The Independent Chief Inspector of Borders and Immigration (ICIBI) published his report on administrative review on 26 May 2016. The Home Office has accepted all of his 14 recommendations.
This report is the result of assurances given to Parliament during the passage of the Immigration Bill that became the Immigration Act 2014, resulting in the replacement of appeals by administrative review (AR). It was stated that senior staff would be involved with AR decisions, that all AR decisions would be made independently of the original decisions and that it would save £261m over 10 years.
In relation to those particular points, it turns out that ARs of overseas and border decisions are made by staff at the same posts and ports respectively as the original decision makers. The in-country team is separate from case workers but its staff are on low grades, are inexperienced and the team is the least capable of accurate decision-making. The Home Office has not yet attempted to calculate the costs and savings of the system.
ICIBI staff reviewed 285 case files, including 100 Tier 4 decisions made in the UK and 40 administrative review decisions of Tier 4 entry clearance applications. They also spoke to staff in Manchester, Sheffield, Heathrow, New Delhi, Riyadh, Pretoria, Istanbul, and in the litigation, Tier 4 premium sponsor team, immigration policy and the administrative review programme office. The period covered was September to December 2015.
The 28-day service standard was met in the UK and in border decisions, and in 84% of administrative reviews made overseas.
Only 8% of in-country administrative reviews of refusals were successful, although if decisions in the files checked had all been correct, this would have risen to 13%.
Quality assurance was either completely lacking or was ineffective. There was little evidence of feedback to caseworkers and data on judicial review applications were incomplete.
The whole report is of interest. However, some key points of relevance to Tier 4 include:
In-country reviewers incorrectly rejected applications as invalid because of late arrival using only the deemed date of service, without first checking the track and trace service (page 18).
- A warning not to rely on assurances made by Premium Services managers: a Tier 4 student relied on an assurance that an AR made late would be accepted because the refusal was clearly incorrect; the application for AR was rejected as invalid in spite of attention being drawn to the assurance. When questioned by the ICIBI about this, the Home Office stated that ‘The Premium Services manager could not advise that a late AR would be accepted as it was outside of his remit'. The reason provided was not compelling or exceptional (page 19).
- It is "illogical and wrong in principle" that applicants "whose ARs were unsuccessful, but who had the original decision withdrawn after threatening or resorting to litigation, did not receive a refund of their AR fee" (page 7).
- ARs of entry clearance decisions are in some cases made in Sheffield, but entry clearance managers appear to be able to make the final decision and staff in Sheffield do not have access to documentary evidence, relying on overseas colleagues to carry out searches thoroughly which does not always happen. This is of relevance to plans to 'onshore' all entry clearance ARs in the next year.
- Some examples of applications refused on the grounds of deception or not being a genuine student are cited - the ARs were not successful but the ICIBI found that reviewers too readily dismissed applicants' explanations in ARs and that refusals were disproportionate. For example, a student who did not declare a 2005 entry clearance refusal having had leave granted four times since then, an applicant who applied for leave to study a pre-sessional course but who was refused on the grounds her English was already of the required standard so she was not credible, an argument that a student would take over 11 years to recoup the money spent on his proposed study (pages 25 and 35).
- "Staff in the AR Team in Manchester told us they had not had any specific training on assessing credibility. The interview transcript was available on file if an interview had been conducted, but they did not review it in detail and, generally, they felt that assessing interview evidence was outside their remit."
The 14 recommendations, accepted (in one case partially) by the Home Office, are:
In relation to Administrative Review (AR) applications:
- Make it clear to applicants in published guidance and on the online application form that
the deadline for applying for an AR is calculated from the deemed date of receipt of the
eligible immigration decision unless the applicant can demonstrate they received this on a
Ensure caseworkers take all reasonable steps to check the actual date of receipt of the
eligible decision before rejecting applications on the basis that they are out of time;
Ensure that CID notes and AR invalidity notices state clearly why an AR application was
determined to be invalid; and
Where the applicant failed to qualify for a fee waiver, ensure the invalidity notice informs
them they may re-apply with the fee within seven days.
In relation to the consideration of Administrative Reviews (AR):
Provide training for AR reviewers that is consistent with the training provided to original
In light of its performance to date, revisit the structure, grading and staffing (in terms of
knowledge and experience) of the AR Team in Manchester to ensure its effectiveness in
identifying and correcting case working errors;
In relation to learning from Administrative Reviews (AR):
Capture and feedback in a structured form to original decision-makers the learning from AR
where the reviewer has withdrawn the original decisions and/or amended the reasons; and
Ensure that all data relevant to demonstrating how the AR system is functioning is
captured and used to effect the continuous improvement of both ARs and original
immigration decisions, including where Pre-Action Protocols (PAPs) or Judicial Review
(JR) cases are conceded and why.
- Produce a revised statement about the processes for overseas and at the border AR
explaining how independence and separation from the original decision-maker are ensured
where there is no
‘separate, dedicated team of reviewers’
Ensure that all AR reviewers address all substantive issues raised by the applicant and that
CID (or CRS) notes and decision notices accurately reflect this;
Clarify guidance regarding the requirement for reviewers to correct all errors contained in
the original decision (not just those identified by the applicant in their AR application),
including carrying out further checks where they identify these were not done correctly by
the caseworker who made the original decision; (this recommendation was only partially accepted on the grounds that applicants already in the UK might try to 'buy time' by not identifying case working errors and submitting an AR solely in order to delay departure from the UK - other reasons for refusal will of course still be identified by reviewers) and
Consider the scope to prioritise the processing of ARs to meet the needs of the applicant in
terms of timeliness (as in the case of some Tier 4 AR).
In relation to quality assurance (QA) of Administrative Reviews (ARs):
Put in place formal, robust QA procedures for all ARs (including decisions regarding the
validity of applications) that take account of the grade and experience of the reviewer and
the complexity of the original decision; and
Record and use the results of QA to improve the quality and consistency of AR outcomes by feeding back to reviewers and their managers.
In its response, the Home Office states that:
"Additionally, with specific regard to in-country cases, UK Visas and Immigration has identified the principal generic categories which the ICI sample found to have been incorrectly reviewed and is recalling and re-reviewing all cases of these types received since the advent of in-country Administrative Review. By 13 May, 273 previously decided cases had been re-reviewed, with UK Visas and Immigration identifying an additional 87 cases where the original decision should have been overturned, but was not, and in each case is contacting, or attempting to contact, the customer to correct the decision and provide an apology and refund of their Administrative Review fee. The exercise to re-review cases will be completed in June 2016".