Administrative Law in Action

Immigration Administration

Robert Thomas

• Publisher: Hart Publishing
• Year: 2022
• ISBN:
  9781509953127
• Edition: 1
• Topic: Derecho
• Subtopic: Derecho administrativo

This book investigates and analyses how administrative law works in practice through a detailed case-study and evaluation of one of the UK's largest and most important administrative agencies, the immigration department. In doing so, the book broadens the conversation of administrative law beyond the courts to include how administrative agencies themselves make, apply, and enforce the law. Blending theoretical and empirical administrative-legal analysis, the book demonstrates why we need to pay closer attention to what government agencies actually do, how they do it, how they are organised, and held to account. Taking a contextual approach, the book provides a detailed analysis of how the immigration department performs its core functions of making policy and law, taking mass casework decisions, and enforcing immigration law. The book considers major recent episodes of immigration administration including the development of the hostile environment policy and the treatment of the Windrush generation. By examining a diverse range of material, the book presents a model of administrative law based upon the organisational competence and capacity of administration and its institutional design. Alongside diagnosing the immigration department's failings, the book advances positive proposals for its reform.

1

Administration and Law

I.Immigration Administration

This book is a study of public administration and administrative law in operation and in context. The context is the administration of immigration policy in the UK and the specific administrative agency is the UK’s immigration department. In formal terms, this is the government department called the Home Office or, more specifically, the three directorates within that department responsible for different aspects of immigration administration. These three directorates are: UK Visas and Immigration; Immigration Enforcement; and Border Force.¹ This book presents an administrative law analysis of what the immigration department does and how it does it. It critically examines how this department makes and implements policy, and how it is held to account and monitored. The book also examines how this area of administration and administrative law could be reformed and improved.

The immigration department is one the UK’s major administrative agencies. It is the institutional embodiment of the ability of the UK state to control immigration, one of the defining characteristics of a modern state. The department’s decisions and actions intimately affect the lives of millions of immigrants and their families both inside and outside the country. Its operations and performance are of acute interest to both politicians and the public. Furthermore, the immigration department performs various core administrative functions. It makes and implements immigration law and policy. The department has substantial law-making powers. It makes an extensive body of administrative rules and guidance. Each year, the department’s caseworkers take millions of immigration casework decisions to decide the immigration status of people seeking to enter or remain in the country. The department is also responsible for ensuring compliance with and the enforcement of immigration law. By any measure, it is a very large, complex and important administrative agency.

The department is also one of the UK Government’s most unstable and problematic administrative agencies. Few other government departments have been subject to as much persistent criticism and upheaval. Senior government ministers have described the department as not fit for purpose and as a troubled organisation with a closed, secretive and defensive culture. The department has long suffered from multiple difficulties and problems. It has been repeatedly criticised for the variable quality of its casework decisions on immigration and asylum applications, for delays in making decisions, and huge backlogs. The department has enforced immigration controls against people who have the legal right to remain in the country and who should not have been removed or subjected to enforcement action. Conversely, it has failed to enforce such controls against people who do not have the right to remain in the country. The department attracts a higher proportion of legal challenges than any other government agency. At times, the department has struggled to perform the most basic tasks. There are always operational difficulties somewhere within the immigration system and others looming on the horizon.

These problems arise in part because of the department’s policy context and its operational environment. The task of managing and controlling immigration is inherently problematic. It presents all governments with one of the most organisationally challenging, politically contentious, and heavily legalised areas of administration. The department’s problems go beyond the ordinary challenges that afflict other areas of administration and public management; they are deep-seated, endemic and systemic. Such problems generate considerable concern, but there is also the need to understand why such difficulties exist and what can be done about them.

The purpose of this book is, then, to provide a detailed analysis of the immigration department to understand and evaluate how it perform its functions and the challenges it faces, and to consider what can be done to improve its operations. But there is a wider purpose beyond examining the intrinsic importance of immigration administration. Studying the operations of government can enable us to arrive at a more informed understanding of how administrative law works in practice. This is significant because administrative law constitutes administration and concerns the organisation and activities of administrative institutions and how they are held to account. The administrative process itself often raises many novel and interesting problems. Indeed, administrative law is inextricable from the administrative agencies that make and administer such law and which in turn are also controlled by administrative law. However, despite the scale and complexity of administrative organisations and their importance, few scholars have grappled with the challenging issues and problems presented by the operations of such bodies, how they undertake their tasks, how they are organised, and how they make, apply, and enforce law and policy in practice.

