There aren’t many books about immigration law in the United Kingdom so the publication of a new one should be regarded as something of an event. On top of that, it’s not often a book challenges your view of the concept of “law”. Professor Robert Thomas’ Administrative Law in Action: Immigration Administration is one such work.
Thomas aims in this ambitious analysis to examine immigration administration as a whole, going beyond the conventional ‘legality’ analysis of the principles of judicial review. As I’ll come to at the end of this review, it’s an approach to which I am very open. But I wasn’t left entirely convinced.
What even is “administrative law”?
Lawyers understandably regard administrative law as being “fundamentally about providing claimants with external legal remedies against administration,” as Thomas puts it. All too familiar with the individual injustices churned out on an industrial scale by the Home Office, how could we be otherwise? But very few administrative decisions are ever challenged by way of judicial review. As Thomas puts it, the risk is that “more time is spent on analysing how the courts’ review administration than reviewing and analysing administrative action itself”. What about outcomes for those whose cases are processed, and the principles that guide that processing?
The book stands as a reminder that the law isn’t just what lawyers do. Certainly, most people don’t experience court. What they do experience, either directly or indirectly, is form design, rule design, caseworking systems design and the qualitative outcome of whatever monitoring, supervision and review mechanisms are put in place.
So, to complement more traditional studies, Thomas draws on a far wider range of sources than those with which most lawyers, students or scholars will be familiar. Not so Free Movement readers, perhaps; the material Thomas draws on is meat and drink to this blog.
Policy guidance documents written for Home Office officials, reports by the Chief Inspectors of Borders and Immigration, the Windrush Lessons Learned review, court and tribunal statistical series, budgets, parliamentary committee reports, the work of the Institute for Government, white papers, newspaper articles and more are picked apart and woven together to build a picture of how immigration administration actually works — or not — in the United Kingdom.
Immigration Administration is not unmoored from a theoretical perspective or from the literature on bureaucracy and administration. Far from it. I confess my own knowledge of these things extended to reading a bit of Max Weber at university. I learned a great deal from Thomas’ early chapters, not least perhaps because I had a lot to learn. There’s a whole literature out there on “internal administrative law”, for example, addressing “the internal systems and processes within administration by which higher-level officials oversee, supervise and monitor the work of front-line officials in order to motivate and manage them and hold them accountable.”
Thomas also dedicates one of the later chapters to a more conventional legal analysis of the impact of judicial review litigation on administrative processes. The Detention Action case is addressed along with several other successful challenges to the systemic approach of the Home Office to certain issues. The concept of systemic unfairness is considered, the role of public and secret guidance, arbitrary conduct and access to justice.
The relatively small number of successful challenges over a period of a quarter of a century meanwhile tells its own story, though. Is it a tale of judicial deference to the executive unique to immigration administrative, a lack of sufficiently skilled and funded litigators, inherent problems with the scope of administrative law or because of the near-perfection of existing administrative systems? This isn’t an issue Thomas addresses.
One of the central themes of Immigration Administration is that there are different ways to design administrative systems and each has its advantages and disadvantages. This may well sound ridiculous but I had an epiphany about half way through the book when I suddenly realised that there isn’t really a “best” way to organise anything. Well, obviously. But I’d just never really thought about it that way before.
Thomas argues that I’ve been trained as a lawyer — quite literally indoctrinated, perhaps — to respect the “legitimising symbols, rituals, independence [and] substance of the judicial process”. Whether or not a judge really does represent the pinnacle of administrative process, it’s simply not practical for that process to be applied to or even available to literally every one of the millions of applicants for visas whose cases are processed by the Home Office every year. So choices need to be made.
Rules can be designed to be flexible and permit exercise of discretion. The outcomes may include slower decisions, the need for a higher grade of caseworker and volumes of guidance, some decisions which are more humane and some decisions which are more discriminatory. Or rules can be designed to be rigid and brook no discretion. Decisions may be faster, cheaper, more predictable, less discriminatory. But also harsh in some individual cases.
I started to dip into the voluminous work conducted on this very issue by the Law Commission in the early stages of the Herculean, perhaps Sisyphean, simplification project. Without a clear reason to read a massive paper on this, I confess I didn’t get very far at the time. Thomas references that work here and I would guess the chapter on rule design draws significantly on it.
Whatever choices are made, the negative effects can be mitigated and ameliorated by further measures, such as internal monitoring, capturing certain forms of data and internal or external reviews in individual cases.
Caseworking systems can be governed by targets or not; if targets are deployed they might be based on number of decisions per caseworker or timeliness of decisions. Decision makers can be arranged into niche, specialist teams or not. Developing and maintaining specialisms requires initial investment of resources but also, realistically, requires staff retention, which then poses its own challenges. Decisions can be reached stage-by-stage or an end-to-end model can be adopted. A reactive or proactive approach can be adopted. And so on. Each choice comes with advantages and disadvantages.
The available choices are perhaps most marked when it comes to immigration enforcement. Thomas writes that the “integrity of the immigration system depends on effective enforcement”. But immigration enforcement can only ever be tokenistic, as I discussed in Welcome to Britain and as Thomas goes on to accept here. So either the immigration system can never have “integrity” — a position with which many campaigners might agree — or it must derive what integrity it has from some other source. I’d say fairness, or perceived fairness, is really what gives the system as a whole whatever integrity it might have. Enforcement is only one part of that. And the system is so manifestly unfair today that there is almost no-one who considers the immigration system to have integrity.
