The work of the UK Border Agency (April July 2011) - Home Affairs Committee Contents




Introduction

1. Since 2006, we and our predecessor committee have received regular updates from the UK Border Agency (in the form of letters and subsequent evidence sessions) on issues facing the Agency, including the deportation of foreign national prisoners and the backlog in asylum cases. We publish with this report, which covers the period of April-July 2011, the latest letter[1] (dated 24 August 2011), and oral evidence given by Mr Jonathan Sedgwick, then acting Chief Executive of the Agency and further correspondence as a result of that evidence session.[2]

2. We have undertaken to examine the UK Border Agency every four months meaning that the next period will be August-November and then December-March. We ask the UK Border Agency for comparable data and so are able to monitor any change in the standard of work. The report follows a basic template in order to make it accessible and allow our fellow members of Parliament and the wider public to scrutinise the Agency with consistency.

Remuneration of staff

3. In our previous report on the work of the UK Border Agency, we recommended that senior staff did not receive bonuses in light of the economic crisis.[3] This recommendation was not accepted and the arrangements for financial year 2010-11 are set out below.
Officials Salary

£'000

Bonus Payments £'000
Lin Homer

chief executive

(until 9 January 2011)

160-165

(205-210 full year equivalent)

5-10
Jonathan Sedgwick

Deputy Chief Executive

Acting Chief Executive (from 10 January 2011)

105-110 5-10
Brodie Clark

Director Border Force

130-135 [4] 5-10
Matthew Coats

Director Immigration Group

145-150 5-10
Justin Holliday

Director Resource Management Group

130-135 5-10
Joe Dugdale

Director HR & Organisational Development

130-135 5-10
Tamara Finkelstein

Director of UK Border Agency Programme

(until 25 April 2010)

5-10

(85-90 full year equivalent)

0
Martin Peach

Director Intelligence

Group

105-110 0
David Wood

Director Criminality & Detention Group

100-105 5-10
Barbara Woodward

Director International Group

(from 4 March 2009)

100-105 5-10
Robert Yeldham

Director Communications

85-90 0-5
Jonathan Payne

Chief of Staff

(until 28 June 2009)

0 0
Zilla Bowell

Chief of Staff

(from 3 August 2009)

65-70 0-5
Philip Duffy

Acting Director Policy & Strategy

(from 10 January 2011)

15-20

(80-85 full year equivalent)

0

4. The appointment of Mr Rob Whiteman as the new Chief Executive of the UK Border Agency was announced on 15 July. In a previous report, we recommended that the Chief Executive's annual salary should be significantly lower than the £208,000 his predecessor earned, and more in line with the Permanent Secretary range.[5] We therefore welcome the appointment of Mr Whiteman on a lower salary of £175,000 and look forward to taking evidence from him in December.

5. We consider it unacceptable that bonuses were paid when the annual report and accounts show that £7 million was spent writing off bad debts and £4 million was spent on overpayments to staff and asylum claimants.[6] When we questioned what percentage of illegal working civil penalties had been collected in the financial year 2010-11, we were informed that 56% had been collected.[7] The level of waste at the UK Border Agency is unacceptable. We recommend that the Government undertake and publish the results of a detailed investigation into this and consider how the UK Border Agency can improve its financial and data management.

Foreign National Prisoners

6. In 2006, it emerged that some 1,013 foreign national prisoners who had served their sentences were released back in to the community rather than being considered for deportation. The UK Borders Act 2007 introduced an 'automatic deportation' provision whereby the Secretary of State is required to make any non-EEA foreign national prisoner who has received a sentence of 12 months or more, or any custodial sentence for specified serious crimes, subject to a deportation order (with certain exceptions).[8] In our report published in January of this year we identified the need to ensure that all eligible foreign nationals currently serving sentences were removed from the UK expeditiously and, wherever possible, were not held for long periods in prison at the taxpayers' expense when they could be deported.[9] When the Home Secretary came before us in September she stated that

    I can tell the Committee that according to the most recent figures, in 2009-10, under the last Government, there were 64 cases where a foreign national prisoner had not been referred to them for consideration for deportation. In 2010-11—i.e. mainly under this Government—the figure was 28, and that compares to that 1,013 in 2006.[10]

We note the considerable number of prisoners whose deportation has been delayed by casework issues and by further legal challenges. We suggest that the Government review these areas to see if the deportation process can be streamlined.

7. We welcome the very significant reduction in the number of foreign national prisoners who were released without being considered for deportation, from 1,013 in 2006 to just 28 in 2010-11. In order for performance at the current level to be maintained, the Agency will need to ensure that it communicates regularly with prison services regarding the potential release dates of prisoners. We are nonetheless concerned about the remaining 28 and ask the Agency to take all practicable steps to locate them. We consider that with proper liaison between the HM Prison Service and the Border Agency the numbers of foreign national prisoners released without being considered for deportation will be reduced to zero.

8. As regards those 5,012 foreign national prisoners who finished serving their sentence in the financial year 2010-11, the UK Border Agency have provided the following figures: as of 11 October 2011 some 3,248 had been removed, 471 had been allowed to remain in the country and 1,300 were still outstanding as shown in the graph below.

