UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 1722-i

HOUSE OF COMMONS

ORAL EVIDENCE

TAKEN BEFORE THE

HOME AFFAIRS COMMITTEE

WORK OF THE UK BORDER AGENCY (AUGUST-NOVEMBER 2011)

TUESDAY 20 DECEMBER 2011

ROB WHITEMAN

Evidence heard in Public

Questions 1 - 93

USE OF THE TRANSCRIPT

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Oral Evidence

Taken before the Home Affairs Committee

on Tuesday 20 December 2011

Members present:

Keith Vaz (Chair)

Nicola Blackwood

Mr James Clappison

Michael Ellis

Dr Julian Huppert

Steve McCabe

Alun Michael

Mark Reckless

Mr David Winnick

Examination of Witness

Witness: Rob Whiteman, Chief Executive, UK Border Agency.

Q1 Chair: Mr Whiteman, good morning. I apologise for keeping you waiting. We are on the last day of the session and have selected three different topics so you will excuse the Committee switching gear to think about the UKBA, something that I think you do every moment of every day. How are you finding the job?

Rob Whiteman: I am thoroughly enjoying it, thank you, Chairman. I have had a lively first three months but am thoroughly enjoying it and looking forward now to the challenges of the future and improving the agency.

Q2 Chair: Indeed. Leaving the Brodie Clark issue aside, because this is our normal way of looking at the work of the UKBA, as you know, the Committee decided about a year ago that we would send a series of questions to the head of the UKBA, then take evidence and produce a report. It is our ambition, if things work out, that by the time this Parliament ends, instead of doing it three times a year we should be able to do it once a year. The Home Secretary is very keen, since your appointment, to have someone who is going to turn this agency around.

I do not want you to talk about personalities at this moment, because obviously you deal with people on a regular basis, but tell me about the culture at the UKBA. As someone just coming in with no history of involvement in the UKBA from a local authority background, are there immediate issues that cause you concern about how the system operates, rather than about individuals? We do not want you to talk about individuals.

Rob Whiteman: Yes. The cause of concern is creating a compliance culture. The UKBA is a curate’s egg; it is good in parts. I come across people of enormous talent and commitment who are very dedicated to the duties that they are carrying out. On the other hand, the organisation has poor morale in places, and there is a detachment between senior management and front-line staff.

The two big cultural challenges for the next year or so are creating a compliance culture whereby we know that we have proper assurance systems to ensure that the systems, the rules, the procedures and the practices that we put in place are being followed. I am doing two things in that regard, which I will mention before I cover the second issue. First, we are creating a new strategy and intelligence directorate, where we will take the intelligence flows and the way that rules should operate from different parts of the agency and put that into a corporate role, to then work with each of the directors on the assurance that we want from their area.

Secondly, we are creating a new enforcement and criminality directorate, which will deal with the professional standards that we adhere to when we are visiting premises, and when we are dealing with the public and carrying out law enforcement duties. They are two important changes, which I think will yield good results in terms of better compliance and assurance. Over the years, we will have all seen cases where things have not happened in accordance with the procedures that we think should happen, and I want to put that to an end.

The second issue is the detachment between senior management and staff. Morale is low, and I have really to make sure that senior managers have the competence and the capability not only to be good in terms of management functions such as budgeting and performance management but to be much more closely aligned with staff. We are doing a lot of work, Chairman, such as carrying out a regional tour and taking senior managers with me, holding large staff meetings-I did a meeting in Sheffield last week for 800 staff-revamping our suggestions schemes and getting staff involved in quality circles. I hope work on those two big cultural issues of compliance and morale will see the agency become a much more dynamic organisation over the next couple of years.

Q3 Chair: Excellent. May I thank you for the clarity of your response to my letter to you? Predecessors of yours have tended to refer the Committee to websites and have not given us facts and figures. This is precisely the format we would like. It would have been nice if it could have been on time, but we are grateful for the format and the speed with which you dealt with these issues. I will now turn to some specific points before we look at the operation of the UKBA. I mentioned the Brodie Clark case. Is it correct that Graeme Kyle and Carole Upshall have now been cleared of any misconduct and have been reinstated?

Rob Whiteman: Yes.

Q4 Chair: Who cleared them?

Rob Whiteman: You will remember that David Wood, who is one of our directors, carried out a management investigation under our disciplinary procedures to see if they had a case to answer. The result of his investigation was a report to me saying that they did not have a case to answer. They were cleared of any charges and, therefore, we have brought them both back to work.

Q5 Chair: So David Wood’s report does not include an examination of the conduct of Brodie Clark-that is John Vine’s report?

Rob Whiteman: John Vine’s is an independent inquiry into the circumstances in which checks were being carried out and the interchange of information between Brodie and the organisation. These were two different reports. These were the specific management reports, one on Graeme Kyle and one on Carole Upshall, both of whom have been returned to work.

Chair: Mr Reckless has a question on this point.

Q6 Mark Reckless: Mr Clark provided us with a memo in which, after John Vine’s visit to Heathrow, he followed up and passed on the concerns expressed about the number of times checks had been lifted. Was that memo acted on? If not, why has Mr Kyle been cleared?

