The Borders Inspector and Home Office accountability

The Independent Chief Inspector of Borders and Immigration (ICIBI) is in the headlines. The ICBI is the official watchdog for monitoring the effectiveness of the Home Office’s immigration, asylum, nationality and customs functions. Putting the rights and wrongs of the current row to one side, this news event highlights important and long-standing criticisms of the Home Office for its poor transparency, avoidance of accountability, and weak scrutiny mechanisms. It is only since this high-profile public row began that the Home Office has decided to release a large batch of unpublished reports. In addition, it will be several months before a new ICIBI is appointed, despite ministers knowing that the incumbent’s term ended in March 2024.

To begin to address how these problems have undermined human rights and trust in the fairness and humanity of the immigration system, political parties should commit to implementing the three Wendy Williams’ recommendations from her Windrush Lessons Learned Review that have yet to be actioned. The two most relevant to current news are: to reform the remit and powers of the ICIBI and to create a new migrants commissioner to empower the voice of migrants. These recommendations were rejected in 2023 by the then home secretary Suella Braverman, after initially being accepted in 2020 by her predecessor, Priti Patel.

There are at least three reasons why these recommendations deserve urgent attention.

First, the Home Office has a poor record of developing policy in an open way which thoroughly considers available evidence and takes account of diverse perspectives. Greater external supervision is needed to help it towards that goal. In her original review in 2020, for example, Wendy Williams concluded that the Home Office does not adequately build evidence or external perspectives into its decisions or policies, particularly of migrants most harmed by the policies (p.7).

She found that the Home Office does not consider the harm and discrimination its policies could cause and consistently implements policies even after it becomes clear that they are causing harm. Ultimately, Williams argued that the Home Office has an 'unwillingness to listen to others’ perspective or take on board external scrutiny, which stemmed from an absolute conviction, rather than evidence, that the policy was effective' (p.112).

At the time of Williams’ update in 2022, these words still rang true. In her update, Williams noted that the Home Office had made 'limited progress in achieving openness to scrutiny' and that her recommendations related to effective independent insight and scrutiny functions were 'all the more important for driving the required cultural and systemic changes.'

Second, policy developments in asylum and immigration over the last several years have not adequately respected human rights and rule of law ideals. Policy is too often characterised by 'immigration exceptionalism', with parliament regularly enacting powers, processes and systems that would be regarded as intolerable elsewhere.

In just the last year, as part of the Illegal Migration Act 2023 and the Safety of Rwanda (Asylum and Immigration) Bill, we have witnessed: multiple ouster clauses restricting and even excluding judicial scrutiny of life-changing – and sometimes life-threatening – Home Office decisions; disapplication of the Human Rights Act 1998 preventing migrants from effectively enforcing their rights domestically; and a serious weakening of the UK’s adherence to international asylum law.

Robust and reliable external supervision to help highlight, challenge and alleviate these harms is therefore critical.

Third, effective administrative bodies such as inspectors and commissioners are necessary additional safeguards when immigration is an area where the courts are traditionally cautious about intervening. Judges show considerable deference to ministerial and parliamentary decisions and preferences, including where these decisions overtly undermine migrants’ human rights.

A well-known example followed changes made by the government and parliament to weaken the ability of migrants to invoke Article 8 of the European Convention on Human Rights (the right to respect for private and family life) to resist removal from the UK. When ministers made it easier to remove migrants through amendments to the Immigration Rules and the Immigration Act 2014, British judges upheld the policy.

Wendy Williams envisaged a migrants commissioner with a legal responsibility to speak up for migrants and those affected by the immigration system directly or indirectly. The commissioner would have a duty to proactively engage with migrants, to identify systemic concerns, and to work with the government and the ICIBI to address them (p.16).

Similarly, she argued that the government should review the remit and role of the ICIBI, including considering giving the ICIBI more powers to independently publish reports. Williams further suggested that ministers should have a duty to publish justifications when they do not agree to implement ICIBI recommendations (p.16).

While Wendy Williams’ recommendations are not a silver bullet, they would add important tools to support accountability for the impact that immigration and asylum policy is having. Following the ICIBI row and in anticipation of a general election, the time has come to look at Wendy Williams’ recommendations on the ICIBI and migrants commissioner again with greater openness.

Lee Marsons is senior researcher at Public Law Project