- BY Colin Yeo
Home Office waste
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I thought I’d start putting together a list of the myriad ways in which the Home Office wastes money (mainly public funds, also private sometimes) in the small world of immigration. It makes my blood boil that legal aid is being brutally slashed in immigration and across the whole area of social entitlements law for the most vulnerable in society while the Home Office fritters away cash like there is no tomorrow. In several of the ways that follow, the extreme ‘institutional indulgence’ to the Home Office shown by the immigration tribunal is a very significant contributing factor.
Additional suggestions through comments are most welcome. My list, in no particular order, is as follows:
1. Rubbish, awful, abysmal decision making. In the official statistics for 2009 it was revealed that 28% of asylum appeals succeeded. 48% of non-asylum appeals succeeded. These statistics tell you something about the appalling quality of decision making. Each appeal requires tribunal time and resources and more implementation resources at the Home Office or FCO than would have been the case if the decision were made correctly in the first place. Some of these decisions have also be legal aid cases in the past, although that looks set to change. This is incredibly, criminally, wasteful of public resources.
2. Indefinite detention of immigrants. The prolonged and in some cases indefinite detention of immigrants is a stain on this society. Sometimes the detainees have committed crimes. Their immigration detention often exceeds their criminal sentence. While The Daily Mail might celebrate this, any right thinking person should be horrified. Deprivation of liberty is the most serious sanction we possess. To use it for months and months on end on people for whom there is little or no prospect of removal demeans all concerned. And costs a small fortune, to boot.
3. Changing the contents of decisions at the last minute on the day of a hearing. This leads to many unnecessary adjournments and often leads to unnecessary appeals – because points have been put to a witness or lawyer for the first time at a hearing it often proves to be the case that there is more to say or further evidence that could not reasonably be pointed out at the hearing.
4. Serving new evidence on the day of a hearing. As above. While I’m well aware that appellants do this very regularly, they are often first time litigants who do not understand the niceties of the legal process. The Home Office has no such excuse for its Eternal Sunshine of the Spotless Mind.
5. Failing to attend hearings. This is a chronic problem in London, but seems less bad outside London. It causes similar problems to those above. The Home Office even sometimes has the timerity to try and appeal decisions resulting from hearings they failed to attend.
6. Refusal to accept the decisions of the courts. See Metock. See Baiai. See Pankina. I’m getting really fed up of appealing UKBA decisions that pretend that Pankina does not exist and that the Home Office decided not to appeal it. The deliberate flouting of the authority of the courts is antithetical to the rule of law and is appallingly wasteful. It has to be ideologically driven – some sort of self-perception by officials that they are the true bearers of the torch of public interest, total faith in the correctness of Home Office decision making (despite pretty compelling evidence to the contrary) and total disregard for constitutional niceties.
7. Lack of evidenced-based policy. I read an interesting draft research paper the other day that pointed out that there is no such thing as conventional policy research at the Home Office. Everything is driven by an ex post facto attempt to justify decisions that have already been reached. The one that most gets my goat in a legal context is the contention that genuine refugees would claim asylum on arrival in the UK. There is not a shred of evidence that this is true. Countless genuine refugees do not claim on arrival. So why was this built into an Act as a legislative presumption and why does it appear in almost every reasons for refusal letter? It is all about how bureaucrats and busybodies would like people to behave rather than how they actually do behave in real life.
8. Over legislating. The wastage caused by constant re-making of the immigration system is awesome. For example, the entire tribunal system has been almost totally restructured three times in the last decade (in 2003, 2005 and 2010). Major immigration legislation was passed in 1993, 1996, 1999, 2002, 2004, 2006, 2007, 2008 and 2009. Most of this was totally pointless as far as I can see. The new criminal offences are never prosecuted. The reception centres are never built. The ‘automatic’ deportations are subject to a human rights exception. The Certificates of Approval are scrapped while occasional sham marriages continue. The major changes are brought in through changes to the Immigration Rules, which do not require Acts of Parliament. It was all pointless posturing. And did this headless chicken impression convince the public that immigration was ‘under control’? Surprisingly, no.
Bitter? Yes, I’d love a pint please. Further suggestions welcome.