Rob Whiteman: Remembering that this was a management investigation, and therefore I had a duty to my employee that this was investigated under the disciplinary procedures, the outcome of the investigation was that Mr Kyle had not deliberately been part of suspending checks against ministerial authority, and that those issues rested with Mr Clark. Mr Kyle was involved in the operations, but as you will remember, Mr Reckless, we discussed last time that the specific issue was that things happened expressly against Ministers’ instruction. In the opinion of the investigating officer, Dave Wood, both Carole Upshall and Graeme Kyle were acting within what they believed to be agreed operational frameworks.

Q7 Chair: Thank you. Let us move on to a number of other quick points. Jonathan Sedgwick talked to us a week ago about the Lille loophole, the ability to obtain a ticket in Brussels and travel all the way to London without having your documents looked at. Jonathan Sedgwick said that discussions were taking place last week between the Belgian authorities and Eurostar officials. Has this now happened? Are you now satisfied that this loophole has been closed? The Committee is very concerned that people are able to enter in this way.

Rob Whiteman: Jonathan has had two meetings with Belgian colleagues, and I have had discussions with the chief executive of Eurostar. Those negotiations are still taking place, Chairman, and will take place into the early new year, but we will put operational safeguards in place.

Q8 Chair: So is that still the case? Can you still get a ticket in Brussels and end up in London?

Rob Whiteman: The issue, Chairman, is that we want people to get off the train at Lille if they have only bought a ticket to go to Lille. You will know that we carry out checks at both St Pancras and Lille. Indeed, last year, at both stations, we found about 300 people who we removed from the train.

Q9 Chair: But how can we get them off the train in Lille without the co-operation of the French?

Rob Whiteman: That is what we are discussing at the moment with Eurostar and our Belgian and French counterparts. It will be a mixture of several issues. If you don’t mind, Chairman-obviously, it is up to you-I would rather not go into the detail of the negotiations that are taking place with Eurostar.

Q10 Chair: We don’t want the detail. We just want to know-

Rob Whiteman: I am happy to confirm that we are looking at the operations that take place at the station, what happens on the train itself, what happens during the rest of the operation of the journey to the UK and what we do at St Pancras. We are looking at operational fixes for all those areas. The strategic issue, of course, is that while that loophole is a concern, we must look at this within the framework of a negotiated treaty. Juxtaposed controls have been an enormous-

Q11 Chair: Which treaty are you talking about?

Rob Whiteman: These are the treaties that set up juxtaposed controls: the treaty of Dover, I think.

Chair: Mr Clappison has come hotfoot from the European Scrutiny Committee, so he knows all about these treaties.

Q12 Mr Clappison: We were told last week by your colleague that on a proportion of the trains coming from Brussels and stopping at Lille, tickets are checked at St Pancras. Have you picked up people in the course of those ticket checks who had overstayed and who should have got off at Lille?

Rob Whiteman: Yes. I don’t know if you heard me, Mr Clappison, but I was saying that checks that we have carried out at St Pancras have resulted in 160 people over the last year being stopped at St Pancras because of the Lille issue.

Q13 Mr Clappison: But as we heard last week, not every train’s passengers are checked at St Pancras in that way. Therefore, we can assume that that was a proportion of people who are getting through.

Rob Whiteman: We think that the checks that have been carried out, and the fact that we have been stopping people at both Lille and St Pancras, act as a deterrent, so people can see that we are taking action. I absolutely accept that we want to do more, and as I was saying to the Committee, Mr Clappison, we are in detailed negotiations with Eurostar and with the Belgian and French authorities.

Q14 Mr Clappison: Two questions arise from that: are the people who you pick up then returned to Belgium or France?

Rob Whiteman: Yes.

Q15 Mr Clappison: What is to prevent them from trying to do it again?

Rob Whiteman: Hopefully, the fact that they have been stopped creates the message that we are policing and making checks. We are in detailed discussions now with Eurostar, and I hope that next time I appear before the Committee, we will have been able to put extra operational things in place. I know that it is frustrating that this loophole has been around for a number of-

Q16 Chair: Do you accept that it is a loophole? We had to drag the word "loophole" out of Mr Sedgwick.

Rob Whiteman: You have not dragged it out of me. Juxtaposed controls have been of enormous benefit to the UK. You will remember that asylum numbers are the lowest since 1989. We have to negotiate these fixes with Eurostar and with the Belgian and French authorities, but we are trying to do that very urgently.

Q17 Mr Clappison: I appreciate that you are doing your best on this; I completely appreciate that, but we have to investigate how serious the potential breach could be. The advantage of juxtaposed controls is that they stop people before they get to this country and, as I think you implied, are able to claim asylum. Even those who have overstayed from Lille who are stopped at St Pancras, would be in a position to claim asylum. Have any of those 120 in fact done so?

Rob Whiteman: Not to my knowledge, Mr Clappison, but I will gladly check on that when I am back in the office and I will update you in my next report.

Q18 Mark Reckless: On Mr Clappison’s point, this is a key issue, because as he said, once they get to St Pancras, they can claim asylum and even when they are apprehended, they do not necessarily go back. You said earlier though that they are returned to France or Belgium.

