17. Memorandum submitted by the Immigration
and Nationality Directorate (IND), Home Office
INTRODUCTION
IND, the Department for Constitutional Affairs
(DCA) and UKvisas welcome this inquiry into the policy and practice
of immigration control. The Government's aim is that "migration
is managed to benefit the UK while preventing abuse of the immigration
laws and asylum system". (Home Office Strategic Plan 2004-08).
More details of the strategic direction for IND and UKvisas was
set out in "Controlling our borders: making migration
work for Britain", the five year plan for asylum and
immigration, which was published on 7 February 2005. The Asylum
and Immigration High Level Delivery Plan 2005-06 to 2008-09, which
covers IND, DCA and UKvisas, is attached [not printed].
Information as particularly requested for the informal session
with officials on 6 December follows. It will be supplemented
by further material to address all issues identified to be covered
in the inquiry and in the light of the points raised on 6 December.
1. GENERAL
What is the immigration control?
2. Under the Immigration Act 1971 the Secretary
of State can regulate the entry to and stay in the UK of foreign
nationals through Immigration Rules. The Rules are made under
section 3(2) of the Act and are the statement of practice as laid
before Parliament to regulate the entry to and stay of people,
subject to immigration control, in the UK. They cover visits,
study, work, family reunion, asylum, appeal rights, and removal
and deportation. The Rules were last consolidated in May 1994
(HC 395) and have undergone 41 changes since then. There are many
and various routes by which a non-EEA national can come to the
UKcurrently more than 85 different routes of entry (excluding
family provisions for spouses, common law and civil partners,
and other dependants etc). Most are provided within the Rules
however there are also a number of immigration policy concessions
(about 27%) which include both published concessions and unpublished
concessionary arrangements.
3. The Rules set out the requirements which
have to be satisfied in order to be granted leave to enter or
remain; and also the conditions which are to be attached to the
leave, such as whether or not the migrant may work and that they
should maintain and accommodate themselves without recourse to
public funds; and whether or not they need to register with the
police. The Rules are administered by Entry Clearance Officers
abroad; immigration officers at ports of entry; and IND caseworkers
in the UK.
4. Under separate statutory provisions it
is an offence eg to enter or stay in the UK without leave; to
work in breach of conditions; to facilitate immigration offences.
Such offences may be investigated by the police or by immigration
officers. Annex A summarises immigration offences and immigration
officer powers. Additionally, the Secretary of State can refuse
leave to enter or remain, or exclude or deport from the UK, anyone
whose presence here would not be conducive to the public good.
Policy on the exercise of these powers was clarified following
a consultation in the summer 2005.
How is the immigration control exercised?
5. The immigration control is exercised
pre-entry, on-entry and after-entry. We need to ensure that the
Immigration Rules are framed to allow into the country those migrants
who bring benefits to the UK, or who have a humanitarian case
for being here, at the same time as avoiding loopholes and scope
for abuse. We need also to ensure that the Rules are administered
consistently, effectively and fairly. Increasingly our emphasis
is on exporting our borders; ensuring that the control is exercised
before people reach ports of entry. Better use of intelligence
and technology supports a risk-based, targeted approach. Genuine
travellers and migrants should be provided with an excellent service
but abuse of the system should be tackled rigorously.
6. The Race Relations (Amendment) Act 2000
outlawed racial discrimination by public authorities, including
the police and immigration authorities. It was therefore a major
step forward in the fight against discrimination. There is a limited
exemption for immigration functions. Operating immigration controls
inevitably involves differential treatment on the basis of nationality
and, less frequently, ethnic or national origin. For example:
visa regimes on certain countries; free movement rights for European
Union citizens; and immigration rules giving preferential treatment
to Commonwealth citizens.
7. Section 19D of the Race Relations Act
1976, as inserted by the Race Relations (Amendment) Act 2000,
provides that discrimination on the basis of nationality of national
or ethnic origin is not unlawful if it is required by immigration
legislation, or if it is expressly authorised by Ministers, who
are accountable to Parliament. Section 19D is limited in its scope.
It is needed because of the tough nature of the Race Relations
(Amendment) Act. It is not a blank cheque to discriminate. Each
case is considered on its merits, and it allows IND to focus its
resources in a logical way, and to operate an intelligence-led
immigration control. There is a statutory Race Monitor, who reports
to Parliament on the operation of these authorisations. So there
are safeguards on the operation of this limited power.
8. Existing authorisations allow the Immigration
Service to prioritise arriving passengers for examination on the
basis of nationality and prioritise asylum claims for consideration
on the same basis.
9. The Home Office is subject to the general
duty to promote good race relations. The duty to promote has three
features:
A general duty on all specified public
authorities to have due regard to the need to eliminate unlawful
racial discrimination and promote good relations between persons
of different racial groups (an additional requirement to promote
equality of opportunity does not apply to immigration and nationality
functions).
Specific duties imposed by the Race
Relations Act 1976 (Statutory Duties) Order 2001 on public authorities
subject to the general duty to promote to ensure their better
performance under the general duty, including the publication
of a Race Equality Scheme.
Commission for Racial Equality Codes
of Practice to provide guidance to public authorities on how to
fulfil their general and specific duties.
10. The IND Associate Race Equality Scheme,
first published in May 2002 and revised in May 2005 in compliance
with the Race Relations Act 1976 (Statutory Duties) Order 2001,
sets out (together with the Overarching Home Office Race Equality
Scheme) how IND will discharge its general duties under the Race
Relations Act. As policy makers and service providers, IND is
required to ensure that representatives of ethnic minority communities
are consulted, that account is taken of the potential impact of
policies on ethnic minorities, that the actual impact of policies
and services is monitored and remedial action taken where necessary
to address any unexpected or unwarranted disparities.
Pre-entry control
11. Entry Clearance Officers (ECOs) overseas
are legally empowered to make decisions on applications through
application of the Immigration Rules. A visa (or entry clearance
required by non-visa nationals) confers right of entry to the
UK. A list of countries subject to visa requirements is attached.
(Annex B). From November 2005 all non-visa nationals coming for
more than six months need entry clearance for the purpose for
which they are coming.
12. The Immigration Rules include criteria
which can be measured objectively eg adequate funds, evidence
of marriage or of certain qualifications, and others involving
judgements on an applicant's intentions eg to study or to leave
the UK after a visit. The standard of proof is the balance of
probabilities. Making judgements on intentions on the balance
of probabilities is hard, requiring the ECO to set the credibility
of an applicant's stated position against their whole circumstances,
and involving a degree of subjectivity. The new points based system
(see para 85) will introduce more objective criteria, although
it will retain the ability to test the credibility of applicants.
13. Many applications are straightforward
and ECOs are able to identify them clearly as qualifying or not.
Many are regular travellers. Subject to risk assessment and certain
security checks, most such applications are decided on the papers
and applicants are not seen in person. Applicants are usually
interviewed only where a decision cannot be made on the papers.
The selective use of interviewing and other measures to streamline
the visa operation, including applications on line and outsourcing
some non-decision-making parts of the application process helps
ECOs to focus on high-risk applications, maintaining a tight control,
and to meet the target (unmatched by our competitors) of processing
90% of straightforward non-settlement applications within 24 hours.
14. Refusal rates are rising: 10% in 2001-02;
12.9% in 2002-03; 15.2% in 2003-04; 19% in 2004-05. We believe
this reflects the control we need to deliver, to counter increasing
abuse within rising numbers of applications, including from people
posing as genuine travellers who then claim asylum after entry
in the UK, from organised crime and people smugglers, and from
aspiring migrants who are otherwise unable to qualify for entry.
15. We also issue more visas then ever before:
two million customers (81% of all applicants) got the visa they
wanted in 2004-05.
e-Borders
16. e-Borders is a cross-cutting initiative,
co-ordinated by the Home Office Immigration & Nationality
Directorate in partnership with the key border control, law enforcement
and intelligence agencies: Police Service, Intelligence Agencies,
HM Revenue and Customs and UKvisas. These agencies are working
together to create a fully co-ordinated border control system
fit for the 21st century.
17. e-Borders is a long term programme that
involves a family of projects. The aim of the programme and its
projects is to address existing and future challenges that face
border control agencies:
The predicted increase in arrivals
to the UK.
Increased pressure on the Primary
Arrivals Control.
The need to secure the land, sea
and air borders.
The need to facilitate the arrival
of legitimate passengers.
The threat from organised crime and
terrorism.
18. e-Borders will transform UK border control
through the use of an advance passenger information processing
system and will adopt a proactive intelligence led approach in
response to challenges.
19. e-Borders will support higher national
security whilst providing the ability to speed up the immigration
control process for the increasing number of legitimate passengers
travelling into the United Kingdom. The Immigration Service recognises
that this flexibility will be much valued by the travel and tourism
industry.
20. e-Borders seeks to achieve the following:
A service for data collection and
analysis will be established. This will collect data from the
travel industry (air, sea and rail carriers) on all passengers
intending to travel to or from the UK.
The risks presented by passengers
entering and leaving the United Kingdom will be assessed.
e-Borders will seek to export the
UK border by establishing an Authority to Carry (ATC) scheme.
This will allow the UK Government to grant or refuse a carrier
the authority to carry individual passengers to the UK.
e-Borders will identify persons of
interest to the authorities prior to their arrival in the UK on
an inbound journey and prior to their departure from the UK on
an outbound journey. This information will be passed as "alerts"
to the relevant border control agency, which will determine the
appropriate intervention.
e-Borders will support the movement
of passengers to, from and through the controls, expediting the
clearance of legitimate travellers and the interception of others.
Project Semaphore
21. Project Semaphore is a £15 million
pilot scheme that will be used to test elements of e-Borders.
The lessons learned during Project Semaphore will inform the design
of e-Borders and will de-risk the programme.
22. Project Semaphore will:
Capture inbound and some outbound
passenger information on selected routes.
Provide a risk-based assessment of
those passengers.
Provide a joined-up border protection
capability and new opportunities for the legal sharing of information
and intelligence.
23. A Joint Border Operation Centre (JBOC)
has been established which operates 24 hours a day seven days
a week and is staffed by representatives from the key partner
agencies. The JBOC analyses collected data and disseminates information
and alerts to border control agencies at ports.
On entry
24. There are 43 ports of entry staffed
by immigration officers. The main purpose of Border Control is
to control immigration into the UK at ports of entry. We do this
by:
Identifying and denying admission
to those seeking to enter in breach of the Immigration Rules.
Using preventative measures, including
intelligence, to disrupt the efforts of those who seek to evade
the Immigration Control.
Removing those in breach of Immigration
Rules.
Target for prosecution those who
seek to profit from abuse of the law.
Minimising the distribution to legitimate
travellers.
25. In 2004 there were over 97 million international
arrivals in the UK, a 7% increase over 2003, of whom 12 million
were non-EEA passengers, a 1% fall on 2003. Passengers refused
entry at port and subsequently removed from the UK decreased from
37,825 in 2003 to 31,545 in 2004.