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26 responses
Please allow me to add my two pence too… The Home Office gets away with all of the above because although claiming to be an independent third party, the Immigration Tribunal is far from that…. there are judges who are fair but they are a rarity… the following points will demonstrate the politics in the Tribunals decision making process:
1. any legal representative will tell you that to get an adjournment from a Immigration Judge is very very difficult but if the Home Office requests they don’t need to even give a reason as to why they are seeking adjournment.
2. the judges are not harsh enough when it comes to getting the Home Office to follow protocol for e.g. verification reports are not asked where false documents are alleged and the Home Office’s word is taken as gospel.
3. when the home office do not turn up the judges take it upon themselves to play both roles when it is up to the home office to prove their case and not for the judge to do their dirty work for them.
4. the decisions in the more complicated cases, for e.g deport cases are political ones… and the reason given is they don’t want the flood gates opening. Its appalling and disgusting when someone is not given a fair trial because of the political repercussions the case might have.
Samreen, let’s not forget that for every IJ biased in the respondent’s favour, there is another who swings the other way. Luck of the draw unfortunately, but that is why there are avenues of further appeal I guess.
As for your point about DVRs, any IJ who finds forgery on the basis of our word alone, without a DVR, has committed an error in law and will be overturned. I have not known this happen in several years, indeed the opposite is more likely, with a perfectly solid DVR ignored because of the benefit of ‘doubt’ proferred.
As for ‘up to the HO to prove their case’, you may be misunderstanding the burden of proof. There is established caselaw which says that an IJ should seek clarification on issues even in absence of a PO, and they cannot simply ignore them because no PO is there to pursue them.
I think your adjournment point is tosh to be honest, and is unlikely to be supported by statistics. We rarely get them either.
That stats on adjournments are actually quite shocking. I saw them a year or so ago and was astonished at how many are granted to the Home Office – yet the Home Office claim as standard every time yet another new Act is being passed that appellants are to blame for delays in the appeal system. It was a PQ, I’ll see if I can dig it out.
Found em:
http://www.publications.parliament.uk/pa/cm200809/cmhansrd/cm090629/text/90629w0024.htm
Bit late to do a proper analysis but see the combined numbers for ‘Non appearance by Presenting Officer’, ‘Home Office have not complied with directions’, ‘Home Office documents missing’, ‘Home Office reconsidering their decision’, ‘Home Office file/bundle not received’ and ‘New Home Office issue unexpectedly raised’. That makes 2,353 out of 12,063, I think. Appellants or their representatives are responsible for more, but the number of adjournments because of Home Office error is far from insignificant.
So approximately a fifth are our fault, and the rest are on the appellant’s side. That would pretty much confirm the ‘standard Home Office claim’ that delays in appeals are the fault of appelants, wouldn’t it?
It’s as good job thta I’m in an exceptionally good mood as it’s Christmas and I am off home for two weeks in half an hour, or I might insist that you accept you were wrong for once!
Merry Christmas to all!
I disagree with this. It is seldom that I come across a judge who is biased, and when there is no PO it seems reasonsable that the judge asks questions if he has them. If a rep is prepared for a PO’s questions then we should be prepared for a judge’s questions.
I know some British Embassies like Islamabad and Abu Dhabi
have most arrogant and unprofessional staff.I witnessed a recent
decision where they quoted law incorrectly and with lot of
submission,not reviewed their decision. For example in access to
child visa rule 246 they refused my client on 246(iv):you intend to
leave at expiry of yours leave but correct law is you intend to
play an active role in yours child life. They dont bother to read
law and refuse applications.In one case they dont bother to look on
documents bundle and refuse saying you have not provided documents.
Lot of rubbish decisions. With lot of requests they have not
reviewed yet and dont look, they would review.
I also disagree, but I have come across some really shocking examples of different approaches to different parties. Some IJs adjourn for the Home Office to be represented but would never adjourn if the appellant failed to show, for example. Formal applications need to be made by appellants to amend their grounds of appeal but the Home Office can add reasons to the underlying decision against which the appeal is brought at the drop of a hat.