Figure 1: Foreign National Prisoners who were released between 1 April 2010 and 31 March 2011

Those 1,300 outstanding are cases where there are difficulties with their deportation including judicial challenges, casework and compliance issues. Those issues are broken down in the table below.
Outstanding casesTotal
Legal challenges and further criminal proceedings 300
Casework issues (including further representations, asylum claims, medical and children issues) 335
Compliance, identity and documentation issues 270
Other issues(including country situation, multiple barriers) 20
Unknown issues (data has not been recorded) 350
Total1,300

Figure 2: Foreign national prisoners released, 2010/11

In follow up evidence, the UK Border Agency informed us that of these 1,300 only 500 are being detained whilst their deportation is being pursued.[11] Figures recently published by the Independent Chief Inspector of the UK Border Agency show that, in May 2011, a total of 3,775 former foreign national prisoners were living in the community.[12] This includes the 800 prisoners from the cohort released in 2010-11 identified above, as well as those released in previous years. The Independent Chief Inspector identified two main reasons for failure to deport—those former prisoners whose country of origin was considered unsafe, and those for whom there was difficulty in obtaining the travel documents necessary for them to re-enter their country of origin.[13] The Chief Inspector's findings about the reasons for failures to deport were based on a sample of 132 case files and they are not wholly consistent with the figures supplied to us by the UK Border Agency itself, which show that the single largest category of deportation failure is those classified as "unknown", accounting for 27% of the total. The fact that the Agency itself does not know why it is unable to deport more than a quarter of foreign national former prisoners is in itself cause for concern.

9. The UK Border Agency is considering whether to deport 1,300 foreign national prisoners who were released in 2010-11. The fact that only 500 of these are detained is troubling, and the Agency needs to provide a full and detailed explanation for why they have released 800 foreign nationals who have previously broken the law. It is unacceptable that in more than a quarter of cases, the Agency is unable to explain why these foreign nationals have not yet been removed. This is another example of poor data management and inconsistent with the UK Border Agency's stated commitment to transparency. The Agency must improve its systems for recording difficulties in deporting former foreign national prisoners.

10. One of the findings of the Chief Inspector, highlighted in the report, was the fact that improved contact with UK Border Agency immigration teams increased the number of foreign national prisoners participating in the Early Removal System and the Facilitated Returns Scheme. However, the Chief Inspector's discussions with senior management led him to conclude that the Agency would not be expecting case owners to visit prisons as standard due to 'insufficient resources'.[14] Given that the Chief Inspector estimates that two months post-prison detention for a foreign national prisoner costs £6,600[15] and in 2005, the National Audit Office estimated that a forced removal would cost £11,000, the value of such a programme seems high.

11. We recommend that the Agency undertake an analysis of contact between case owners and foreign national prisoners. If certain methods are found to increase the likelihood of foreign national prisoners returning to their country of origin, they ought to be invested in as a priority.

Asylum Cases

12. When the legacy backlog was publicised in 2006, the then Home Secretary John Reid made a statement on the floor of the House

    In five years' time, by the end of 2011, we intend to deal with 90 per cent [of asylum applications] within six months, and we have set out plans to achieve that. We will deal with the legacy of unresolved cases in five years or less.[16]

That legacy was, at the time, believed to number somewhere between 400,000 and 450,000 applications for asylum which were described as being "electronic and paper records, which ... are riddled with duplication and errors, and include cases of individuals who have since died or left the country, or are now EU citizens."[17] In the letter dated 24 August, Mr Sedgwick informed us that the Case Resolution Directorate (which dealt with the legacy cases) had entered its final phase and would have reviewed the entire caseload by the end of August 2011 at which point he would send us updated findings.[18]

13. We received the update on 12 September 2011, the day before Mr Sedgwick was due to give evidence to us. We were informed that "the UK Border Agency completed its review of all cases in the legacy cohort at the end of March 2011." The chart below shows the rate of conclusion of the legacy files.

Figure 3: Estimated size of asylum 'legacy' backlog since July 2006

14. The table below shows the breakdown of asylum legacy cases concluded over the past year.
November 2010 March 2011September 2011
Allowed to remain139,000 (42%) 161,000 (40%)172,000 (36%)
Removed35,000 (11%) 38,000 (9%)37,500 (8%)
Other(duplicates, errors or controlled

archive)

160,500 (48%)205,500 (51%) 268,000 (56%)
Total concluded334,500 403,500479,000

Data compiled from previous reports

The "other" category has increased quite substantially in terms of the percentage make up since November 2010. We examine the reason for this in the section on the controlled archive below.

15. A total of 500,500 cases were reviewed as part of the programme and the majority (455,000) had been fully concluded.[19]
Total number of reviewed cases in the legacy cohort 500,500
Total concluded479,000
Of which:
Allowed to remain172,000 (36%)
Removed37,500 (8%)
Other(duplicates, errors or controlled

archive)

268,000 (56%)

Including 98,000 in the controlled archive.

A further 500 will be added if not traced

within the next 6 months.

Grants subject to final security check 3,000
Outstanding conclusion 18,000

Ev 12

The last category, outstanding conclusion, includes ongoing litigation, impending prosecution, incomplete legal or criminal proceedings, non-compliance, and offenders from difficult-to-remove countries.[20] These 18,000 cases were transferred from the Case Resolution Directorate to the Case Assurance and Audit Unit where casework will continue until they are resolved.

