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Wednesday, 5 January 2011

Bad decisions, detention, ignoring the courts: How the UK Home Office wastes money

Source: Free Movement

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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