56. Memorandum submitted by
the Rt Hon Charles Clarke MP
FOREIGN NATIONAL
PRISONERS
As I have said to you both in the Select Committee
and in the House itself, I am very glad that the Home Affairs
Select Committee has undertaken an investigation into the way
the Immigration and Nationality Directorate (IND) operates and
that you have decided to widen the scope of the enquiry to include
some consideration of the position of Foreign National Prisoners.
I look forward to your Report and its conclusions.
I know that your Committee has already taken
oral evidence from the current Home Secretary, from the former
Permanent Secretary, Sir John Gieve, and from senior Home Office
officials. I would like to contribute one or two further points
on these matters, and you will appreciate that they are without
benefit of official advice and based upon my own recollection
of events.
First of all, it is important to note that there
are two separate issues here. These are:
(a) The number of Foreign National Prisoners
currently held within the prison system and how best to deal with
them; and
(b) The fact that a number of Foreign National
Prisoners were released from prison at the end of their term but
not considered for deportation as they should have been.
These two issues were continually confused throughout
the "Foreign National Prisoner crisis" and I would like
to deal with them separately in this submission.
1. How best to deal with the problem of Foreign
National Prisoners (FNPs) held within the prison system
1.1 This problem arose largely as a consequence
of the increase in asylum-seekers coming to the UK in the late
1990s. As a result, the number of FNPs increased faster than the
prison population as a whole until it reached about 13% of the
overall prison population or around 10,000 individual prisoners.
1.2 So, for example, in the year 2000, 5,587
Foreign National Prisoners were being held and by 2005 this figure
had reached approximately 9,650.
1.3 The increase in the number of Foreign
National Prisoners represented an obvious pressure point on the
capacity of the prison system as well as raising obvious questions
about the reason why they were held in this country, rather than
deported to their country of origin. From 2000 to 2004 these issues
were identified by various pressure groups and by the both the
former and the current Chief Inspectors of Prisons in their Annual
Reports. For example, in December 2002, the current Chief Inspector,
Anne Owers, highlighted a lack of procedures in place to address
the particular concerns of foreign national prisoners and to ensure
they were returned home immediately, after the completion of their
sentence.
1.4 Between 2002 and 2004 various managerial
and other solutions were suggested and tried including the appointment
of Foreign National Prisoner Co-ordinators in some prisons. Largely
because the problem fell across a key Home Office fault-line,
the relationship between prisons and IND, these initiatives were
less effective than was needed.
1.5 I was appointed as Home Secretary in
December 2004 and from the outset I was aware of the issue of
Foreign National Prisoners though I have to say this was only
one of many pressing issues and concerns within the prison and
probation system. However the scale and substance of the problem
only became really clear to me after my Prison Reform Trust speech
in September 2005. At this point I immediately asked officials
for an urgent Action Plan covering proposals (short-term, medium-term,
long term) for reducing the Foreign National Prisoner population.
It will be minuted that I emphasised the importance
of urgent and wide-ranging work on the subject and agreed a series
of measures which led to a number of changes including:
— the allocation of increased resources
to this area;
— the seeking of more effective international
agreements including a new European Union Directive; and
— the development of better working
relations between the Prison estate and IND.
You may recall that I referred to some of these
measures in passing in my evidence to the Home Affairs Select
Committee on 25th October 2005.
1.6 I reported my concern about the broad
issue of Foreign National Prisoners within the prison system to
the Prime Minister on 16 November 2005 at a meeting on the work
in hand on managing the prison population. As I am sure the record
of that meeting would show, I explained to him that I was urgently
exploring options for reducing the number of foreign nationals
in prisons and said that I would come back to this when firm proposals
had been developed based on the intensive work being done by the
National Offender Management Service (NOMS) and IND. I was not
at that stage aware of the fact that FNPs were being released
without being properly considered for deportation and so I did
not discuss this matter with the Prime Minister.
2. The fact that a number of Foreign National
Prisoners were released from prison at the end of their term but
not considered for deportation as they should have been
2.1 It is first worth recounting some of
the background to this issue.
2.2 At the end of their prison sentences,
all foreign nationals should be considered for deportation within
the existing legal framework. In some cases, after consideration,
they are given leave to remain. In other cases a deportation order
is issued and the subject can be detained pending deportation.
Many of these cases, however, are subject to legal appeals and
lengthy court action and as a result of recent court rulings,
it is currently deemed unlawful for deportees to be detained if
the UK government knows they cannot be returned to their
country of origin. It has also been the case that it has sometimes
been very difficult to establish the correct nationality of some
foreign nationals because documentation has been destroyed or
for other reasons.
2.3 In the period until 1988, the standard
practice was to defer consideration of deportation, where someone
was in prison, until near their release date. This was deliberate
in order to take full account of their circumstances at the time
of release. In practice, however, this meant that prisoners were
detained increasingly beyond the end of their sentences, under
immigration powers. The practice was therefore changed to one
where the decision to deport was to be taken as early as possible,
with a review of that decision closer to the release date.
2.4 Then, in 2001, the Immigration Appeal
Tribunal allowed an appeal by Chindamo, who was convicted
of the murder of the headmaster, Philip Lawrence. Chindamo
appealed against the decision to deport him on the grounds that
it had been taken only two and a half years into a life sentence
and, as a result, was "premature". After this, the decision
was taken that deportation should not be considered until towards
the end of a prison term.
