Institutionalist scholars generally emphasise the formal organisations or bodies of government as moderators of immigration policy. Frequently, institutions apply an expansionary pressure to often restrictive policies. Institutionalist scholars tend to regard institutions (such as the civil service and the judiciary) as relatively independent bodies, at least in democracies; the actors within such institutions can – and do – exercise a reasonable degree of power, and they are obliged to do so in a supposedly non-partisan way. Their actions may well go against the immigration control policy objectives of the governing political party.
The judiciary in liberal states, as Christian Jopkke conceives it, is supposedly independent from political pressures, and obliged to act according to the principles of non-discriminatory law – thus, the legal process is seen as a relatively expansionary influence on immigration policy, in the face of a (generally) restrictive executive.34 Actors within such institutions can rely on legal texts which tend to be ‘neutral’ with regard to the nationality of those involved.35 Virginie Guiraudon’s ‘institutional sociology’ approach seeks to explain how bureaucracies as well as the judiciary have played a role in expanding rights to non-national residents, simply through the inclusionary, non-discriminatory nature of the law and the welfare state.36 Her approach emphasises a struggle to exert control among actors. It is this conflict that means that developments in policy may appear to be ‘contradictory and adhocratic’.37
The institutional argument operates within a sphere in which bodies are actively trying to bolster their own power, and undermine that of their competitors (or ‘escape domestic
adversaries’).38 Guiraudon portrays the civil service as acting in their own interests and trying
to reclaim lost land; referring to one episode she says that ‘migration control bureaucrats went transnational at that particular moment because they had seen their action increasingly constrained in the early 1980s’.39 She argues that policy actors seek venues that are conducive
to their own interests, so they appeal to international organisations and existing legislation. By avoiding the creation of an international migration regime with precise mechanisms, civil servants could evade legal limitations and scrutiny.40
The argument of convenience is a variation on this concept of competing institutions and organisations. In her case study of France, Germany and the Netherlands, Guiraudon argues that ‘incorporating migrants into existing legal and bureaucratic structures seems more politically acceptable than setting up special programmes and special rules for migrants’ and is also less costly in economic terms.41 Furthermore, incorporation into existing systems works well for the courts: their legitimacy, Guiraduon argues, is bolstered by an appearance of consistency in passing judgements. This is because ‘if [courts] treat different groups/ constituencies differently, they will not be credible as neutral arbiters’.42
Britain, however, is more immune than most liberal states to interventions of this kind. Hansen argues that Britain’s institutional framework makes it unusual: ‘the UK succeeds where others fail [in implementing policies to control migration] because its self-imposed constraints are weaker’.43 By this he means that the UK has a ‘strong’ executive, a ‘weak’
legislature and a ‘timid’ judiciary which has meant that governments, once they respond to public demands, are able to restrict immigration relatively quickly and effectively.44
Institutionalist accounts often subscribe to a path-dependent view, highlighting the notion that changes to policy, and more generally, institutions, limit what can be done in future. Once an arrangement has been put in place, or a particular group has been provided with concessions, this is very difficult to undo.45 Hansen refers to a kind of ‘stickiness’ which acts as an obstacle to change.46 This is one explanation for variance within countries’ immigration policies: ‘original policies proved difficult to reverse or modify’.47 Thus, he argues that the
the combined feedback effects of 1948 and 1962 legislation’.48 The concept of a ‘feedback
loop’ which restricts the direction of policy and related events is alluded to in accounts which emphasise the importance of legacy in restricting policy-making. As Stephen Castles and Mark Miller put it, the UK is the exception to the West European pattern in that most post- war immigrants entered with full citizenship and voting rights, in part because of the UK’s obligations to the Commonwealth and Ireland.49
Institutionalist accounts provide an important focus on institutions as (generally) moderating influences on immigration policy. However, Boswell is sceptical of accounts which stress institutional resistance to executive policies; she says that ‘this begs the question of the origins of organisational capacity to resist the interests of politics’.50 Could these institutions
be dismantled by other institutions within the state, should their actions be in conflict with (higher) interests? She argues that these characteristics, say, the separation of powers, or judicial independence, are such fundamental components of a liberal democratic system that ‘the state cannot simply roll back these provisions where the actions of these bodies conflict with its own political interests’.51 However, she does not consider that these traits can be
undermined by the executive, if not fully dismantled. In focussing so heavily on institutions, there is also a tendency to overemphasise the power of institutions with regard to the pressure that they are under from executive policies. Institutionalist accounts rarely acknowledge the political parties, whose members make up parts of the executive and the legislature and, sometimes, the judiciary, nor do they consider the influence of public opinion.