Bureaucratic Oppression in Immigration Administration
Robert Thomas’ new book, Administrative Law in Action: Immigration Administration (Bloomsbury Publishing 2022), examines how the United Kingdom’s immigration department goes about its work in enforcing the immigration law and formulating policy decisions. With careful attention to detail, Thomas presents a fascinating case study of “administrative law in action” by tracing how the country has administered immigration law and policy in the decades since the 1990s. During time frame under review in the book, the immigration department’s structure has gone through what Thomas characterizes as “endless reorganizational churn” (p.30). During Theresa May’s tenure as Home Secretary, the UK Border Agency (UKBA) was abolished and replaced by three directorates within the Home Office: UK Visas and Immigration, Immigration Enforcement, and Border Force, with the goal of making “the overall system more manageable” (pp.27-29). Today, the scale of the department’s work is staggering, with millions of applications and decisions reached each year, a budget of over two billion pounds, and 27,000 employees (p.20, p.100). As Thomas reveals, the UK’s immigration department has long been infected by dysfunction: administrative mismanagement, ineffective data storage systems, and a basic lack of institutional competence (p.20, p.41, p.255, p.260). And, as we learn in the book, these flaws run deep and have fostered a widespread lack of confidence in the system (p.261).
Administrative Law in Action provides a rich account of the thicket of complex, and often contradictory, objectives that fit into a single administrative agency. For scholars focused on administrative or immigration law, Thomas’ concept of “bureaucratic oppression,” which he identifies as running throughout the UK immigration department, is particularly useful. As Thomas defines it “[b]ureaucratic oppression occurs when government agencies (and their contractors) impose unnecessary and unjustified harm on people who interact with them” (p.226).
Bureaucratic oppression has moved the UK’s immigration department strongly toward an emphasis on enforcement and, in so doing, come to resemble the criminal legal system in important ways. For example, the UK has a detention capacity for over 30,000 people, and increasingly relies on private detention facilities (p.231, p.247). Despite the UK’s reliance on prison-like facilities for detention, the kinds of safeguards present in the criminal justice system are largely absent. As Thomas explains, “while immigration detention is a system of administrative control . . . in practice it often operates more as a de facto criminal system of penal control, although without established criminal justice protections” (p.247). The now heavily criminalized immigration system also includes draconian deportation processes, such as a seven-day fast-tracked detained asylum system that severely curtails the rights of asylum seekers, exacting harsh results for this vulnerable group of individuals (p.204, p.232). Truncated deportation proceedings are even more concerning after passage of the Immigration Act of 2014 which significantly restricted appellate rights (p.136). These various criminalized elements of Thomas’ “bureaucratic oppression” have much in common with the “crimmigration crisis” described by Professor Juliet Stumpf in the United States, a convergence of the immigration and criminal law designed to punish and exclude those defined by the sovereign as “other.”
But “bureaucratic oppression” is not just found in the melding of immigration and criminal law. As it has spread and come to define the UK’s immigration approach, it has incorporated broader strategies for exerting control over migrants. In 2012, former Home Secretary Theresa May announced a new set of policies that she hoped would create a “really hostile environment” for migrants, thus encouraging their exit. Hostile measures included requiring landlords to confirm lawful immigration status, denying drivers’ licenses to irregular migrants, and barring migrants from opening bank accounts (pp.54-55). Thomas describes this institutional shift as one that brought migration controls that traditionally had functioned at the border to the interior of the country, enlisting private actors like employers, banks, and landlords to assume roles as immigration enforcers (p.53, p.172). Such “hostile environment” policies are certainly no stranger to those familiar with restrictionist policymaking. As Professor K-Sue Park’s historical research has documented, the idea of “self-deportation” in the United States is often articulated by modern politicians and can be traced back to the “project of Indian Removal” in the colonial settlements, long before the establishment of a formal deportation system.
The racism of bureaucratic oppression is particularly apparent in Thomas’ account of the UK’s treatment of lawful immigrants known as the “Windrush generation.” Arriving between 1948 and 1973 from predominantly Commonwealth Caribbean nations, the Windrush immigrants, most of whom were black, were granted a lawful right to remain in the UK (pp.57-58, p.66). The “Windrush” name comes from the ship MV Empire Windrush, which brought a group of migrants to the UK in 1948 to fill post-war labour shortages. Decades later, despite their lawful status, the Windrush generation was wrongly targeted with hostile environment measures. Many were unlawfully detained and deported, and lives were shattered. This horrific injustice prompted an independent review that was sharply critical of the department’s failures. While the Windrush Review stopped short of “labeling the department as institutionally racist,” the resulting report did highlight the “institutional ignorance and thoughtlessness towards the issue of race and the history of the Windrush generation” (p.61, p.181).
Administrative Law in Action is essential reading for anyone interested in migration, immigration policy, and administrative law. Thomas’ deep institutional knowledge and keen eye for bureaucratic structure paints a grizzly picture of the UK immigration department. At the same time, Thomas remains engaged and offers thoughtful recommendations on how the department might be reconstituted and rid itself of bureaucratic oppression. Proposals include forming a new agency situated “at an arm’s length from ministers” and initiating a much-needed focus on “cultural change” to ensure that the agency adheres to equality and diversity principles (p.197, pp.258-71).
Ingrid Eagly is a Professor of Law and Faculty Director of the Criminal Justice Program at UCLA School of Law.