26. As part of the strategy to export our
borders, UK immigration controls, known as juxtaposed controls,
already operate in France at Calais, Boulogne and Dunkerque ferry
ports, the Eurotunnel terminal at Coquelles and the Eurostar stations
of Brussels, Paris, Lille and Calais Frethun. Deployment of new
detection technology (NDT) in Calais, Coquelles, Ostend, Zeebrugge
and Vlissingen has been effected to deter and detect clandestine
entry, ie those concealed in vehicles. The Airline Liaison Officer
(ALO) Network, comprising of chief immigration officers operating
at key locations across the world are specially selected and trained
to offer advice, training and expertise to airlines aim to prevent
and disrupt the carriage of inadequately documented arrivals (IDAs)
to the United Kingdom.
After-entry
27. The immigration control is exercised
after entry in respect of those who wish to vary their leave to
enter or remain in the UK, or to seek indefinite leave to remain
(settlement). There was a 21% decrease in the number of after-entry
decisions in 2004. The number of decisions on applications to
vary conditions of leave fell from 485,860 in 2003 to 384,890
in 2004 (including settlement but excluding asylum cases and dependants
of principal applicants). Main categories showing the largest
decreases were: students (18%); settlement (33%); work permit
holders (24%) and business (32%). Of the total number of decisions
in 2004, 75% were grants of an extension, 17% were grants of settlement,
and 8% were refusals. Student cases were the largest group, accounting
for 41% of the total number of decisions.
28. Managed Migration caseworkers have to
assess applications against the criteria in the Immigration Rules.
Steps have been taken to improve the robustness of the after-entry
control as part of the Managed Migration review (also picked up
in para 75 below). We have made good progress in reducing abuse
of the student, marriage and employment routes. Work on validating
colleges, to support the Education and Training Providers register
has reduced fraudulent student applications. Certificates of approval
for marriage, and closer working between IND and the registrars
has substantially reduced false marriages for immigration purposes.
Reports from registrars of suspicious marriages have dropped from
3,740 in 2004 to less than 200 since February 2005. More applicants
for leave on the basis of marriage are being interviewed to test
the genuineness of their claim. The Immigration Rules have been
tightened to restrict in-country switching into work permit employment;
and we have increased compliance and validation activity. Intelligence
units have been set up specifically to support Managed Migration
work, and they are to be expanded to undertake forgery checking.
There is continuous monitoring of the trends in managed migration
routes to assess the impact of changes to the system. The overall
refusal rate rose from 6.8% to 8.4% between 2003 and 2004.
29. When refused, an applicant must leave
the country unless they exercise a right of appeal. In 2004, 8,870
non-asylum appeals were determined. 2,575 were allowed, 6,060
were dismissed and 235 were withdrawn.
30. A migrant who has been refused and whose
appeal has been dismissed must leave the country. If not, enforcement
action can be taken against them. They must also comply with the
conditions attached to their leave. In 2004, a total of 50,780
people had enforcement action initiated against them. Of these,
72% had illegal entry initiated against them, 25% had administrative
removal initiated against them and 3% were served with deportation
orders. Principal asylum applicants accounted for 29,320 (58%)
of people against whom enforcement action was initiated, and dependants
of asylum seekers made up a further 5,330 (10%) of cases. The
remaining 16,130 (32%) enforcement notices were served against
people who had not claimed asylum.
31. The role of IND Intelligence Service
(INDIS) is to tackle abuse of the asylum and immigration systems.
Its overall aim is to identify, prioritise and monitor threats
to the immigration control, and to facilitate targeted action
to counter abuse through the development and timely use of intelligence.
It is involved across a broad range of activities, driving change
enabling IND to become fully compliant with the National Intelligence
Model (NIM), and developing joint working initiatives across law
enforcement to tackle organised immigration crime. To support
this process, INDIS provides regular, timely and targeted intelligence
and strategic assessments to senior managers across IND.
32. The National Document Fraud Unit is
also part of INDIS. It has an international reputation as a centre
of excellence in document examination and countering document
abuse. It plays a vital role not only within IND, but more widely
across UK law enforcement, with EU partners and beyond.
Functions and structure of IND and its agencies,
including physical division between Croydon, Sheffield and Liverpool
33. The IND organisation chart is attached
[not printed]. Managed Migration was created as a separate
directorate in 2003 and handles over one million applications
per year for work permits; extensions to stay (eg for work or
to study); settlement and nationality. Many of our services are
charged for and last year generated £170 million in income.
34. Managed Migration is based in Croydon
(1,100 staff), Sheffield (1,200 staff) and Liverpool (500 staff).
In line with Lyons recommendations we are moving work north, while
avoiding redundancies or transfer costs. This started with the
set up of caseworking units in Sheffield in 2003, where we grew
from 250 staff to our current numbers. We are currently transferring
150 staff from asylum casework in Liverpool and plan to recruit
a further 300 over the next few months to replace churn in Croydon,
cope with current staffing shortages and handle new requirements.
35. Managed Migration has an extensive change
programme, which has been communicated to and discussed with staff
at all levels, both in its design and its implementation. We aim
to get the best possible balance between effective immigration
control, delivering good customer service and achieving value
for money. We can only achieve this if we develop our talent and
if we do all of this we will build our reputation as a highly
regarded public service organisation.
Functions and structure of UKvisas
36. UKvisas is a joint FCO and Home Office
department answerable to both the Foreign and Home Secretaries.
It reports quarterly to a Joint Ministerial Committee, comprising
the Home Office Minister for Immigration and the FCO Minister
for Entry Clearance. Visas and other entry clearance applications
are processed by ECOs in over 160 overseas posts. The visa operation
is largely self-funding through the visa fee. UKvisas has over
2000 staff of whom around 180 work in London and the remainder
overseas: 864 overseas staff are UK based, and the remainder are
locally engaged nationals, usually of the host country. UKvisas'
core aims are:
(a) to be the overseas arm of an integrated
border control delivering the five year plan/PSA targets;
(b) to balance effective control/good service
delivery;
(c) to support the fight against organised
crime and terrorism; and
(d) to modernise its operation further.
37. UKvisas' headquarters is being restructured
to focus on its key challenges: Change Design and Management,
Entry Clearance Quality, IT Strategy, Biometrics, Resources and
Stakeholder Engagement. Six Directors of Visa Services (DVSs)
based overseas (in Islamabad, Beijing, New Delhi, Lagos, New York,
Istanbul) are responsible for delivering the operation in a particular
region. Operations in posts are run by Entry Clearance Managers,
reporting to DVSs. A new network of Regional Operations Managers
(ROMs) will help DVSs deliver consistent performance across their
regions.
Relationship between IND and UKvisas, both in
ensuring consistency and sharing information
38. UKvisas is fully integrated into IND
decision-making structures from the Ministerial Strategy Board
downwards, including the Senior Executive Group (SEG) and Tasking
and Co-ordination Groups. It is fully engaged in IND policy development
at all levels.
39. Working with IND Intelligence Service,
UKvisas has set up risk assessment units to support intelligence-led
decision-making and works closely with IND on after-entry control
issues, identifying risk of abuse from specific nationalities
across the control. There are some random checks on visa applicants'
returns. We are piloting a scheme with the education sector on
identifying student no-shows.
40. UKvisas is a partner in e-Borders and
has seconded staff to Project Semaphore. Through Project Semaphore,
UKvisas will be able to capture movement data on visa holders
and use this to provide feedback to posts overseas on compliance
with visa conditions.
41. Guidance to ECOs and to IND caseworkers
is co-ordinated and signed off at senior management level. There
is an IND Guidance Project in which UKvisas participates.
Relationship with other Government departments,
local authorities, police, including ensuring consistency between
immigration policy and wider Government initiatives on poverty,
development, social cohesion and equality
42. IND has developed relationships with
relevant Departments across Whitehall; with local authorities;
the police and other agencies to ensure consistency between immigration
policy and wider Government initiatives.
IND is working closely with other
Departments to develop a managed migration system which will meet
the UK's needs.
IND is working with HM Revenue and
Customs, DTI, the Health and Safety Executive, DWP and others
in a Joint Workplace Enforcement Team to address employers who
fail to meet their legal responsibilities such as by employing
illegal migrant workers.
IND works closely with DfES and the
education sector in the Joint Education taskforce, which is looking
at how the UK can increase education exports while maintaining
a robust and self-financing immigration control.
IND also works closely with DfES
on the training for ESOL teachers on new citizenship requirements.
The report of a pilot completed in March 2005 shows the ESOL teachers
were extremely satisfied or satisfied with the training they received.
IND Social Policy Unit and The National Institute of Adult Continuing
Education agreed a further 900 teachers can be trained. Expenditure
on ESOL courses is met by DfES through the Learning and Skills
Council.
IND works closely with ODPM on Neighbourhood
Renewal issues and the two departments have appointed a joint
secondee to act as a link on asylum and refugee issues.
The Gateway Protection Programme
aims to bring up to 500 refugees in great need of protection into
participating local authorities, from refugee camps around the
world. The refugees are referred to Home Office by the UN High
Commission for Refugees, selected by Home Office and flown to
the receiving local authorities. Participating local authorities
are funded full costs for the first year by Home Office. So far,
120 refugees have been resettled in Sheffield, 81 in Bolton and
23 in Bury. Bolton are due to accept 64 more refugees in January.
Hull and Rochdale will also resettle caseloads in the next few
months. The Home Office is looking to increase the numbers of
refugees accepted, by encouraging more local authorities to participate.
Four Sunrise (Strategic Upgrade of
National Refugee Integration Services) pilot projects, launched
October 2005, aim to help 1,200 refugees over 27 months by providing
new refugees with support from an allocated caseworker, who will
help manage their transition from asylum seeker to refugee and
help their early integration into life in the UK. The projects
will aim to assist with the smooth integration of refugees, breaking
down barriers between communities and promoting refugees within
the host community. It seeks to derive benefits including employability
of refugees to achieve their potential and contribute to the economy
and community; to reduce pressure on public services particularly
statutory homelessness provisions; to provide a balanced outcome
of applicants processed through the New Asylum Model; and to contribute
towards community cohesion.
The Time Together Project, run by
the national charity TimeBank, will pair volunteer mentors with
refugees, for five hours a month, to help them achieve their goals
in education and employment and to integrate with the communities
in which they live. They aim to assist 2,550 refugees across the
lifetime of the projects. Time Together will run for three years
and over the project's lifetime 24 separate schemes will be established
in cities across the country (The Time Together Project and Sunrise
Pilots are key aspects of Integration Matters, the national refugee
integration strategy launched in March 2005 (Add Source: HO Press
Release 144/05, 3 October 2005))
43. The High Level Delivery Plan sets out
a stakeholder engagement strategy. Amongst others UKvisas runs
a user panel for key stakeholders. A list of organisations and
the minutes of previous meetings are available on the user panel
homepage, which can be found at www.ukvisas.gov.uk.
44. IND and UKvisas are committed to further
developing active engagement with MPs. Key initiatives focus on
MPs, their constituency staff and the constituency audience. We
held an open forum for MPs at the House on 22 November, and are
currently running regional training sessions for MPs' constituency
staff. Since 2003 we have also organised 17 constituency roadshows
to which MPs have invited constituents, organisations and groups
with an interest in visas.
45. We also have regular and wide-ranging
contacts with faith groups and with the voluntary and community
sector, including on both policy and service delivery issues.