Rob Whiteman: We do make returns, and all our efforts through the negotiation are about what extra provisions we now put in place in Brussels and Lille and on the train to avoid the problem that Mr Clappison raised. We have the fallback of making checks at St Pancras, but, of course, we want to operate our border in Belgium and France, and they are the negotiations taking place at the moment to try to strengthen our arrangements.

Q19 Mark Reckless: It would be very helpful if you could give us a breakdown of what happens to those apprehended at St Pancras. On the Lille loophole, it has been reported as an issue with Brussels trains. What happens with checking that people on Paris trains who are meant to be getting off in Lille do so? Is it the same issue as Brussels or is there something better that we can learn from?

Rob Whiteman: For the Paris trains, people have been through our controls. The issue here is that under Schengen, people are not checked between Belgium and France, or that they stay on the train, even though they have a ticket for Lille. It is an issue of going over the Belgian-French border, because they are both Schengen countries.

Q20 Mark Reckless: But the French are happy for Paris-to-Lille people to go through our checks?

Rob Whiteman: Yes.

Chair: To summarise Lille, the Committee remains very unhappy about the situation. We are glad that the negotiations are taking place. We look forward to hearing in your next report that there has been a real tightening up, because we are very concerned about these people coming in through this loophole. We thank you for your clarity on that.

Before I turn to the controlled archive, may I ask about Eamus Cork Solutions, the new body that is taking over our borders? It is a £7.1 million deal to replace UKBA staff who search for illegal immigrants, smugglers and terror suspects at two checkpoints in Dunkirk. There are newspaper reports that those guards have been found sleeping on duty and allowing immigrants to escape detention centres. Are you aware of that, and if so, is something being done, not just to wake up the guards, but to tell the company that it simply cannot take £7.1 million of public money and not do its job?

Rob Whiteman: I am aware of the allegation and we are investigating it. In the first instance, people go through the UKBA checks and our staff have the opportunity to check vehicles. The vehicles that our own staff-UKBA-determine not to check, we can then pass on to ECS to carry out other technical checks in order to look for clandestines. I am aware of the allegations and we will investigate them in full.

Q21 Chair: But do you know of any other country that allows a private, overseas company to look after its borders in this way?

Rob Whiteman: The decisions about the border, in the first instance-

Q22 Chair: This may have happened before you arrived, so I am not holding you responsible. It seems rather odd.

Rob Whiteman: People are going through the UKBA checks and our staff are checking the vehicles in the first instance. They then go through ECS checks, which we consider to be a value for money way of operating those checks. However, Chairman, I will gladly look, and am looking, at the allegations that have been made, and will update the Committee in the future.

Q23 Chair: Excellent, and you can give us an assurance that the contract for Calais will not be issued to ECS until you are satisfied they are doing a proper job.

Rob Whiteman: I am not sure when the contract was let, Chair, but I will look at those issues.

Q24 Chair: Thank you. Let us turn to the controlled archive. The Committee was very concerned, and has been for a number of years, about the number of cases in the controlled archive. We were given the figure of 124,000 people-about the size of Cambridge-the last time your predecessor was here. Is it going up or down?

Rob Whiteman: It is going down. As at the moment, the controlled archive stands at 93,000 cases. My view on this is that there are three elements to it. What we want to do is put in extra checks and effort and capability. Going into next year, going into 12/13, I want that to be the last year that we start the year with the archive in place. I would like to close it by March 2013.

Q25 Chair: So what has happened to the 31,000 people? We were told 124,000. 93,000 are currently in there. What has become of the 31,000?

Rob Whiteman: The 124,000 is two figures put together, aren’t they Chair?

Chair: Yes, they are.

Rob Whiteman: It is the 98,000 asylum cases, with the 26,000 other immigration cases. If I can put the 26,000 other immigration cases to one side for a second-

Q26 Chair: Okay, so of the 98,000, let’s be specific.

Rob Whiteman: Of the 98,000, that now stands at 93,000.

Q27 Chair: What has happened to the 5,000 people?

Rob Whiteman: There is a mixture of two things there. Data matching has taken place, because, remember, these are cases, not people. In working through the archive, one finds that there are matches to other cases which have been included.

Q28 Chair: I accept that. Can you give us specific figures? Of the 5,000, what percentage have been granted the right to stay, what percentage have been described as data cleansing, and what percentage have been sent out of the country? We must know, after the 5,000.

Rob Whiteman: The majority of those cases, Chair, have been through data-checking matches.

Chair: Of the 5,000.

Rob Whiteman: The figures are-sorry, I am just looking here.

Q29 Chair: Is this your question 1? 7,700 cases have been concluded. Of these, 4,500 have been granted, 700 have been removed and 2,500 have been data cleansed, whatever that means.

Rob Whiteman: Sorry, Chairman, I think that refers to the live archive. No, I am very sorry, you are right.

Q30 Chair: This is the answer to question 1?

Rob Whiteman: Yes.

Q31 Chair: So, it is actually not 5,000; it is 7,700 cases. Of those 7,700 cases, more than half have been granted the right to stay, and only 700 out of 7,700 have been removed. Is that right?