16. When we questioned whether the legacy programme could be described as 'completed' if there were still 18,000 cases yet to be concluded, Mr Sedgwick responded that

    There are 18,000 cases where removal has still to be completed. Removal takes some time. There are documentation issues and there are legal challenges. Those 18,000 cases we are proceeding to try to remove. So therefore, you will see that number of removals going up over a period.[21]

When we pointed out that meant they had not been 'dealt with' by July 2011 as the then Home Secretary had pledged they would be, Mr Sedgwick disagreed, pointing out that all decisions had been made and those involved informed.[22]

Mr Sedgwick later reiterated that the commitment was "always to decide the cases", not to "remove every single one of [them] by this summer[...]. That process was always going to take longer."[23]

17. In his statement to Parliament in 2006, the then Home Secretary suggested that the Home Office would deal with the legacy backlog in five years or less. They have concluded 455,000 cases, however we do not consider the 18,000 cases which have received an initial decision but are awaiting removal as 'dealt with'. No matter how those at the UK Border Agency interpreted that pledge, it was not a pledge that all cases would have a decision but rather that all cases would be concluded. We recommend that the Agency establish a challenging target date for the completion of these removals in any case no later than 31 March 2012 and we expect Mr Whiteman to present us with a time table for completion when he next gives evidence.

18. We are also concerned by the transfer of 18,000 outstanding files from the Case Resolution Directorate to the Case Assurance and Audit Unit. This action risks giving the impression that the UK Border Agency are using bureaucratic terms to hide the fact that they were unable to meet the July 2011 deadline. We recommend the Government investigate whether this transfer was simply a name change or whether the files were transferred to a different location to be worked on by different staff. We note that in general the claim that the backlog has been dealt with conflicts with the experience of MPs in terms of what they are told in response to enquiries about individual cases.

Controlled Archive

19. Fifty-six per cent of the legacy backlog were classified as 'other'. These comprised duplicates, errors, EU nationals and cases placed in the controlled archive. The categories of 'duplicates' and 'EU nationals' are self-explanatory. The then Minister for Identity, Meg Hillier MP, explained in a letter in March 2009 that "errors are cases where, for example, someone may have already been removed or granted some form of leave, and the record on our database was not updated correctly."[24] 98,000 cases were put into the controlled archive which contains cases in which, despite its best endeavours, the UK Border Agency has been unable to trace the applicant. The cases are checked against watchlists for a period of six months before they are considered to have been 'concluded'.

20. This was a substantial increase when compared to the totals given in previous evidence.
November 2010 March 2011September 2011
Number of Asylum legacy cases placed in the controlled archive 18,00040,500 98,000

Data compiled from previous reports

This shows that the controlled archive increased by 80,000 asylum backlog cases in 10 months.

21. As well as those 98,000 asylum cases there are also a number of migration cases which have been allocated to the controlled archive. These cases are from a review of around 40,000 case files which we were was informed about via the UK Border Agency update letter in October 2009.

    We are also increasingly giving our attention to our older, archived, non asylum cases, where we have dealt with the application, but where we have no formal record that the individual has left the country. In the last few months we have begun the process of reviewing these files to consider if any further action is necessary or possible, Around 40,000 of these older, archived, files fall into this category. These will all be reviewed and checked against watchlists and the Police National Computer. …

    These files will, in the main, belong to pre-2003 (i.e. preceding the introduction of our charging regime) cases of visa overstayers or those to whom we have refused an extension of leave, such as students. …[25]

22. Our predecessor Committee asked the then Minister and the then Chief Executive of the UK Border Agency, Ms Lin Homer about these cases in November 2009. The then-Minister said the extent of the problem had come to light during the course of "our huge management project to clear up the past archives"[26], and emphasised that the 40,000 cases could well contain a number of duplicates so, contrary to media reports, were likely to relate to fewer than 40,000 people. We were told that all 40,000 had been checked against the watch list and Police National Computer to identify anyone likely to cause harm.

23. The UK Border Agency had also assessed a sample of 800 files. Of these, 65% pre-dated 2003, with some going back to 1983. They related to family claims (dependant spouses or other relatives seeking leave to remain), students and other types of migrant who were seeking to extend some kind of temporary leave to visit the UK. For 85% of them, nothing further was known: there were no further applications to which they could be linked, nor had any representations been made about their application. Of the remaining 15%, most had had their initial applications refused but had subsequently submitted more information or another application. We were told: "It is quite likely that a number of those people will have gone on to resolve their case in some way. They may well have made another application that was successful. They may well have left the country. My suspicion is that we will find, as we did with the general legacy cases, many of these cases are resolved".[27]

24. When Mr Sedgwick gave evidence to us on 13 September he confirmed that 26,000 of those 40,000 cases had been moved to the controlled archive.[28] This means that 65% of those cases which we were told would be resolved, have not been and the UK Border Agency is now unable to find those applicants.

25. Whilst we appreciate the difficulties involved in tracing people with whom the Agency have lost contact, usually for a period of several years, it is clear that the controlled archive has become a dumping ground for cases on which the Agency has given up. The controlled archive has increased significantly as the deadlines for the legacy backlog and the migration case review have approached. From 18,000 files in November 2010, the archive now contains 124,000 files, roughly equivalent to the population of Cambridge. With the end of the legacy backlog and review of the outstanding migration cases, we see no reason why the size of the controlled archive should increase further. We recommend that the Agency produce clear and specific guidance on the controlled archive which covers:

  • how often the files will be reassessed;
  • how many staff will work on reassessing files in the controlled archive; and,
  • when, if ever, files will be closed without the applicant being located.