There are also examples int he case reports of IJs simply accepting un-evidenced assertions of forgery or wrongdoing by ECOs or UKBA, so this does happen.
It is oh so easy to criticise ECOs/ ECMs/ POs. Victoria/
FM/ Samreen, I’m assuming you have very limited experience of
carrying out any of the three roles I metion above if any
experience at all. To that extent, whilst you are of course
entitled to an opinion, your opinion it does not carry as much
weight as it otherwise might. ECOs and ECMs make poor decisions,
not because they want to or ebcause they are incompetent, but
because of the number of cases they have to get through. As
ProvincialPO has identified, it really boils down to funding. The
only poit I disagree with on ProvincialPO is that s/he says says
Samreen’s adjournment point is tosh; I think all of Samreen’s
points are tosh! From my own experience of doing CMR lists
appellants are granted far more adjournments than the HO. But that
is just my experience.
It is indeed easy. I assume you haven’t read the reports by the Chief Inspector of UKBA. I’ll do a post about them on the New Year to save everyone some effort. When it comes down to it, I don’t care WHY officials make such poor decisions or who is individually responsible. It is the fact that they are so demonstrably poor that matters. There is a clear institutional failing on the part of UKBA. ‘Institutional incompetence’, if you will.
The horrible thing is they can not read immigration rule properly.I have given example above they refused on one ground which is not in immigration rule and then given two page explanation to justify it on that ground.Why on earth they can not go to home office web site and simply have a look on requirements.Why my client should wait more then six months for this decision..make me no sense.
How about ECO’s failing to read grounds of appeal, and failing to send considered ECM reports? I have had numerous appeals which have lasted less than 10 minutes and whihc really should not have gone ahead, and which would not have gone ahead if the ECM had actually done his job, read my grounds, looked at further evidence and therefore made the sort of decision that the judge ultimately does.
Those would be the ECMs who have about 5 minutes to look at each case on review, on top of line managing a team of ECOs.
It is regrettable, not least to POs, how often we have to roll over on EC cases at court because the evidence is now there. But let’s not forget that it was the appellant who often failed to put it before the ECO in the first instance.
If we want ECMs to do a proper thorough job, we need to at least double their number, while in actual fact of course the opposite is happening.
Often the appellant failed to put the documents there in the first place. But often it is just a terrible decision. Most of my clients make perfect applications and they are refused because the IO has just done a bad job, and then the ECM doesn’t bother looking properly. I know that PO’s often have a terrible job to do – it can’t be easy having to defend the indefensible. Having more, and better trained, ECM’s would save money in the long run.
Example – I travelled to a hearing in Newport last year, for an appeal on a spouse application that was refused on maintenence. It seems that the ECO, and the ECM, hadn’t noticed that it wasn’t a spouse application at all, but an EEA application, and despite my grounds (Metock, anyone?) it went all the way to a 3 minute hearing. The HOPO felt like a bit of an idiot, and kindly made my argument for me in his submissions. He wasn’t allowed to concede, of course, which is another dumb policy change.
Not quite the same, I know, but what about the appalling waste of the NASS system – compelling people to remain on support which is hideously expensive (and profitable to some) to provide, almost designed to cause social tensions, and yet still keeps people in dire poverty; when it is well established that work is the best route to integration, we instead train people into the ways of the black economy and welfare dependancy…. Then there’s the miserable asylum support appeals system…..
Also the WRS system, still going strong even though it must be abolished by May next year (so what’s the point of still requiring new A8 workers to register their first year’s employment??????)
I suppose we could think of it all as job creation, economic stimulus, etc.
There are all sorts of points I could make in relation to your list, and much of it in agreement, but I will make just two.
1) I am pretty sure that 28% allowed asylum appeals is higher than it has been over the last few years, and indeed higher than it is this year. But for arguments sake, let’s say a quarter of asylum appeals are allowed on average. Is that really indicative of ‘rubbish, awful, abysmal decision making’?! We grant a lot of cases, we refuse a lot of cases, and of those we refuse, a quarter are overturned on appeal. Does that not rather indicate that caseowners get asylum decisions correct in the signficant majority of cases? It does in my admittedly non-statistics friendly brain.
