Updates, commentary, training and advice on immigration and asylum law

What is the Chief Inspector of Borders and Immigration?

The government has proposed the Independent Chief Inspector of Borders and Immigration as the interim monitoring body for the EU citizen settled status scheme. This briefing examines the powers, remit and impact of the Chief Inspector. The Chief Inspector is a person — currently David Bolt and previously John Vine — but it is the institution that this briefing examines.

Legal basis

The institution of the Chief Inspector of Borders and Immigration was established by the UK Borders Act 2007. The Inspector is a statutory body, meaning that it can only do that which it is specifically empowered to do by the statute.

The formal legal title of the Inspector is actually the Chief Inspector of the UK Border Agency, which used to be part of the Home Office. The UK Border Agency no longer exists, but the legislation has not been amended to reflect the current status of immigration functions (see section 48(1)).

The Inspector previously held another statutory role, that of the Independent Monitor of Entry Clearance Refusals without the right of appeal, under section 23 of the Immigration and Asylum Act 1999. This separate role was abolished by the Immigration Act 2014 as it was effectively subsumed within the Inspector’s other duties.

Who can be inspected?

The primary duty of the Inspector (“shall monitor….” according to the statute) is to monitor and report on the efficiency and effectiveness of the performance of functions by

  • customs officials
  • immigration officers
  • Home Office officials exercising customs, immigration, asylum or nationality functions
  • the Director of Border Revenue

The Inspector is not empowered to consider the performance of other officials exercising other functions. For example, the performance of officials at the Department for Work and Pensions is not something that the Inspector is able to examine.

It is not clear that the Inspector has the statutory power to examine systems rather than people, such as the performance and design of cross-departmental data checking systems (for example, in the context of settled status applications by EU citizens).

What can be inspected?

The Inspector is given non-exhaustive guidance by the statute on what to inspect (“In particular, the Chief Inspector shall…”). The list of topics inevitably informs the Inspector in both deciding what to inspect and in framing and conducting the inspections:

  • consistency of approach by officials
  • comparative practice and performance of officials
  • treatment of claimants and applicants
  • use of unfounded asylum claim powers
  • discrimination
  • practice and procedure in making decisions
  • exercise of enforcement powers (arrest, entry, search and seizure)
  • prevention, detection and investigation of immigration offences
  • conduct of criminal proceedings
  • provision of information
  • handling of complaints
  • content of country information

The list of topics focuses on the “what” and “how” issues of immigration control, not the “why”. The statute discourages the Inspector from considering policy-level questions.

The Inspector is prohibited from inspecting without permission removal centres, short term holding centres, escort arrangements and detention centres where these are already within the remit of other Inspectorates (e.g. the Chief Inspector of Prisons).

The Inspector can select other topics not falling within this list because, unlike for who can be inspected, the wording of the statute on what can be inspected is not exhaustive. Cross-governmental working by Home Office immigration officials is not listed, for example, but has been commented on previously. The Inspector has looked into the “Right to Rent” scheme and the hostile environment more generally, as well as immigration litigation and other topics not explicitly and directly listed.

Prohibition on investigating cases

Section 48(4) specifically prohibits the Inspector from investigating individual cases:

The Chief Inspector shall not aim to investigate individual cases (although this subsection does not prevent the Chief Inspector from considering or drawing conclusions about an individual case for the purpose of, or in the context of, considering a general issue)

This limitation means that the Inspector cannot investigate individual cases or act effectively on an individual complaint received. However, the Inspector is permitted to draw on individual cases in reporting on general issues.

Budget and staffing

The budget for the Inspector is set by the Secretary of State and the Inspector then decides how the budget is allocated and spent.

The Inspector decides which staff to appoint and there is no statutory restriction on who might be employed. The vast majority of officials appointed by the Inspector and his predecessors are thought to be Home Office staff, however. At least one previous recruitment exercise specifically targeted current Home Office staff.

The expertise of the Inspector’s staff is therefore likely to be limited to traditional areas of Home Office work. It is unlikely that the Inspector currently employs experts on data checking and systems design, for example, although the Inspector would be able to employ or contract such experts if the budget allowed for this.

Publication of reports

The Secretary of State controls the publication of the Inspector’s reports. This is governed by section 50, which states that the Inspector shall report in writing to the Secretary of State annually and “at other times as requested… in relation to specified matters.” The Secretary of State then lays the reports before Parliament.

There is always a substantial delay between the submission of the report to the Secretary of State and its publication by the Secretary of State. Recently, the delay has been around four months between submission to the Secretary of State and publication.

The most recent five examples at the time of writing:

  • An inspection of Country of Origin Information submitted 1 August 2018 and published 5 December 2018 (four months)
  • An inspection of the Home Office’s management of asylum accommodation provision submitted 9 July 2018 and published 20 November 2018 (four and a half months)
  • An inspection of Border Force operations at south coast seaports submitted 20 June 2018 and published 12 November 2018 (five months)
  • A re-inspection of the family reunion process focusing on applications received at the Amman Entry Clearance Decision Making Centre submitted 26 April 2018 and published 5 September 2018 (four and a half months)
  • An Inspection of the Vulnerable Persons Resettlement Scheme submitted 7 March 2018 and published 8 May 2018 (two months)

The other issue with publication of the Inspector’s reports are that the Secretary of State often chooses to publish several reports at the same time. This in effect means that journalists have pick one report to cover rather than having an opportunity to cover all of the reports. The most gregarious example was on 13 July 2017, when no less than 10 reports were simultaneously released despite being submitted to the Secretary of State on several different dates over several months.

The Inspector himself stated in his annual report for 2017/18: “delays, and the release of reports in batches, inevitably raise questions about my independence and about the Home Office’s management of ‘bad news’”.

Home Office response to recommendations

The Inspector has no powers to directly affect anything or to intervene in individual cases. The Inspector is restricted to making recommendations.

In the most recent annual report, for 2017/18, the Inspector noted that while only a small minority (4%) of his recommendations since his appointment in May 2015 had been rejected outright, the Home Office’s own records show that “over 40%” of the suggestions that were formally accepted had yet to be completed.

The Inspector also noted that he has “repeatedly” talked to the Home Office about the need for concrete action in response to his inspections, but that “too often the response has left it unclear exactly what action will be taken and by when”.

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.