26. We also object to the term 'controlled archive'. It is another instance of a bureaucratic term which hides the true nature of a government department's activity and is designed to deflect attention away from it. The controlled archive would be more appropriately referred to as an archive of lost applicants.

Enforced Removals

27. Since our previous evidence session with Mr Sedgwick, HM Chief Inspector of Prisons has published two reports which focussed on the escort and deportation of detainees on flights to Jamaica and Nigeria. Both reports highlighted the behaviour of the contracted escorts as cause for alarm. In the report on removals to Jamaica, the Chief Inspector was particularly concerned that

    some staff used unprofessional language, swearing freely, telling offensive jokes and indulging in sweeping generalisations about national characteristics. The vulnerability of detainees during the process of removal is not to be taken so lightly, and the behaviour of all staff representing UK authorities should reflect better training and higher standards.[29]

This was reinforced in the report on removals to Nigeria where the Chief Inspector reported that

    escorts sometimes spoke to detainees in patronising terms and inspectors were very concerned at the highly offensive and sometime racist language they heard staff use between themselves. Quite apart from the offence this language may have caused to those who overheard it, it suggested a shamefully unprofessional and derogatory attitude that did not give confidence that had a more serious incident occurred, it would always have been effectively dealt with.[30]

In particular, the report highlighted an incident where as "one detainee tried to explain he had spent most of his life in London, UK escorts mocked his accent."[31] Such inappropriate and demeaning behaviour on the part of escorts is shocking. A person who is being deported is often leaving behind family and friends to return to a country which may now seem remote to them. For some individuals, it is a highly stressful moment in their life, at which some may be acutely vulnerable. They should be treated in a professional manner.

28. During the evidence session, we asked Mr Sedgwick whether he could reassure us that detainees were being treated with respect. He responded

    Clearly, I was extremely disturbed to receive those two reports. It was serious, unprofessional and unacceptable behaviour to the individuals by our contractors. We have obviously raised that with the contractors. The individuals concerned have been dealt with and new processes have been put in place in relation to supervising and ensuring that better standards are observed in future, but that is an area that we will very much be keeping under close review because, as you would expect, we take it very seriously.[32]

However, given that both reports make mention of UK Border Agency representatives who were present on flights, we feel that all matters of this kind should have been dealt with prior to the two reports being published several months later. The need for respect towards detainees ought to be ingrained in, and should be standard practice for, the staff of the UK Border Agency. The death of Jimmy Mubenga during deportation last year damaged the reputation of the UK Border Agency and put the system of enforced removals under considerable scrutiny.[33]

29. We have long been concerned by the conduct of staff towards detainees during enforced removal and have previously questioned contractors, the UK Border Agency and ministers about the issue. We are particularly concerned by reports of the questionable behaviour of contracted staff taking place after the system was put under scrutiny and stated to have been reformed following the death of Jimmy Mubenga. We intend to take evidence from the Chief Inspector of Prisons regarding his recent reports on the treatment of detainees and will produce a report on enforced removals in the near future. However, it should be expected that appropriate disciplinary action should be taken at all times against those who behave in ways that clearly are not acceptable. Companies involved should be made aware that further incidents as described in previous paragraphs could lead to the loss of contracts with the UK Border Agency.

Intelligence

30. The UK Border Agency receives over 2,000 reports from members of the public a week, mainly regarding an individual's alleged transgression of the immigration laws.[34] The Agency encourages the public to report those they suspect of breaking immigration or customs laws, giving relevant contact advice on their website. This method was recently supported by the Prime Minister when, during his speech on immigration, he proposed that everyone in the country should

    help with this, including by reporting suspected illegal immigrants to our Border Agency through the Crimestoppers phone line or the Border Agency website. Together I do believe we can reclaim our borders and send illegal immigrants home.[35]

31. On 13 May 2011 the Independent Chief Inspector of the UK Border Agency published a report entitled 'Preventing and detecting immigration and customs offences: A thematic inspection of how the UK Border Agency receives and uses intelligence'.[36]The Report found that the Agency's process for handling allegations, which involved all allegations being entered onto a national database before a decision was taken whether or not to pursue them, was followed inconsistently. The report details instances where allegations are recorded only onto local databases because recording information onto the national IT system was too time-consuming.[37] There were also examples of allegations which were determined to require no further action being omitted from the national database, meaning that information which might eventually prove useful was not being made available to staff within all intelligence units.

32. The Chief Inspector reviewed 70 specific cases, and found that the Agency did not systematically record the outcome of an allegation which required further action. One case study detailed an allegation regarding the arrival of 12 'bogus students' from Sri Lanka at Heathrow the following day. The Agency recorded that the information had been sent to the intelligence unit at Heathrow Airport but there was no record of whether the passengers had been intercepted or questioned nor whether they had been refused entry or allowed in to the country. [38]

33. As a result, the first recommendation of the Chief Inspector's Report was that the UK Border Agency "records the outcome of allegations and assesses how often they lead to the development of intelligence and subsequent operations to prevent or detect immigration and customs offences." The UK Border Agency accepted this recommendation, acknowledging that "we recognise the importance of allegations to the Agency's work and therefore fully accept this recommendation."[39] When we asked the Agency how many individuals had been removed as a direct result of action taken by intelligence units in 2011, we were told that they "do not hold the specific data requested; intelligence units within the Agency provide intelligence packages for enforcement teams, who carry out removals for the Agency."[40] We were told that the reason that the Agency was unable to provide this information was because the allegations and removals information was kept on two different databases, but that work was being undertaken to link the two.

