Examination of Witnesses (Questions 29
WEDNESDAY 2 MAY 2001
29. Good afternoon. Welcome, Mr Boys Smith,
Director General, Immigration and Nationality Directorate, and
colleagues. Thank you for coming along to the Committee this afternoon.
Before I ask you just to say a few words, I am going to ask Michael
Buckley, the Ombudsman, if he would introduce this session based
upon some cases that he has looked at in relation to you.
(Mr Buckley) Thank you, Chairman. As
you will recall, in February 2000 the Select Committee took evidence
from the Immigration and National Directorate about the steps
they were taking to improve their performance. IND told the Committee
that they had recently put significant extra resources into this
area, including the recruitment of a substantial number of additional
staff. They said that, although it would take "some months"
for the benefits of those additional resources to filter through,
they believed that a corner had been turned. Sadly, the continuing
increase in complaints received by my Office over the past year
(we had received some 64 in 2000/01, more than twice the number
received in the previous year) suggests that IND's move to an
integrated case-working system has not yet brought the expected
benefits, or at least not in full. However, I must stress, that
the picture is not all negative. Over the past year, IND's continued
co-operation and general readiness to admit fault has enabled
my Office to resolve 34 complaints by making preliminary inquiries.
Another five cases were resolved after a statutory investigation
had started but without the need to issue a statutory investigation
report. For many complainants, that has meant that my Office's
intervention has led to a speedy and, importantly, satisfactory
resolution, often after periods of unreasonable delay. IND's framework
for consolatory payments, which they drew up in liaison with my
Office, has also assisted the quick resolution of some cases.
There has also been a change in the types of complaint against
IND which have been referred to my Office over the past year.
We have, for example, for the first time received a significant
number of complaints about delay in deciding asylum applications;
and there is some evidence that for other types of application
IND's performance had started to improve in some respects. Nevertheless,
problems have continued to appear. In some cases, for example,
loss of files has meant that all the evidence required for my
inquiries and investigations has not been available. The Committee
may like to explore with IND the general issue of their poor record
for file and document handling and the problems that this has
clearly caused for all concerned. Secondly, while IND have made
much of the increase in the number of initial decisions being
taken, their statistics also show a large increase in the number
of defective decisions. That appears to indicate that the complaints
starting to come to me may be indicative of a much wider problem,
due to quality being sacrificed to speed. If that is so, the upshot
is likely to be the transference of the asylum backlogs from the
application to the appeals stage. We have also received complaints
where, although an application has been decided or an appeal has
been allowed, IND backlogs have meant that several months have
passed before the actual decision has been issued. The Committee
may wish to explore with IND whether an appropriate strategic
overview is being taken on the allocation of new resources, or
whether a piecemeal approach is simply moving the problems from
one part of the system to another. Another concern we have is
that IND have in the past sought to argue that where there are
backlogs of work leading to delays, such as those arising for
example from the reorganisation, or from an unexpectedly high
intake of case, and some steps have been taken to improve things,
that is not maladministration, but "operational difficulties".
Needless to say, I do not share IND's view that, just because
problems routinely occur, they should not be regarded as maladministration.
Nor do I believe that IND can continue to pray in aid the reorganisation
or a lack of resources year after year as an acceptable reason
for the problems that complainants continue to experience. In
my view, IND must now accept responsibility for the consequences
of the delays which applicants have been experiencing over many
years now. That brings me to my final point. IND have argued in
respect of delayed asylum cases that it is not for them to make
ex gratia payments to cover loss of entitlement to benefit
caused by their delays, because they regard such loss as a lack
of opportunity to gain, rather than actual financial loss, and
also because they consider benefits to be a matter for the Benefits
Agency of the Department of Social Security. That is not how I
see matters. If it can be shown that maladministration by IND
has caused an individual to lose entitlement to a sum of money
to which he or she would otherwise have been entitled, then, in
my view, IND is responsible for that loss and should make it good
on an extra-statutory basis. That seems to be entirely consistent
with the Treasury guidance on redress, and is a concept generally
accepted by other departments. I do not see why those using IND's
services should be treated any differently. The Committee may
wish to discuss this matter further with IND, and of course there
is a later session of evidence with the Benefits Agency. That
is all, Chairman.
30. Thank you very much indeed for that. Mr
Boys Smith, would you like to kick off with a few words?