Rob Whiteman: No, the 7,000 we are referring to is the live archive going from 23,000 to 17,000, and of those cases, you then have the figures on 4,500 grants and 700 removal.

Q32 Chair: So people can follow what we are saying, and so we don’t sound as if we are on "Countdown", the Cambridge figure, as we can call it, the 124,000, consists of 98,000. We cannot find these people-

Rob Whiteman: That figure is going down because of 5,100 that are the result of data cleansing, and 900 conclusions where, through checking those cases, we have been able to conclude them.

Q33 Chair: So the 98,000 has gone down to 93,000.

Rob Whiteman: Yes.

Q34 Chair: And of those 5,000, 4,100 of them were actually data cleansed. What exactly does data cleansed mean, just so we are clear?

Michael Ellis: It sounds horrible.

Chair: Mr Ellis is getting worried.

Rob Whiteman: It is 5,100 that were data cleansed, because the figure goes down to 92,000.

Q35 Chair: It’s 92,000 now?

Rob Whiteman: And then another 1,000 cases-work in progress-have been added to it. So it is: 98,000 to 92,000 to 93,000.

Q36 Chair: Right.

Rob Whiteman: Of the cases that were concluded, 900 are concluded and 5,100 are data cleansing-that essentially, Chairman, is where we have found that the cases matched with other cases which have been concluded.

Q37 Chair: So double counting?

Rob Whiteman: Yes.

Q38 Chair: Okay. So 5,100 were there in error, basically, because they had been double-counted, but 900 have been concluded?

Rob Whiteman: Yes.

Q39 Chair: Of part B-maybe we can call it north Cambridge?-the 26,000 cases, what is that now? The live archive?

Rob Whiteman: The live archive remains at 26,000.

Q40 Chair: So it has not changed?

Rob Whiteman: There are two things that I would like to brief the Committee on. First, the 93,000-

Q41 Chair: Tell us about the 26,000. Why has that not changed in three months?

Rob Whiteman: The 26,000 are relatively old cases. They have a long profile, and it has not moved at the moment. Therefore, we are looking at the arrangements for the team covering that, and we will set targets in order to bring it down.

Q42 Chair: So it is not a live archive; it is a dead archive, because it does not move?

Rob Whiteman: I hope I can demonstrate today that on the larger archive-

Q43 Chair: The 98,000?

Rob Whiteman: The 98,000. In my three months here, I think we have made real progress in understanding that archive. I think that we will now make real progress up over the next year and a bit to bring it-

Q44 Chair: On the north Cambridge?

Rob Whiteman: No, this is south Cambridge, I think. I would like to close the larger archive by the end of the next financial year. There are three types of case in there. There are cases where people are no longer in the country. In the future, we will carry out embarkation checks and know that.

In the absence of embarkation checks in the period when these cases happened, how do we prove that they are no longer here? There are cases where we will make a trace, and there are cases where we will make a data match. From the thorough investigations that I have had on these issues, I think that we will bring down the archive by at least 30,000 to 40,000 cases.

Q45 Chair: In 12 months?

Rob Whiteman: Up to the end of the next financial year. At that stage, when it is below 50,000, we should have set, during the year-I will gladly discuss this with the Committee-the criteria by which we can be certain that those people have left the country, because we will have seen how many times we carried out the checks and how long it is since we have had-

Q46 Chair: I understand.

Rob Whiteman: And then close the archive at the end of next year.

Q47 Chair: So within 12 months of today’s date, by next Christmas, you will have closed the larger part of the archive-part one, the 98,000? And you are confident that you can do this, because you have found that the vast majority of the cases you have cleared in the past few months, since you have been there, actually do not exist-they are double-counted?

Rob Whiteman: We have found data matching issues. We have also found some cases where we have then made a trace. You have been briefed in the past, Chairman, that at the time the legacy was concluded and these cases were put into the archive, there was no contact. Of course, every review period, we go and check the databases again and find that, in that period, a trace has been made. It will be a mixture of data matching and finding traces. Then the live cohort will get bigger, because they will become live cases again, but I believe that we will bring the archive down to below 50,000.

Q48 Chair: But of your live archive of 26,000, your final figure today is what? What is it now, because I think people are confused? Of the second part, the smaller part-the live archive of 26,000-what is that figure today?

Rob Whiteman: There are three things that we are talking about. There is the 93,000. I believe we will get that down to-

Q49 Chair: Zero.

Rob Whiteman: We will get it to below 50,000-

Q50 Chair: And by the end of this financial year?

Rob Whiteman: In order to be certain that they have left the country. There is then the figure of 26,000, which are older immigration cases.

Q51 Chair: Yes. As of today, what is that figure?

Rob Whiteman: That is 26,000.

Q52 Chair: It remains the same?

Rob Whiteman: And that is older immigration cases. Then there is the live archive, which was 23,000 cases. These are cases where we still had checks on people, and that is now down to 17,000, as of today. So there are three things that you have looked at in the past.

Q53 Chair: So what do the three things add up to: 93,000, 26,000 and what? [Interruption.] Dr Huppert will do this; he is a mathematician-136,000. So at the end of the day, it is actually bigger than it was three months ago?