34. It is unacceptable that the UK Border Agency is unable to give us more detailed information about the role that intelligence plays in protecting the UK's borders. The Independent Chief Inspector's report suggested that there was inconsistency in the way that intelligence was collected and used and this is also unacceptable. We recognise that the Agency is trying to improve the way it uses intelligence but we feel that in order for its staff and the public to appreciate the importance of individual allegations, the outcomes must be demonstrated.

35. The Prime Minister has called on the public to report those believed to be guilty of immigration offences. We strongly support the Government in this stance but there is no point if the UK Border Agency does not use the intelligence provided. We believe that the vigilance of the public ought to be rewarded by the publication of recorded outcomes. We recommend that the UK Border Agency produces a timetable for the improvement of intelligence processes which contains information on:

  • how the agency will process information;
  • how many staff will be working on intelligence; and
  • the date that the intelligence database will be linked with the recommendations database.

36. We further recommend that the Agency produce quarterly figures showing:

  • How many 'tip-offs' they have received;
  • on how many cases they have taken action; and
  • how many people have been removed following a 'tip-off'.

Immigration Tribunals

37. In previous reports we have drawn attention to the high number of appeals which have been allowed against the UK Border Agency in both immigration and asylum appeals. The information provided to us by the Agency states that there were 154, 700 appeals heard last year. 41% of appeals were allowed (the Agency lost), 44% were dismissed (the Agency won) and 15% of appeals were withdrawn. The results are set out in more detail below:
Allowed Dismissed Withdrawn
No. % of totalNo. % of totalNo. % of total
Asylum4,600 27%11,400 67%1,100 6%
Managed Migration22,800 50%17,800 39%4,600 10%
Entry Clearance12,700 39%12,300 38%7,700 23%
Family Visit Visa22,400 38%25,900 44%10,400 18%
Deport and others280 27%680 64%97 9%
First Tier Tribunal (Immigration and Asylum Chamber) 62,800 41% 68,100 44% 23,800 15%

Ev 193

38. The UK Border Agency have said that one of the reason they lose so many cases is because new evidence is often submitted at appeal. There have recently been changes to the appeals system intended to restrict the type of further evidence which can be presented at appeal. Mr Sedgwick assured us that this would greatly improve their success rate at appeal and that there was already a significant improvement of Agency performance at appeals.[41] The figures for successful appeals at immigration tribunals are worrying. However we have been informed that the success rate of the UK Border Agency will improve following statutory changes restricting new evidence being introduced at appeal. There is no doubt that the outcome of appeals would be improved if the Agency were to improve the quality of its representation. We expect the Agency to be represented at all appeal hearings so that the case for refusal can be properly made.

Exclusion from the UK

39. The Home Secretary can exclude individuals[42] from entering the United Kingdom. Exclusions can be on grounds of National Security, Unacceptable Behaviour and other non-conducive grounds, which includes serious and organised crime, foreign policy and war crimes.[43] There have been 398 exclusion notices since 2005. In June 2011, Mr Raed Salah, whom the Home Secretary had banned from entering the country, arrived at Heathrow and managed to enter the country without any opposition from UK Border Agency officials working at the airport. It was further contended that Mr Salah had not been informed that he had been banned from the country. There was also some confusion as to how long it took to establish that Mr Salah was actually in the country—when the Home Secretary came before the Committee on 5 July, she was unable to provide the timeline of events: when she signed the exclusion order, when Mr Salah entered the country and when she was told that he had done so.[44] We are still awaiting the timeline from the Home Secretary, four months later. We have been in regular contact with the Home Office and have been informed that the letter requires further consideration by the Home Secretary. Considering we have asked for factual information, we are puzzled by the length of time we have had to wait. We have now obtained the timeline ourselves from the High Court. We find this approach to transparency a serious matter.
Timeline for exclusion order of Raed Salah Mahajna

23 June 2011—Home Secretary takes decision to exclude Salah from the UK on grounds that his presence is not conducive to the public good.

  • Exclusion order (letter) was address to Salah and efforts were made to serve him in Israel—these had not succeeded before he left Tel Aviv

25 June 2011—Salah granted leave to enter the UK as visitor for 6 months—immigration officer had no idea he had been issued with a banning order.

  • Salah had a return ticket for 5 July 2011

28 June 2011 (11pm)—Salah arrested and deportation order served

1 July 2011—Appeal papers lodged

18 July—Salah released on bail with stringent conditions

40. The Home Secretary did inform us that HM Inspector of Constabulary had undertaken an investigation and identified six missed opportunities for intervention.[45] The investigation had produced eight recommendations for the UK Border Agency (which can be found in the evidence attached to this report) and the Home Secretary has accepted all of these recommendations. Compounding this failure, Mr Salah has recently won damages from the Home Office after it emerged that he had not been given sufficient reason for his arrest and detention until 30 June, two days after he had been arrested.[46] Mr Raed Salah is currently on bail and fighting extradition from the UK.