Eg we work closely with the Ahmadiyya community each year on visa
arrangements for their annual convention, and we were able to
support the successful World Youth Congress in Scotland in July
2005.
2. QUALITY OF
INITIAL DECISIONS
46. We recognise that there are decision
quality issues to address. The aim is more consistency across
the diverse overseas network and between UKvisas and Managed Migration.
We have embarked on work to address these issues. A key component
of UKvisas headquarters' restructuring has been the combination
of existing policy, operational and control strengthening teams
into a single entry clearance quality team, where decision quality
plays the central role.
47. UKvisas draws its staff from both parent
departments, selecting on the basis of a competence based system
requiring applicants to provide evidence that they are able to
meet the requirements of the job. There is a comprehensive structure
of support for ECO decision making:
Training
FCO ECOs with no previous entry clearance
are given three weeks initial training followed by mentoring.
Immigration Officers (IOs), who have already been applying the
Immigration Rules at ports of entry, undertake an ECO conversion
course. The larger visa issuing Posts include mentoring and other
support for new ECOs and in-house training programmes.
We have recently enhanced training
on decision making for ECOs and expanded Entry Clearance Manager
(ECM) induction training, with a greater emphasis on management,
including quality control and assurance.
ECOs are line managed by ECMs who
set and monitor objectives and are responsible for operational
performance and quality control. They sample daily a percentage
of all visa issues; they review non-appealable visa refusals within
24 hours; and all appealable refusals following receipt of an
appeal. ECMs are available to discuss on-balance decisions with
ECOs before a final decision is made.
To provide further support for Directors
of Visa Services and their ECMs, we are putting in place a network
of overseas Regional Operations Managers. They will play a key
role in delivering decision quality and consistency to medium
and smaller posts. Their remit will include the dissemination
of Best Practice in specific regions, the delivery of local and
regional training, and the promotion of good management practice.
We will also provide more resources
to give more time for decisions to be reviewed and quality-controlled
by ECMs. The 2005 visa fee increase will resource extra staff
to improve the quality of decision-making. We estimate each large
post will need at least one extra ECM, to deliver an improved
range of decision quality tools.
Risk Assessment
This is part of UKvisas core business
and crucial to a strong control. Working with IND's Intelligence
Service, we are staffing high risk and high volume overseas Posts
with Risk Assessment Units (RAUs) to enhance our risk management
capability, leading to better quality decision-making. Risk Assessment
Officers (RAOs) pass risk-assessed information on applications
to ECOs. They identify applications that present a potentially
higher risk and subject these to extra checks. RAUs also examine
decision making processes to ensure that these are as effective
as possible. New resources to help detect forgery are being provided.
UKvisas is also enhancing its databases. The Central Reference
System provides information on all applications and is available
to Home Office staff and e-Borders.
We are expanding our risk assessment
unit network. Our PSA target is that by 2005-06, 60% of applications
will be dealt with in posts which have RAUs or Visa Assessment
Teams (smaller-scale RAUs), by 2006-07, 70%, and by 2007-08, 75%.
Best practice reviews
We carry out a programme of Operational
Reviews, which include an assessment of the quality of decision
making of a sample of visa applications. Assessments are carried
out by looking at previously resolved applications and by observation
and discussions with ECOs during the decision making process.
The Independent Monitor (IM)
The Independent Monitor for decisions
not attracting the right of appeal is government funded but wholly
independent. She analyses a sample of non-appealable decisions
from Posts and makes an annual report to Parliament with recommendations
on improving decision quality. UKvisas welcome her annual reports
as a useful tool for improving quality, although not all the recommendations
are endorsed by Ministers. In line with our work on improving
decision-making quality, we are changing significantly the IM's
role. The IM will make regular reports to Parliament closer to
real time, rather than (as at present) through a long annual report,
enabling us to be able to respond more quickly to issues identified
in these reports.
Recruitment, training, assessment, supervision
and accountability of entry clearance officers and caseworkers
48. The Memorandum of Understanding (MoU)
which established UKvisas states that staff must be selected in
line with the procedures of their parent department. It also states
that UKvisas staff should be provided by each department on a
50/50 basis. Staff from both departments are selected using a
competence based system, which requires applicants to provide
evidence that they are able to meet the requirements of the job
as specified by UKvisas. HO staff are selected by means of an
interview, while FCO staff are selected on the basis of paper
applications. UKvisas plays an active part in both selection procedures.
49. IND took the decision recently to reinstate
qualifications requirements for its staff because of feedback
that recent campaigns had not delivered candidates with sufficient
drafting skills and ability to consider complex policy and immigration
rules. It was therefore decided that we should use qualifications
and test these specific competencies at interview. This is in
line with advice from the Commissioners. Human Resources Directorate
(HR) involved operational directorates in the selection process
so that we could match their requirements as closely as possible.
Accessibility and helpfulness of entry clearance
officers and caseworkers, especially by telephone, for both applicants
and advisers
50. Visa Correspondence Section of UKvisas
handles calls and letters from MPs and advisors within the UK,
and general enquiries from potential applicants globally. Data
Protection legislation prevents the Section from discussing details
of specific applications over the telephone and callers are asked
to write to in with enquiries. Between January and October 2005,
the Section received 18,302 letters. Applicants abroad are referred
to the relevant post. There are deadlines for responding to correspondence
(10 working days to reply to the Minister; 15 to reply direct
to Members and 20 days to all others). In addition, a public caller
section answers telephone enquiries and, over the last three months,
5,691 calls have been received.
51. UKvisas website, www.ukvisas.gov.uk
is the primary gateway for information about the visa application
process, receiving around 500,000 visits per month. UKvisas recently
won the e-Government National ICT ("Information Communications
Technologies") Innovator 2005 award for its website at the
National DTI e-Commerce Awards ceremony. Overseas posts also have
local-language web pages. UKvisas also publishes a series of information
booklets.
52. All overseas posts handle enquiries,
either through the visa section or outsourcing partners. Physical
accessibility to a visa post depends largely on the security situation.
Posts also provide information leaflets, information letters updated
to reflect procedural changes and notices in visa offices. Posts
monitor outsource partners' staff enquiry training programmes.
Any enquiries that the outsource partner cannot handle are referred
to the post's telephone advice section.
53. We are determined to improve the experience
our customers receive in transacting with Managed Migration. A
Customer Service Director was appointed from the banking sector
at the beginning of the year to lead this work.
54. Since the implementation of charging
in Managed Migration, service standards have improved in all areas.
For general applications we are turning round 63% applications
in less than four weeks. 74 % of work permits are cleared in one
week and 55% of nationality applications are cleared in less than
three months. These are a step change in previous performance
but many still need to improve substantially.
55. In most areas, work is up to date, with
no backlogs. The main exceptions are in Nationality; European
Community Association Agreements (ECAA) work and Exceptional Leave
to Remain (ELR) to Indefinite Leave to Remain (ILR)these
cases are asylum applicants who were given exceptional leave to
remain during late 1990s and early 2000s, and can now apply for
indefinite leave to remain.
56. Nationality received a large surge in
applications in advance of the Life in the UK tests (required
from 1st November). We anticipate a subsequent large drop in applications
and are currently assessing the size of this backlog and time
it will take to clear. ECAA work was suspended for a number of
months in 2004 while we confirmed the policies. We aim to clear
this work by the end of 2006. Straightforward ELR to ILR work
will be cleared by June 2006.
57. We are about to undertake customer research
to identify external measures of customer satisfaction and to
understand better what applicants need at each stage of the process.
58. We will answer over 2 million calls
this year with a range of routine and complex requests for information
at our call centres, based in Croydon, Sheffield and Liverpool.
We plan to undertake substantial work on our website and our call
centre operations.
59. The Public Enquiry Office in Croydon
has made big strides in the past year in improving customer service.
90% of PEO customers are seen by appointment. Callers are no longer
subject to queuing for many hours outside Lunar House. The PEO
is expecting to see 115,000 callers this year generating income
of £47 million.
Quality of decisions
60. As a result of the Sutton enquiries
in 2004 (Investigation into Guidance on the Handling of European
Community Association Agreement Applications, 25 March 2004;
Inquiry into Handling of ECAA Applications from Bulgaria and
Romania 17 June 2004) we have strengthened management of quality,
have improved procedures for developing and disseminating guidance
and have established quality managers across the business. We
have recently established consistent quality measures across Managed
Migration.
Streamlining ways of dealing with applications
and tracking them through the system
61. A top priority has been to streamline
the visa-issuing process. Most posts now offer a variety of methods
of applying for a visa without visiting the post. These include
applying by post, by courier, through travel agents or by using
a drop-box system. Some have introduced "business express"
arrangements for business travellers, and have worked with airlines
to provide express services for frequent passengers. The facility
to apply online (e-applications) is now available in nearly 30
countries, including North America, Australia, Hong Kong, Jamaica
and New Zealand. In 2004-05, 75% of all applications in the USA
were submitted and paid for electronically. The system allows
applicants to apply on-line and to submit supporting documents
by post or courier.
62. Our aim is to ensure that only those
we need to interview should have to visit visa sections. We piloted
outsourcing the administrative part of the application process
in India, working with a commercial partner. Staff at regional
outsourced visa-application centres are able to take care of routine
administrative work such as data entry, collecting fees and checking
that application forms are correctly completed. Decisions remain
with the ECO. We thus make the process easier and our visa sections
more efficient. Outsourcing brings real benefits for staff, ensuring
many routine tasks can be done outside, leaving ECOs more time
for considering applications. The elimination of queues at Embassies
is good for security too. Feedback from customers, who are often
able to visit an office in their region rather than having to
travel long distances, has been very positive.
63. We are reviewing the range of management
information particularly on quality of decision making, to include
an evidence base for applications, appeals and abuse, age/gender
data and outcomes at different posts. Some cohorts of cases are
then followed through to check outcomes in-country. There is scope
to develop more effective end-to-end management of cases from
visa issuing to in-country control, although the majority of those
issued with visas will not come into contact with Managed Migration.
Similarly we are looking at some high-risk casework where we can
develop a more joined up approach between Managed Migration and
enforcement, with Managed Migration caseworkers in some cases
issuing enforcement notices to streamline handling. This work
will be developed into the business as part of implementing the
Points Based System, and new operating models to deliver IND 2010
(see the High Level Delivery Plan).
3. POLICY
Biometrics: Visa policy
64. The Five Year Strategy requires the
collection of biometric identifiers (face and fingerprint) from
visa applicants by 2008. This will enable any future encounter
with an applicant (for example an asylum claimant) to be linked
back to his original visa application and identity.
65. In order to meet this deadline, we have
already successfully run pilots in which visa applicants in Sri
Lanka and seven East African countries are fingerprinted. Vietnam,
the Democratic Republic of the Congo and the Netherlands have
also recently been added to the pilot scheme.
EU Regulation
66. Technical difficulties have meant that
the Proposal for a Council Regulation amending Regulation (EC)
No 1692/95, laying down a uniform format for visas, cannot be
adopted. The Regulation required participating member states to
store on a chip a facial biometric and (at a later date) fingerprint
biometrics in the visa (the decentralised solution). However there
are clear advantages in combating fraud and improving the security
of the visa from collecting biometrics and the UK (as is the rest
of the EU) will collect biometrics from visa applicants for storage
in a database (the centralised solution).