Thomas goes on to outline different strategies for immigration enforcement: (1) set aside or modify rules, (2) incentivising compliance, (3) pursue and penalise those who break the rules or (4) make it inconvenient or uncomfortable to break the rules. The reality is that the contemporary Home Office is barely attempting any of these strategies. The immigration enforcement budget has been cut by 11% since 2015-16 and pretty much all in-country enforcement activities — workplace visits, dawn raids, enforced removals, voluntary departures and so on — have fallen far further than that, I think.
The National Audit Office and Public Accounts Committee have questioned whether the Home Office has any strategy at all or any way of measuring the success or otherwise of any such strategy. Thomas describes these reports as a “devastating critique” which spell out “one a long list of negative points concerning the department’s inability to measure its performance and impact, to understand its own operations, and to manage compliance and enforcement as an end-to-end system, to evaluate and to learn, and the harms it has imposed upon people subject to its control.” I’d add the reports of the Chief Inspector of Borders and Immigration to the charge sheet.
The final chapter is on “bureaucratic oppression”, which Thomas defines as including delay, lack of sympathy and empathy, inhumane treatment, being forced to wait for hours in long queues, being subject to verbal and physical abuse, being given incorrect advice, being unable to communicate effectively with a government department, having to use phone lines that are not answered or poorly designed websites that do not work properly and inadequate complaint handling systems. These, he observes, go far beyond the narrow “legality” model of administrative law.
E.L. Rubin argues these experiences can be driven by all or some of status differences stranger relations, institutional pathologies and divergent incentives. Immigration administration certainly suffers all these, and in spades. As an aside, my friend Melanie Griffiths recently published a fascinating article on the same subject but from a different disciplinary perspective: The emotional governance of immigration control.
Having reviewed the various ways in which Home Office bureaucracy oppresses its users, Thomas concludes that “it is very difficult to avoid succumbing to fatalism, to the view that the immigration system operates as a colossal, dysfunctional mess that contains myriad ways in which unjustified and unnecessary harms are visited upon people.” Yup.
Can this appalling situation be resolved or ameliorated? Thomas isn’t optimistic. Better complaints-handling might make a bit of a difference, as would better empathy. Strangely, though, there’s no discussion here of the ‘face behind the case’ training and procedures that the Home Office was supposed to be putting in place, which included exactly some of the forms of process Thomas discusses elsewhere, such as permission to deploy discretion and ways of escalating cases within the administration.
On a personal level, I found the book a tad difficult to read. I’ve been picking my way through it for months now. To be fair, I’m often a slow reader when it comes to academic material. But despite my dawdling I nevertheless found Immigration Administration both challenging and enjoyable.
It also served as a reminder of why I am not a fan of judicial review work. Judicial review litigation offers a vital route to financial sustainability for barristers and solicitors alike because of the possibility of being awarded what we call inter partes costs. Basically, instead of being paid at unsustainable legal aid rates, if you win a case you get paid at much closer to market rates. Albeit quite often several years after you actually did the work. There’s also the glamour of judicial review work. You can hold yourself out as a public law specialist and there’s the possibility of prestigious and cutting edge work in the higher courts, leading to a higher profile and the monetary and other rewards that come with that.
My beef with judicial review litigation is that your client rarely wins. Yes, they “win” the case and you get your inter partes costs. In the short term the client might “win” in the sense of not, for now, being transferred to a barge or even being sent to Rwanda. It can be about stopping really bad things happening, at least for now.
I have two problems with this line of work.
One is that the reprieve can be temporary. In legal and administrative terms, the decision may be quashed or struck out or however you want to put it. But it can be re-made with the same outcome but different reasons.
The second is that stopping bad stuff happening is obviously important, particularly when we have a government in place that is determined to do bad stuff seemingly for the sake of it. But what I have always enjoyed about practice as an immigration lawyer is bringing people together and securing the ultimate outcome they seek. Basically, getting visas for people, or the right to stay.
Immigration Administration can be read as a fascinating study in how, eventually, people get visas. It’s about the swan’s legs frantically paddling beneath the surface. It is an important book and I recommend reading it.
Was I convinced that public law encompasses bureaucratic system design? I’m not sure I was. I was more persuaded by a somewhat different approach in Hiroshi Motomura’s work in the United States. Motomura addresses some similar conceptual issues around the principles of immigration administration. But he does so on its own terms, as immigration law. I was more convinced, for example, by Motomura’s discussion of macro and micro discretion in an immigration system, which feels to me like a more principled and more ‘legal’ analysis of bureaucratic governance. He skilfully weaves together discussion of landmark case law with mundane bureaucratic process.
Immigration law seems to me very seriously under-studied here in the United Kingdom. There is only a very limited body of scholarship, only one serious text, one serious journal and no dedicated conferences. Even immigration lawyers barely practise immigration law. The glamour of public law, human rights law and asylum law have always acted as siren calls. Abolition of immigration legal aid and conventional immigration appeals back in the early 2010s arguably killed the entire discipline.
This is an issue I’ve been discussing recently with a few people, so far mainly by boring on at them in a pub. I’d be interested in the development of immigration law as a field of study in its own right. Immigration Administration could contribute to that exercise. Robert Thomas is first and foremost a public law academic who set out to write a public law study, so it is unreasonable to criticise the book for the application of a public law filter to the subject. But I would like to read more work on immigration law as a subject in its own right.