41. The case of Mr Raed Salah highlighted a number of flaws in the UK's border control. Six opportunities for intervention were missed. These mistakes were then compounded by the lack of information provided to Mr Salah following his arrest, which mean that the Home Office will now have to pay damages to a man who the Home Secretary believed should never have been able to enter the country in the first place. This is inexcusable and unacceptable. When the Home Secretary signs an exclusion order, it ought to be served. We urge the UK Border Agency to implement urgently the eight recommendations of the HMIC to ensure that this never happens again.

Student visas and 'bogus' colleges

42. Earlier this year, we published a report on Government proposals to change the immigration rules on Tier 4, the study route. The number of international students has increased greatly over the last few years—in the year up to September 2006, some 230,355 people came here to study, in the same period in 2010, that had increased to 355,386. An increase of 125,031, this is equivalent to a 54% increase in the number of student visas issued. In the same period, the number of those applying for work and family visas has dropped leaving study as the main cause of immigration, as shown by the table below.

Figure 4: Entry clearance visas issued (excluding visitor and transit visas) in year to date shown

43. The answers to our questions on students and bogus colleges, along with areas of concern highlighted by the Committee can be found in the attached evidence. One of the reasons giving for reforming the study route "to ensure that those who enter on a student visa genuinely come here to study." We asked for information on how many visas had been refused based on fraudulent evidence—we were informed that out of the 16,605 refused applications in April-July 2011, 2,359 were refused on the basis of fraudulent evidence. We also asked how many students who had broken the terms of their visa had had their leave curtailed or been deported. The UK Border Agency did not have the statistics to answer the question.

44. In the previous Parliament, our predecessor Committee published a report which examined 'bogus colleges'—colleges which are set up to sponsor people who come to the UK for purposes other than genuine study. We asked a number of questions and we wanted to highlight several answers along with our response below:

a)  How many 'bogus colleges' have been closed or removed from the register in that period;

    The UK Border Agency does not recognise the term "bogus college" and in any event has no powers to close a college.

We are dismayed that the Agency do not appear to recognise the term given the amount of press coverage 'bogus colleges' have received. It is especially concerning given that our predecessor Committee held an inquiry entitled 'Bogus colleges'[47] at which the then Minister for Immigration gave evidence. The current Minister for Immigration also referred to 'bogus colleges' when he gave evidence to us as part of our inquiry on student visas.[48]

b)  How many sponsors have been fined for misuse of their licence in that period; and how many sponsors have been prosecuted for misuse of their licence in that period;

    The UK Border Agency does not have a power to fine or prosecute a sponsor for the misuse of its licence.

Instead we are informed that Sponsors may have their licence downgraded restricting their ability to sponsor new non-EEA students. Re-ratings are based on compliance issues which were not considered serious enough to warrant suspension or revocation of the licence." They confirmed that the Agency had suspended 76 licences and revoked 11 licences.[49] We are surprised by this statement as in evidence to our previous inquiries on 'bogus colleges' the Home Office stated that individuals who "facilitate the commission of a breach of immigration law by a non-EU citizen" can be prosecuted under the Immigration Act 1971.[50]

45. We cannot understand why the UK Border Agency is unable to tell us how many students had their leave curtailed or were deported for breaking the terms of their visa. We are surprised that the Agency is unaware of the term 'bogus college' as it has been used by Ministers and this Committee. We are also shocked if the worst punishment a sponsor who misuses their licence faces is the revocation of their licence, although previous evidence seems to contradict this statement. We would ask the Agency to confirm this is the case and clarify this point. On previous occasions we have come across anecdotal evidence that the Agency is not always clear, fair and consistent in its dealing with colleges, and while we support efforts to deal with wrongdoers and institutions that fall below the required standard, we are satisfied that most colleges provide an important educational service and contribute to their local economy. It is therefore important that the Agency understands the need to maintain a proper balance and is helpful to genuine educational institutions.

MPs' correspondence

46. One of the reasons that we maintain such strict scrutiny of the UK Border Agency is that immigration cases constitute a huge amount of MPs' caseload. When we visited the UK Border Agency headquarters in Croydon, we were informed that they had received 66,000 letters from MPs and Peers in the previous year. When we suggested that the situation could be improved if the Agency were more accessible to applicants, there was no acknowledgement that the Agency might be difficult to engage with. MPs do not solicit immigration and asylum cases—every case which an MP takes up with the Agency represents a constituent in need who has exhausted the other options which are available to them.[51] The involvement of an MP in a constituent's case often comes as a last resort, when other approaches have failed. The high degree of correspondence between the UK Border Agency and MPs is evidence of failure earlier in the process. We intend to examine this further the next time the Chief Executive of the Agency comes before the Committee in December. In the meantime, we would welcome evidence from MPs and their staff about their dealings with the Agency.

47. In evidence, Mr Sedgwick stated that all legacy cases had been decided and that decision had been communicated to the applicant. When some members announced that they had a number of cases where no decision had been received, he invited them to send him those cases.[52] He also acknowledged that it was important that MPs involved with immigration cases be kept up to date and informed when decisions are made so that they can close their files.[53] The Chair then wrote to MPs informing them that all legacy cases ought to have been concluded and that any MPs awaiting decisions could contact the UK Border Agency. Hundreds of cases have subsequently been sent to the Agency. We recommend that it become UK Border Agency policy that if an MP becomes involved in a case then the Agency automatically copies the MP in on any correspondence to the applicant. This will enable MPs to close cases once they have been resolved. This would be both courteous and efficient and should be acted upon at once.