Rob Whiteman: I think I have confused you, Chairman. I am sorry.

Q54 Chair: Yes, you certainly have-and I don’t think it is just me, Mr Whiteman.

Rob Whiteman: Okay, I’ll try again. The 93,000 plus 26,000 is the relevant figure for how you got to 124,000, so that figure is now 119,000.

Q55 Chair: So it has gone down.

Rob Whiteman: It has gone down. The other figure is not the archive-these are old asylum and old immigration cases. The other figure in which you have been interested in the past is that when the case resolution directorate ceased, while 98,000 cases were put in the archive, 23,000 were said to be live.

Q56 Chair: This is the case assurance and audit unit.

Rob Whiteman: That’s right. Those live cases that were 23,000 now stand at 17,000.

Chair: Excellent. That is very clear. We will move on swiftly to Dr Huppert, with apologies to Cambridge-we won’t use that name any more.

Q57 Dr Huppert: We could use sections of Leicester if you prefer, Chair.

I am still somewhat concerned about this. Your substantive predecessor promised us repeatedly that the whole backlog would be resolved by the summer of 2011. Mr Sedgwick, who was acting in the role before that, told us that the cases were all concluded. I have to say that that doesn’t fit with my experience; I still have people coming who are still waiting to hear back.

We have been through the figures and, rather than question you about them further, I will just say that I am still very sceptical that this number will come down. Particularly, I realise that UKBA has now got rid of the target of six months to conclude cases, but do you accept that fewer than two thirds of new cases are being concluded within six months, and hence there are 1,400 cases that have taken more than six months to do, which will just continue to build up the backlog?

Rob Whiteman: I will take the issues in turn. I think that we will bring down the controlled archive in the way I have said. That won’t happen by the summer of 2011. I think that the work involved is clearly more than was estimated at the time. When the legacy was concluded, the cases were put into the archive. Now that they are being worked through in a systematic way against a number of databases, the amount of work involved means, I think, that it will take until the end of 2012-13-in other words March 2013-before we can be certain that the cases that remain in it have left the country.

In terms of new asylum claims, there is some good news on asylum in that we are actioning a large proportion of cases-at the moment 56% of cases in the last quarter-within 12 months. We are getting faster at concluding them, and so a bigger number will be concluded within 12 months this year than the previous year.

Q58 Dr Huppert: So just over half are concluded within 12 months, which strikes me as quite a slow pace. But can I ask about people who are returned? You are presumably aware of the "Unsafe Return" report about Congolese returnees and the "Out of the Silence" report on Sri Lankan returnees. Are you aware of those reports?

Rob Whiteman: Yes.

Q59 Dr Huppert: They describe some fairly horrific torture cases of people who have been returned. How do the Government try to confirm that returnees arrive safely, and what kind of proactive monitoring is there to try to avoid our sending people back straight into torture?

Rob Whiteman: In terms of the figures, just to be clear, there are of course two things we look at: the time to take the decision and the time to conclude the case. At the moment we are making 59% of decisions within 30 days, but in terms of concluding the case, that is that the removal or the grant has taken place, at the present quarter we are operating on 56% of those happening within 12 months. Both of those are progress in terms of decisions and conclusions happening more quickly.

In terms of returns, we monitor very closely the conditions in the countries that we will return to. Of course, before people are returned, as well as our own work with the people we wish to remove, they are very often the subject of significant legal challenge and appeals. But we make every effort to ensure that our returns happen humanely and properly.

Q60 Dr Huppert: You wrote to Freedom from Torture saying that all returnees are given the telephone number of the British high commission in Colombo and that it would be inappropriate to monitor individual cases. Is that right or do you think we have some duty to try to prevent these people who we send back from being tortured?

Rob Whiteman: The whole casework is making an assessment on whether article 3 is being met in terms of people’s right not to be tortured. I would argue that the whole casework is doing that. When we make a decision to return it is because in our judgment and, in most cases, through the appeals process, we have come to the view that article 3 is not being breached by the return taking place.

Q61 Dr Huppert: But given that it is evidenced that a number of people have gone back to Sri Lanka and have been tortured within a month of their return, are you arguing that your case management is not working because, clearly, if people are being tortured when they get back, you are failing to take that into account properly?

Rob Whiteman: It is an area where, because of the concerns that have been raised, we clearly do need to look at the conditions of what happens when we make returns. We think that the returns are happening in a proper and humane way. We will, of course, review that in the light of new information.

Chair: Let us move on to foreign national prisoners. James Clappison.

Q62 Mr Clappison: The vexed subject of foreign national prisoners. Can I ask you about what has been happening to foreign prisoners who have finished serving their sentences and who have then been subject to the provisions of the UK Borders Act 2007 and automatic deportation? The latest figures as of this month show that of the 5,012 foreign national prisoners who finished serving their sentences in the financial year 2010-11, 110 did not meet the deportation criteria. Do I take it from that that they are people who had been serving sentences of less than 12 months or did not otherwise meet the criteria?