To undertake this type of analysis, this book approaches and analyses administrative law from an institutional and functional perspective. It examines the administrative and legal issues that arise in light of the policy challenges facing government. From this perspective, the book then investigates the actions and behaviours of administration and its institutional competence and capacity to perform its tasks. The book’s title, Administrative Law in Action, captures the nature of the dynamics involved. Administration exercises fundamental tasks and it is necessary to examine carefully how it performs them in practice, the problems encountered, and the different types of administrative law that are both made by government itself and imposed externally upon it. It is also necessary to consider how this area of government could be reformed and improved. To this end, the book provides an informed and realistic analysis of which reforms to administration are both required and possible.

II.Models of Administrative Law

Given the broad approach taken here toward administrative law, it is necessary to explain where this book sits within the wider body of administrative law scholarship. In much conventional legal thought, administrative law is principally conceptualised as the corpus of legal doctrines developed by the courts for the purpose of reviewing the legality of administration. This approach has a strong preference for viewing administrative law as comprising the legal principles of judicial review which apply across the broad range of government and public bodies. These legal principles are then subject to doctrinal and theoretical analysis in order to uncover their normative basis and how they are applied by the courts. Consequently, much of the conversation about administrative law concerns judicial review. This way of understanding administrative law will be readily familiar. It can be described as the ‘legality’ model of administrative law that is largely concerned with identifying the legal limits of administrative action. An important aspect of this model is the assumption that there actually is a clear dividing line between administration and law.

The principles and theories of judicial review are significant topics and deserve continued study. Nonetheless, there have long been concerns that a court-focused approach misses much of the action, not least the basic nuts and bolts of how administrative systems operate in practice and develop over time. Only a small number of administrative decisions are ever challenged by way of judicial review. The focus on courts and judicial reasoning tends to overlook other non-legal influences on administrative behaviour. The result is that more time is spent analysing how the courts review administration than investigating and analysing administrative action itself. Studying the legal limits of administrative action is important, but so is investigating the choices made within those limits. The result is that the legality model, with its court-centred focus, largely ignores huge areas of actual administration. This in turn constrains our understanding of key problems of administrative law and how they might be addressed.

Further, the notion that administrative law comprises a coherent and unified body of legal principles overlooks the highly diverse and variegated range of administrative contexts and functions. It also tends to neglect the fact that the growth of administrative governance has fundamentally transformed the nature of law itself. Modern law is principally concerned with making policy and its implementation by administrative institutions. Accordingly, a traditional focus on the coherence of legal doctrines as a self-contained set of principles now appears to be somewhat out of date and should be replaced by a focus upon the effectiveness of specific governmental institutions in making and implementing law and policy in practice.²

Highlighting the limits of a court-focused approach is nothing new and these points have long been rehearsed. It is important not to push them too far for the following reasons. First, some administrative lawyers have recognised the need to study administrative law in context, and there have been many studies. Second, the courts remain significant players in the workings and actions of administration despite, and indeed sometimes because of, the existence and operation of other forms of administrative law beyond the conventional legal principles. Nonetheless, in reality, much, though far from all, of administrative law in practice concerns the organisation and activities of administration and how policy is to be implemented. Administration itself is a major actor in this process and the functioning of administrative governance has raised many pressing and important issues that deserve analysis. Recent scholarship has highlighted that legal analysis of general legal principles often overlooks the fact that the grounds of judicial review are applied in the context of specific administrative-legal frameworks; more contextual analysis of judicial review is then required.³ This is an important and valuable perspective. By extension, it can also be said that there is a need to study in context the various other forms of administrative law in action that exist outside the courts and the range of purposes they serve. In short, there is a need for a pluralistic approach that approaches the same subject matter – governmental operations – from a variety of different angles.⁴

An alternative way of studying and understanding administrative law might be termed a ‘governance’ model. From this perspective, administrative law is not solely or even principally concerned with the limits of administrative action. Instead, it should analyse the practical affairs of administrative governance, that is, ‘what administrative agencies actually do, how they do it, and the internal ethics that both motivate and restrain their behaviour’.⁵ This involves examining the basic organisation and operation of government agencies, how they are designed, how they make and implement policy, the mechanisms and instruments they use and their efficacy, and how these agencies are scrutinised and held to account. This approach recognises the degree of the transformation that has occurred as a result of the growth of administrative governance and the need to investigate how administration works in practice.

