Select Committee on Home Affairs Memoranda

Memorandum submitted by the Home Office (AI 1)



  1.  The powers to remove a person subject to immigration control from the United Kingdom are contained in Schedules 2 and 3 to the Immigration Act 1971 and section 10 to the Immigration and Asylum Act 1999. A person is liable to be removed from the United Kingdom for the following reasons: following a refusal of leave to enter, if they are an illegal entrant, if they overstay the period of leave which they have been granted, if they breach a condition attached to their leave (for example by working or claiming benefit when the terms of their leave do not permit this), if they have obtained leave to remain by deception or if they are the subject of a deportation order. In certain circumstances, the member of the immediate family of a person who is being removed or deported may also be removed or deported.

  2.  In 2000, the last year for which comprehensive data has been published, 46,645 people were removed under Immigration Act powers or made recorded voluntary departures: 8,980 of these were principal asylum applicants, of whom 550 left under an Assisted Voluntary Return (AVR scheme); 37,665 were non-asylum cases. Dividing the figure of 46,645 between cases refused entry at port and "in-country" removals (the remaining categories described in the previous paragraph) shows that 38,275 people were removed following refusal of entry at the port (including asylum applicants) and 8,370 "in-country" cases were removed or made a recorded voluntary departure (again including asylum applicants).

  3.  The most recent published data on asylum removals covers the financial year 2001-02. During that period, 9,630 principal asylum applicants were removed or made a recorded voluntary departure (of which 935 were AVR departures). The Home Secretary in June 2001 indicated to the House that he would make all figures include dependants. The total number of removals and voluntary departures, including dependants, was 11,600 (of which 1,190 were AVRs).


  4.  A person who applies for and is refused leave to enter (whether or not as an asylum seeker) may be removed in accordance with directions given by an immigration officer who, in the case of an asylum seeker, is acting on behalf of the Secretary of State. An illegal immigrant, overstayer, a person in breach of their conditions of leave or a person who has obtained leave to remain by deception may be removed in accordance with directions given by either an immigration officer or the Secretary of State, although in practice such directions are generally given by an immigration officer. In addition, the Secretary of State may decide to deport someone on the grounds that their deportation is conducive to the public good or following a recommendation for deportation by a court. Once a deportation order has been made, the Secretary of State may give directions for the removal of the person concerned. Again, in practice this will usually be done by an immigration officer acting on behalf of the Secretary of State.

  5.  In certain circumstances, there will be a right of appeal against the decision resulting in removal. In some cases this cannot be exercised until after the person concerned has left the United Kingdom. In terms of numbers, the most significant appeals against removal which result in removal being suspended are asylum- or human rights-based appeals under sections 69 and 65 of the Immigration and Asylum Act 1999 respectively.

  6.  Where a person is seeking leave to enter, or subject to deportation action, or is a person in respect of whom removal directions may be given, they may be detained pending a decision whether or not to give removal directions and pending removal or departure from the United Kingdom.

  7.  Applications for leave to enter are considered in accordance with the Immigration Rules. In considering whether or not to remove a person already in the United Kingdom (an "in-country" case), the factors listed in paragraph 364 of the Rules are taken into account. These include:

    (i)   Age

    (ii)   Length of residence

    (iii)   Strength of connections

    (iv)   Personal history, including character, conduct and employment record

    (v)   Domestic circumstances

    (vi)   Previous criminal record

    (vii) Compassionate circumstances

    (viii) Representations received on the person's behalf

  Where the removal on the basis of family membership is being considered, the additional factors listed in paragraph 367 of the Rules are also taken into account.


  Are the Government's targets for removals realistic and capable of being carried out?

  8.  The Government's targets for removal of failed asylum seekers were set out in the annex to the 1998 White Paper Fairer, Faster and Firmer—A Modern Approach to Immigration and Asylum. In 1998, 6,990 failed asylum seekers were removed. The target for 2001-02 was initially set as 12,000. (Both figures exclude dependants.)

  9.  The Public Service Agreement was described in SR 2000 as "enforcing the immigration laws more effectively by removing a greater proportion of failed asylum seekers". As part of the PSA process, the Treasury and spending departments agreed, in the Technical Notes, the definition of the target and how its achievement would be measured. The 30,000 asylum removals target, including dependants (assumed to be at about one-fifth of the overall target), was published in the autumn 2000 as part of SR 2000 Technical Notes. The decision to include dependants was an acknowledgement of the higher costs accruing as a result of their remaining in the UK. The increase to 30,000 was recognised to be a challenging one.

