13. First supplementary memorandum
submitted by the Immigration and Nationality Directorate, Home
Office
As agreed at our meeting on 6 December 2005, I am
writing to provide some further information on the following issues:
cross-Departmental working on issues around migration (including
how policies on meeting labour needs are determined, cross-departmentally);
the size of the illegal population and information on illegal
working; information/data sharing with EU countries and the funding
of the Immigration Advisory Service. I am also including an update
on the arrangements for legally aided assistance and advice to
people in detention.
CROSS-DEPARTMENTAL
WORKING ON
MIGRATION ISSUES
The Asylum and Migration Committee, chaired
by the Prime Minister, exists to ensure cross-departmental working
at the highest level on migration policy. Migration is an issue
which cuts across many departmental responsibilities, which is
why this new committee was set up to deal with it.
The Home Office works closely with other departments
on developing immigration policy. For example, in developing the
new points based system for managed migration Home Office officials
have worked with colleagues in the Treasury, Department for Work
and Pensions (and Jobcentre Plus), Department for Trade and Industry,
Department for Environment, Food and Rural Affairs, and the Foreign
and Commonwealth Office, on assessing labour market needs and
whether migration is an appropriate response. A good example of
cross-departmental working is the monitoring of the Workers Registration
Scheme, where information is gathered together from various different
Government departments and coordinated by the Home Office before
quarterly publication. While the Home Office runs the scheme,
DWP economists have been involved in assessing its impact and
have published a report on its impact on the labour market in
the UK.
Last year the Home Office announced the creation
of the Joint Education Taskforce, the first high level debating
platform for the UK education sector and Government departments
(HO, DfES, FCO) on how immigration policy and practice impacts
upon the education sector. The Taskforce has met nine times since
its formation in May last year and has two workstreams dealing
with issues such as policy, abuse and customer service. It has
proven a very effective forum for engagement in constructive dialogue
with the sector, particularly in developing proposals for a points-based
system for managed migration.
We continue to work closely with DfES on issues
affecting the education sector and the recruitment of international
students. This includes exploring mandatory accreditation of sponsors
as a basic assurance of teaching quality and legitimacy as agreed
by Bill Rammell and Tony McNulty recently.
SIZE OF
THE ILLEGAL
POPULATION AND
ILLEGAL WORKING
The Home Office Research report "Sizing
the unauthorized (illegal) migrant population in the United Kingdom
in 2001" was published on 30 June 2005 and estimated
the illegally resident population in 2001 at 310-570,000. The
method used in the report is based on a method devised in the
USA, known as the Residual Method. The Residual Method is the
only methodology that currently can sensibly be applied in the
UK. It takes as its starting point the foreign born population
recorded in the UK census conducted in April 2001 and then deducts
an estimate of the foreign-born population here legally. The difference
is an estimate of the number of unauthorized migrants.
I should emphasize that the report produced
a range of estimates using one possible methodology and the central
estimate of 430,000 cannot be seen as an accurate or definitive
figure. Indeed, no government has ever been able to produce an
accurate figure for the number of people who may be in the country
illegally, and that remains the case—by its very nature
it is impossible to quantify accurately.
Although it remains the fact that we don't and
cannot know the actual size of the illegal population, the report
estimate, even with the caveats, has helped us to understand the
size of the challenge that we face. Our Five Year Strategy for
Asylum and Immigration has clearly articulated our strategy for
dealing with that challenge. Our strategy includes:
— strengthening enforcement capacity
and activity;
— working in partnership with business
to improve compliance; and
— closer joint working between departments.
Strengthening enforcement capacity and activity
Illegal working operations are a priority and
we are increasing our enforcement capacity. In 2005, the UK Immigration
Service carried out 2,850 enforcement operations against illegal
work, as against 1,618 operations the previous year. Operations
against illegal working are intelligence-led and contribute to
our efforts to deliver targets for the removal of failed asylum
seekers agreed by the Prime Minister. Activity is prioritised
with that objective in mind. The measures to combat illegal working
in the Immigration, Asylum and Nationality Bill will enable us
to deal more swiftly and effectively with routine cases of non-compliance,
and allow the Immigration Service to concentrate its prosecution
resources on the more serious cases.
Working in partnership with business
The majority of UK employers are law abiding
and we are keen to work with business to encourage compliance
with the law on the prevention of illegal migrant working. Tony
McNulty jointly chairs the Illegal Working Stakeholder Group with
Gerry Sutcliffe, comprising key stakeholders from the UK's commercial
sector, representatives of migrant workers and minority communities,
who meet to discuss legislative and other practical ways to address
illegal migrant working in the UK. IND is active in supporting
businesses comply with the law through the provision of web-based
guidance, an employers helpline, and educational visits by enforcement
staff.