Undertaking this type of analysis requires different ways of approaching and analysing law and administration when compared with a predominantly court-focused approach. The focus is not principally upon restraining administration, but on how to develop and promote effective and humane means of governing. It is therefore necessary to take seriously the institutional competence and capacity of administration, how administration is organised, the problems that arise, and the impact of political and organisational forces upon administration. Another feature is the recognition that the courts do not have any monopoly over administrative law. There are other forms of administrative law that exist both outside of administration and are also generated internally within administrative practices. It is therefore necessary to investigate and analyse how different types of administrative law operate and critically examine their effectiveness.

III.Concepts and Ideas to Investigate Administration and Law

This book examines how the immigration department makes and implements policy and how it is controlled by law. To this end, it focuses upon both the behavioural and the normative aspects of administration. That is, it examines how a particular administrative organisation – the immigration department – in fact operates, how it is organised, the effectiveness of its activities, and how it could potentially be improved. In doing so, it contributes to the long-standing endeavour of widening the focus of administrative law scholarship.⁶ To understand, analyse and evaluate administration and administrative law in this way, it is necessary to examine in some detail the history of the department, its structure and how it performs its functions. To this end, conceptual tools are required.

One starting point is the concepts and tools provided by the legality model of administrative law. These include the various principles of judicial review and associated case law. However, there is an irremediable problem with the model of legality. It is focused almost exclusively upon identifying the legal limits of administrative action rather than starting with the functions and tasks that administration undertakes and how it performs them. Accordingly, this model fails to supply the appropriate conceptual tools with which to analyse and evaluate the organisation and activities of administrative governance. The model of legality remains of some use, particularly as regards the judicial control of the department, although even in this respect, such control itself involves a significant degree of judicial management of administration. However, in order to evaluate administration and law, the conceptual tools to be used should themselves reflect the behavioural and normative orientation of administration. A more promising source of analytical tools and norms is not then the concept of legality, but the concept of administration.

Administration is the principal institutional means by which public policy is made and delivered. It is based on the principle of instrumental rationality, that is, the major purpose of administration is to implement policy as effectively as possible.⁷ To this end, administrative organisations share common features: specialised jurisdiction; full-time officials; a hierarchical structure; formal rules, routines and procedures; and extensive reliance on case files. The concept of instrumental rationality is an ideal type and not a description of how administration works in practice. Nonetheless, the principal demand placed upon administration is that it implement policy effectively. While specific governments and ministers change regularly, administrative institutions comprise the permanent structure and basis of the governmental system and they have a purposive orientation. Higher-level policy decisions are taken by elected ministers who are responsible to Parliament, although ministers are almost entirely reliant upon officials who develop and work up policy proposals, provide advice, and make lower-level policy decisions and decide how higher-level policy goals are to be implemented. Senior officials play a significant role in both managing administrative organisations and in making policy. Front-line officials perform specific functions such as making individual decisions and enforcement action. This is the structure through which policy is administered.

The basic point is that instrumental rationality – implementing policy effectively – comprises the substantive standard of administrative action. Both politicians and the public expect and want administration to be functionally effective. This substantive standard comprises an internal norm that motivates administration. It is also the standard by which government departments and external agencies, such as independent inspectors and the National Audit Office, scrutinise and assess administrative action. It also informs the vast bulk of the administrative laws made by government agencies. The specific detail of what effective administration and administrative law looks like varies considerably from one context to another. Each government agency has its own unique function and the world of government is highly diverse. Further, government has been experiencing a number of transformational changes through trends such as outsourcing functions to private companies and the increased use of IT and automated decision processes. Nonetheless, instrumental rationality is the principal standard that informs and is used to evaluate administrative action.

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