2) Serving evidence on the day. You may be an exemplary fellow who adheres religiously to the rules, but to suggest the only time this is done from your side of the table is when it is first-time litigants in person, is stretching the truth a fair distance. On an average list with say, 1 asylum and 4 immigration cases, I will get bundles from reps in 2 or 3 of them at the start of the hearing. Yes, we should do less of it, but again, nothing but lack of resources to blame I’m afraid.
Provincial PO
Pt 1. 28% of Asylum appeals overturned.
cf 48% of non-asylum appeals succeeded.
Agree about asylum decisions to some extent, but ECOs record on refusals in non-asylum appeals is very poor according to my statistics friendly brain.
I don’t think charging for appeals in the future will improve the quality of non-asylum decisions by ECOs, in fact I think it will make it worse.
These stats also show how removing legal aid for non-asylum cases is so unfair. It’s fair enough to not waste legal aid money on frivolous appeals, but clearly most are perfectly justified. Improving first decisions would be a much better way to reduce appeals, not cutting off legal help.
(I speak as an advisor who will benefit from axing legal aid btw)
Personally, I think 28% of wrong decisions is an appalling, awful, abysmal standard. If that high a proportion of wrong decisions were made about tax, about criminal matters, about care proceedings or about any of these other not life-and-death areas of work there would be rioting on the streets. I value your contributions, but I have to say that UKBA’s sanguine attitude to getting it wrong is symptomatic of the total lack of respect for immigrants. Non-immigrants would never be treated in this way. Immigrants are not in a position to stand and fight, though, they just have to accept all this shoddiness and hope to deal with it quietly and reasonably through the courts. I don’t think most members of the British public would be so placid.
I’m actually fine with double standards regarding things like court bundles. UKBA is not just an ordinary litigant but has (or should have) a duty to make right decisions. As an experienced litigant (er, in every case) it also seems reasonable to hold UKBA to a higher standard than most. The way to sort this out on both sides would be to introduce a costs regime whereby costs sanctions for wasted hearings are introduced. If only…
Maybe the fact I think a quarter of dismissals getting overturned is not really that bad is because I have a ‘total lack of respect for immigrants’. I won’t bore you with details of my private life, but suffice to say, many of my friends and family would struggle to agree with that description. We aren’t all EDL flag-wavers you know!
Indeed I doubt any are, we are simply public servants trying to do a proper job. And surely you would have to admit, in terms of making asylum decisions consistent with ever-changing caselaw, legislation, policy and ‘background information’ it is a flipping hard job. Let it not be forgotten that you think IJ’s get it wrong pretty consstently, and they are legally qualified and earning 4 times what a NAM caseowner does.
I am really not sure that the analogy with tax or crime or care works. I’m not an expert in any of those areas (though I did work briefly for the Inland Revenue before coming to the Home Office) but is it really a fair comparison?
With tax decisions, we are talking about an objective equation, and errors will generally be
black and white questions of miscalculation. Given the many variables in asylum decisions already mentioned, and given the process of
assessing credibility is inherently subjective,
is this not apples and pears?
In criminal appeals, we are dealing with challenges to decisions made by juries after hearing evidence in an adversarial setting, with guidance from a legally qualified judge. Is it any wonder that these decisions are less likely to be overturned than those made by single civil servants?
In terms of care proceedings, given that we are told that social workers are so scared of litigation that children are only taken from parents when there is clear evidence that they are in danger, is it any wonder that few such decisions are overturned on appeal? If it is a borderline case, they simply don’t make the decision. We have to decide all asylum decisions. Adn before you say we shoudl just grant the borderline ones, we already do in large part, one thrd of all claims are granted outright.
I would love to have found stats to show that a 25% allowed appeal rate is not ‘abysmal’ as you suggest, but I found it remarkably hard to find stats on allowed rates in crown or family courts. Perhaps you can illuminate me?
One thing I did find, was a statstic that showed that 75% of appeals against sentencing are allowed and sentences reduced. Puts 28% into perspective in my opinion.