48. One of the more recent innovations to improve issues with MPs correspondence has been the MP account managers which are a point of contact for MPs in the regions. This could lead to improvements, but many MPs find that the initial impact has not been entirely beneficial. We welcome the introduction of MP account managers but they have to have authority within the Agency and be able to obtain information quickly and accurately in order to provide an improved service to MPs. In order to aid our fellow parliamentarians, we have attached the list of the account managers of each region to this report. We will be asking MPs whether the new system has provided the improvements that are being claimed for it. If the improvements we wish to see take place, it could well be there would be a reduction in the 66,000 letters from MPs and peers in a single year.

Government pledge to cut net migration

49. The Prime Minister pledged, prior to the 2010 election, to reduce net migration to the tens of thousands, rather than the hundreds of thousands that have become the norm in recent years. Achieving a reduction in net migration is made more difficult by the fact that reduced numbers of UK residents are emigrating while increasing numbers of EU citizens are coming into the UK. In a previous report, we recommended that the Government should exclude student numbers in their statistics about immigrants, since a student only becomes an immigrant when he or she seeks settlement. We appreciate that students are included in the UN statistics, but we believe this to be mistaken and to unduly inflate the targets which the government has to meet in order to deliver its commitment. We maintain this view although so far it has not been accepted. As the graph below shows, in 2006 some 207,000 British citizens emigrated. By 2009 that number had fallen to 140,000.

Figure 5: Long-term emigration from the United Kingdom by nationality, 1991-2009

Meanwhile, as the figures below demonstrate, between 1999 and 2009, immigration from EU nationals increased by over 100,000 whereas immigration from countries outside the EU only increased by 30,000 in the same period. In terms of percentage, EU immigration doubled, going from 14.5% of the total in 1999 to 29.5% by 2009.
Long-term immigration to the United Kingdom by nationality, 1991-2009
British EUNon-EU Total BritishEU Non-EUTotal
1999115 66273 454 25.3%14.5% 60.1%100.0%
200099 63316 478 20.7%13.2% 66.1%100.0%
2001110 58313 481 22.9%12.1% 65.1%100.0%
200298 61356 515 19.0%11.8% 69.1%100.0%
2003100 66344 510 19.6%12.9% 67.5%100.0%
200489 130369 588 15.1%22.1% 62.8%100.0%
200598 152316 566 17.3%26.9% 55.8%100.0%
200683 170344 597 13.9%28.5% 57.6%100.0%
200774 195305 574 12.9%34.0% 53.1%100.0%
200885 198307 590 14.4%33.6% 52.0%100.0%
200996 167303 566 17.0%29.5% 53.5%100.0%

Figure 6: Long-term immigration to the United Kingdom by nationality, 1991-2009

The chart below demonstrates that emigration has not kept in line in with immigration. As a consequence, net migration has increased substantially from 163,000 in 2008, to 198,000 in 2009 to 239,000 in 2010.[54]

Figure 7: Long-term net migration to the United Kingdom by nationality, 1991-2009

50. One of the ways that this figure could be reduced is if those who overstayed their visas were deported. In March this year, the National Audit Office published a report which estimated there could be as many as 181,000 migrants in the UK whose visas have expired since December 2008.[55]

Scrutiny of the UK Border Agency

51. The UK Border Agency is an executive agency of the Home Office and so falls within the remit of our Committee. We take our scrutiny of this agency extremely seriously and so we require that the Agency provides us with updates on a range of performance measures every four months. On 24 August, we received our latest letter from the UK Border Agency. In response to 10 of our questions, the Agency referred us to previously published figures available on their website.

52. The Government's own guidance on the provision of information to select committees is quite clear. The Ministerial Code states that

    Ministers have a duty to Parliament to account, and be held to account, for the policies, decisions and actions of their departments and agencies.[56]

The Osmotherly Rules state that

    The Government is committed to being as open and as helpful as possible with Select Committees. The presumption is that requests for information from Select Committees will be agreed to.[57]

This is reinforced in the draft Cabinet Manual, which notes that "Ministers and civil servants [...] supply written evidence [to select committees] when it is requested".[58]

53. The history of the UK Border Agency (and its predecessors) is chequered and a number of failings, including the scandal of foreign national prisoners and the backlog of asylum cases, have been exposed by select committees of this House.

54. When we received the letter with the required data attached it was mostly in spreadsheet form and was not easily accessible. We have attached the letter as evidence to our report and have included the annexes as they appeared. The UK Border Agency's provision of information to this committee falls short of the standards that the House is entitled to expect and on which the Government itself insists. The Agency has certainly not been "as open and helpful as possible", as civil service guidance requires. There is every risk that the Agency's failure to provide us with the information we require, in a format which is appropriate for our needs and within the time requested will undermine effective Parliamentary scrutiny of the Agency's work. We hope that the standard of information provided by the Agency will improve in response to this Report. If it does not, then we will seek the information from the Home Secretary in person, in accordance with the principles set out in the Ministerial Code and related guidance on the provision of information to select committees.