  10.  The target in SR 2002 PSA is worded in the same way as that for SR 2000, but the technical note has not yet been published. Discussions are taking place as to the figure that should be attached to the targets for the coming period. Following the same process, the SR 2002 Technical Notes will be agreed with the Treasury and published in the autumn. The Home Secretary believes that the previous 30,000 target is not attainable in the timescales previously envisaged despite the progress made in achieving the highest-ever number of removals. Challenging and realistic targets will be set shortly. Initial discussions have suggested that the target be measured as a percentage of appeals dismissed and no-appeal cases and that, as an additional measure, improvement of performance against the previous year will be used.

  11.  The Home Secretary told the House of Commons in June last year that the target was to remove 2,500 failed asylum applicants per month (including dependants) and revised the March 2002 target date to March 2003. For reasons indicated above, further revision to this will be part of ongoing discussions. We are currently removing around 1,000 failed asylum seekers and their dependants per month, a record number and the highest in Europe.

  12.  The removal of people who have not sought asylum presents fewer difficulties. There is no numerical Public Service Agreement target for non-asylum removals. However, last year the internal targets for both "in-country" and port non-asylum removals were reached.

What are the most effective and humane methods of removal?

  13.  The recent Commission Green Paper on a Community Return Policy on Illegal Residents rightly emphasised that voluntary returns are inherently preferable to enforced returns. We share this view. Voluntary returns are a vital component of our returns policy. We aim to expand this and to ensure that information about the voluntary return option is made more widely available, for example by explaining the process as part of the asylum induction programme and reminding those applicants whose applications are refused that this option is available. At the same time, we have to accept that a balanced approach will also include enforced returns where a voluntary approach is not viable. Therefore, the availability of voluntary return has to be backed up by a clear message on enforced returns.

  14.  In some circumstances, for example where families are involved, an explanation of the process may reduce their concerns and assist removal, but we have to recognise the risk that any attempt to prepare a person for removal carries a risk that they will go to ground.

What are the constraints on removal to specific countries?

  15.  The country-specific constraints on removal fall into the following three broad categories:

  (a)  Documentation

  16.  Over 80 per cent of port asylum applicants and 90 per cent of "in-country" asylum applicants provide no travel document or other proof of nationality and identity.

  17.  The return of failed asylum applicants and others who have no legal basis for remaining in the UK can sometimes be achieved by the use of two types of pro forma travel documents. The first is the common format EU letter used by EU member states. The number of countries which will not accept this letter has increased over the past two years and now numbers around 28 countries. The second is the Chicago Convention travel document. The Chicago Convention comes under the control of the International Civil Aviation Organisation (ICAO) and sets standards for air travel. Virtually all countries of the world are members of ICAO and signatories to the Chicago Convention. However, the number of countries failing to honour their obligations as signatories to the Chicago Convention has increased. One of the considerations for issue of the Chicago Convention Document is country of embarkation.

  18.  Without travel documentation removal cannot take place. The reluctance of some countries to document their nationals, as well as the propensity for individuals not to co-operate in the process, impacts adversely on the issue of documents, resulting in a major blockage to successful removal.

  19.  Some countries have lengthy verification processes before they will issue travel documents. These include the requirement to refer all applications to the relevant authorities in their own countries so that visits can be made by consular officials to the applicant's home town or village. While it is understandable that the authorities in those countries wish to satisfy themselves that the person being returned is indeed one of their citizens, the costs of the delay, for example the cost of support to families and in detention costs where the person is detained, can be considerable.

  20.  To help overcome some of these problems a dedicated documentation unit was established four years ago. IND officials have in place a programme of liaison visits to Embassies and High Commissions in the United Kingdom, and also to the relevant authorities in the countries themselves. These provide the opportunity to address difficulties in relation to documentation, and foster a better understanding of practices and procedures. The programme is being extended to facilitate the resolution of individual problematic cases.

  21.  Consideration is being given to providing financial assistance to meet the extra administrative costs faced by embassies in the UK as a consequence of documentation problems.

  (b)  Perceived Non-Co-operation

  22.  Some of the countries to which IND seek to return are reluctant to co-operate in accepting back their own nationals. Where this appears to be the case, IND officials seek to negotiate with the authorities in the country concerned. They initially remind governments of their obligations to accept their own nationals back and then look for ways in which an agreement on returns can be reached. Where necessary such agreements are formalised by Memoranda of Understanding (MOUs) or Readmission Agreements.

  23.  Readmission Agreements set out reciprocal obligations as well as detailed administrative and operational procedures to facilitate the return and transit of those persons who do not qualify for leave to enter or remain. As yet, the UK has not finalised any bilateral agreements, but we are in the process of negotiating agreements with several countries, mainly in Eastern Europe, and are party to two agreements negotiated by the EU.

  24.  MOUs can relate to a particular issue concerning the returns such as documentation, or they can cover a range of issues relating to returns (both voluntary and enforced) with a particular country. They can also be tripartite agreements with not only the particular country concerned but also organisations such as UNHCR.