(Mr Boys Smith) Thank you very much, Chairman. If
I may, I would just start with the phrase that Mr Buckley mentioned
that I used last time, namely that I thought then that we were
turning a corner, but I equally acknowledged that we had a lot
of difficulties and there undoubtedly, I then thought, were going
to be cases still in the system which would give rise to findings
of maladministration. I think, since we last appeared before the
Committee, we have made big progress. On the asylum side we have
taken two and a half times more decisions in the past financial
year than we did in the previous one. That is to say that we took
just over 130,000 decisions. The backlog of cases, which at one
point at the beginning of 2000 was just over 100,000, was down
to 36,000 at the end of March and is still falling, and will go
on falling, and it is now the lowest since 1990. On the nationality
front, we broke the targets and took 94,000 decisions: way, way
above what had been done before, and we took eight months off
the waiting time, a waiting time that is too long but again has
come down. On after entry cases, which were the main focus of
the Committee's discussion on the previous occasion, again I think
we have made good progress. We took another 50,000 more decisions
last year than the year before20 per cent upa total,
therefore, of 280,000. All cases are now sifted and allocated
to a team. There is none of the unattended backlog of cases simply
in store, but not looked at, to which I was referring in our previous
hearing. That was cleared in July of last year. 65 to 70 per cent
of after entry cases are now dealt with and responded to in three
weeks. We have tight deadlines for certain other categories of
cases, business ones, entry clearance cases. We have brought down
and will continue to bring down the number of cases in the system.
There are now just over 30,000. Bearing in mind that there are
about 1,000, or rather more, coming in every working day, we hope
to reduce that 30,000 to about 20,000 by July. We are, I think,
also staffed to handle this work in a situation of a steady state.
With more staff, with changed methods and, if I may say so, with
a lot of hard work and commitment by members of staff, I believe
we have made real progress, and the position is a lot stronger
than when we appeared previously before this Committee. That said,
I fully accept that not everything is yet perfect. We have further
work to do in bringing down some of the figures to which I have
referred, the backlog, and we have further work to do in refining
the processes. I do recognise that there are still bad old cases
in the system. In respect of that, without wishing in any way
to suggest that we want to make excuses for them, because we have
never wanted to do that, and I do not today, I would just point
out that for the Ombudsman's cases that have been initiated, both
formal and informal inquiries, since the last hearing, all of
those cases have their origins before that hearing. I think, as
I say, we have made considerable progress since then. Thank you,
31. Thank you for that. Can I just pick up a
couple of things from what you have said. The Ombudsman makes
the observationand you talked about the bringing down of
the numbers, which is obviously welcomebut the Ombudsman
says that the rising complaints that he is observing, it may be
that there is a sacrifice of quality to speed going on here, and
that the backlog may then start accumulating at the appeals stage.
Is that a charge that you in any way accept?
(Mr Boys Smith) I certainly have no evidence of that,
Chairman. Just to take the asylum business first, if I could,
one of the figures we closely monitor is the success rate of our
cases when they are taken to appeal. That success rate has held
up. It is at about 80 per cent and it has been that since before
the problems. If I may take that as an objective judgment of our
quality, there has been no deterioration there. I do recognise
that asylum has come on to the Ombudsman's desk in a way that
it did not before. As I say, a lot of those cases had their origins
from a year or so back when I freely admit the delays were horrendous.
The backlog of over 100,000 was enormous, and I very much hope
that we are now in a situation where we can bring that down. As
to moving cases through the system and causing a blockage elsewhere,
that is not the evidence again on asylum at the moment. We are
working very closely with a greatly expanded Court Service, the
Immigration Appeals Authority, which is dealing with our appeals
as they come through. The cases are now managed right through
the system from us straight on to the Immigration Appeals Authority.
I do not pretend there are not some problems, but essentially
they are now getting through the appeals. Although I do not have
the figures from the LCD in my head, I am afraid, you can be sure
that the appeals system is expanding commensurately with our activities.
We will keep them in balance as a matter of policy. Behind that
lies a lot of financial planning with the co-operation of the
Treasury, between the two organisations, so that they do keep
32. Thank you for that. What about the further
point about how you cannot keeping praying in aid your internal
reorganisation, which has been the centrepiece of your structure
for as long as anybody can remember. The Ombudsman says it is
not operational difficulties, this is now maladministration. That
is a fair charge, is it not?
