The coronavirus pandemic created an impetus for the legal world to finally begin accepting digitalisation of processes, moving away from the traditional paper process to an online version. The immigration process is already faced with a myriad of concerns which leaves the applicant in a weak position, and most often, with a lack of funds to cover their costs. The Home Office's inability to train and effectively manage applications, outsource services to dubious third-party contractors has been exacerbated further by the haphazard application of online processes which do not match the needs of the immigration process. Despite the fact that online applications are easier to complete for legal representatives a number of issues have arisen as a result of this sudden change.
Immigration Process Summary
Applicants are required to complete their applications and send them to the Home Office along with supporting evidence and their biometrics in order for their claim to be reviewed. The Home Office has tendered a private third-party contractor to scan documents and take applicants' biometrics. VFS, an Indian company, is responsible for scanning documents and passing them to the Home Office.
At a later stage, when applicants are required to go to court, a system called 'MyHMCTS' is used. MyHMCTS provides a single platform for legal professionals and other stakeholders to issue, pay for and manage applications within the courts and tribunals system.
The aforementioned raise a number of issues in regard to data protection, practicality, and costs, among other concerns.
This subsection explores in greater detail the use of private contractors and the related concerns.
When booking appointments third-party private contractors are used. As a result of this, sensitive information is passed to third parties which raises data protection and privacy concerns. When considering asylum applications in particular, many applicants have highly sensitive information and documents in their applications which can place their lives at risk in the scenario that they are to return to their home countries. As these companies are international there is no guarantee that information will remain confidential, this is a particular area of concern for VFS who is not covered by EU Law and so applicant information can easily be passed on. In November 2019, The Independent newspaper published a story which confirmed that the Parliamentary Ombudsman had begun investigating the Home Office over the outsourcing of visa services to VFS and their incompetence. Further complaints have been reported as to VFS's conflict of interest in processing visa information. Such sensitive information should be handled with the utmost care and precaution and thus should be passed directly from applicant to the Home Office to avoid leakage of information.
"VFS Global has grown to be a $2.5bn company that remains largely unknown, is owned by a private equity fund — and yet handles some of the most sensitive personal held by dozens of governments around the world."
Immigration exceptions under the General Data Protection Regulation (GDPR) allow controllers to restrict GDPR rights if they are likely to prejudice the maintenance of effective immigration control or investigation or detection of activities that would undermine the maintenance of effective immigration control. Clients are required to sign a letter of authority when gaining legal assistance. This enables their representative to legally be able to act on their behalf, this includes passing their data to the Home Office, however this does not include consent to pass information on to third parties that the Home Office have now included as a mandatory part of the immigration process. This therefore could be a fundamental breach of GDPR as these third parties do not fall into the exemptions listed under the immigration rules.
Current Home Office application prices are already among the most expensive in the world. Now added extra fees required for scanning documents and biometrics makes this process less accessible to those from lower income backgrounds. Biometrics previously used to be taken at the post office using Royal Mail, this service cost £19.99, however, this is now handled by another third-party contractor called Sopra Steria UKCAS, where it now costs £159.99 for biometrics to be taken. This is an increase of £140 for the same job to be done. As a result hundreds of refugees and legal migrants have been unable to access public services because they cannot afford the high charges needed to obtain legal documentation.
Furthermore, when going onto the VFS website the company advertises various additional services that have left clients confused and under the impression that they require these services to aid their application.
If anyone needs to call VFS or Sopra Steria, these are charged by the minute by the companies. There are extremely long waiting times partnered with high charges per minute where it can cost up to £1.37 a minute. This therefore makes the service both extremely difficult, time consuming and expensive to use, again affecting those from low income backgrounds or those who act for themselves without legal representation.
The additional costs partnered with the already high application fees make immigration applications less accessible to those from low income backgrounds who may not be in a financial position to gather the funds. Furthermore, outsourcing visa applications has resulted in poorer service as those working in VFS are able to give advice regarding applications which can be incorrect as they are not trained or qualified to do this. This restricts individuals' fundamental rights to exercise a private and family life in safety.
"The Home Office's duty to ensure contracted visa and immigration services are reasonably priced is undermined if it benefits from increased revenue generation. We want to see far greater accountability and transparency in outsourced visa and immigration services, a review of domestic and overseas arrangements with contractors is urgently needed." Stephanie Boyce. Deputy vice president of the Law Society of England and Wales.
Tribunals were created to make the legal process easier and allow the average applicant to represent themselves, however with the introduction of MyHMCTS it has become increasingly difficult for people to represent themselves as it is tailored for the use of legal representatives. Therefore, those who may not have the funds to pay for legal representation and wish to act on their own behalf find it difficult to do so. Thus, this service is not accessible for everyone, as justice should be.
Lack of training
Advisors on the phone are unfamiliar with the system and so advise incorrectly on how to surpass obstacles, resulting in legal representatives and applicants being in a constant cycle of calling, being passed to different departments, filing documents and starting the process again in some cases. There is no thorough guidance for legal representatives to use which has made it extremely difficult to navigate the system as there is no accurate help provided, a result of this is that a lot of time is wasted in an attempt to file claims correctly which has a knock on effect in regards to other tasks as well as costs.
The forms provided online are incomplete and do not have the correct sections that are available on the paper versions. An example is that you cannot add dependents to an application, nor can you do joint applications. In this case the application must be filed outside of MyHMCTS, which raises additional issues as sometimes this is not accepted and thus has subsequent negative effects on an application.
