A recent report by the Independent Chief Inspector of the UK Border Agency (UKBA) into entry clearance decision-making was published on the 19th December, and is available, along with UKBA’s response, on the website. This global review examined a sample of cases with a limited right of appeal (short-term visits), and the findings paint a worrying picture of the UKBA’s decision-making operation.
The most damaging finding relates to cases where an application was refused for failing to provide information which was not set out in published guidance. This was evident in 16% of all sampled cases.
Some applicants were refused as a result of failing to demonstrate a subsisting relationship with a UK sponsor, despite this being neither a requirement for general visitors under the Immigration Rules nor cited in the visitor guidance published by the UKBA.
Obviously this is grossly unfair, as applicants are not informed of requirements before they apply, and are not currently given any opportunity to provide the extra evidence once they are informed. Asking for documentation that is not specified in the rules significantly undermines the principle of the rule of law.
The review recommends that where applicants have followed published guidance but more information is required by Entry Clearance Officers, applicants are given a chance to meet the higher burden of evidence. In response, UKBA accepted the recommendation but stated it reflected current policy and guidance.
A second key area of concern relates to the quality of the decision-making; errors were found in over a third of all the cases sampled. These included failures to consider relevant positive evidence submitted by applicants, of which 84 cases were incorrectly issued a refusal notice stating evidence to support particular requirements was not provided, despite the review finding clearly that the correct evidence had been submitted.
As a result the basis of these decisions had been undermined by these particular errors. A further 6% of the sample contained misinterpretation of supporting evidence by the Entry Clearance Officer which had a negative impact upon the application, leading to inconsistencies and unfair decision-making.
One alarming example identified by the Inspector concerned an application which was refused because the Entry Clearance Officer had doubts over the credibility of the applicant. Entry was refused as the Officer stated it was biologically impossible for the applicant’s two children to be born two months apart, which had ignored the clear information provided by the applicant that one of the children was a stepdaughter.
Information given to applicants about their right to appeal was also highlighted. In short applicants were given a limited right of appeal, when they should instead have been granted a full right of appeal! This was apparrent in 32% of the ‘out of scope cases’ and 2 % of the file sample in question
Entry Clearance Managers also come under fire in the report, with significant concerns raised about internal reviews failing to pick up clear errors in decision-making.
Over a third of sampled cases which were internally reviewed overlooked poor quality decision-making, 34 of which contained errors which appeared to undermine the basis of the refusal of clearance. The Inspector recognised this worrying lack of attention to detail even amongst managers, and has recommended a strengthening in quality assurance, to which UKBA has responded by stating it is currently reassessing its internal reviews.
A further area identified as a shortcoming relates to the insufficient retention of supporting documentation provided by applicants. This was a major problem in 14% of cases sampled by the Inspector as it made it virtually impossible to assess whether the decision was appropriately considered.
As recognised by the review, these oversights are detrimental to audit processes and public confidence in the system, yet UKBA had previously received several reminders and recommendations from the Independent Monitor and Independent Chief Inspector that copies of all supporting evidence should be maintained. UKBA have cited a lack of secure storage space by way of explanation, and have promised improvements with electronic storage of documentation in response to the report’s recommendation.
It is unclear how effectively UKBA will meet the all the recommendations carried in the report, but it is evident that immediate changes are essential to salvaging a fair and effective decision-making process.