Rob Whiteman: I am sorry, Mr Clappison; I will just refer to my letter. I am sorry. Could you-

Q63 Mr Clappison: It is dealing with the foreign prisoners who were released in the financial year 2010-11 and what actually happened to them, which is the subject of some interest. There were just over 5,000 such prisoners. According to the latest figures, 3,320 have been removed. Of those who have not been removed, it said that 110 did not meet the deportation criteria. I am asking you whether it is the case-you tell me if I am wrong about this as I am surmising-that they did not meet the criteria under the UK Borders Act 2007, which requires the deportation of any prisoner who had received a sentence of 12 months or more. Had these 110 prisoners received sentences of less than 12 months or not?

Rob Whiteman: It does not say so in the letter. I believe that that is the case, yes, but I do not have that information to hand. I am sorry.

Q64 Chair: Will you write to us with that information?

Rob Whiteman: Yes, gladly.

Q65 Mr Clappison: I am more concerned about the significant number-520-who had served their sentences, been considered for deportation but had been allowed to remain in the country. Can I take it that those are prisoners who had a sentence of 12 months or more and who had otherwise met the deportation criteria?

Rob Whiteman: They have met the deportation criteria, Mr Clappison. UKBA’s position is that we believe people should remain in detention until the removal takes place. As the Minister made clear yesterday in an urgent question, in 90% of cases where people are not detained pending removal, it is because of the decision of the courts. Our position remains that we think people should remain in detention until the removal takes place.

Q66 Mr Clappison: The question itself that the Minister received yesterday was rather a confused one, which came out during the course of the exchanges. It was a very confused and ill-thought-out question. But, putting that to one side, the question that I am asking you is about those 5,000 prisoners who had finished serving their sentences and who had not been deported. Can we take it that a decision has been made in those 520 cases to allow them to stay in the country? Would that be a decision taken by the courts?

Rob Whiteman: It would be, yes. In just 10% of cases, we will accept that the person can be in the community pending deportation if it is not immediate. These will be low-risk cases. In 90% of cases-and, by the time you get to more serious cases, in 100% of cases-it is a decision of the court.

Q67 Mr Clappison: I am not asking you what happens to them while they are waiting for a decision-for example, whether they are allowed to stay in the community or are subject to immigration rules.

We are told that these are people who have been allowed to stay in the country. They have been given the right to stay in the country, so presumably they will be eligible to remain in the country and apply for settlement and citizenship in due course-even though they have been considered for deportation, having committed serious offences resulting in more than 12 months’ imprisonment.

Rob Whiteman: Yes. They are not being given leave to remain at the moment, but we are not able to remove them.

Q68 Mr Clappison: You are not able to remove them. I am surmising that that is something that might come about later on. If they are not removed and are allowed to remain, they start clocking up the time that is required to apply for citizenship.

Rob Whiteman: Our inability to remove them will be because of a decision of the courts.

Q69 Mr Clappison: That is exactly what I want to find out.

Rob Whiteman: UKBA policy is that we believe that people should be detained until the removal can take place.

Q70 Mr Clappison: Have you any breakdown of the reasons that resulted in their being allowed to remain in the country-the reasons behind the judicial decisions?

Rob Whiteman: The decisions are on two counts. One is the time that it will take to remove, allowing for the appeals process. People can go through appeals processes that can take some time, and therefore the courts decide to bail them because they think it would be unreasonable to hold people in detention for that length of time. The other comes around article 8 and human rights issues, where people would argue in court that they have a right to family life and judges agree with them. UKBA’s position, as I said before, is that people should be held in detention until removal. However, those we refer to as the non-detained stock are decisions of the court, not us.

Q71 Mr Clappison: You have also given us a figure of 1,060 that you say are still outstanding, with deportation being pursued. I take it that the people you referred to in the first category actually fall within that. We have been told that there are 520 who have been allowed to remain in the country. I take it from that that there is a positive decision that they can stay in the country; it is not just that they are waiting and have been allowed to stay here while their appeal is being heard.

Rob Whiteman: No. We are not making a decision that those 520 can remain in the country at this stage.

Q72 Mr Clappison: How many of those are article 8 cases?

Rob Whiteman: Article 8 in general for our appeals is about 60%, but I don’t have a figure for this particular cohort.

Chair: Thank you. I say to colleagues that the Minister for Policing and Criminal Justice is outside the door. We need to put brief questions to Mr Whiteman, and I am sure he will respond with brief answers.

Rob Whiteman: I am sorry.

Chair: No. It is not your fault. We are tempting you. It is always fascinating to have you here. Michael Ellis.

Q73 Michael Ellis: Mr Whiteman, you have responded about the courts being responsible for the decisions as far as release is concerned. One area where I presume the courts will not have had an impact is that there are apparently more than 2,500 foreign national prisoners who are living in the community now, who were released during the period of the previous Government more than two years ago. What can UKBA do, and what is it doing, about deporting them?

Rob Whiteman: First, it will be due to decisions of the court that they are in the community, albeit for more than two years. As I said earlier, UKBA policy is that we believe people should be held in detention pending removal.

Q74 Michael Ellis: Can I just clarify? The UKBA policy is that they be held in detention. Does that mean that on every occasion the UKBA applies to the courts for the individual to be detained, and the courts then find against the UKBA?

