The Law commission started a public consultation on now the immigration rules are to be rewritten. They call it, unambiguously, a consultation on “Simplifying immigration rules”.  Reminds me of a character played by Ralph Fiennes in some movie, who is trying to get a young actor to say “Oh, but if it were so simple”, but the latter only manages to say  “It’s complicated”.  This is different from  a question on what sort of rules do we need in a first place (eg, who is allowed to come here and on what conditions). This is about who, how, where and when determines whether or not they meet these conditions, and how does the system deal with errors. The Rules, which judges like to deride as “byzantian” and “archaic”, have now fallen sharply behind the govt’s attempted IT reform and its implications, and Brexit is but one catalyst for change.

I will strive to respond perhaps in March, once we had a bit more feedback  on the new digital services of all kinds. I am pessimistic and even angry about most of those, but yet I want to watch it unfold. The redesign of application systems, both at home and abroad, has wider implications, as does the identity of your average decision maker — in the end, it is a civil servant or is it an agency worker, as is increasingly the case? Even civil servants are often the problem, while agency workers tend to be not more, but less aware of the rules nor apt in technology, than your average applicant.

Aptitude of applicants varies also wildly, across various bits of the system, with low-skilled non-English speakers in some EEA or legacy EEA categories, as the case will now be, to high-skilled workers who may have admin skills and ability to read legalese, but not all are necessarily IT-savvy. Your aging polyglot history  professor is going to have about as much trouble with an NFC chip in their Android device, or more, than a 25-year old carer who nonetheless went to high school and owned a smartphone all her life.

So, who is the end user of the system in this brave new world to come? How much of it is DYI and what , if any, is the place of it of representatives? Are we talking sophisticated legal representatives or are we talking the sort of people who know how to convert files to PDFs and decrease their size so they can be uploaded, in other words, as HO envisions it, digital assistants? Do they exist? those they have so far in libraries are old ladies who are worse at this stuff than applicants they ostensibly serve.

All of these issues will lead onto new ones. The current immigration rules, in their structure, are unforgiving. If the Rules say a letter has to have a phone number and an email address, then a letter without an email address is invalid and the Applicant loses, even if the organisation that originated it does not have an email address. If it says the letter must say payslips are “authentic” you may be refused and will lose if you submit a letter  that says they are “true copies”, because these are not the same thing. The Rules require “original documents” and digitallisation requires that copies, or  images of files, be accepted. We are poor so far at distinguishing copies of documents (eg a scan or a photo of the original document) from documents the system doesn’t want because they are, for instance, a self-printout from Internet Banking. A scanned original statement is different from an original self-printout.

Do we even care? Do current stringent rules protect us from fraud? Today’s document fraud relates, I would guess, not to production of fake copies in Photoshop. It mostly relates to procurement of technically original documents in a fraudulent way.

Is the applicant more sophisticated than the intended decision maker,  or less, or are they equal? HO employees being unable to understand the rules and having to be trained on primitive 6-slide presentations, and/or having the rules translated in plain English to them in now widely popularised “modernised guidance”, is as much, or more, of a problem than immigrants not understanding them.

Yet, the super specific rules we have today, exist precisely because we do not wish to have to trust unsophisticated decision makers to make holistic, on-the-round judgements based on substance, rather than form. If we could afford to have degree level trained employees, maybe we can then have a more flexible system. Can we afford them? Will digitalisation of submissions mean we are so much more efficient (we being “the government”, eg “UKVI”), that we can cut down the number of decision makers and increase their quality, say hire degree level educated  staff? So we can then write the sort of rules that do not have to be translated from English into English into English, for various degrees of staff and user sophistication, because decisions will be made on a more sophisticated level taking into account more of a substance and less of a form?

