The three systems we have explored in this book barely scratch the surface of automation in government immigration systems. They are systems which have, for various reasons and through various means, come into public view. But automated systems are being developed and deployed in many more corners of the immigration bureaucracy. The current trajectory, both in the UK and around the world, is toward increasingly automated immigration systems.

From the transitional and experimental phase that we are currently in, it is clear that automated immigration systems can bring benefits. For example, automation has allowed millions of people to get their status under the EU Settlement Scheme quicker than would have otherwise been possible, reducing delay and associated anxiety. These systems also seem to have some success in reducing decision- making costs. However, automated systems also pose clear and real risks of failure. These failures can occur, and have already occurred, at both individual and systemic levels, with disastrous effects for individuals and their families, as well as wider society and the economy. The resultant harms must be taken seriously, and certainly more seriously than the Home Office appears to have taken them to this point.

The examples considered in this book show that there is a pattern of risky experimentation with automated systems in the Home Office. This experimentation has five key features. First, the Home Office deploys a novel automated system: an automated system that is used to perform a task previously performed by a person. This decision is made wholly within the Home Office, with little or no prior parliamentary or public debate. Second, the Home Office has several aims in deploying the system. It intends that the system will perform the specific task more efficiently, more consistently, and more accurately than its manual equivalent. But at the same time, the Home Office aims to test whether the system, or something similar, could be used in other areas of the bureaucracy. Governments often view populations on the margins of society – migrants, prisoners, and so on – as a convenient testing ground for new technologies: they are seen to have weaker claims to respect for their rights and interests and, consequently, they are generally left with weaker legal and political safeguards.

The Home Office – the main UK public authority responsible for immigration – is keenly interested in identifying ‘sham’ marriages which are designed to game the immigration system. Since at least 2015, the department has used an automated system to determine whether to investigate a proposed marriage. Marriage registrars across the country transmit details of proposed marriages to the system via ‘data feeds’. The system applies eight ‘risk factors’ to assess the risk that a couple's marriage is a sham. These risk factors include the couple's interactions before the registrar, ‘shared travel events’, and age difference. The system allocates couples either a ‘green’ rating, indicating that no investigation is warranted, or a ‘red’ rating, indicating that an investigation is warranted to identify possible ‘sham activity’. This algorithm processes a large number of marriages each year. In a 12- month period across 2019 and 2020, the Home Office received 16,600 notifications of marriages involving a non- European national, of which 1,299 were subsequently investigated. These investigations can have a range of adverse consequences for individuals and their families, and they inevitably reach into the most private aspects of people's lives in a manner that can be ‘gruelling’. There have been recent reports of wedding ceremonies being interrupted so that officials can question people about their sex lives, an official finding a nude photograph on a person's phone and showing it to others in the room, and dawn raids being carried out to check if couples are sharing a bed. We know little about how this automated system works, its impacts on those processed by it, and how effective it has been in successfully detecting sham marriages. This example of automation's growing role in government immigration systems is not unique. In fact, it is being replicated in many different corners of the Home Office immigration bureaucracy. The Home Office is currently one of the largest purchasers of IT services in government. The government's 2025 border strategy promises a ‘border ecosystem’ where ‘[a] ccurate data is gathered efficiently and shared across government at scale’, thereby ‘maximising data driven, automated decision making’.

Richard Bertinet is a chef who has lived in the UK since 1988. He runs a well- known and popular cookery school in Bath and has penned several award- winning recipe books. A significant portion of the UK's population is made up of people like Richard – people who migrated from EU Member States and made the UK their home. There is still no exact, official count of how many EU citizens are resident in the UK by virtue of free movement rights, but we now know it to be more than four million. That group is embedded within communities across all walks of life. Some have been in the UK for decades, while others arrived more recently. Following the leave vote at the June 2016 Brexit referendum, the status of this group quickly became uncertain. Quite apart from negotiating the rules that would apply, there was the immense challenge of how the new rules would be administered fairly and effectively at the speed required by the Brexit process. In response to this challenge, the Home Office adopted a novel process, known as the EU Settlement Scheme, which included a combination of online applications, partially automated decision making, and cross- departmental data-sharing arrangements. For people like Richard, it was, in the words of then Home Secretary Amber Rudd MP, meant to be ‘as easy as setting up an online account at LK Bennett’. Many applications were processed quickly and successfully. But some people, including Richard Bertinet, hit problems and were initially refused indefinite leave to remain in the UK (or ‘settled status’). This chapter explores the Home Office's design of the scheme and its implications for people who need to rely on it.

Negotiating the rules

While far from the only cause of the result, public concerns about levels of immigration were a key driver in the Brexit referendum outcome. Brexit provided an opportunity for the government to change the immigration system in relation to EU nationals, and the removal of free movement rights became a key plank of the UK's Brexit policy. As proclaimed in the preamble to the key piece of legislation establishing the post-Brexit immigration system, the Immigration and Social Security Co-ordination Bill, the central policy objective is to ‘[e] nd rights to free movement of persons under retained EU law and to repeal other retained EU law relating to immigration’.