Global rollout of biometric visas
67. The European Union is committed to rolling
out biometric collection for all Schengen visa applicants. This
is a measure linked to the implementation of the common Visa Information
System. Due to the problems encountered with Regulation no 1692/95,
EU member states that are participating in the Visa Information
System (VIS) will collect biometric data from visa applicants
and store this on VIS. Checks can be made against the biometric
information stored on the database to verify the identity of the
visa holder.
68. The current timelines are for the global
rollout to begin in 2007 and to be completed within two years
but these are not binding on the UK.
69. The United Kingdom is not participating
in the Visa Information System but we will set up a domestic database
in which to store the biometrics information of all our entry
clearance applicants. We anticipate beginning the global rollout
of biometric collection from entry clearance applicants slightly
before the EU's timescale and will complete it by early 2008.
The UK's work with other EU member states
70. The French and Belgians collaborated
in a successful biometric visa project (Biodev I) and they have
invited other Member States to participate in a follow up project,
Biodev II. The principal aims of the project are to trial closer
consular co-operation, different hardware and software solutions,
and their technical interoperability.
71. The UK has applied to participate in
Biodev II. We feel the UK can gain useful experience in co-operation
with other Member States and our participation builds on UKvisas'
and IND's work on closer co-operation with European partners.
Fees
72. Many of Managed Migration's services
are charged for, on the principle that those who benefit from
them should meet the costs rather than the taxpayer. In April
2005 the headline leave to remain fee was increased to £335
recovering full production and associated costs. A premium service
is available for those customers wishing to receive consideration
of their application within 24 hours from the Public Enquiry Office
at a cost to the applicant of £500. A differential rate was
set for students applying by post of £250. Demand has remained
strong overall, exceeding forecast, with no evidence that the
price of our fees has had an effect on overall demand.
Current leave to remain (LTR) fees:
Nationality6 (1) All postal
| £200 |
Nationality6 (2) All postal | £200
|
NationalityRegistered AdultsAll postal
| £120 |
NationalityRegistered MinorsAll postal
| £200 |
NationalityRenunciationAll postal
| £120 |
| |
| |
Right of Abode | £120 |
LTRpremium | £500
|
LTRPostal students | £250
|
LTRPostal non-students | £335
|
LTRTransfer of Conditionspremium
| £500 |
LTRTransfer of Conditionspostal
| £160 |
Certificate of ApprovalPostal | £135
|
Adult Certificate of Identity | £195
|
Child Certificate of Identity | £115
|
Adult Conventional Travel Document | £42
|
Child Conventional Travel Document | £25
|
Work Permit Fee All postal | £153
|
Sector Based Scheme Fee All postal | £153
|
Immigration Employment Document Premium |
£500 |
Immigration Employment Document Postal |
£335 |
Highly Skilled Migrant ProgrammeAll postal
| £315 |
Worker Registration SchemeAll postal
| £70 |
Seasonal Agricultural Workers SchemeAll postal
| £12 |
73. UKvisas gets no subsidy from the UK taxpayer and
in line with Treasury guidelines, the full cost of visas must
be met from fees. In July 2005 fees were revised, to reflect actual
costs, and rising costs in areas like security.
Current visa fees:
| | |
Commonwealth Countries | |
£30 |
Overseas Territories | |
£30 |
Direct Airside Transit Visa |
| £30 |
| | |
| | |
Single, Double and Multiple |
| £50 |
Visit valid up to 6 months |
| £50 |
Longer-term validity visit visa) |
| £85 |
Visas for any other purpose |
| £85 |
(includes student and employment) |
| £85 |
| | |
| | |
Settlement | | £260
|
Marriage | | £260
|
| | |
74. In 20 countries, UKvisas have outsourced their operations.
Where this service is available an extra fee is charged direct
to applicants. However, the availability of a local office, where
previously some applicants had to travel long distances, has reduced
the overall cost for many applicants. Other new initiatives include
control-strengthening measures, implementing biometrics and additional
data entry. These work streams impact on costs and, as a result,
on fees.
Managed Migration Review
75. On 27 April 2004 the Prime Minister launched a top
to bottom review of managed migration routes, to assess the extent
to which they were subject to abuse, or otherwise open to improvement.
He said:
"We will neither be Fortress Britain, nor will we be
an open house. Where necessary we will tighten the immigration
system. Where there are abuses we will deal with them, so that
public support for the controlled migration that benefits Britain
will be maintained."
76. The top to bottom review identified and put in hand
a number of measures to address issues within the system. This
included:
reform of the marriage laws so that foreign nationals
without legal status could not enter into sham marriages in the
UK in order to use this as grounds for staying here. These changes
have already had a positive impact on this area of abuse;
changes were made to the rules on students so
that people could not come as a visitor, avoiding proper scrutiny
before arrival, and then seek to switch to studies below degree
level as a means of staying here. Similar restrictions were applied
to visitors or non-degree students switching to employment;
some 1,200 unaccredited colleges were checked
by the Home Office and around a quarter of these were found not
to be providing educational services (a number were shops or other
addresses). The DfES established a register of educational establishments
and any application to study at an establishment not on the register
is now refused. We are looking with DfES at how the register may
be developed to make it more useful and robust;
UKvisas set up risk assessment units in a number
of posts overseas to improve the identification of forged and
fraudulent documents and intelligence-gathering;
the Commonwealth Working Holidaymaker scheme was
amended to make clear that it is a cultural exchange opportunity
and not primarily a labour migration route; and
the Sectors Based Scheme (SBS) and the Seasonal
Agriculture Workers Scheme (SAWS) had their quotas reduced to
take account of EU enlargement in May 2004. Following review of
the SBS the hospitality quota was terminated in June 2005, taking
account both of the large numbers of Accession country nationals
now working in the hospitality sector and evidence that the scheme
had been abused.
77. IND and UKvisas continue to keep the managed migration
system under review, assessing trends and keeping in touch with
the front line, and take swift action where it is seen that there
is a route which is open to abuse.
78. The top to bottom analysis highlighted the very large
number of schemes available and just how difficult it is for employers,
migrants, administrators and the public to work out how the system
works and what is needed to qualify to come to the UK.
79. It highlighted also the difficulties caused by having
two separate sets of consideration for labour migration: a labour
market assessment (by Work Permits (UK)) and an immigration check
(by UKvisas overseas or WP(UK) caseworkers in the UK). This can
mean that a work permit is issued to an employer but the worker
is refused entry clearance or leave to remain, sometimes because
they actually do not possess the skills and work experience which
the employment would require, or are pretending to be someone
else. At some posts overseas high levels of fraud and forgery
are encountered and addressed by UKvisas.
80. Although there is evidence from a variety of sources
of the benefits of migration, there is no evidence readily available
of the benefits or not of specific schemes within the system.
They have not always been designed to meet specific economic objectives
and are not measured against them.
81. Accordingly, the managed migration review identified
the case for designing a new managed migration system for the
UK for the 21st century, which was announced in the five year
strategy in February.
82. The proposed Points Based System for routes to work,
train or study in the UK is intended to make the system more easily
understood by users and the public; to make the system more robust
against abuse and to improve compliance; to improve processes
and customer service; to provide more objective, consistent decision-making
procedures; and to deliver better targeting of migrants, to achieve
improved economic and social outcomes.
83. "Selected admission: making migration work
for Britain", a consultation document, was published
on 19 July. The paper included: a high level introduction to the
proposed reforms to the managed migration system: the rationale
for change; the proposed new five tier framework; supported by
a Skills Advisory Body; the proposed introduction of sponsorship
requirements, and financial bonds in some cases; restricted routes
to permanent residence; and new mechanisms for enhanced control.
84. The paper set out:
The benefits to the United Kingdom of migration,
which need to be maximised by the managed migration system: economic
benefits of workers, students, and tourists; the particular needs
of Scotland, international development benefits. The associated
costs and impacts, which need to be addressed by it: pressure
on public services, international development, costs of running
the system; and public confidence are also covered.
What the current system looks like now: complex
and bureaucratic; and findings from the 2004-05 managed migration
review: the need for simplification and reform.
Proposed objectives for the managed migration
system: economic, and internal competitiveness, control, students,
responsibility and other; and the proposed tests it should satisfy:
to be operable, robust, objective, flexible, cost-effective, transparent,
useable, and compatible with EU and international legislation.
Proposals for reform of the system including:
bringing all routes for work, training and study into a five tiered
points-based system, streamlining the process; options for attributes
to be awarded points; gauging and meeting labour market demand
for migrant workers; how sponsors can help; and possible uses
for bonds; systematic decision-taking and risk assessment; and
countering illegal working.
85. The consultation closed on 7 November. We are now
assessing the responses to the consultation and developing the
proposals accordingly. An analysis of the responses and an announcement
about the next steps will be made in early 2006.
4. ADVISERS
86. Paragraph 50 of "Controlling our borders:
Making migration work for Britain" published on 7 February
2005 noted that the Government would consider regulating overseas
advisers who help make visa applications. Immigration advisers
who operate within the UK are already regulated, by the Law Society,
if lawyers, or by the Immigration Services Commissioner.
87. Concern has been expressed that there are some unscrupulous
people who advise those applying for entry clearance for the UK.
This can have a detrimental impact on both the applicants and
the effectiveness of the UK immigration control. There is some
evidence that visa applicants have been exploited by advisers,
who either use deception in their application without their knowledge
which can lead to a refusal if identified. Advisers who seek to
circumvent the system on behalf of their clients have potential
to undermine our controls.
88. IND is looking at options to regulate overseas advisers.
This cannot simply be to extend the current in-country system
overseas as we would have no jurisdiction there. Proposals are
expected to be brought forward in 2006.
Impact of Changes to Asylum and Immigration Legal AidApril
2004
89. A significant reform package to immigration &
asylum legal aid was introduced in April 2004 against a background
of increasing costs, concerns about the quality of advice being
given, over claiming and evidence of duplication of work.
Under these arrangements:
Costs are being controlled through maximum fees
and by restricting the advice available to the asylum seeker at
the initial stage to five hours which can be exceeded only with
authority of the Legal Services Commission (LSC).
In appeal cases, no work can be undertaken without
prior approval of the LSC which sets financial thresholds in individual
cases that pass the merits test.
Funding has been removed for the attendance of
a representative at IND interviews in the majority of cases.
90. These measures better target legal aid on the most
meritorious cases, which was an essential and balanced response
to address the issues of increasing costs and poor quality work.
Together with the fall in asylum numbers this has enabled progress
on driving down cost can be seen in the table below:
| | |
| Outturn (£M)
| |
2003-04 | Outturn (£M)
| |
2004-05 | |
|
| | |
RAB | 184 | 104
|
Cash | 201 | 177
|
| | |
91. The new accreditation scheme for immigration and
asylum legal aid practitioners represents a significant step in
the drive to improve standards. The LSC is satisfied that overall
there are sufficient accredited advisers to meet current workloads
now the scheme is compulsory (since August 2005). Local problems
with supplier availability are being addressed by the LSC through
specific measures.