2.5 The combination of rising numbers of
foreign nationals and the compressed time scale resulting from
the Chindamo ruling has had inevitable consequences on
the overall administrative and organisational process. With hindsight
it is now clear that improved communication between prisons and
IND (referred to in Para 1.5 above) was also producing more referrals
than anticipated and that previous increases in staffing were
not sufficient to cope. In addition, the new Head of IND had recently
taken up her post (August 2005) and other measures were being
instituted which rightly identified higher numbers of Foreign
National Prisoners than previously thought within the prison estate.
2.6 Officials are clear that although the
general issue of increased numbers and staff overload was logged
with Ministers, Ministers were not told that some Foreign National
Prisoners were being released without being considered for deportation,
nor was the real seriousness of the situation appreciated even
by senior officials. I understand that Sir John Gieve confirmed
these facts to the Home Affairs Select Committee when he gave
his evidence.
2.7 At this stage it is also worth stressing
that, while of serious concern, the Foreign National Prisoners
who were released without being considered for deportation had
all completed their prison sentences. In effect, they were being
treated in exactly the same way as UK nationals who are released
on completion of a prison term. Some were released on licence,
some were moved to bail hostels and so on. For reasons set out
above (paragraph 2.2), it is also likely that many would have
been considered for deportation and then allowed leave to remain
in the UK.
2.8 Let me now turn to recent events.
2.9 On 26 October 2005, Home Office officials
gave evidence to the Public Accounts Committee (PAC) on removing
failed asylum seekers. Most of the session was devoted to exchanges
over the difficulties of removing unsuccessful asylum seekers
and the prospects of hitting the "tipping point" target.
However, Richard Bacon MP asked about the number of failed applicants
who have been released from prison because their removal could
not be arranged. Officials said that the number was thought to
be around 500. Following further exchanges, Mr Bacon asked for
a note on the number of criminals who are failed asylum seekers
and are then released from prison; how many there are, where they
are, what types of crimes they had committed, what sentences they
were given and how long they had served.
2.10 The then Permanent Secretary, Sir John
Gieve, promised a note with the information the Department had
and his response was submitted to the PAC on 14 November 2005.
In this submission he suggested that from 2001 to August 2005,
the Home Office knew of 403 foreign nationals who were released
from prison without deportation proceedings being completed. The
note did not include a breakdown of the offences for which these
prisoners had been convicted but IND believed that foreign national
prisoners released in these circumstances would not have included
those convicted of serious offences.
2.11 Sir John Gieve left the Home Office
in December 2005 and, as noted in Para 2.6 above, gave his own
personal evidence to the Home Affairs Select Committee in May
this year. In it he stated that he was unaware of the scale of
the problem and did not consider it to be a debacle. He also said
that although he was aware of discussions about the general policy
issues concerning Foreign National Prisoners, he did not bring
this specific problem (or the exchanges last Autumn with
the Public Accounts Committee) to the attention of Ministers.
2.12 In fact, as the Home Secretary, John
Reid, made clear in evidence to the Committee, Ministers were
not made aware of this specific problem until 17 March
2006 when the then Minister of State was told that there was "a
problem of uncertain magnitude". On 31 March a submission
to myself and other Ministers set out the situation and its scale
in more detail. The House had risen for the Easter Recess on Thursday
30 March and the following week I made a Ministerial Visit to
Albania, Romania and Bulgaria addressing issues of organised crime,
including people-trafficking, in the region and their impact on
the UK, as well as issues of accession to the European Union.
2.13 I read the 31 March submission on the
plane returning from Bulgaria and at that point, I had two main
concerns:
— First, to ensure that previously
misleading evidence to the Public Accounts Committee was corrected
at the first opportunity after the Parliamentary Easter Recess;
and
— Second, that urgent steps were taken
to pursue those FNPs who had not previously been considered for
deportation.
2.14 Looking back, I am sure that it would
have been better if the operational process to pursue these FNPs
had been commenced earlier—at least upon receipt of the
31 March submission. Given the history of this matter, however,
I felt at the time it was important to make sure that the information
was as accurate as possible before it was reported to the House,
and then to the public and the media. Officials were therefore
asked to check the material and ensure its accuracy as best they
could before the House returned from the Easter Recess on Tuesday
18 April 2006.
2.15 On 21 April, I informed the Prime Minister
of the full position and on Monday 24 April I phoned Edward Leigh
MP, the Chairman of the Public Accounts Committee to let him know
the position and that I was making a Written Statement to Parliament
setting out the full facts on the following day, Tuesday 25 April.
I wrote in parallel to the Public Accounts Committee. I subsequently
made an Oral Statement to the House on Wednesday 26 April.
2.16 Meanwhile, a central control room was
established to identify, track and arrest FNPs who had not been
considered for deportation and should have been. I would like
to thank those officers and officials of different services who
worked tirelessly at the demanding tasks of cleansing the data,
identifying individuals and bringing them under control in what
were very difficult circumstances.
I hope that the above account of the way in
which I sought to deal with these two separate issues is of assistance
to your Committee.
Some of the allegations, particularly in the
media, which appeared as matters unfolded arose from confusion
between the two issues. I was probably responsible, at least in
part, for some of this confusion because I was mindful of my duties
as Home Secretary and thought that it was important and proper
that I should take overall responsibility.
However the suggestion that from July 2005 I
had personally known about the failure to consider deportation
and done nothing about it was wrong. As others have already made
clear to the Committee, it was only in late March 2006 that ministers,
including myself, were made aware of the failure to consider for
deportation some foreign national prisoners at the end of their
sentence, and when we were aware of this action was then taken.
Because of the substantial coverage of these
issues at the time, I am releasing this letter to the media.
I look forward to the Committee's report.
26 June 2006
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