Just one last point baout the allowed appeal rate in 2009. I’m sure any immigration practionner, on either side, will know what a significant effect RN had that year. You will recall the wave of Zimbabwean overstayers who appeared and claimed asylum in 2008/9. A heck of a lot of those people won on appeal because of RN, even when found to be complete liars by IJs. I don’t know the percentages, but I do know that Zimbabwe is our 2nd highest country of origin for asylum claimants (after Afghanistan), and much of that 28% will consist of such cases.
So yes, I maintain that asylum decision making is far from abysmal, and I am happy to say that I firmly believe that the combination of UKBA decision making and an independant judiciary lead to the correct outcome in just about every single asylum case.
And for the very few who do get a raw deal from NAM and the Tribunal, well that’s where the combined effect of a lack of resources in removals and the Legacy programme (amnesty, shhh…) come in to make up the difference.
For every deserving failed asylum seeker removed that you could refer me to, I could refer you to a dozen who got status who in no way deserved it.
That’ll do for now I think. Until next year!
FM…..I think you’ve met your match?!
Thanks for your comment. It is a long one and I’m not going to respond to everything. I’m not sure you appreciate how difficult the Home Office, or more specifically UKBA, is to deal with and the routine lack of respect shown to immigrants, eir British families or lawyers in every facet of UKBA interaction with them. A large part of the problem is that any bureaucracy risks being faceless, treating individuals as problems rather than people and passing on responsibility, amongst other issues. Not all government departments are remotely as bad as UKBA, though, and not even all parts of UKBA are equally bad. The Chief Inspector recently singled out the Nationality Directorate for praise, for example.
Institutionally, I have nothing positive to say about UKBA. That does not mean there are not some good people working there, but the systems that are in place seem from the outside to render them powerless to do much good.
I will respond to your point about correct asylum decisions. I could not disagree more. All you see is a nervous asylum seeker being asked questions about the negative aspects of his or her claim. The judgments I see UKBA officials and IJs make about the plausibility of human behaviour make me weep. If history, and even our everyday experience of those around us in our own lives, tells us anything it is that humans are unpredictable and do unusual things. Little miracles happen every day and unlikely events happen constantly.
I’ve seen cases lose where I am pretty sure the claimant will be in serious trouble if returned. I’ve also seen cases succeed where I’m pretty sure the claimant will be in no rouble at all. I do not share your faith in the system.
FM, I really struggle to understand where you’re coming from. How often have you attended seminars and events a held for asylum seekers of a particular nationality?
I have been to numerous events like this where there are individuals who have (successfully) claimed asylum. THEY tell me that in their opinion 90-95% of asylum seekers are not genuinely seeking asylum and are simply economic migrants like they themselves.
Why not see for yourself in the large Turkish communities in north London, large Pakistani communities in east London and large Somali and Afghan communities in north west London? Hear it from the horses mouth. In fact, if you get in touch with me I will happily take you to these events personally and introduce you to hundreds (yes, literally hundreds) of individuals who have incorrectly been granted asylum because they’ve been given the benefit of the doubt by UKBA or the courts. Most of these refugees cannot believe how easy the UK makes it to get asylum status contrary to your view that it is difficult.
As I say, more than happy to set something up in the new year.
Merry Xmas and a happy new year!
I am a supporter of some asylum seekers and even though I have only had a detailed interest in one case I am shocked by the poor quality of decision making. One example springs to mind – in the refusal of a fresh claim the caseworker listed the further submissions which he had examined. He failed to mention a country expert report which had been provided as part of the further submissions. The HO definitely had this document , since in a previous refusal to consider the further submissions as a fresh claim the caseworker had made mention of this document. It should be noted that the barrister on this case had said that the country expert report was of particular importance. I take the point that case workers are massively overworked , but this is such a basic error that it undermines the whole decision. I know that when further submissions are accepted as a fresh claim that any refusal leads to a right of appeal , but as a supporter I am aware of the terrible anguish that this manifestly incompetent decision has caused. Elsewhere in the comments on this blog posting I see that someone suggests that a great number of succesful asylum claims are in fact false. If this is the case ( and I have no way of judging this ) , then it makes it all the more terrible to see genuine claimants suffering so terribly.