92. In the 2004-05 financial year, there was a relatively
small reduction (less than 10%) in the overall number of suppliers
with immigration contracts. In that year, 68 firms from a total
of 480 performing publicly funded immigration and asylum work
withdrew from practice nationally, whilst 29 new firms commenced
legal aid work in this field.
93. However, it should be borne in mind that this is
in the context of asylum numbers having fallen significantly from
a high of over 84,000 to 32,000 in 2004-05. This context is clearly
important when considering issues relating to the supply of firms
and organisations undertaking publicly funded asylum and immigration
legal advice. In line with this drop in intake, the LSC is committed
to establishing a smaller, increasingly quality assured supplier
base, remaining sufficient to meet need.
94. The LSC is currently undertaking a major national
needs analysis project to map demand to supply across the country
and predict need, based on latest intake figures and the number
of caseworkers obtaining accreditation. Contingency measures will
be introduced in any potential risk areas. However, the LSC will
remain committed to ensure that only high quality advice, that
is of benefit to the client, is paid for from public funds and
any such contingency measures will not be allowed to compromise
quality requirements. The LSC is looking into practical ways of
ensuring day to day supply is matched up efficiently with need.
Retrospective Legal Aid Scheme for Onward Appeals against decisions
made by the Asylum and Immigration (AIT)
95. As part of an ongoing commitment to reduce the volume
of weak applications and ensuring that public money and resources
are targeted at genuine claimants, a separate form of retrospective
legal aid funding was introduced April 2005. It applies to the
review of a decision on appeal by the AIT sought by the appellant.
96. The aim is that solicitors and barristers share the
risk with the taxpayer when deciding whether to proceed with a
review application which, in turn, will reduce the number of weak
applications. The decision on legal aid is made at the end of
the proceedings and the test the Immigration judge applies is
whether the case had sufficient prospects of success at the time
of the application for review.
Review and Evaluation
97. Review and evaluation work is being undertaken currently
on the reforms of legal aid introduced in April 2004, on the Immigration
and Asylum Accreditation Scheme introduced as part of the April
2004 reforms, and on the arrangements for the review and reconsideration
of appeal decisions made by the Asylum and Immigration Tribunal
that were introduced in April 2005.
Access to Legal Advice for those in Detention
98. The Government recognises that individuals detained
under fast track processes will face particular difficulties in
securing representation where we are processing an asylum application
under an accelerated timetable.
99. The LSC has contracted with legal aid suppliers in
this area to provide detainees whose claims were subjected to
the fast track procedure, subject to their eligibility, with prompt
on-site legal representation under the LSC's Fast Track duty rota
scheme.
100. These schemes are currently in place at Harmondsworth
and Yarls Wood. Those subject to the Oakington process are also
eligible for assistance under the provision of on site advice
from the Refugee Legal Centre and Immigration Advisory Service.
101. The provision of advice in these cases covers the
substantive case as well as any associated bail applications.
With regards to the fast track procedures, the fast track contract
provisions were amended to include a provision reminding advisers
that they are required to give consideration to making a bail
application on behalf of a client. The provision goes on to state
that consideration should always be given to making a bail application
at the appeal hearing. If an adviser decided that they would not
make a bail application at this stage, then the contract requires
the adviser to keep a record of their decision on the file, as
well as informing the client of their right to seek a review of
the advisers decision through the LSC, which they will monitor
as part of their audit process with suppliers.
102. The contract provisions for fast track cases allow
for advisers to accompany clients to substantive asylum interviews
and the adviser makes the decision as to whether to grant legal
aid funding for those in detention.
5. APPEALS/JUDICIAL
REVIEW
The Asylum & Immigration Tribunal (AIT)
103. The Asylum and Immigration (Treatment of Claimants,
etc) Act 2004 (AI TC Act) was enacted on 22 July 2004 with section
26 of the Act creating a single tier of appeal for all asylum
and immigration appeals to the Asylum & Immigration Tribunal
(AIT).
104. The Asylum and Immigration Tribunal (AIT) commenced
from 4 April 2005 through a merger of the Immigration Adjudicators
and the Immigration Appeal Tribunal (IAT). The (AI TC) also inserted
new sections 103A through to 103E into the Nationality and Immigration
Act 2002 (NIA) providing appellate court oversight to decisions
of the AIT.
105. Section 26 of the (AI TC) Act 2004 was introduced
in response to Government concerns that the asylum and immigration
system was subject to procedural delays being exploited by disingenuous
economic migrants and opportunistic legal advisors.
Background to Entry Clearance Appeals
106. The asylum and immigration jurisdiction is one in
which for a large proportion of cases there is an incentive to
delay proceedings and seek to defer a final decision. However
this is not the case for Entry Clearance appeals, especially family
visitors, where the incentive is often to obtain a decision, and
entry clearance, quickly.
107. Under the AIT's predecessor, the Immigration Appellate
Authority (IAA), appeals were subject to a convoluted handling
process including Ukvisas, the Immigration Nationality Directorate
(IND) of the Home Office, and finally the IAA. This had a tendency
to induce delays to entry clearance appeals as they worked their
way through the appeals process to the IAA.
Entry Clearance Appeals Process
108. The commencement of the AIT introduced a revised
entry clearance appeals process with the key change being the
choice given to appellants, through provisions in the AIT's Procedure
Rules, to lodge appeals directly to the AIT or upon the Entry
Clearance post where the initial decision was made.
109. In the consultation process DCA held with stakeholders
whilst drafting the AIT's Procedure Rules, respondents welcomed
the change in lodging arrangements, noting the greater transparency
this would bring to the overall appeals process.
Notice of appeal lodged with the AIT
110. When the AIT receives an entry clearance or family
visitor appeal form directly from the appellant it will process
the case acknowledging receipt of the appeal to the parties and
issuing directions for the respondent to file their appeal bundle.
111. Under practice agreed with the Tribunal, and published
in UKvisas' Diplomatic Service Procedures (DSP), the respondent
has one month to compile their bundle in non-settlement and family
visitor cases, and three months in the more complex settlement
cases.
112. These time limits are adhered to in directions set
by the Tribunal. However, as the Tribunal's procedure rules provide
for 28 calendar days for the service of documents, both from and
to the Tribunal, where a party to the appeal is outside the country,
the time set out in directions has to effectively be 56 days longer
than the actual time allowed to prepare the bundle. This contrasts
with in-country immigration and asylum appeals where only two
days has to be allowed for service and added to the time given
in directions.
Notice of appeal lodged with the entry clearance post
113. Where the appellant chooses to lodge their notice
of appeal with the entry clearance post, the post endorse the
appeal form clearly with the date on which they took receipt of
the appeal from the appellant and forward it to the Tribunal as
soon as reasonable practicable, and in any event within 10 days.
114. Once the AIT receives the appeal form from the entry
clearance post it will process the case, acknowledging receipt
of the appeal to the parties and issuing directions for the respondent
to file their appeal bundle in accordance with the process, and
time frames, set out previously in section 10.
AIT handling of entry clearance appeals
115. Entry Clearance appeals are allocated a substantive
hearing date by the AIT eight weeks from receipt of the respondent's
appeal bundle (four weeks for family visitor appeals). The hearing
date is allocated at this time, rather than when the directions
are set, as actual postage times may be shorter than the 28 days
provided for in the procedure rules. Therefore appeals can be
heard earlier by not setting the hearing date until the appeal
bundle is received.
116. However, in order to ensure that any delay in lodging
bundles does not delay the substantive hearing, where the respondent
(the entry clearance officer) fails to comply with directions
the respondent is served with the notice of hearing at the end
of the period set out in directions, and directed to serve the
bundle prior to the hearing date.
Delays in processing entry clearance appeals
117. A number of concerns have been raised by stakeholders
and interested parties with the volume of immigration and family
visitor appeals which have become subject to delays and backlog
at the AIT following it's commencement.
118. The key factors behind the delays in processing
entry clearance and family visitor appeals have been the large
increases in appeal volumes, the larger than expected volume of
transitional work with IND and UKvisas, and the change to lodging
arrangements which means that new appeals reach the Tribunal considerably
earlier than they did under the IAA.
Appeal Workload at commencement
119. At the commencement of the AIT on 4 April 2005 all
outstanding work from the IAA and the IAT was transferred across
to an equivalent appeal stage within the AIT. The outstanding
asylum and immigration appeals were work in progress and were
either listed to be heard before an Immigration Judge, or had
been heard and were awaiting a determination by an Immigration
Judge. At the end of March 2005 the IAA had the following outstanding
work, comprising asylum, managed migration and entry clearance
work:
25,304 Adjudicator appeals;
5,217 applications for permission to appeal to
the Immigration Appeals Tribunal (IAT); and
4,783 substantive IAT appeal hearings.
120. The above totals do not include transitional appeals
which had been served on IND and UKvisas under previous lodging
arrangements, prior to the commencement of the AIT comprising
asylum, entry clearance and managed migration appeals. IND estimated
that it held approximately 30,000 transitional appeals with the
AIT agreeing that the transitional work would be transferred across
to the AIT at a monthly volume of 2,500 per month. Transitional
appeals with overseas posts and awaiting transfer were sent over
to the AIT in addition to the 2,500 per month.
121. For the period running from April to September 2005
the AIT received 82,290 appeals in total, including transitional
appeals, made up of the following types:
35,323 immigration appeals (comprising in-country
& entry clearance cases); and
35,170 Family Visitor appeals.
122. These much larger than expected volumes of appeals
led to the steady accrual of backlogs in entry clearance and family
visitor cases. The accumulation of a backlog of cases prompted
the need to implement a recovery programme within the AIT to introduce
streamlined administrative process, identify additional resources
and to quickly reduce the volume of backlogged appeals.
123. Senior AIT managers commissioned a project team
to implement a recovery project that closely managed the processing
of the backlogged appeals. The project team is represented by
senior AIT Officials, stakeholders and members of the AIT judiciary.
Under its remit it monitors performance and looks to identify
business risks that will deliver appropriate contingency measures.
124. The project team focuses on the progress of the
recovery plan on a weekly basis. On current planning assumptions
the AIT remains confident that it will have processed the backlog
cases and the IND transitional increases by the end of this calendar
year.
Volume of backlogged appeals
125. By the 3 October 2005 there were a total of 9,429
entry clearance appeals and 29,329 family visitor appeals which
the AIT had accrued as backlogged appeals and which were awaiting
initial case creation and listing within the AIT.
126. UKvisas informed the AIT in early October 2005 that
there were an additional 3,000 transitional appeals with overseas
posts awaiting transfer. The majority of UKvisas' transitional
appeals have now been forwarded in full to the AIT to be processed
within the standard AIT processes.
127. The Immigration & Nationality Directorate (IND)
of the Home Office recently revised its estimation of the volume
of transitional appeals still within its directorate. The revised
transitional figure increases the total transitional total by
12,000 to 42,750 appeals.
128. In response to the increased estimations of transitional
appeal work the AIT has agreed an initial increase with the Home
Office's IND in the monthly transfer of transitional work rising
by an immediate 1,000 appeals per month with a further increase
of 2,000 from January 2006. This is an increase on the estimations
of transitional work which were used in the process modeling work
prior to the commencement of the AIT and together with the large
increases in entry clearance work, particularly family visitor
appeal, has presented the AIT with a challenge to its resources
and available capacity.