Closer joint working between Government departments
The Immigration Service is leading the Joint
Workplace Enforcement pilot (JWEP), which is exploring the scope
for closer coordinated working, including intelligence sharing,
between Government workplace enforcement departments to tackle
both the use and exploitation of illegal migrant workers. The
pilot draws together a co-located team of enforcement and intelligence
officials from UKIS, HMRC, DWP, DTI, Health & Safety Executive
and the Gangmasters Licensing Authority, to share information
and co-ordinate operations against employers, employment agencies,
labour providers and any type of business who are involved in
the deliberate use or supply of illegal migrant workers. An initial
evaluation of the pilot will take place shortly.
Our involvement in joint working goes far wider
than JWEP. We have established intelligence-sharing links with
a range of other law enforcement agencies which are relevant to
activity against illegal working. The Serious Organised Crime
Agency will lead action against organised immigration crime, including
where this involves the trade in illegal labour. We are also working
closely with DEFRA and the Gangmaster Licensing Authority to establish
the licensing arrangements for agricultural labour providers.
INFORMATION/DATA
SHARING WITH
EU COUNTRIES
The Commission has produced a Communication
entitled Improved effectiveness, enhanced interoperability and
synergies among European databases in the area of justice and
home affairs', which suggests how existing and future pan-European
IT systems could more effectively support the EU's policies linked
to free movement of persons and combating terrorism and serious
crime.
The Communication focuses on more comprehensive
access to the Visa Information System, the Schengen Information
System II and EURODAC, but also considers the creation of an entry/exit
system and introduction of a border crossing facilitation scheme
for frequent border crossers; a European register for travel documents
and identity cards and creation of a European Criminal Automated
Fingerprints Identification System.
The Government considers it essential that EU
databases operate effectively and are able to support policies
related to free movement of persons as well as efforts to combat
terrorism and serious crime. The Government also recognises that
access to data should be balanced by strict compliance with the
rules governing the protection of personal data and fundamental
rights.
The Government therefore welcomes this Communication
as a helpful initial assessment of the efficiency of existing
databases and their potential future uses, and will engage positively
in the debate. The Government has not yet been informed of a timetable
for discussions.
FUNDING OF
THE IMMIGRATION
ADVISORY SERVICE
(IAS)
Background
Historically the Immigration Advisory Service
(IAS) received grant funding from the Home Office to provide representation
at appeal for immigration and asylum appellants. In March 2000
the scope of that funding was expanded to include the provision
of advice in connection with an asylum application to those detained
at Oakington Reception Centre. Grant funding was provided under
a statutory power available to the Home Secretary, most recently
contained in section 110 of the Nationality, Immigration and Asylum
Act 2002.
When the Legal Services Commission (LSC) introduced
a new funding regime for legal aid in January 2000 the IAS successfully
bid for contracts to provide legal aid services. The scale of
the services provided under contract was much larger than those
provided under the previous scheme and the IAS significantly expanded
the size of its operations.
In the autumn of 2002 agreement was reached
between the Home Office and the LSC that responsibility for all
public funds provided to the IAS (and the Refugee Legal Centre)
for legal services in England and Wales should be taken by the
LSC. This reflected the fact that the primary role of the LSC
was to buy publicly funded legal services and its funding regime
was supported by a quality assurance and audit process. Ministers
in the Home Office and the Lord Chancellor's Department (as it
then was) endorsed this agreement.
Revised Funding Arrangements from 2004
The transfer of funding from the Home Office
to the Legal Services Commission occurred on 1 April 2004. A commitment
was given that the monies transferred from the Home Office would
continue to be used by the LSC to buy services provided by the
IAS (and the Refugee Legal Centre) for a period of two years,
subject to satisfactory contract performance. Most of the money
transferred (around three-quarters of the £20 million concerned
that covered both organisations) was converted into contract income
with the balance remaining as grant to meet head office infrastructure
costs.
As a result of the new arrangements the IAS
started applying the statutory tests for the receipt of publicly
funded legal services when determining a client's eligibility
for help. These say that in addition to qualifying financially
an applicant must also show that the merits of the case justify
the grant of public funding. The application of the LSC means
test to all publicly funded IAS casework meant that many of the
immigration clients (not asylum clients) that the IAS may have
previously provided a service to under Home Office funding were
no longer eligible for a free legal help.
Home Office funding did not, and was not intended
to, provide free representation for all immigration appellants
so there would always have been some appellants who would have
been unable to access free publicly funded services. In the past
decisions about who would receive free immigration advice were
taken using IAS criteria whereas since 2004 the statutory criteria
have been used. The view of DCA and LSC was that it was right
that the criteria used in determining access to public funding
for immigration and asylum cases should be the same as was used
for other areas of legal aid. In particular the application of
the LSC means test ensures that funding is made available to those
most in need and is more likely to target those who are socially
excluded.