Rob Whiteman: In 90% of cases where people are non-detained it is a decision of the court.

Q75 Michael Ellis: That does not quite answer my question about whether the UKBA applies to the court for them to be detained on every occasion.

Rob Whiteman: We apply for detention in the vast majority of cases. There is a small number-10% in terms of the outcome-where we do not apply.

Q76 Michael Ellis: So the courts are responsible for them being in the community at the moment, as opposed to in detention. Nevertheless, what is the UKBA able to do about deporting them as they have now been released more than two years ago?

Rob Whiteman: The job here, which is one of our challenges, is that while we are getting quicker at foreign national prisoners being deported-people going through the early release scheme is now 43% of people who are removed quickly-we have this cohort of people where decisions of the court are ongoing and/or we are not able to deport them. The strategy here is to create a pipeline in order for the removal to take place.

You will have been briefed in the past that there are countries where it is more difficult to return to than others, such as Somalia etc. What we are doing is to work very hard on establishing that we can make returns to those countries-charter flight returns-in order to create a pipeline for those returns to happen. Those older cases of two years we want to see come down, and we want to see removals taking place-

Q77 Michael Ellis: Is it your contention that most of the delay is therefore due to the originating country and the problems in securing authority to send the individual back?

Rob Whiteman: Primarily, there are two challenges. The first issue is that the person gives a false identity. We have cases in which people will claim to be of a particular nationality but have no documentation, and we have to carry out extensive investigative work in order to establish identity. A recent removal to Jamaica involved going over and questioning family, looking for aliases and finding false names, in order to establish who the person was. People very often give false identities.

The second issue is then getting documentation from the country in order to make the return. On both those fronts, we need to improve our investigative capability. You know that we have the RALON network-

Q78 Chair: Perhaps you could write to us with all the things that you are doing.

Rob Whiteman: We need to improve our ability to work with those countries, both to investigate identity and then to get documents to return the person.

Chair: Thank you. If you could write to us with a note, that would be very helpful. David Winnick on immigration appeals.

Mr Winnick: I came in rather late in the day, so-

Q79 Chair: While you are gathering your thoughts, Mr Winnick, on the 18-month position that Minister Damian Green gave to the House yesterday, he said that the authorities would start considering removal 18 months into a sentence. My suggestion to him in the House yesterday was, why not start from the time custodial sentence begins-start earlier? Can you look at that?

Rob Whiteman: We will look at that, Chair. We are discussing with NOMS how we can work with both the police and NOMS to identify people as early as possible.

Chair: Thank you. Julian Huppert on e-gates.

Q80 Dr Huppert: There have been some reports that the UKBA staff are actively discouraging people from using e-gates at ports. Is that right?

Rob Whiteman: I am sorry, could you repeat the question?

Q81 Dr Huppert: It has been alleged in the House that the UKBA staff have been actively discouraging people from using e-gates at ports. Is that right?

Rob Whiteman: It is something that I have heard a lot and I think that it must be true in places. I visit a lot of ports with e-gates and I check that the arrangements are in place with the airport authorities and with our own staff. I think that there must be some truth to it because one hears it said so often and, indeed, when we carry out mystery shopping or read customer complaints. So it is an area that we are looking at.

Staff should not feel threatened by e-gates. E-gates and automation will allow us to carry out a more efficient border check in order that our staff can focus on the higher risk cases in which we want secondary checks to take place. If e-gates are seen as a threat, then it probably touches on the issue that we spoke about earlier, the culture and the gap between management and front-line staff.

We need to explain to staff the reasons why we think automation is a good idea, and win them over, to help people feel that it is part of making the agency more efficient. At the moment, I think there must be areas, Dr Huppert, where people think that automation will lead to further job loss. We need to allay those fears. Automation will play a part in helping us make our efficiency savings, but we also think that it should help staff in their work, and we have to win that argument with them.

Q82 Chair: Mr Whiteman, it is also said that your iris scanners do not seem to work at airports. I have returned on a number of occasions and found that people are being directed away from iris scanners. Is it your policy that these should be replaced, since they seem to be breaking down so often?

Rob Whiteman: The iris scanners are fairly old. My understanding is that we have decided to keep them on until the Olympics because we have people signed up through trusted travel schemes to use them. But we are now looking at how they should be replaced.

Q83 Chair: So it is your intention to replace the iris scanners?

Rob Whiteman: Yes, either with like-for-like kit or with something else.

Q84 Chair: Sorry, what does "like-for-like kit" mean?

Rob Whiteman: What I mean is, "Do we replace them with iris scanners, or do we have another means by which trusted travellers can get through quickly?"

Q85 Chair: And that debate is ongoing?

Rob Whiteman: Yes.

Q86 Mark Reckless: Mr Whiteman, the Committee has previously raised concerns about the relatively poor performance of the Home Office at immigration appeals. We are pleased to see that the proportion of cases where there is Home Office representation has increased, but we have previously been assured that the appeal record was going to improve because there were restrictions on bringing new evidence at appeal and various procedural changes had been made, which should assist the Home Office relative to the defence. We were disappointed to see that in Q1-or the first quarter-for 2011-12 there has not been any improvement and we are still seeing only a 44% dismissal rate. Could you give us any update on your expectations for progress there?