  (c)  Lack of Routes to Source Countries

  25.  Some of the countries to which we seek to return do not have direct scheduled flights to the UK. In these cases, IND officials consider alternative routes and means of return.

  26.  There is often reluctance by third countries to allow returnees to transit through their countries. When possible transit routes have been identified, IND officials negotiate with the third countries regarding the possibility of them being used as a transit point. These negotiations can relate to both voluntary and enforced returns.

  27.  The transit countries may have migration problems of their own. Where this is the case, consideration is given to offering assistance. There are already schemes in place at EU level for funding to tackle illegal migration through third countries.

  28.  Where no direct route is available, consideration is given to the use of chartered aircraft. IND and Foreign Office officials negotiate agreements for the use of charter flights. Some countries will only accept the use of charter flights once a Readmission Agreement is in place.

  29.  Even where direct routes on scheduled aircraft exist, there are often restrictions on the number of returnees who can be returned on each flight. When there is no alternative, IND officials negotiate with the carrier to see if these restrictions can be lifted.

What compassionate factors should be taken into account?

  30.  Compassionate factors will vary from case to case, and each case is judged on its individual merits. Human rights grounds and compassionate factors are not synonymous, but there may be an overlap between the two. In some cases, the Home Office has accepted that it would not be safe at the time when the case is considered to return a national to a particular country, or to return certain groups to a particular country, and exceptional leave to remain has been granted for that reason. Similarly, circumstances such as the length of time spent in the UK, and the ties formed as a result, may make it unreasonable to remove a particular individual. It should be stressed, however, that there is an overriding public interest in avoiding precedent or recourse to variation dependent on ministerial or official whim, varyingly described as "generosity" or "response to special pleading". Either way, the lack of consistency, the creation of precedent and the undermining of the legal framework and Europe-wide agreement, totally undermines any managed and defendable public policy in this field. Clearly, public policy cannot be run on the basis of pressure group or media campaigning but only on a stable and defendable legal and procedural framework.

  31.  We will not normally seek to remove a family group where there are children who have spent in excess of seven years in the UK, or anyone who has been continuously resident here for more than 14 years. Similarly, marriage or a relationship akin to marriage may be a reason to allow someone who does not meet the strict conditions under the Immigration Rules to remain in the United Kingdom.

  32.  The health of the person concerned, including whether or not he or she is fit to travel, will also be a consideration.

What incentives are there to encourage those who are refused asylum to leave voluntarily and to assist with resettlement in their country of origin?

  33.  The Voluntary Assisted Returns Programme (VARP) has been operating since February 1999. It is designed to assist asylum seekers and those with exceptional leave to enter or remain who wish to return to their country of origin if they so wish. It is funded jointly by IND and the EU Commission's European Refugee Fund. Returns are arranged by the International Organisation for Migration (IOM), supported by Refugee Action. IND provides policy advice and determines the eligibility of applicants.

  34.  VARP aims to achieve the voluntary return of asylum seekers who are still in the process of applying for asylum, those who have been refused asylum, and those granted Exceptional Leave to Remain. IOM and Refugee Action provide information to those considering leaving the UK, including information on the situation in the return country, so those applicants are able to make an informed decision about returning. Flight costs are provided for the returnee and returning family members. Voluntary return is arranged within a timeframe consistent with the wishes of the returnee.

  35.  Since March 2002, VARP has included the provision of reintegration assistance for returnees, in order to help the return to be sustainable, and to act as an incentive to increase applications. At present the focus of reintegration assistance is to facilitate access to employment, training, or education. However, other non-cash benefits could also be provided if they would remove a person's barrier to return home and would help to ensure the sustainability of that return. The value of reintegration assistance available is approximately £500 per returnee. Those provided with reintegration assistance will be monitored by IOM after their return in order to assess the impact of the assistance on the returnee's stay. Research, which has recently been commissioned, will also explore factors to measure and monitor sustainability and reintegration.

  36.  At present, funding of reintegration assistance is provided by the European Returns Fund. Provisions in the Nationality, Immigration and Asylum Bill for funding voluntary return will give wider scope for reintegration work to be undertaken.

  37.  Advertising the provision of voluntary return is also being stepped up. All those arriving via induction centres will receive briefing on voluntary return, and literature and advice on voluntary return is being made available at every stage of the asylum process.

  38.  A voluntary assisted return programme to Afghanistan is also being established with IOM, along the same operational lines as VARP. It will trial the provision of incentive payments to encourage return and assist sustainability, along with "explore and prepare" visits. "Explore and prepare" visits will enable those considering return to gauge accurately its feasibility (whether their house is habitable, whether there are adequate food supplies, or if there is medical provision in the place of destination for example). The provision of both incentive payments and "explore and prepare" visits will be kept under review.

September 2002

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