Select Committee on Home Affairs Written Evidence


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 UK—currently 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there are also a number of immigration policy concessions (about 27%) which include both published concessions and unpublished concessionary arrangements.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:


Nationality—6 (1) All postal £200
Nationality—6 (2) All postal£200
Nationality—Registered Adults—All postal £120
Nationality—Registered Minors—All postal £200
Nationality—Renunciation—All postal £120
Right of Abode£120
LTR—premium£500
LTR—Postal students£250
LTR—Postal non-students£335
LTR—Transfer of Conditions—premium £500
LTR—Transfer of Conditions—postal £160
Certificate of Approval—Postal£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 Programme—All postal £315
Worker Registration Scheme—All postal £70
Seasonal Agricultural Workers Scheme—All 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 Aid—April 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)
2003-04Outturn (£M)
2004-05
RAB184104
Cash201177


  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:

    —  11,797 asylum appeals;

    —  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 1971—defines 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:

    —  Entry Without Leave:

    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.

    —  Entry by Deception:

    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 9—where there is evidence of the inbound carrier, he may be removed at the carrier's expense.

  Paragraph 10—if there is no evidence of the inward carrier, removal is effected at the expense of the Secretary of State.

  Paragraph 10A—where 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 Act—defined 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 2000—allow 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 1971—provides 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 Act—contains 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 Act—provides 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 Act—Allows 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 Act—provides 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 Act—allows 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 Act—extends 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 Act—applies 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 Act—An 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 Act—An 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/search—limited to Arrest Team IOs

  Section 28A of the 1971 Act—Arrest 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 Act—Arrest 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 Act—Search 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 Act—Search 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 Act—a 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 Act—Entry 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 Act—Entry 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 Act—Entry 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 Act—Search 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 Act—Search 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 Act—Searching 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 Act—Searching persons in police custody—with 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 Act—Access 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 Act—Warrants 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 Act—Extends 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 Act—provides 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 Act—extends 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 Act—gives 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;

    —  asylum claimants; and

    —  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:

AfghanistanGambiaPeru
AlbaniaGeorgiaPhilippines
AlgeriaGhanaQatar
AngolaGuineaRomania
ArmeniaGuinea Bissau Russia
AzerbaijanGuyanaRwanda
BahrainHaitiSao Tome e Principe
BangladeshIndiaSaudi Arabia
BelarusIndonesiaSenegal
BeninIranSierra Leone
BhutanIraqSomalia
Bosnia HerzegovinaIvory Coast Sri Lanka
BulgariaJamaicaSudan
Burkina FasoJordanSurinam
BurmaKazakhstanSyria
BurundiKenyaTaiwan
CambodiaKorea (North) Tajikistan
CameroonKuwaitTanzania
Cape VerdeKyrgyzstan Thailand
Central African RepublicLaos Togo
ChadLebanonTunisia
People's Republic of China (except those referred to in sub-paragraphs 2(d) and (e) of Appendix 1 of the Immigration Rules) LiberiaTurkey
Turkmenistan
Libya
Macedonia
Madagascar
Uganda
Ukraine
ColombiaMaliUnited Arab Emirates
ComorosMauritaniaUzbekistan
CongoMoldovaVietnam
Republic of CroatiaMongolia Yemen
CubaMoroccoZambia
Democratic Republic of the CongoMozambique Zimbabwe
Djibouti
Dominican Republic
Ecuador
Egypt
Equatorial Guinea
Eritrea
Ethiopia
Fiji
Gabon
Niger
Nigeria
Oman
PakistanThe 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.

    (c)  Stateless persons.

    (d)  Persons who hold non-national documents.


 
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