The progress of the recovery programme
129. On the 3 October the backlog total stood at 38,500.
As of the 27 November the backlog total has reduced to 13,188
appeals. All of these cases have been initially processed with
the oldest of the cases continuing to be less than four months
old. This swift reduction in the accumulated backlog represents
considerable progress in improving the processing times of entry
clearance appeals.
130. It is estimated that family visitor appeals received
following the AIT's commencement will have been processed by the
end of this calendar year and listed before an Immigration Judge
from the end of January 2006 through to January 2007.
131. It is estimated that entry clearance appeals will
have been initially processed by the beginning of December 2005.
Taking into account the maximum time allowed for the respondent
to file their bundle, currently 19 weeks, and for a hearing date
to be allocated eight weeks from this, the AIT anticipates having
these cases listed from the beginning of April 2006 through to
January 2007. In addition the AIT has factored into its planning
the increase in IND transitional appeals, with the additional
cases expected to have been processed by the AIT by March 2006.
Future Plans to reduce delays
132. The AIT remains confident that the recovery programme
will continue to show real progress in processing the backlogged
appeals towards a substantive decision by an Immigration Judge,
and that the vast majority of the work will have been cleared
by January 2007.
133. Whilst the AIT has accumulated a backlog of visit
visa appeals, as a result of both of the transition to the new
AIT and of the unexpected volume of such appeals, the recovery
action taken has resulted in real progress in processing the work
and halting further increases to its total. All entry clearance
and family visitor appeals received after October are being processed
and acknowledged as received within five business days. They are
then subject to the standard entry clearance processes.
134. DCA and UKvisas continue to work closely with stakeholders
and interested parties in identifying improvements to the entry
clearance appeals process and are actively working on provisions
to improve the end to end process and the lodging arrangements.
We will therefore be in a position to update the committee following
the New Year on our findings.
Mainstream Non-Asylum Appeals Process
135. If a managed migration caseworker or ECO's decision
is to refuse the application, the applicant may have the right
to appeal that decision.
136. Whether or not the applicant does have the right
to appeal depends on a number of factors. In Entry Clearance cases
("ECO appeals"), these include the reason for his/her
application to come to the UK. In applications made from within
the UK ("in-country cases"), they include whether s/he
has any existing leave to enter or remain in the UK at the time
of his/her application for further leave.
137. A person will only have a full right of appeal against
refusal of leave to enter if he has entry clearance that was sought
for the same purpose that he then applied for leave to enter.
If leave to enter is refused in other circumstances the person
will have a limited right of appeal.
138. An appeal form and explanatory leaflet are included
with all Reasons For Refusal Letters or refusals of Entry Clearance,
provided that the refusal attracts a right of appeal. The appellant
has 10 working days in an in-country case, and 28 calendar days
in an ECO case, from the date of service of the initial decision
to lodge their appeal. When appealing appellants must state their
full grounds of appeal and will often include human rights issues
for consideration in their appeal.
139. In-country appeals are lodged directly up on the
Asylum and Immigration Tribunal (AIT), an independent body that
adjudicates asylum and immigration appeals in the United Kingdom.
ECO appeals may be lodged either on the Embassy or High Commission
that refused the application for Entry Clearance, or directly
upon the AIT. If the form is lodged directly upon the embassy/High
Commission, they must forward it to the AIT.
140. Upon receipt of a completed appeal form the AIT
notify IND (or, in ECO appeals, the Embassy or High Commission)
of its receipt and will arrange the case's hearing dates.
Preparing for the hearing
141. In in-country cases, IND's Appeals Processing Centre
produce a bundle of documents to support IND's case. This bundle
will include the Reasons For Refusal Letter or Explanatory Statement,
as well as other relevant documentation. Copies are sent to the
appellant, their legal representatives, and the AIT.
142. In ECO appeals, the bundle will include the Notice
of Decision appealed against, and Explanatory Statement, the interview
record, if any, and any other relevant documents. The relevant
Embassy or High Commission will produce it.
Substantive Hearing
143. Straightforward cases will be heard before a single
Immigration Judge, whilst more complex cases are dealt with by
Panels or Legal Panels.
144. Hearings take place at hearing centres in nine locations
across the United Kingdom. The length of substantive hearings
can vary considerably depending on the complexity of the case,
the number of witnesses and the volume of documentary evidence
produced. Most, however, last between one to two hours.
145. Generally there will be several attendees at the
substantive hearing. They are:
The Judiciary. Either a single Immigration Judge,
a Senior Immigration Judge or a Panel. Occasionally very complex
cases will be dealt with by a Legal Panel (three legally qualified
members). Single Judge and Legal Panel cases have different onward
right of appeal to the Higher Courts if a party to the appeal
is unsuccessful.
A Presenting Officer. Presenting Officers represent
IND at the hearing. They are responsible for cross-examining the
appellant and any witnesses, and make legal submissions supporting
IND's position.
An appellant and any witnesses they have to support
their case. However, the appellant will not be present in ECO
appeals as s/he will not be in the UK.
The appellant's legal representative. The representative
will usually be either a solicitor or a barrister. The representative's
main role is to make legal submissions in defence of the appellants
claim for refugee status.
146. Once all evidence and legal submissions have been
heard the Judge or Panel will usually reserve their decision.
This means they do not make their decision on the day. Instead
they consult their notes and paperwork and promulgate a written
determination that they are required to produce within 10 working
days of the hearing.
Service of Determinations
147. The AIT will serve a copy of the determination both
on the Appellant and on the Presenting Officers' Unit. The provisions
for personal service of asylum decisions by IND on the appellant
do not apply in non-asylum cases.
Onward Rights of Appeal
148. The unsuccessful party to the appeal has the right
to ask the High Court to order the AIT to reconsider its decision
if they believe it has made an error of law.
149. Currently anyone seeking a High Court review of
the decision must submit their application to the AIT. There is
a five working day time limit for seeking such a review, except
in ECO appeals where the appellant has 28 days to apply. If the
AIT accept they may have made an error of law based on the papers
they will reconsider the case. If not, the applicant may "opt-in"
directly to the High Court to seek another review of the application
for reconsideration.
150. If the substantive hearing was before a Legal Panel
or was a reconsideration hearing (following an order being made
by the High Court to reconsider the initial AIT determination)
the appropriate onward right of appeal is to the Court of Appeal.
THE IMMIGRATION,
ASYLUM AND
NATIONALITY BILL
151. The Immigration, Asylum and Nationality Bill will
focus appeals on cases that raise fundamental issues of rights
and protection. The Bill contains provisions that deal with variation,
entry clearance and leave to enter cases.
Variation Appeals
152. Refugees, and those who have other types of leave
that will be designated by order, will have a separate right of
appeal against refusal or curtailment. It is our intention to
designate Humanitarian Protection as a type of leave that will
carry this right of appeal. Consideration is being given to whether
further categories of leave should be designated.
153. Where someone does not have a separate right of
appeal against refusal or curtailment they will be able to contest
these decisions as part of any appeal against a decision to remove
them from the UK. If someone raises human rights, asylum or EEA
treaty issues then the appeal may be brought in the UK. Otherwise
the appellant must leave the country before appealing.
Entry Clearance and Leave to Enter Appeals
154. Under the provisions in the Immigration Asylum and
Nationality Bill appeal rights against refusal of entry clearance
will not in future carry a full right of appeal unless the applicant
applied to come to the UK as a family visitor or a dependant.
There will be a phased transition towards this position, however,
and appeal rights will be removed as the points based system is
implemented. Even if someone does not have a full right of appeal
he will still be able to appeal on the grounds that the decision
was racially discriminatory or breached their human rights.
6. DETENTION
Running of detention centres, especially by private companies
155. All removal centres, whether directly managed or
contracted-out, are run in accordance with the Detention Centre
Rules 2001 and are subject to a comprehensive set of Operating
Standards that stipulate minimum auditable requirements. The operation
of contracted-out centres is, in addition, regulated by the detailed
contracts with the individual service providers. Compliance with
contractual obligations, statutory rules and operating standards
is monitored at each centre by an Immigration Service Contract
Monitor. The three directly managed centres, which are operated
by the Prison Service on behalf of IND, are to be the subject
of service level agreements between the Prison Service and IND.
Treatment and care of detainees
156. We are concerned to ensure that all detainees are
treated with dignity, respect and humanity and that they receive
appropriate levels of care at all times. The treatment and care
of detainees is regulated by the Detention Centre Rules 2001.
In addition, a comprehensive set of Operating Standards has been
issued to all removal centre operators. The Standards cover all
facets of detainee care and treatment and set out minimum auditable
requirements. All removal centres have an Independent Monitoring
Board, which has free access to all parts of a removal centre
at any time and can hear requests and complaints from detainees,
and are subject to regular inspection by HM Chief Inspector of
Prisons. Where allegations of improper treatment have been made
(eg the BBC Uncovered programme on Oakington) they have been the
subject of thorough investigation by the Prisons and Probation
Ombudsman.
Detention of children
157. Children are detained only in two very limited circumstances.
First, as part of a family group whose detention is considered
necessary, very often just prior to removal from the UK. Second,
in the case of unaccompanied children and very exceptionally,
where detention is necessary whilst alternative arrangements are
made for their care and safety, and normally then just overnight.
158. The detention of families is kept to the minimum
period and is subject to frequent and rigorous review, which includes
Ministerial authorisation in the case of any child detained for
more than 28 days. Very few families are detained for more than
just a few days. Families with children are held in dedicated
family rooms within a removal centre so as to ensure that family
members are not separated and, so far as practicable within the
constraints of detention, are able to maintain family life. Family
accommodation is provided at Yarl's Wood, Tinsley House and Dungavel
House. Activities are provided for children and babies in child
friendly care rooms throughout the day. Educational classes for
school age children are also provided at Yarl's Wood, where families
with children may be detained for more than 72 hours. All three
removal centres have appropriate child protection policies in
place and maintain good links with their local social services.
Lack of judicial review of detention
159. The statutory powers of detention are vested in
the Secretary of State and individual immigration officers. Detention
is authorised on the basis of an individual's particular circumstances
and is subject to regular review within the Immigration Service
at successively higher levels. It is open to detainees at any
time to challenge the lawfulness of their detention before the
courts through the processes of judicial review and habeas
corpus, as required by Article 5(4) of the ECHR. In addition,
detainees may apply to a Chief Immigration Officer or an Immigration
Judge for release on bail.
Statistics and monitoring information
160. Statistics for detained persons are provided in
the asylum statistics published quarterly and in the control of
immigration statistics published annually. The statistics are
based on snapshots for a given day and provide data on the number
of detainees broken down by gender, age, whether "asylum"
or "non-asylum", place of detention and length of detention.
We have considerably improved and extended the statistics published
on detention in recent years, for example adding data on children
in detention. Ministers have commissioned work to consider how
the scope and basis of the statistics might be improved further.
It is expected that this work should be completed in the New Year.
7. ENFORCEMENT/REMOVALS
Use of e-Borders to identify and track overstayers
161. Under the e-Borders programme we aim to collect
passenger data on services operating into and departing from the
UK. The provision of this audit trail of passenger movements and
the linking of the inbound record to the outbound record will
support compliance measurement.