(Mr Boys Smith) I certainly do not want to make excuses,
and I do not want to pray in aid the reorganisation that took
place at the very end of 1998 into the early months of 1999. I
think, if I may say so, we have never just prayed the reorganisation
in aid. We have pointed out that we were-under-resourced for the
task. To take, for example, the asylum figures, the asylum intake
in 1998/99 was in the mid-40,000s. It then jumped to over 70,000
in the following year. We are now, I think, resourced up to handling
that task, both for asylum and indeed for nationality and after
entry work. I do not want to make excuses. We should not be holding
cases up. There are some cases that will take longer than others,
because of their nature, and I do not pretend everything can be
turned round in a few days or even in a week or two, certainly
with some difficult asylum cases. What we are trying to do is
to focus our efforts in a way that enables us to clear quickly
those that are capable of being cleared quickly and where people
are, therefore, absolutely entitled to a quick turn round, whether
that is asylum or after entry. We now, through our Oakington Reception
Centre can handle about 10,000 cases a year, "fast-tracked"
as we call it, where they will get the initial decision within
seven working days. I do not want to make excuses. We are not
yet perfect. There will be some hairy old ones somewhere. I entirely
admit that and people have received a poor service when those
cases are uncovered.
33. Thanks very much. Let us have the statutory
soft touch exchange. When you came before us a year or so ago,
I asked you if you thought that we were a soft touch or whether
we were seen as a soft touch for asylum applicants, and you agreed
and said that we were, which interested me at the time. Let us
assume that I just ask you the same question now. Are we a soft
(Mr Boys Smith) I think in a number of respects, the
UK has been attractive to asylum seekers. One respect in which
undoubtedly we were seen as attractivea "soft touch"
is perhaps not a term I feel quite comfortable withwas
because of the timetable to reach those decisions. People, once
in, had claimed asylum, they had a greatly enhanced chance of
disappearing into the woodwork, so to speak, and then never being
found to be removed even if their application subsequently failed.
So, in that particular respect I think the position has changed.
I think in a whole series of other ways it has also changedfor
example, enhanced controls of the frontier, the fines on lorry
drivers, the greater use of civil penalty on carriers and things
of that kind. So I think the odds have changed. The whole asylum
support system, of course, has changed since we last appeared.
In some respects we signalled that fact as we had estimated a
much higher number of people taking up the new national asylum
dispersal arrangements than actually did so, which does suggest
that it is not a soft touch in the sense it might have been seen
34. Less of a soft touch?
(Mr Boys Smith) Less of a soft touch.
35. A year ago when you were before us one of
the issues which I think I raised was about what I had come to
know as the "lay-by". From what you have said this afternoon,
the lay-by is empty now?
(Mr Brandon) May I? I am not quite sure what you mean
by the term "lay-by". In IND, "Lay-by" is
where we send all files when the action has been completed. If
I understand what you are getting at, last time the Committee
met us it discussed what is called a "case allocation backlog",
which was where there were certainly about 40,000 files essentially
in store and which were not being looked at. That was cleared
totally by July last year.
36. I think that is what meant by the "lay-by"
when we discussed it last time, so I am glad to hear that that
has been cleared. Could I just raise one or two issues that seem
to have arisen with one of the agencies that I deal with, the
Immigration Legal Service at the Brighton Housing Trust and the
number of cases. I am interested, for instance, that you say that
in 80 per cent of cases the view of IND is upheld on appeal?
(Mr Boys Smith) For asylum cases?
37. For asylum cases, yes. I know, for instance,
the agency I refer to, Immigration Legal Service at the Brighton
Housing Trust, in the last six months of last year they handled
25 appeals and altogether ten of those succeeded in the appeal
and they were still awaiting at the end of the year eight decisions.
It seems to me that maybe they have a higher success rate than
IND in that case?
(Mr Boys Smith) Well, they may, I cannot explain those
cases obviously. I can assure you that approximately 80 per cent
is the overall figure nationwide.
38. One of the issues that has come up in my
case work has been this question of whether the speeding up of
the process leads to a "blocking up" later on. There
was an article in The Guardianand I have to say
that I do not always believe everything I read in The Guardianon
26 January that talked about a technical rebuff of 30 per cent
of asylum seekers. These are people who failed to get their statement
of evidence forms in within the 14 days, ten working days deadline?
(Mr Boys Smith) Ten working days is how it is defined.
39. Do you think that is a long enough period
to complete, what is it, a 19 page form?
(Mr Boys Smith) Forgive me, I cannot remember the
precise number of pages, but indeed there are a number. That is
the view that we have taken, and I should say that the Home Secretary
has taken, that it is an adequate time for somebody to set down
the basic details of their claim, a form which, incidentally,
we firmly adhere to the view, does not require legal assistance
for it to be filled in, although I appreciate that a number of
applicants do seek that assistance. Yes, that remains the view
of the Home Secretary that it is enough. It is not asking somebody
for any understanding of the Convention or the legalities, but
merely for them to give an account of the circumstances, bearing
in mind that they are making a claim that they may suffer persecution
on one or other of the 1951 Convention grounds.