When your application hinges on personal blunders of a poorly retrained local librarian, then what happens to the other area in which the rules are currently unforgiving: late applications, rejected applications, applications where Sopra Steria’s IT ate all attachments?It used to be your word against that of a civil servant that you have sent in this and this. Now it is what, your word against that of a  librarian? Where is chain of custody of all this evidence, when detention and removal are at stake? If we are to rely on these innovative processes, we will have to make the system more forgiving of inevitable errors they produce. “Put everything in an envelope and send to the Home Office no later than such date by postmark, and a civil servant will open it” was a very clear way to tell if someone made an application at a particular day or not. And how about now? I myself   no longer know for the life of me what the application date is, for all but nationality.

Last but not least, what is the place of legal professionals in all these systems? Are we going to still have OISC? HO clearly wants to cut down on reps, yet even today, of  two virtually identical applications, one with me on as rep and one sent by an applicant itself with a plain not-headed cover letter, seem to get different treatment. UKVI wants reps out of  its relationship with immigrants — do not know why, since reps probably normalise applications to some sanity level — but it does. In a possible suicide move, and also condoning possible monopolistic takeover of legal services, OISC agreed to license a Sopra Steria subcontractor to provide advise. Presumably, in those libraries.

The new EU settlement scheme as currently (now) in operation, is the most stark example of how not to make a system – any system – user friendly. It requires a device hardly anyone has, and half of those devices that people do have, do not work as intended. Appendix EU suggests that the applicant needs to demonstrate that they resided in the UK and not much more – yet, guidance published here on how exactly to do that,  made me laugh hysterically for about half an hour. It certainly looks, if anything, more onerous than it used to be under the old rules, not less. The people I know who weren’t able to comply with old style requirements because, say, they did not properly exercise Treaty rights, certainly won’t be able to comply with these ones. In the end, all of those people would still need lawyers, and to send their stuff by post — except not to a civil servant, but to a d***d with 2 GCSEs employed by some Sopra Steria, Atos, G4S, Capita or such like. But now, law firms also would have to buy Android phones with NFC, in order to try and fail to read passport chips with them, before everything is sent by post as usual..

Current Rules, among their problems, have redundancy. Even the most sophisticated NEW user, trying to derive wisdom from just reading them, will fall foul of some of them because they are not completely cross-referenced, in a sort of exhaustive way legislation should be. You can read requirements for T1E and be lead to Appendix A and all that, although quite often footnotes will be overlooked (such as, you have to attain the specified IELTS score in each section of the test, not overall -it says that in font type 6). But things like police clearance certificates, TB certificates, you need to somehow already know they even are a thing, or you will miss them. Likewise, Appendix 2 VAF4A for overseas applications. It baffles me how would a person even know it exists. From reading a purple paragraph that pops out, half the time incorrectly, in Visa4Uk for a second after you select visa category and before you click “next”?

It is very important to remember, however, that you cannot change the Immigration system without changing the enforcement system accordingly. All of the wishy-washy user friendliness, with a Google Play app and a librarian instead of the “byzantian” faceless bureaucracy that instilled contemptuous fear, in my view, will bring compliance down across the board — not up, as the government hopes. I think some of the reform is attempting to ascribe British way of thinking to — inevitably, by definition – non-British people.

Think of what happened with EU citizens until now. Should we be surprised that virtually none of them knew that Free Movement was subject to conditions, if we never checked their compliance? Yes, in this country we buy train tickets even if we know for a fact they will not be checked. But most immigrants do come from places where contempt of authority is a part of being. Windrush problem is a result of the same line of [not] thinking. You can’t be wishy-washy and then one day send down a SWAT team to pick up everyone who didn’t comply. It clearly won’t fly with The Guardian. Yet, if your first ever application to come to the UK cost you £2000 and was refused because some letter didn’t list an email address, it’s like a big sign at the border that says “Worry about it”. It induces, at least, earnest attempts to comply.

This is all about form, rather  than substance, but the form, when it comes to the Immigration rules, is what primarily defines user experience, and ultimately — efficiency.

Anyone who is a stakeholder in the immigration system, which includes end users, should consider taking time to respond to the consultation, which can be found here. The usability of our immigration system for years to come is very seriously at stake.

 

 

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