Provision of departure information will enable
a check to be made to ensure that someone whose leave to remain
has expired has departed. The reliability of such a check will
be influenced by:
(i) The extent of coverage of e-Borders which is a
major programme of change subject to phased implementation until
2013-14.
(ii) Whether information captured on departure can
be matched accurately against the identity in which the passenger
was granted leave.
In the event that a passenger whose leave to remain
has expired is identified and is without a travel document, the
e-Borders system may assist with the process of documentation
by providing the bio-data used by the passenger on arrival.
Allegations re: immigration offenders
162. Members of the public may be directed to write to
or telephone the Duty office of the UKIS Local Enforcement Office.
163. Where a phone call received in the duty office,
information is collated, checked against HO records/systems to
check authenticity, and if the information appears correct the
information is sanitised to protect the source, checked by an
intelligence manager and allocated to a researcher to check all
police systems and other systems as appropriate.
164. Once the research is completed it is passed to an
intelligence officer who will compile a risk assessment, signed
off by the intelligence manager and police authorisation is sought
from a designated contact to conduct a visit within 14 days, and
enforcement action is initiated where appropriate.
165. There is increasing emphasis in the Immigration
Service on the use of intelligence, in partnership with other
agencies, to target and disrupt serious and organised immigration
crime. During 2005 INDIS have provided over 50 intelligence packages
which have resulted in over 400 arrests and the disruption of
20 organised crime groups.
Reflex
166. In March 2000 a multi-agency government taskforce
"Reflex", was set up to deal with organised immigration
crime. Currently chaired by the Director General (designate) of
the Serious Organised Crime Agency, its remit is to co-ordinate
the enforcement response to such issues, both nationally and internationally,
and to develop the intelligence and strategic planning that underpin
this.
167. Reflex seeks to disrupt and dismantle organised
crime groups involved in people smuggling and human trafficking.
It has also undertaken work to raise awareness and develop enhanced
intelligence and operational capacity within the police forces
in the regions. Reflex has been successful in disrupting groups
and bringing the perpetrators to justice. Between April 2004 and
April 2005 Reflex resulted in 149 disruptions of organised immigration
crime groups, this figure includes those involved in human trafficking
as well as people smuggling and related activities.
168. Through Reflex we have established a network of
overseas immigration liaison officers. This network allows us
to build an intelligence picture, which we can then act on in
partnership with other countries, using mechanisms for international
police co-operation such as Europol and Eurojust to take effective
enforcement action.
169. Reflex operations for 2004-05:
Reflex conducted 343 operations during 2004-05
which resulted in 1,456 arrests.
Between April 2004 and April 2005 Reflex resulted
in 149 disruptions of organised immigration crime groups. This
figure includes those involved in human trafficking as well as
people smuggling and related activities.
Reflex seized £5,572,142 of criminal assets.
2 December 2005
Annex A
SUMMARY OF POWERS OF REMOVAL/ARREST & IMMIGRATION
OFFENCES
A. POWERS OF
REMOVAL
(i) Illegal entrants
Section 33(1) of the Immigration Act 1971defines illegal
entrants as:
(a) persons unlawfully entering/seeking to enter in breach
of a deportation order or of the immigration laws; or
(b) entering or seeking to enter by means which include
deception by another person and includes a person who has so entered.
The main categories of Illegal Entrant are:
This includes persons who enter clandestinely, (for example
concealed in the back of a vehicle, or landing at an uncontrolled
point from a small aircraft), absconders (persons who leave the
control area without permission or who fail to comply with the
terms of their temporary admission or release from detention)
and person who unwittingly evade the control (such as mistakenly
passing through the EU control when they are subject to control.
It is an offence under section 24A of the Immigration Act
1971 to obtain or seek to obtain leave to enter or remain by deception.
This can be either verbal or documentary deception. A person can
be an illegal entrant if a third party has secured their entry
by deception, even if they were unaware of it. If a person seeks
entry to the UK as a visitor when their true intention is to claim
asylum, then they are an illegal entrant as, had the immigration
officer known the facts, he would not have granted leave as a
visitor.
No Evidence of Lawful Entry (NELE):
This category of applicant will be unable to provide any evidence
of their entry to the United Kingdom. However, absence of a passport
is not in itself sufficient grounds for dealing with a person
as an illegal entrant. Full checks must be made to establish the
person's identity and method of entry as far as possible.
Entry in breach of an outstanding deportation
order (Sec 24(1)(a) of the 1971 Act):
Those who are deported from the United Kingdom are barred
from returning as long as the deportation order remains extant
and have to apply (from abroad) to have the order revoked. However,
they may gain entry using a false identity and subsequently the
deportation order will come to light. These persons are removed
as illegal entrants and the deportation order will remain in force.
Seaman Deserters (Sec 24(1)(c) of the 1971 Act):
When ships dock in the United Kingdom, it may be that crewmembers
"jump" ship, without permission. Seaman deserters may
not have a passport but rather hold a seaman's book.
Powers to Removal Illegal Entrants:
The powers to remove illegal entrants are found in paragraphs
9 or 10 of schedule 2 to the Immigration Act 1971. These enable
an Immigration Officer to give any directions for removal as are
authorised in paragraph 8 of schedule 2 to the 1971 Act.
This allows for an illegal entrant to be removed by ship/aircraft/via
the Channel Tunnel to a country of which he is a national or citizen,
or a country or territory in which he has obtained a passport
or ID document, or in which he embarked for the UK, or to which
there is reason to believe that he will be admitted.
Paragraph 9where there is evidence of the inbound
carrier, he may be removed at the carrier's expense.
Paragraph 10if there is no evidence of the inward
carrier, removal is effected at the expense of the Secretary of
State.
Paragraph 10Awhere directions have been given to a
person under paragraphs 8-10 (above), removal directions may be
given to a family member (dependent child or spouse) of such a
person.
(ii) Administrative removal
The power for an Immigration Officer to set removal directions
for a person liable to administrative removal is in section 10(6)
of the Immigration and Asylum Act 1999.
Section 10 of the 1999 Actdefined as overstayers,
person who work or claim public funds in breach, of their conditions
of leave, persons who use deception in seeking and/or obtaining
leave to remain, persons whose Indefinite Leave to Remain has
been revoked as someone who has ceased to be a refugee, and family
members of the listed categories.
The Immigration (Removal Directions) Regulations 2000allow
for someone subject to section 10 to be removed by ship/aircraft/via
the Channel Tunnel to a country or territory or which he is a
national or citizen, or to which there is reason to believe he
will be admitted.
Section 10(8)removal directions automatically invalidate
any leave to remain that the person has.
Section 10(9)the costs of complying with removal directions
must be met by the Secretary of State. In practise this means
using the same procedures as for paragraph 10 removals (see above).
(iii) Deportation
Section 5 of the Immigration Act 1971provides the
power for the Secretary of State (S of S) to make or revoke a
deportation order (DO). This requires a person to leave the UK
and prohibits them from re-entering the UK unless it is revoked.
Any leave to enter or remain which a person gains is invalid whilst
a DO is outstanding against them. There is no expiry date to a
DO. A person who enters the UK in breach of a DO is an illegal
entrant (see above) and may be removed as such.
Persons liable to deportation are described in sections 3(5)
and 3(6) of the 1971 Act.
Section 3(5)(a)deportations on non-conducive grounds
(can include political views, terrorism or ideology, or criminal
cases).
Section 3(5)(b)the spouse and minor dependant children
of a person being deported.
Section 3(6)allows a court which convicts a person
aged 17 or older, who is subject to immigration control of an
offence punishable with imprisonment, to recommend to the S of
S that the person concerned should be deported.
Schedule 3 to the 1971 Actcontains the power to detain
and remove a person subject to a DO.
(iv) Failed Asylum Seekers
It is not an immigration offence to be a failed asylum seeker.
The case of Norman (Court of Appeal 1985) established that
a person who sought entry as a visitor when his true intention
was to claim asylum was an illegal entrant. Had the Immigration
Officer known on arrival that asylum was intended, then he would
not have granted entry as a visitor.
If asylum caseworkers decide to refuse the asylum application,
they will provide a "Reasons for Refusal Letter" (RFRL).
This simply states the reasons for refusing asylum claim. It is
not an immigration decision against which a person may appeal.
It therefore needs to be served with the appropriate decision
letter to remove the person from the UK.
B. MAIN IMMIGRATION
OFFENCES (ENFORCEMENT)
Part III of the 1971 Act
Section 24 (1)
(a) knowingly enters the UK in breach of a deportation
order (DO) or without leave.
(b) knowingly overstays, or breaches conditions of stay.
(d) fails to report to a medical examination without reasonable
excuse.
(e) without reasonable excuse, fails to observe any residence/employment/reporting
restrictions.
(Maximum penalty on summary conviction of £5,000 and/or
six months' imprisonment.)
Section 24A (1) Inserted by the Immigration Act 1999
(a) obtains/seeks to obtain LTE/LTR by deception.
(b) secures/seeks to secure the avoidance, postponement
or revocation of enforcement action by deception.
(Maximum penalty on summary conviction of £5,000 and/or
six months' imprisonment, on indictment of two years' imprisonment
or a fine or both.)
Section 25 Inserted by the Nationality Immigration and Asylum
Act 2002
makes it an offence to knowingly facilitate someone
to breach the immigration laws of any member state, not just the
United Kingdom. This means that a person facilitating entry into,
transit across or presence within any of the EU member states
can be prosecuted. The offence can be committed from within or
outside the EU. (The maximum penalty for the offence has been
increased to 14 years' imprisonment and/or an unlimited fine.)
Section 25A Inserted by the Nationality Immigration and Asylum
Act 2002
reproduces the offence of helping an asylum seeker
enter the United Kingdom, where this is done for gain.
(Maximum penalty for this offence is as at section 25 above.)
Section 25B Inserted by the Nationality Immigration and Asylum
Act 2002
makes it an offence to assist a European citizen
in breach of a deportation or exclusion order to arrive in, enter,
or remain in the United Kingdom.
(Again, the maximum penalty is as at section 25 above.)
Section 26(1)
(c) makes a false statement to an immigration officer
on examination (verbal deception)
(d) alters or has in his possession a false passport,
certificate of entitlement, EC, work permit or document issued
for the purposes of the 1971 Act. (documentary deception)
(Maximum penalty on summary conviction of £5,000 and/or
six months' imprisonment.)
Section 26A Inserted by the Nationality Immigration and Asylum
Act 2002
creates a number of new offences relating to the
creation, possession and use of false or altered registration
cards.
(Maximum penalty for offence of possession of false or altered
card or article designed to make one is two years' imprisonment
or a fine. Max penalty for offences of making, altering and using
the card is 10 years' imprisonment and or a fine on indictment,
and six months' or a fine on summary conviction.)
Section 26B Inserted by the Nationality Immigration and Asylum
Act 2002
makes it an offence to possess an immigration
stamp, whether genuine or replica, without reasonable excuse.
(Maximum penalty on summary conviction of £5,000 and/or
six months' imprisonment, on indictment of two years' imprisonment
or a fine or both.)
Asylum and Immigration (Treatment of Claimants etc) Act 2004
Section 2
makes it an offence not to have a valid passport
or equivalent document at a leave or asylum interview. Statutory
defences are provided. Not Article 31 cases.