Rob Whiteman: We are committed to providing high-quality representation as far as possible. As you say, Mr Reckless, the representation rate is now much higher and we think that that will improve our quality. We have also implemented several new measures to enhance the quality of what we are doing; for example, the way that casework is presented to a court and the way that the bundles are made ready, in order that judges can have more confidence in what we are doing.

However, although we are seeing the representation rate increase, we are not seeing that leading to a higher rate of wins at the moment. That is why we think that it is not only a matter of hitting the representation rate but about the quality of what we do, so we are looking at how effective we are qualitatively, and where we are losing cases we are asking what the reasons are. Is it that we do not have evidence that we need? Is it about the way that evidence is bundled? Is it about the quality of the representation?

Q87 Mark Reckless: Previously, procedural issues were cited, in particular the ability of the defence just to come in with new evidence at the appeal stage. We were assured that, because that would now be restricted or in almost all cases-certainly in the vast majority of cases-stopped, that would assist the UKBA and the Home Office to win more of the cases. Why has that not happened so far?

Rob Whiteman: Stopping the defence from bringing in new evidence at appeal requires us to work with the judiciary, in order that higher standards are set. It may need some regulation change as well, in the way that the appeals process works. At the moment, we are not seeing that come through and it is an area of priority that I recognise we need to look at.

Q88 Mark Reckless: From your perspective, if the representative bodies of the immigration judges were amenable, would you like to work more closely with the judges and their bodies to understand these issues, and to seek to improve the quality of the representation that you provide?

Rob Whiteman: Yes. Obviously, we will look to improve the rules and the procedures, and so on, but essentially we also have to work with the judiciary and find out what their complaints are.

Chair: I am sorry, but we need to make enormous progress. You have a question on staff morale, Mr Reckless?

Q89 Mark Reckless: Yes. On that issue, there has previously been a relatively open flow of information between, say, dissatisfied junior front-line people at the UKBA and MPs and the press, when people have been dissatisfied at the UKBA or when they have felt that things have not been applied as they should have been. What steps have you been taking to try to encourage those dissatisfied junior members of staff to come to you with those issues rather than to go to MPs and the press?

Rob Whiteman: It is a really important area. Of course, people have the right to go to MPs, and so on, and I do not want to stop people exercising any other rights, but it is absolutely essential that we bridge this gap between front-line staff and senior managers. What I find is that people are really proud of their own job, of the work that they do and of the need for the role that they carry out, but there is a huge degree of detachment, in terms of where the organisation is going and confidence in management. And yet I actually see quite a good few senior managers and I think that there is a lot of ability, so we are doing a number of things. The No. 1 thing is that the senior civil service-the 70 most senior managers of the organisation-will now spend a day a fortnight out visiting front-line staff and customers, and holding staff meetings, in order to talk about progress and to have better two-way communication.

Also, in the new year we are introducing quality circles, so that when we are implementing changes, we will ask staff who are interested to become involved in making those changes happen. For example, we will ask, "How do we make our procedures better?", because we want a sense of ownership, so that when change is happening people are involved in making that change effective. In my experience of what is often called in management jargon "the contract" between staff and management-the soft term, not the hard legal contract-if staff are told, "We’ll make sure you are involved as we implement change; we can’t do everything you’d like, but we will listen, and you will see management compromising to make that change effective", it can do a huge amount for morale, and staff feel greater pride in the direction the organisation is taking.

Q90 Mark Reckless: Can you also give staff the assurance that if, say, in a particular area or with a particular line manager things were not working like that, and they referred something up to you, they would not thereafter have a comeback from their line management for having done that?

Rob Whiteman: Yes. Formally, of course, we have whistleblowing procedures. If people think their concern is so great that they make it known, it is dealt with anonymously.

Q91 Mark Reckless: But in terms of culture.

Rob Whiteman: In terms of culture, yes, people must be able to raise concerns. I receive quite a lot of e-mails from staff now that I am visiting many staff. In the new year, we are changing the arrangements so that I will not work all the time in Marsham Street. I want to work regularly in the places where we have most staff, such as Sheffield, Manchester-

Q92 Chair: And Croydon.

Rob Whiteman: Thank you, Chairman. I want not just to make visits there, but to work there for a day, and hold my meetings there. All that will, I believe, lead to greater two-way engagement between senior management and staff.

Q93 Chair: Until the Brodie Clark issue, some of us thought you were in Croydon. We did not realise you were in Marsham Street. At least we know now. We have no time to cover the entry clearance operation, and Mr Vine’s comments about face-to-face interviews. We will write to you about that if we may, but we will make it a priority for your next visit to the Committee. I thank you for giving evidence today, and wish you a happy and peaceful Christmas, with all quiet on the border.

Rob Whiteman: Thank you very much. I would like to clarify, in answer to Mr Clappison’s point, that the 520 people he referred to have been found to be exempt from deportation. I will put that in writing.

Chair: Excellent.

Prepared 23rd December 2011