Select Committee on Home Affairs Fifth Report


516. Late in our inquiry it emerged that over a thousand foreign national prisoners had been released from prison over the last seven years without the IND considering whether or not to deport them.[503] We held three additional evidence sessions to examine how this problem arose and, most importantly, what it could tell us more generally about the IND. We have not attempted here to provide an exhaustive account of the problems surrounding foreign national prisoners or their deportation, though much of this is covered in the evidence that we received. We were presented with a consistent picture of how a problem was allow to grow over time; how warnings about it were ignored; and how the serious implications went unrecognised until too late in the day. The evidence highlighted clear failings in the management of IND, including the failure to alert ministers until the last few weeks before the crisis broke. We believe that the failure to consider so many foreign prisoners for deportation in a timely and effective manner has a great deal to tell us about the management and culture of IND as a whole. In this chapter we look at the background to the problem, and in the next chapter draw out the lessons to be learnt from these events as well as more broadly from our whole inquiry.

Causes of the problem

517. We now know that for many years the IND has been failing to consider for deportation some foreign prisoners before the end of their sentence. This leads to one of two possible outcomes: the prisoner is either detained beyond his or her release date, or released despite the risk of absconding. Neither is an acceptable outcome. The underlying cause of the problem is that the number of foreign prisoners rose beyond the capability of the system for dealing with them (it has more than doubled in the last 10 years). However, it is accepted that the responsibility for tackling the problem was left in the hands of managers at too junior a level to respond effectively. Despite warnings from a number of sources, senior managers did not establish or understand the nature of the problem, nor did they ensure that the resources available were being targeted at the most serious cases.


518. The Government has for some time recognised that the dramatic rise in the number of foreign national prisoners was causing problem. From June 1996 to May 2006 the number of foreign nationals in prison in England and Wales alone rose from 4,259 to 10,232.[504] Indeed, the then Home Secretary, Charles Clarke, referred to the issue when he appeared before us in October 2005.[505] It is clear, however, from the evidence of the then Permanent Secretary Sir John Gieve that at that stage Mr Clarke had not been made aware of the problems concerning deportation.[506] By April 2005, when he had been alerted to the problems, Mr Clarke was blaming the IND's failure to consider all serious foreign prisoners for deportation on this rise in numbers, saying it was "clear that the increasing numbers of cases being referred for consideration [for deportation] led to the process falling down".[507] Lin Homer, Director General of IND, described it to us as "a relatively classic case of demand outstripping supply".[508]

519. In a Westminster Hall debate in November 2005, Home Office minister Fiona McTaggart described the Government's attempts to reduce the number of foreign nationals in British prisons, including repatriation to serve their sentence at home, an early removal scheme for foreign national prisoners and collaboration with other Governments over drug trafficking (much of the foreign national prisoner population is associated with drug trafficking). She did not however see the need for automatic deportation,[509] though had the Minister been made aware of the serious problem it is possible that she might not have taken such a sanguine position.

520. In 2005, 108 foreign prisoners were sent overseas to serve their sentence or part of it.[510] The repatriation agreements which govern such transfers usually require the consent of the prisoner, which is not always forthcoming. 333 foreign prisoners were returned to their home countries under the Early Removals Scheme in the first three months of its operation.[511] Clearly neither scheme currently makes a significant impact on numbers. Hundreds of foreign national criminals are even detained in prison beyond their release date, "usually" because they are awaiting deportation.[512] One third of these are held for more than six months.[513] The Times reported on 23 June 2006 that at least nine foreign prisoners were seeking compensation because the Home Office failed to deport them on time under the Early Removals Scheme.[514]

521. We endorse the Government's moves to reduce the foreign national prisoner population at source through tackling drug trafficking in partnership with other countries. Given the difficulties with repatriation of prisoners, the early removals scheme should be given priority and re-documentation efforts redoubled.


