problem. 

The systems changed in turn, with the proliferation of pre-formatted decision letters increasing. When I wrote asylum decisions, there was a skeletal framework on a pro-forma. You were given latitude to explain your decision and perhaps somewhat imperfectly. Now the decision templates are a mass of pre-formatted and tortuous text- 'insert name and date of birth here'. 

This has been the story of the Home Office since then. Colin writes that the trend towards complexity has been opportunistically embraced because of the wider political position of our Government towards immigration and the net migration target. I think this is partly true, but I would also suggest that within the Home Office it is perhaps born less of a political justification and more of an operational fallacy. 

The fallacy is that ultimately it is possible to create a system of rules and specification which minimises to the greatest extent the need for an individual decision making (since that costs money), and maximises the control and predictability that the system provides. In processing terms you can therefore have the lowest staff grade possible making decisions on cases, since the need for training and decision making skill evaporates.

Of course in designing a system of such brain melting complexity it has simply opened the door to endless legal challenges which hamper the original aim. 

I believe that the culture and ethos of the Home Office has become corrupted by this fallacy. It has become an impossible goal and one which traps the administration. In a way it is impossible to escape, since change is an admission of defeat. However it is clear to anyone who works with the system that it has failed in the objectives noted within the command paper of 2006.

In continually amending, adjusting and tweaking a body of rules to the point where senior judges cannot make sense of a case, the Home Office has created this untameable beast. It has become this way because within the Home Office the belief is that they can tame it and perfect it eventually.

When I worked there we would frequently travel to Croydon, then a major hub of Home Office operations (perhaps it still is). I was always amazed by the sheer numbers of people that worked there. They did not work in an operational capacity. They were not decision makers. They created and advised on a myriad of different policy issues. I wonder if ultimately that is the problem. The Home Office is dominated by bright senior staff, designing all kinds of nefariously complex policy devices, when in fact what it needs is a strong core of well trained, well paid and competent decision makers, working to clear and simple rules, with an appellate right for individuals.

Clear and simple rules, with an appellate right, as was previously the case, allows an applicant aggrieved by a decision to seek an independent review. As this is on the evidence, save for an error by the reviewing body, then that is usually the end of the matter. Instead, we have no review facility for many cases, or a review facility beset by needlessly complex statutory checks and balances, which instead creates the ground for endless higher level court challenges to the fabric of the system itself.

Really what is needed is a complete review of the system (as Colin notes), from the ground up, but to do so would be so politically charged, since it admits that the whole direction of the Home Office has been flawed for years. It is possible to be a robust and fair organisation, but not without a backbone of humanity and pragmatism.