Robtel Neajai Pailey is a Liberian academic, activist, and author, currently based at the London School of Economics and Political Science. Since 2006, she has applied for and obtained a range of visas for the UK, including as a tourist, a student, and a skilled worker. Pailey made several of her applications from the US, where she is a permanent resident. The application process was costly and a bit intrusive, but on the whole she felt the experience was ‘relatively smooth’. When Pailey applied for a visa from Ghana in 2018, however, she bore significant additional costs and delay. Between the Home Office, the British High Commission in Ghana, and the local visa application centre, no one seemed to know the status of her application or the location of her passport. The delay forced her to cancel a different trip at substantial personal cost, and her request for a refund of the application fees was refused. She described the experience as, simply, ‘the absolute worst’.

The true reason for these divergent experiences is and will remain mysterious, but for Pailey, the implication was clear:

One possible explanation for Pailey's experiences is an automated system known as the ‘Streaming Tool’. The Home Office deployed the tool in 2015 to help process the millions of visa applications it receives every year. In 2019, however, the tool began to attract public criticism over its opacity and potentially discriminatory operation. This culminated in August 2020, when the Home Office suspended use of the Streaming Tool in the face of a looming legal challenge. This chapter explores how automation was deployed in visa applications and how it ultimately failed.

Visa risks.

One of the basic objectives of immigration law and policy is to facilitate the entry of people whose presence in a country is seen as desirable, and to prevent the entry of those seen as undesirable.

At dawn on 30 June 2014, Raja Noman Hussain awoke to find about 15 immigration and police officers raiding his house. Raja, a 22-year-old Pakistani man, had arrived in the UK several years earlier to study. Now he was being accused of cheating in an English language proficiency test approved by the Home Office, which he had sat in 2012 to meet a condition of his visa. After confirming his ID, the officers told him to grab some clothes, handcuffed him, and took him into immigration detention. Raja spent the next four months in detention, during which time he estimates he met over 100 other international students who had also been detained on the same basis. What followed was six years of legal battles over the cheating allegation, which disrupted his studies, estranged him from his family, and cost him around £30,000. Finally, in early 2021, Raja succeeded in clearing his name and confirming his right to be in the UK.

Raja was one of the tens of thousands of students whose visas were revoked or curtailed – and studies disrupted or ended – after the Home Office accused them of cheating in a government-approved English language test. This scandal eventually hit the headlines. The ensuing appeals and judicial reviews – which became known as the ‘ETS cases’ – have cost the government millions of pounds. What is less appreciated about this debacle is that much of it centred on a failed automated system: a voice recognition algorithm which the government used to identify suspected cheats. This chapter explores that side of the story.

The scandal unfolds

English language requirements have long formed part of UK immigration law. A 1914 law required that an ‘alien’ applying for citizenship prove that ‘he is of good character and has an adequate knowledge of the English language’. Since 2007, successive governments extended English language requirements to other types of immigration status: indefinite leave to remain, family visas, work visas, student visas, and so on. These requirements were said to serve the dual purposes of ensuring that migrants could work, study, and live successfully in the UK, while reducing the numbers of migrants overall. English language skills are now a requirement for most long-term visas and for settlement.

Introduction

Public understanding of the risks posed by COVID-19 understandably has focused squarely on health and mortality. As government officials throughout the UK during the first few months of the crisis offered daily hospitalization and death counts, minds inevitably concentrated on the medical risks of COVID-19. Yet the subject of this book is the social costs that will also come in the wake of the pandemic: problems of social disadvantage and suffering that will be less visible – perhaps less compelling in the public imagination – than the primary health impacts. How might law matter to such social problems? What role can law play in the alleviation of this social suffering?

When answering such questions, it is tempting to frame the discussion purely in terms of what government, Parliament or the courts might do to alleviate suffering. The image of law here is one where it has a formal status: enacted through Parliament, interpreted and developed in the courts, and enforced by administration. Equally, the understanding of law's relationship to society is primarily a ‘top-down’ instrumental one: law as a tool of governance to bring about change in society. There is much to commend this way of thinking about law and society. It captures a great deal of what lawyers and social scientists study when exploring law's potential to improve society and the actual impact of law on society. However, to understand the role of law in the response to social suffering fully, we must make two basic adjustments to this familiar way of thinking about law in society.

First, we must recognize that law is not only an instrument of governance but is also a means of challenging the ways in which we are governed. The rule of law, though a much-contested term, speaks of the basic idea that government is constitutionally constrained in what it might do. The familiar contrast between the rule of law and arbitrary action highlights the role of law in holding government to account and reversing abuses of power.