522. Her Majesty's Inspectorate of Prisons (HMIP) has been drawing attention for some time to the problems of foreign national prisoners and their deportation, and has been critical of failings at both policy and operational level. In its annual report for 2002/03, the inspectorate drew attention to what it described as the "dilatory attitude of the Immigration Service which, unless pressed, was not monitoring those liable to deportation, and making arrangements for this to take place as soon as sentence had expired".[515] A year later, the inspectorate again criticised inefficiencies in the IND and poor communication between the IND and prisons.[516]

523. The National Audit Office highlighted the issue again in July 2005, observing that the IND had struggled to meet its targets for timely removal of foreign nationals convicted of criminal offences because consideration of deportation was being started too late to allow preparations for removal to be made before the prisoner was released, and that the number of cases where this had happened was not known.[517] In October 2005 the Public Accounts Committee heard from the then senior director for operations at the IND, Brodie Clark, that some foreign prisoners who had been released pending deportation would have absconded.[518]

524. The IND did recognise as far back as 2003 that its Criminal Casework Team, which deals with foreign prisoners, was under-resourced in relation to the growing numbers of foreign prisoners. Staffing and resources in this area have been increased in recent years and since July 2005 almost £3 million extra has been provided for dealing with foreign prisoners.[519]

525. However, the IND did not appear to heed the warnings about poor communication, so it did not, for instance, learn from prisons staff or from its own staff who was being released without being considered for deportation. Nor did it take steps to assess whether the extra staffing and resources put in place were actually solving the problem. And finally, it did not take action even when the National Audit Office found that the IND did not know how many foreign nationals had been released from prison without having been considered for deportation.


526. IND management did not appear to realise either the number of foreign prisoners being released without consideration for deportation or the basis on which cases were selected for consideration. They were therefore not in a position to tackle the problem. Lin Homer, Director General of the IND, told us that:

527. Sir John Gieve, former Permanent Secretary at the Home Office, told us that even when he was told that there was a problem it was not considered a serious one, and that he very much regretted he did not recognise the problem earlier.[521]

528. This in turn meant that Ministers were not told that there was a problem. The Home Secretary told us that "the first time any minister was told that there was a problem of magnitude, even without figures, was 17 March [2006]".[522]

529. This culture appeared to be persisting at the time of our inquiry. Neither junior staff nor managers, who were aware that released foreigner prisoners who had been located and detained were now winning applications for immigration bail, appeared to realise that senior managers and the Home Secretary should be informed. As a result, serious embarrassment was caused to the Home Secretary, who was forced to amend evidence given to our Committee within 24 hours (see paragraph 567 below) When Lin Homer appeared before us she was unable to update the Committee on the number of successful bail applications.[523]

Two aspects of policy

530. Although the policy on deportation of foreign offenders is largely outside the scope of our inquiry, we do want to draw two conclusions about future policy.

531. Firstly, there are at the moment two circumstances in which a person can be deported following a criminal conviction: where the court has recommended deportation and the IND has decided to pursue this; and where the court has not made a recommendation but the IND has nevertheless deemed deportation to be "conducive to the public good".[524] (Foreign criminals might be removed instead of deported if they entered illegally or have breached conditions of their leave.[525]) Between April 2005 and March 2006 the Crown Court made 1,528 recommendations for deportation,[526] and 160 of the foreign nationals identified as having been released without consideration for deportation had had a court recommendation for deportation.[527]

532. Although a criminal court can recommend deportation when it is sentencing a foreign national, the decision to deport always rests with the Home Office regardless of whether or not there is a court recommendation. We do not see the benefit of court recommendations for deportation, and recommend that they should be abolished. All deportations should be considered by the Home Office solely on the grounds of whether deportation is conducive to the public good.

533. Secondly, the Government has announced that it wishes to consult on changes to the law to create a presumption of in favour of deportation of some foreign national criminals. On 3 May the Prime Minister said "I think that it is now time that anybody who is convicted of an imprisonable offence and who is a foreign national is deported".[528] The then Home Secretary, Rt Hon Charles Clarke MP, set out a rather more nuanced proposal less than an hour later:

    I want to state clearly that where deportation can properly be considered, the clear presumption should be that deportation will follow unless there are special circumstances why it cannot. We will consult on whether that presumption should be made statutory through primary legislation. Such a presumption would include all criminals sentenced to imprisonment, all those convicted for an offence listed in an order under section 72 of the Nationality, Immigration and Asylum Act 2002, all those on the sex offenders register, repeat offenders and, of course, all those recommended for deportation by the sentencing judge. We believe that there is a strong case for extending those proposals to any individual who is convicted of an imprisonable offence, whether or not a sentence of imprisonment was actually given, and we will consult on that too.