In October 2004 the LSC started discussions
with the IAS and the Refugee Legal Centre about the funding regime
that would be put in place at the end of the two-year period.
The aim of the discussions was to agree arrangements that would
help provide long-term security to both organisations and also
provide best value for the public funding they were receiving.
Discussions on future funding regime
Along with the transfer of funding, one of the
main issues for the IAS has been the revised contractual arrangements
for publicly funded immigration and asylum work that were introduced
in April 2004. These included provisions limiting the amount of
work that could be undertaken without reference to the LSC and
requiring all appeal work to be approved in advance by the LSC.
But both the IAS and the Refugee Legal Centre have a good record
at appeal and were therefore given devolved powers to grant funding
themselves. They were therefore relieved of some of the requirements
of the new arrangements. However for the first time they are working
to limits on the amount of time that they can spend on a case
and this clearly took some time to bed in. The LSC had assisted
the IAS by arranging training for staff in these contract provisions.
The provision of grant funding for head office
costs in addition to contract income means that the casework provided
by the IAS costs significantly more than that provided by other
suppliers. Also, while IAS is a charity and therefore not making
a profit, the previous funding arrangements did not have sufficient
scrutiny to ensure that money was utilised efficiently and effectively.
Whilst in the past it could have been argued that this higher
cost resulted in a better quality of service, the improvements
in quality made more generally in the supplier base, through the
introduction of accreditation and other measures, mean that this
is no longer the case.
Furthermore the lAS, and other suppliers, has
to take account of the reduced demand for legal aid services in
immigration and asylum work. The number of new asylum applications
has dropped from a high of over 84,000 to 32,000 in 2004-05 and
is likely to be nearer 30,000 in 2005-06. The Immigration, Asylum
and Nationality Bill, currently going through Parliament, could
also see a significant reduction in appeal rights for immigration
clients. The reduced number of applicants means that there is
greater competition between suppliers for clients.
Despite the recent reduction in asylum numbers
and legal aid expenditure, the income paid to the IAS has remained
largely unchanged since the transfer of funding. In 2003-04 the
combined income for services in England and Wales was £13.5
million whereas at the beginning of 2005-06 the planned income
from the LSC was £17.2 million. There has subsequently been
a reduction in income of £2.4 million as a result of the
organisation being unable to meet its contracted hours together
with a change in guidance on VAT.
Current position
The LSC is currently working with the LAS (and
the Refugee Legal Centre) to ensure that the hourly rate paid
under the contract for casework is competitive with other suppliers.
In addition to the contract income the intention is for the organisation
to continue to receive grant income, albeit on a much-reduced
scale, for the added value they provide to the sector. This will
cover non-casework areas such as training, information and policy
development.
The LSC considers that the IAS and the Refugee
Legal Centre are the backbone of future supply of publicly funded
immigration and asylum advice and representation. Between them
the organisations already account for almost one-third of LSC
spending in this area of law. Both organisations are national
suppliers, which creates efficiencies as clients move or are moved
around the country. Both organisations also have good reputations
for providing quality services to clients and as charities are
motivated by the best interests of the client and not by profit.
Negotiations between the LSC and the IAS to
agree funding arrangements from April 2006 are ongoing. However,
assuming agreement can be reached on the cost of providing casework
services, the future of the organisation is secure as long as
it can continue to provide the quality and quantity of contracted
services.
LEGAL ADVICE
PROVISION FOR
THOSE IN
DETENTION
(This supplements the information on this subject
provided in paragraphs 99-103 of the initial submission to the
Committee in December 2005 by IND.)
The Legal Services Commission is also currently
piloting the provision of regular on-site legal advice surgeries
to individuals who are detained in immigration removal centres.
Surgeries are taking place twice weekly at the centres at Campsfield,
Colnbrook, Dover, Harmondsworth, Tinsley House (Gatwick) and Yarl's
Wood. The purpose of the surgery is to ensure that those who are
in detention and who have not received legal advice or who no
longer have a legal adviser and who require advice will be able
to access advice through the pilot scheme. The scheme is open
to all individuals who are detained. A central part of offering
advice to those who are detained is to consider bail.
It is anticipated that only very straightforward
matters would be resolved during such a surgery session. In other
cases the participant supplier would at the end of the session
then:
— take the matter on, as further investigation,
advice or action was required (such as a bail application) or
— refer the matter on to another supplier
or
— advise the client that no further
action could be taken.
The pilot commenced in December 2005 and is
expected to last for six months. The pilot will then be evaluated
in order to establish the effectiveness of an on site adviser
scheme and whether it is the best way in which advice should be
provided to those individuals who are subject to detention. If
the evaluation identifies that the scheme is effective and necessary
then a formal bid round will take place in which suppliers will
be offered the opportunity to bid for a contract for such advice
work.
Lin Homer
Director General
7 February 2006
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