(Maximum penalty on summary conviction of £5,000 and/or
six months' imprisonment, on indictment of two years' imprisonment
or a fine or both.)
Section 4
offence of trafficking for non-sexual exploitation.
Arrival to, travel within, departure from the UK. [Trafficking
for sexual exploitation is an offence under the Sexual Offences
Act 2003].
(The maximum penalty for the offence is 14 years' imprisonment
and/or an unlimited fine.)
Section 35
makes it an offence to fail to comply, without
reasonable excuse, with specified steps to enable documentation
to be obtained for deportation or removal.
(Maximum penalty on summary conviction of £5,000 and/or
six months' imprisonment, on indictment of two years' imprisonment
or a fine or both.)
C. POWERS OF
ENTRY/SEARCH/ARREST
It is current policy that only arrest trained officers may
conduct a search or make an arrest. In joint working operations,
police officers have to use their own powers.
(i) Power to Detain
Paragraph 16(2) of Schedule 2 to the 1971 Actprovides
a power for immigration officers of the Secretary of State to
detain persons where there are reasonable grounds for suspecting
that they are someone upon whom directions may be given pending
a decision whether or not to give such directions or pending removal
in pursuance of such directions. This is to be used for de
facto illegal entrants or overstayers who have not been arrested
under Police and Criminal Evidence Act 1984 (PACE) powers (see
para 17 power of arrest below) and where there is no need to interview
under caution before serving enforcement notices.
(ii) Power to set reporting conditions
Paragraph 21 of Schedule 2 to the 1971 ActAllows for
a person liable to be detained under paragraph 16 (see above)
to be temporarily admitted to the UK without being detained, or
be released from detention, on the written authority of an immigration
officer. Such a person may be subject to restrictions as to residence,
employment or occupation, and as to reporting to the police or
an immigration officer as may from time to time be notified to
him in writing by an IO. Section 62 of the Nationality, Immigration
and Asylum Act 2002 extended this power to the Secretary of State
and therefore officials acting on his behalf.
(iii) Power to arrest a person liable to detention
Paragraph 17(1) of Schedule 2 to the 1971 Actprovides
that a person liable to be detained under paragraph 16 of schedule
2 to the 1971 Act may be arrested without warrant by a constable
or immigration officer. In the enforcement context this means
a person who is, or is reasonably suspected to be, an illegal
entrant, liable for administrative removal, or a seaman deserter.
Paragraph 17(2) of Schedule 2 to the 1971 Actallows
a Magistrate/sheriff to issue a warrant authorising an IO/police
officer to enter, search for and arrest a person under paragraph
17(1) above.
Paragraph 2(4) of Schedule 3 to the 1971 Actextends
the provisions of paragraph 17 above to apply to those who are,
or are suspected to be, subject of a notice of intention to deport
or a deportation order.
(iv) Power to enter and search premises of a person
detained
Paragraph 25A of Schedule 2 to the 1971 Actapplies
if a person was arrested under paragraph 17 (above) or was arrested
by a constable and is detained under paragraph 16 (above). An
Immigration officer may enter and search any premises occupied
or controlled by the arrested person, or in which that person
was when he was arrested, or immediately before he was arrested,
for relevant documents.
Paragraph 25B of Schedule 2 to the 1971 ActAn immigration
officer may search the person of someone arrested under paragraph
17 if he has reasonable grounds for believing that the person
may present a danger to himself or others, or for documents which
might establish identity, nationality, country of departure or
destination.
Paragraph 25C of Schedule 2 to the 1971 ActAn immigration
officer may search a person arrested under paragraph 17, and is
in police custody, for anything which may present a danger to
himself or others, or for documents which might establish identity,
nationality, country of departure or destination.
(v) Powers of arrest/entry/searchlimited
to Arrest Team IOs
Section 28A of the 1971 ActArrest without warrant.
Provides a constable or Immigration Officer with a power of arrest
for the following offences under sections 24 [not 24(1)(d) see
below] or 24A, sections 25, 25A, 25B or 26(1)(g)
Section 28AA of the 1971 ActArrest with warrant. An
immigration officer may apply for a warrant if there are reasonable
grounds for suspecting an offence under section 24(1)(d) or section
8 of the Asylum and Immigration Act 1996 (illegal employment).
Section 28B of the 1971 ActSearch and arrest by warrant.
Allows a Magistrate/sheriff to issue a warrant for an IO/police
officer to enter a specified premises to search for and arrest
a person suspected of any of the following offences (not the complete
list):
knowingly entered the UK in breach of a DO or
without leave;
overstayed leave/failed to observe a condition
of leave;
entered the UK as a crewmember but remained without
leave following departure of ship;
failed to observe restrictions on residence/employment/reporting;
obtained or sought to obtain leave to remain by
deception;
secured or sought to secure the avoidance, postponement
or revocation of enforcement action by deception; and
harbouring illegal entrants/overstayers.
Section 28C of the 1971 ActSearch and arrest without
warrant. Empowers an IO to enter and search any premises for the
purpose of arresting a person for the offence of assisting unlawful
immigration (facilitation).
Section 28CA of the 1971 Acta constable or immigration
officer may, without warrant, but on the written authority of
an IS Assistant Director (AD) enter and search any business premises
for the purpose of arresting a person for an offence under sections
24, 24A or under para 17 of schedule 2 to the 1971 Act.
Section 28D of the 1971 ActEntry and search of premises.
Allows IOs to apply for/execute warrants to enter and search premises
for the purpose of searching for evidence of offences as listed
at section 28B above
Section 28E of the 1971 ActEntry and search of premises
following arrest. Allows an IO to search (without warrant) any
premises where a person has been arrested under Part III of the
1971 Act (as above).
Section 28F of the 1971 ActEntry and search of premises
following arrest under section 25(1). Allows an IO to enter and
search (without warrant) any premises occupied or controlled by
a person arrested for facilitation.
Section 28FA of the 1971 ActSearch for personnel records
without warrant where an offender has been discovered on the premises
and it is decided to check the records in order to check for additional
offenders or in pursuance of the investigation or to see if there
is sufficient evidence to warrant the prosecution of the employer.
Section 28FB of the 1971 ActSearch for personnel records
with warrant at the business premises or elsewhere where there
are reasonable grounds that an employer has failed to comply with
a request to supply employee records under section 134 of the
Nationality Immigration and Asylum Act 2002.
Section 28G of the 1971 ActSearching arrested persons
at a place other than a police station. Allows an IO to search
the arrested person if he has reasonable grounds for believing
that the person may present a danger to himself or others. The
IO may search for items which might help him to escape from lawful
custody or which might be evidence relating to the offence. The
IO may seize and retain such items. This power does not permit
intimate searches.
Section 28H of the 1971 ActSearching persons in police
custodywith the approval of the custody officer. An IO
may search the arrested person for items which might be used to
cause physical injury to the person or others, damage property,
interfere with evidence, assist with his escape or which are evidence
relating to the offence. The IO may seize such items, but may
only retain anything relating to the offence; any of the other
items listed may be retained by the police. This power may only
be exercised by an IO of the same sex as the person being searched
and does not permit intimate searches.
Section 28I of the 1971 ActAccess and copying of seized
material. This relates to the provision of a record of any material
seized, and permitting access to or copies of the material where
this would not prejudice an investigation under the 1971 Act or
any criminal proceedings.
Sections 28J and 28K of the 1971 ActWarrants and safeguards.
These detail the information which should be specified on a warrant,
and how the warrant should be executed.
Section 14 of the 2004 ActExtends some of the existing
powers of arrest without warrant, entry and search for specified
"immigration-related" offences when encountered by immigration
officers in the course of their normal duties. Includes offences
such as bigamy, making false statements, obtaining property/services
by deception, forgery and counterfeiting, trafficking for sexual
exploitation.
(vi) Fingerprinting
Paragraph 18(2) of schedule 2 to the 1971 Actprovides
IOs with a power to take all steps necessary for the purpose of
photographing or otherwise identifying a person detained under
paragraph 16 of schedule 2. That is persons who are, or are reasonably
suspected to be, illegal entrants, liable to administrative removal
and seaman deserters.
Paragraph 2(4) of schedule 3 to the 1971 Actextends
the application of paragraph 18 to persons who've been served
with notice of intention to deport or where a DO is in force.
Section 141 of the 1999 Actgives IOs a power to take
fingerprints from the following categories:
persons who fail to produce a valid passport or
identity document on entering the UK as required by an IO;
persons granted temporary admission (under paragraph
21 of schedule 2 to the 1971 Act) if an IO reasonably suspects
he might break any residence, employment, and/or reporting condition
imposed on him;
where enforcement decision notices have been given
(amended under section 14 of the Asylum and Immigration (Treatment
of Claimants, etc) Act 2004);
persons arrested under paragraph 17 of schedule
2 to the 1971 Act;
a dependant of one of the above categories.
Annex B
VISA NATIONALITIES
The following persons need a visa for the United Kingdom:
(a) Nationals or citizens of the following countries or
territorial entities:
Afghanistan | Gambia | Peru
|
Albania | Georgia | Philippines
|
Algeria | Ghana | Qatar
|
Angola | Guinea | Romania
|
Armenia | Guinea Bissau |
Russia |
Azerbaijan | Guyana | Rwanda
|
Bahrain | Haiti | Sao Tome e Principe
|
Bangladesh | India | Saudi Arabia
|
Belarus | Indonesia | Senegal
|
Benin | Iran | Sierra Leone
|
Bhutan | Iraq | Somalia
|
Bosnia Herzegovina | Ivory Coast
| Sri Lanka |
Bulgaria | Jamaica | Sudan
|
Burkina Faso | Jordan | Surinam
|
Burma | Kazakhstan | Syria
|
Burundi | Kenya | Taiwan
|
Cambodia | Korea (North) |
Tajikistan |
Cameroon | Kuwait | Tanzania
|
Cape Verde | Kyrgyzstan |
Thailand |
Central African Republic | Laos
| Togo |
Chad | Lebanon | Tunisia
|
People's Republic of China (except those referred to in sub-paragraphs 2(d) and (e) of Appendix 1 of the Immigration Rules)
| Liberia | Turkey |
Turkmenistan | |
|
Libya | |
|
Macedonia | |
|
Madagascar | |
|
| | |
Uganda | |
|
Ukraine | |
|
Colombia | Mali | United Arab Emirates
|
Comoros | Mauritania | Uzbekistan
|
Congo | Moldova | Vietnam
|
Republic of Croatia | Mongolia
| Yemen |
Cuba | Morocco | Zambia
|
Democratic Republic of the Congo | Mozambique
| Zimbabwe |
Djibouti | |
|
Dominican Republic | |
|
Ecuador | |
|
Egypt | |
|
Equatorial Guinea | |
|
Eritrea | |
|
Ethiopia | |
|
Fiji | | |
Gabon | |
|
Niger | |
|
Nigeria | |
|
Oman | | |
Pakistan | The territories formerly comprising the socialist Federal Republic of Yugoslavia
| |
(b) Persons who hold passports or travel documents issued
by the former Soviet Union or by the former Socialist Federal
Republic of Yugoslavia.
(d) Persons who hold non-national documents.
|