The judiciary has now begun to move towards online hearings as opposed to face to face hearings in the wake of the COVID-19 pandemic. However, almost immediately the Lord Chancellor and HMCTS received a backlash from lawyers submitting that remote hearings disproportionately affected applicants and can be discriminatory to the client resulting in an unfair outcome of their claim particularly asylum claims. This is due to the lack of engagement between the client and their claim, video links hamper communication resulting in advice and communication being less effective. The aspect of body language is also taken away which reduces the possibility of a judge empathising with the case, people are reduced to online images which reduces their chance of having a successful claim. This is particularly true for those who do not have English as their first language or those with any kind of physical or mental impairment that may restrict their participation. In addition, not everyone has access to a laptop or computer with a secure connection and a private setting. This is particularly concerning for asylum seekers who are often detained or reside in shared accommodation. Furthermore, there is no means for friends, family, or other witnesses to come forward and give evidence. These factors combined have resulted in unfair trials which contravenes Article 6 of the European Convention on Human Rights which states that everyone has the right to a fair and public hearing.
Case Management Review (CMR) Hearings
CMR is now a compulsory stage of the immigration process introduced during the pandemic as an attempt to reduce the number of people attending court. It is held to confirm the points in issue prior to the substantive hearing, the judge seeks to confirm the issues that will be raised by either side. This disproportionality has affected those with a lower income as they are required to pay extra fees to the barrister to draft a skeleton argument, it also affects those representing themselves as they are not equipped with sufficient legal knowledge and skill to be able to correctly draft their argument and prepare bundles. Additionally, as these hearings are held remotely the aforementioned issues are applicable and place a client at risk of not having the opportunity to have a full substantive hearing.
All evidence within an immigration case is important, as every piece is crucial in proving the claim of the applicant and satisfying the burden of proof and so must be presented to the judge. A bundle can go beyond 500 pages and can include witness statements, correspondence between applicant representatives and the Home Office, medical reports, country reports, translated documents along with the originals, skeleton arguments, and any other relevant evidence. It is also important to note that some applications include dependents or are joint applications and thus the relevant evidence for those individuals must be provided as well.
Documents are subjective to each individual as the burden of proof is on the applicant to satisfy and thus each application differs in regard to evidence submitted as opposed to other areas of law. Due to the pandemic, directions issued by HMCTS stated that bundles needed to be submitted electronically which has been limited to 140 pages and a maximum of 3 emails which raises serious concerns regarding the applicant's ability to present their case. This limit leaves legal representatives and applicants unable to submit all necessary evidence leading to an unfair and unjust hearing as all relevant information is not available to the judge. This also provides an excuse for misrepresentation as some legal representatives will fail to disclose vital evidence due to the online file-size limit.
In addition to this when files are being uploaded, there is a limit to the size of the file being uploaded, this is problematic for small high street firms or applicants acting for themselves as they do not have suitable equipment and capabilities to reduce file size and have to scan in small sections at a time, this is time consuming when both scanning and trying to upload the documents. Often documents cannot be uploaded and then have to be sent via email instead with an explanation for failure to upload online. As mentioned at the beginning, immigration is typically handled by small high street firms rather than larger city firms, therefore, the software and mechanisms used are not equipped to handle such requirements. Naturally, at smaller firms there are fewer individuals working and so it is very time consuming to adhere to the guidance and upload such a vast number of documents.
Lack of consistency
The Home Office and court have failed to digitalise the whole process, they continue to send appeal forms and refusals by post. This raises a concern as letters by post are often backdated and the date of post arrival is dismissed consequently leading to applicants being out of time to respond which can lead to their application being withdrawn. The Home Office is then alleged to go on to be dishonest in the court regarding dates in order to attack an applicant's credibility.
In conclusion the shift to an online process is not fit for immigration purposes and has detrimental effects on applicants particularly vulnerable clients and asylum seekers. Understandably due to the pandemic there is a sudden urge and necessity to shift everything online to allow people to work remotely, however, the system needs to be catered in a way to suit the needs of everyone and be a means for justice to remain accessible. As it stands this is not the case and therefore, the system needs to be updated, training needs to be provided for those working within the government and detailed guidance needs to be provided for legal representatives. Furthermore, applicants should be given the choice to use an online method or postal method on the basis of their personal circumstances rather than there being only one option. In this way the service will be easily accessible for everyone, rather than a limited number of people.
- Independent.co.uk. 2019. VFS: Who Is the Company Subcontracted by The Home Office to Process Visa Applications? [online] Available at: <https://www.independent.co.uk/news/uk/home-news/vfs-global-home-office-…; [Accessed 11 September 2020].
- Independent.co.uk. 2019. Calls for Review into Home Office Outsourcing After Visa Profits Soar Under 'Exploitative' Contractor. [online] Available at: <https://www.independent.co.uk/news/uk/home-news/home-office-vfs-visas-p…; [Accessed 11 September 2020].
- 2020. Managing Account Guidance for MyHMCTS. [PDF] Available at: <https://assets.publishing.service.gov.uk/government/uploads/system/uplo…; [Accessed 11 September 2020].
- Workpermit.com. 2020. UK Visa Unaffordable Costs Leave Families Without Documents. [online] Available at: <https://workpermit.com/news/uk-visa-unaffordable-costs-leave-families-w…; [Accessed 11 September 2020].
- Newjurist.com. 2020. Remote Hearings Detrimental to Immigration Clients | The Newjurist. [online] Available at: <https://newjurist.com/remote-hearings-detrimental-to-immigration-client…; [Accessed 11 September 2020].