Administrative law in action: Immigration administration By R. Thomas, London: Hart. 2022. pp. 336. £90.00 (hbk). ISBN: 9781509953110

Abstract

Criminologists could be forgiven for failing to notice a book entitled Administrative law in action. The subtitle, Immigration administration, begins to indicate its relevance. This book engages in a detailed examination of the United Kingdom's immigration department (the Home Office). In so doing, it speaks to issues of immigration and border control that have been explored with increasing depth and precision, and, indeed, moral urgency, by those working within the criminological field (see, e.g., Aliverti, 2021; Bhatia & Canning, 2021; Pickering, Bosworth & Franko, 2017).

As a public law scholar based in England, Thomas's primary goal is to approach questions of administrative law in a manner that ‘gets under the surface’ (p.31): one which recognises the importance of abstract questions relating to judicial review, but which engages with the ‘basic nuts and bolts of how administrative systems operate in practice and develop over time’ (p.3). In this vein, he examines matters including how the Home Office is organised in relation to immigration, operative administrative rules and guidance, caseworking, redress and legal challenges, immigration enforcement and the role of judicial review. He devotes particular attention to the Hostile Environment Policy and Windrush.

Thomas demonstrates that ‘the organisational competence of the immigration department is significantly constrained in various ways’ (p.260). Its policymaking has been flawed, its rules unnecessarily complex, the quality of casework highly variable. Thomas argues therefore that ‘people who interact with the department experience an enormous amount of bureaucratic oppression that is often beyond the scope of any effective form of judicial or other means of redress’ (p.261).

That said, Thomas urges the reader not to view the situation, despite the problems being ‘undoubtedly serious and deep-seated’ (p.261), as being a complete catastrophe. He reminds us that much of the work is done tolerably well: most immigration applications are granted, most decisions are made within customer services standards, and most individuals (who take the time to respond) indicate in official surveys that they were satisfied with relevant processes (p.260). Thomas also points out that many of the underlying problems are common complaints that have been made against government for many years now, across a wide range of policy areas: lack of resources, clashes of internal organisational cultures, lack of sufficient support and training for staff, and poor quality control of work ‘on the ground’ (pp.262–263).

For Thomas, this is primarily to be understood as a question of good governance. He cites approvingly the Windrush review's position that ‘ministers and senior officials must provide staff with a clear understanding of what effective public administration looks like by establishing an organisational culture and professional development framework that values the department's staff and the communities it serves’ (p.267). He argues that ‘the idea that policy goals should be devised in light of available administrative capacity and resources is an elementary principle of good administration’ (p.275).

For border criminologists, Thomas's views – notwithstanding his clear recognition of the oppression that many engaging with the immigration department face (Chapter 9) – may seem conservative and perhaps even naïve. A systems-oriented examination of the issues, which demonstrates relatively little examination of the racial dynamics in play (although see Chapters 3 and 7), and less still the role of colonialism (or, indeed, other wider dynamics such as neo-liberalism). Criminological scholarship on immigration raises, among other things, the fundamental question of whether modern systems of immigration administration are actually intended to work. An immigration system experienced as capricious, repellent and punitive is, on a more critical view, working precisely as envisaged by its political masters (Bosworth, 2019; Franko, 2020).

In closing, Thomas makes a call for ‘an open and transparent debate about … policy goals’ (p.275), and a reduction in the politicisation of immigration policy. Again, these types of argument have been subject to vibrant debates within (and beyond) criminology, which could have been included here.

That said, a ‘centrist’, public law orientation brings its own strengths that should not too readily be dismissed. Thomas argues for administrative competence as a guiding principle, for ensuring that decision making is fair and reasoned, and that sufficient protection is provided for administrative systems such as immigration from knee-jerk political demands that may ensue (pp.266–267). This is, of course, a reformist argument which, for abolitionist critics, will never suffice.

But a considerable body of literature makes clear that, across a range of organisations and contexts, procedural fairness does matter. And, albeit via a more cautious route, Thomas's good governance critique ultimately presses a question on ministers (and for broader debate), which dovetails with the wider border criminology literature: what is an immigration system, especially as a system of enforcement, actually for? (p.274). What should it be for?

Thomas's Administrative law in action – representing a standpoint that expects administrative competence – can thus be read as a deceptively challenging critique. The problems he identifies have also been raised by criminologists working on these issues (e.g., Bosworth, 2019). The diagnoses of the underlying causes tend to differ. But it is hard to conceive at present of a form of interconnected global governance that does not have the nation state (and administrative systems within) at its core. On this view, it is hard to see how systems and processes relating to immigration could fall away. From this perspective, a sustained engagement with questions of administrative law as they relate to immigration makes a valuable contribution to wider debates about the role, meaning and experiences of border control.