55. The UK Border Agency comes before us three times a year, more often than the Home Secretary or the Permanent Secretary, both of whom are expected to appear twice yearly. A further reason that we require the UK Border Agency to give evidence to us on such a frequent basis is that these evidence sessions usually require quite a degree of follow up. Despite the scandals of both foreign national prisoners and the legacy backlog happening in 2006, they have still not been completely resolved five years later. Immigration is an issue which affects the safety, the social cohesion and the economy of Britain as well as its standing on the world stage. For that reason we will continue to hold sessions with the UK Border Agency every four months or possibly even more frequently.


1   Ev 15-404 Back

2   Ev 409 Back

3   Home Affairs Committee, Ninth Report of Session 2010-12, The work of the UK Border Agency (November 2010-March 2011), HC 929, para 39 Back

4   Mr Clark also received benefits in kind worth £2,500. Back

5   Home Affairs Committee, Fourth Report of Session 2010-12, The work of the UK Border Agency, HC 587, para 16  Back

6   UK Border Agency, UK Border Agency annual report and accounts, 7 July 2011, Pg 79,81 and 93 Back

7   Ev 410 Back

8   Sections 32 & 33. The serious crimes are those specified by order of the Secretary of State under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002. Back

9   Home Affairs Committee, Fourth Report of Session 2010-12, The work of the UK Border Agency, HC 587 para 2 Back

10   Uncorrected transcript of oral evidence taken before the Home Affairs Committee on 8 September 2011, HC (2010-12) 1456-ii, Q231 Back

11   Ev 411 Back

12   Independent Chief Inspector of the UK Border Agency, A thematic inspection of how the UK Border Agency manages foreign national prisoners, 27 October 2011, Pg 3 Back

13   Independent Chief Inspector of the UK Border Agency, A thematic inspection of how the UK Border Agency manages foreign national prisoners, 27 October 2011, Pg 16 Back

14   Ibid., Pg 25 Back

15   Ibid., Pg 12 Back

16   HC Deb 25 July 2006 col. 736 Back

17   HC Deb 19 July 2006 col. 324 Back

18   Ev 15 Back

19   Ev 12 Back

20   Ev 12  Back

21   Q20 Back

22   Q21 Back

23   Q25 Back

24   Letter to the Home Affairs Committee, dated 25 March 2009 Back

25   Home Affairs Committee, The Work of the UK Border Agency, HC (2009-10) 105-II Ev 39,  Back

26   HC (2009-10) 105, Q213 Back

27   HC (2009-10) 105, Q237 Back

28   Q83 Back

29   HM Chief Inspector of Prisons, Inspection of escort and removals to Jamaica, July 2011, Pg 4 Back

30   Ibid., Pg 4 Back

31   Ibid., Pg 4 Back

32   Q78 Back

33   HL Deb 20 Oct 2010 col. 826 Back

34   Independent Chief Inspector of the UK Border Agency, Preventing and detecting immigration and custom offences: A thematic inspection of how the UK Border Agency receives and uses intelligence, 13 May 2011, Pg 9 Back

35   www.number10.gov.uk/news/prime-ministers-speech-on-immigration/ Back

36   Independent Chief Inspector of the UK Border Agency, Preventing and detecting immigration and custom offences: A thematic inspection of how the UK Border Agency receives and uses intelligence, 13 May 2011, Pg 6 Back

37   Ibid., Pg 10 Back

38   Ibid., Pg 12 Back

39   Ibid., Pg 3 Back

40   Ev 413 Back

41   Q8 Back

42   The power to exclude a non-EEA foreign national is non-statutory and is exercised by the Secretary of State in person. It is applied in cases where the Secretary of State considers that the exclusion of an individual from the UK is conducive to the public good. The power to exclude EEA nationals is statutory. It derives from the Immigration (European Economic Area) Regulations 2006 and subsequently by the Immigration (European Economic Area) (Amendment) Regulations 2009. This is applied in cases where the Secretary of State considers that exclusion of an EEA national or family member of an EEA national is justified on the grounds of public policy, public security or public health." Back

43   Ev 418 Back

44   Home Affairs Committee, The Work of the Home Secretary, HC (2010-12) 1372-i, Q11-15 Back

45   Ev 418 Back

46   www.telegraph.co.uk/news/uknews/terrorism-in-the-uk/8799574/Palestinian-wins-damages-after-Theresa-May-ordered-his-detention.html Back

47   www.publications.parliament.uk/pa/cm200809/cmselect/cmhaff/595/595.pdf Back

48   Uncorrected transcript of oral evidence taken before the Home Affairs Committee on 8 September 2011, HC (2010-12) 1456-ii, Q238 Back

49   Ev 45 Back

50   Home Affairs Committee, Bogus colleges, HC (2008-09) 595, Ev 25 Back

51   Q39 Back

52   Q27 Back

53   Q30 Back

54   www.number10.gov.uk/news/prime-ministers-speech-on-immigration/ Back

55   National Audit Office, Immigration: the Points Based System - Work Routes (HC 819) 15 March 2011 pg 32 Back

56   Cabinet Office, May 2010, paragraph 1.2.b. Back

57   Cabinet Office, Departmental Evidence and Response to Select Committees, July 2005, paragraph 68. Back

58   Cabinet Office, February 2011, paragraph 196. Back


 
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Prepared 4 November 2011