    Those proposals would replace the current practice of considering for deportation only non-European economic area nationals with a sentence of 12 months or more; EEA nationals with a sentence of 24 months or more; cases in which the individual has three lesser convictions in a five-year period; and all cases in which the sentencing judge has recommended deportation.[529]

534. The following week the Prime Minister was referring to a presumption for "foreign prisoners",[530] and then on 17 May the phrase he used was "the vast bulk" of foreign prisoners.[531] The current Home Secretary told us "the presumption should be that anyone who is here who is a foreign national who does not, in return for the privileges and rights of being in this country, observe our laws and commits a serious offence for which there is a custodial sentence given should face deportation."[532]

535. We support the proposal to create a presumption in favour of deportation of foreign nationals who are serious criminals. In practice there will be those for whom deportation is inappropriate, for example those whose offences may only just cross the threshold of seriousness but who have lived otherwise law-abiding lives in this country for a long time and who have an established family in the United Kingdom. But the principle should be established that in all such cases the offender should have to make their case as to why they should not be deported.

503   HC Deb 25 April 2006 col. 37-38WS Back

504   Home Office, Offender Management Caseload Statistics, and Q905, 23 May 2006 Back

505   The work of the Home Office, Oral evidence taken before the Home Affairs Committee on 25 October 2005, HC 604-I, Q15 Back

506   Qq 1096-1100, 12 June 2006 Back

507   HC Deb 25 April 2006 col. 37-38WS Back

508   Q 943, 23 May 2006 Back

509   HC Deb 17 November 2005 col. 343-4WH Back

510   Q915, 23 May 2006 Back

511   Report by the Comptroller and Auditor General: Returning Failed Asylum Applicants HC 76 of Session 2005-06, 14 July 2005 Back

512   Ev 385, para 5-6, HC 775-III Back

513   Report by the Comptroller and Auditor General: Returning Failed Asylum Applicants HC 76 of Session 2005-06, 14 July 2005, para 3.10 Back

514   'Jail release scheme failing, say foreigners', Times 23 June 2006 Back

515   Annual Report of HM Inspectorate of Prisons for England and Wales for 2002-2003 Back

516   Annual Report of HM Inspectorate of Prisons for England and Wales for 2003-2004, p. 20 Back

517   Report by the Comptroller and Auditor General: Returning Failed Asylum Applicants HC 76 of Session 2005-06, 14 July 2005, paras 310-11 Back

518   ibid: ev 1 Back

519   Report by the Comptroller and Auditor General: Returning Failed Asylum Applicants HC 76 of Session 2005-06, 14 July 2005, p. 20; HC Deb 26 April 2006 col 563; and Q 1027, 6 June 2006 Back

520   Q 944, 23 May 2006 Back

521   Q 1096 and Q 1105, 12 June 2006 Back

522   Q 867, 23 May 2006 Back

523   Qq 958-961, 6 June 2006 Back

524   Immigration Act 1971 s6(recommendations for deportation); s3(5)(a) (conducive deportation); s.3(5) (b) (family deportation); see also Immigration Rules (HC 395 of Session 1993-94, as amended) paras 362-395 Back

525   Immigration Act 1971 Schedule 2 paras 8, 10-10A (port removals); Immigration Act 1971 s33 (1) and Schedule 2 paras 9-10A (removal of illegal entrants); and Immigration and Asylum Act 1999 s10 and Immigration Rules (HC 395 of 1993-94) paras 395A-395F (administrative removal) Back

526   HC Deb 17 May 2006 col. 1060-1W Back

527   Q 997, 6 June 2006 Back

528   HC Deb 3 May 2006 col 960 Back

529   HC Deb 3 May 2006 col. 972 Back

530   HC Deb 10 May 2006 col 309 Back

531   HC Deb 17 May 2006 col 990 Back

532   Q 881, 23 May 2006 Back

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