On 11 November 2021, the Home Office published guidance for its caseworker titled 'The Ethical Decision-Making Model', described as a tool to help Home Office staff when making decisions involving difficult ethical issues.
The 'Ethical Decision-Making Model' Tool For Home Office Staff
This guidance was created and published in the aftermath of the Windrush Scandal and at the recommendation of the Windrush Lessons Learned Review, albeit more than a year and a half following the publication of the latter. The Review stated as follows:
The combination of pressure to meet targets (discussed in detail later), decision-making based on checklists, and the high standard of proof expected of applicants led to a cultural tendency to reject applications based on an assumption that individuals weren't in the country legally. While standards may not have been explicit in the rules and guidance, their phrasing creates an environment for staff to reject rather than be proportionate or objective in each case.
The pressure to resolve large volumes of cases also restricted the ability of staff to routinely exercise discretion in their decision-making. Our review of the Windrush case files shows decisions were made by completing a checklist rather than assessing or evaluating an application, and the rationale for the ultimate decision was rarely recorded. If case workers did ask for advice, or get it, in most cases this wasn't recorded on the system.
The Review made a set of recommendations, of which recommendations 17-20 were under the heading 'Improve operational practice, decision-making and help for people at risk'. Recommendation 17 is cited in the guidance as relevant to the creation of the Ethical Decision-Making Model. It states:
The Home Office should develop a set of ethical standards and an ethical decision-making model, built on the Civil Service Code and principles of fairness, rigour and humanity, that BICS staff at all levels understand, and are accountable for upholding. The focus should be on getting the decision right first time. The ethical framework should be a public document and available on the department's website. A system for monitoring compliance with the ethical standard should be built into the Performance Development Review process. (Recommendation 17)
The guidance states that the purpose of the Ethical Decision-Making Model is to enable staff to consider the impact of their proposed decision, consider any issues that cause "decision discomfort", consider what discretion applies in the case, discuss or escalate the case to a senior manager or another team for further consideration. Specifically it states:
If you identify ethical issues, which give you concern about the impact of the decision on the person you may resolve them yourself, or in discussion with colleagues, by identifying solutions within the existing rules and guidance, including considering what discretion is available to you. If you cannot resolve the issue within existing rules and guidance or at your level of authority, you should escalate the issue for further consideration.
The guidance makes it clear that the model does not provide a "right answer" and does not replace existing immigration legislation, rules, or guidance. It does not constitute a separate route for a decision-maker to exercise discretion or grant leave. It prompts decision-makers to think critically about exercising the discretion they already have.
The guidance contains a circular flow chart, which provides for the following steps:
The relevant, existing decision-making processshould be followed to the point where you have a proposed decision.
Once you have a proposed decision, you should reflectand consider the potential impactof the decision.
Are there any ethical or unintended consequences of this proposed decision that concern you?
If you do not have any concerns with the impact of the proposed decision, you can proceed with decision(sic).
The publication of this guidance is certainly a positive step and hopefully it will be meaningfully implemented to actually increase the quality of Home Office decision-making and avoid both collective and individual injustices arising from rigid and inflexible decisions. However, it feels as if it is "too little, too late".
Firstly, this is merely one of the recommendations of the Windrush Lessons Learned Review under the same heading (out of 30 in total). Recommendations 18-20 state:
Recommendation 18 - The Home Office should establish more and clearer guidance on the burden and standard of proof particularly for the information of applicants, indicating more clearly than previously how it operates and what the practical requirements are upon them for different application routes. The decision-making framework should include at least guidelines on when the burden of proof lies on the applicant, what standard of proof applies, the parameters for using discretion and when to provide supervision or ask for a second opinion. This should produce more transparent and more consistent decision-making.
Recommendation 19 - a) UK Visas and Immigration should ensure that where appropriate it: builds in criteria for increasing direct contact with applicants, including frequency of contact, performance standards and monitoring arrangements; revises the criteria and process for assessing cases involving vulnerable applicants; and reviews its service standards and where appropriate provides new standards based on qualitative as well as quantitative measures. UKVI should ensure it revises its assurance strategy; the learning from recent Operational Assurance Security Unit (OASU) or internal audit reviews; identifies criteria and a commissioning model for OASU or internal audit reviews; contains clear mechanisms for reporting back casework issues to frontline staff, and criteria for supervision, including recording outcomes and learning for the wider organisation; b) The department should review the UK Visas and Immigration assurance strategy periodically to make sure it is operating effectively, and the reviews should consult practitioners as well as specialist staff to make sure the strategy changes if it needs to.
Recommendation 20 - The Home Secretary should commission an urgent review of the BICS complaints procedure. Options could include establishing an Independent Case Examiner as a mechanism for immigration and nationality applicants to have their complaints reviewed independently of the department.
It is not clear whether steps have been taken to act on these recommendations. I have not noted any guidance on the burden and standard of proof following recommendation 18. Direct contact with applicants and representatives continues to be an ad hoc and rare occurrence.
The Home Office has always (or at least, since the Immigration Act 1971 came into force) had wide discretion to grant leave to enter and remain in the UK. The Immigration Rules are a statement of the Secretary of State's administrative practice. They are not law and, therefore, although they do not technically create legally enforceable rights, departure from them to the detriment of a person is judicially reviewable and courts and tribunals have confirmed the relevance of the requirements of the Immigration Rules in the proportionality assessment under Article 8(2) ECHR, when Article 8(1) is engaged in a statutory human rights appeal.
As such, the Rules allow in principle for consistent decision-making and fairness, but they never prevented the Home Office from departing from them in favour of an individual, when the circumstances warranted it, in view of the wide discretion afforded by the Immigration Act 1971, when considering the matter of granting leave to enter or remain. Otherwise, they would be fettering the Secretary of State's discretion, which would be unlawful and clearly beyond the purpose of the Rules. Further, specific Home Office guidance documents make references to caseworkers' power to grant leave when the requirements of the Rules are not met, when compelling circumstances warrant it.
The Ethical Decision-Making Model, as admitted in the guidance, does not widen the discretion, nor does it create new routes to grant leave. It simply confirms what should have been in the mind of each caseworker, or certainly what their training should have instilled in them all along. Further, it does not seem to address (or admit), what the Review considered the (or part of) the underlying reason for the failure to exercise discretion appropriately: "the pressure to resolve large volumes of cases [that] also restricted the ability of staff to routinely exercise discretion in their decision-making."
The wording of the Ethical Decision-Making Model is also fairly prescriptive. Whilst I accept that consideration of the consequences and the impact of a decision is imperative, that denotes that discretion should only be exercised on compassionate grounds. There are cases where the impact of a decision may be limited, however compelling circumstances would warrant a better outcome: for instance, a person who has a break in their leave for compelling reasons, could be refused indefinite leave to remain on the grounds of long residence, if they have existing limited leave to remain or the caseworker considered they should be granted limited leave to remain on the basis of their circumstances.
The Model must go a step further and dictate that decision-makers should consider all the circumstances in each case, prior to and following consideration of the prescriptive requirements of the Rules and guidance, as fairness and good administration would dictate and in view of their wide discretion. Having said that, viewing decision-making with compassion, as relating to humans and not merely "numbers", is the starting point and, sadly, something that has been lacking so far, as the Windrush Lessons Learned Review and the publication of the Ethical Decision-Making Model have demonstrated.
Nonetheless, I find it difficult to envisage how this Model could be meaningfully implemented in the absence of a cultural change operationally. As long as the hasty resolution of a large number of cases is the overriding goal, the quality of decision-making and the adoption of a humane approach to it will always be put on the backburner.
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