Report
1. In December 2009, we published two reports on
aspects of the work of the UK Border Agency (UKBA): the first
concentrated on the UKBA's efforts to clear the historic backlog
of asylum cases, and the second commented on the e-Borders programme.[1]
In both, we expressed serious concerns about the programmes, noting
our continuing worry that the backlog would not be cleared as
quickly as would be desirable and our reservations about the legality
and practicality of and timetable for aspects of the e-Borders
programme.
2. We have subsequently received the Government's
responses to these reports: we published the response to the first
report in February[2] and
we append the response to the second to this Report.[3]
We have also received a quarterly update on asylum cases and other
issues from Lin Homer, Chief Executive of UKBA;[4]
we have been given updates by most of those who gave evidence
to our e-Borders inquiry together with a copy of a letter from
the European Commission about that programme;[5]
and the Independent Chief Inspector of UKBA has published the
findings from his first major inspection of the asylum system.[6]
We have taken further oral evidence from both UKBA and the Independent
Chief Inspector of the UKBA, on 3 March 2010.
3. Normally, we would have published the Government's
response on e-Borders, the transcript of the oral evidence from
UKBA and the written evidence without comment, not least as we
have no time to launch any further inquiries owing to the imminence
of the general election. However, we were struck by the fact that,
despite the assurances given by the Government in their responses
to our original reports, the subsequent evidence we have received
reinforces and, in some areas, increases the concerns we felt
at the end of last year. None of these issues will be resolved
within the next few months, and all will have a serious impact
on thousands of people. We believe it appropriate that we should
briefly draw them to the attention of our successor Committee
in the next Parliament, and we urge our successors to seek an
update on them as early as possible.
Dealing with the backlog of historic
asylum cases
4. Since February 2007 we have been receiving regular
updates from UKBA about its efforts to deal with a backlog of
between 400,000 and 450,000 unresolved asylum cases, some dating
back more than a decade, which became known as the Legacy Casework
Programme. On several occasions we have raised with Ms Homer our
fear that the cases were being considered too slowly to meet the
deadline of concluding them all by the summer of 2011. Both in
her oral evidence to us last year and in the Government's response
to our report, we were told that the UKBA was confident it could
meet the deadline.[7] However,
the Independent Chief Inspector has more recently reported his
assessment that the cases were not being cleared fast enough to
achieve the deadline, and that either UKBA would have to apply
more resources to the problem or it would have to change the way
in which cases were reviewed and decisions made if the deadline
were to be met. The Chief Inspector therefore recommended the
adoption of an action plan to speed up the system and to make
it clear what would happen to any cases left unresolved in July
2011.[8]
5. Moreover, and despite the fact that we were given
the impression that this was not happening,[9]
the Independent Chief Inspector found that, in effect, a new backlog
was accruing because the UKBA was unable to achieve the targets
for resolving new asylum cases within six months.[10]
He attributed this, at least in part, to the fact that unrealistic
targets had been set because managers had not adequately consulted
the staff processing the applications before setting them.[11]
Lin Homer argued that there was no backlog amongst new asylum
cases as 'backlog' meant cases set to one side and not being worked
on.[12] By 'backlog'
we mean that cases are not being concluded as quickly as new cases
are coming in, so there is a constantly increasing tally of live
cases.
6. The Chief Inspector of UKBA has confirmed our
fears that the historic caseload of asylum applications will not
be cleared by the deadline and that a new backlog of cases is
growing up. We look forward to the UKBA presenting our successors
with clear, realistic proposals for dealing with both these problems,
even if that means an acknowledgement that current targets cannot
be met.
7. We were disturbed by media reports that a former
temporary employee of UKBA's Cardiff office had made allegations
of inappropriate and offensive behaviour by her erstwhile colleagues
in that office. On 2 March 2010 we took oral evidence from that
employee, Ms Louise Perrett, who repeated the allegations to us.[13]
Ms Homer assured us that the allegations were already being investigated
by the UKBA's Professional Standards Unit, and that, if the Unit
found them to be true, it would be a priority for the UKBA to
take whatever formal disciplinary action or training that was
necessary.[14]
8. We also asked Ms Homer about a reported hunger
strike at the Yarl's Wood Immigration Removal Centre. Ms Homer
reassured us that the demonstrators, while refusing to take meals
in the canteen, were eating food acquired from the shop and the
vending machine, and had access to medical care at all times.[15]
E-Borders programme
9. The e-Borders programme is a system to gather
information electronically on all travellers entering or leaving
the UK, whether by air, sea or rail. We reported in December that
there were serious practical difficulties—some technical,
others logistical—with the programme as then envisaged,
and we raised the concern that the requirement for all passengers,
including EU citizens, not just to prove their right to travel
by production of a passport or ID card but also to provide UKBA
with information from the machine-readable zone within their passport
might be contrary to one of the three fundamental freedoms of
the European Union Treaty, freedom of movement of people.[16]
10. A few hours before our Report was published,
UKBA sent us a copy of a letter to them from the European Commission
saying that the programme would be compatible with EU law provided
that the guarantees given to the Commission by UKBA on the following
issues were met "in their entirety and in a legally binding
manner" and "in the everyday operation of the e-Borders
scheme":
- Passengers who are EU citizens
or their family members will not be refused entry/exit or incur
sanctions in any way on the basis that their passenger data is
unavailable to the UK authorities for whatever reason;
- Carriers will not incur sanctions if they are
unable to transmit data through no fault on their part;
- Carriers will be instructed by the UK authorities
not to deny boarding to travellers, regardless of their nationality,
who do not communicate API data[17]
to the operator, and that the provision of API data to operators
is neither compulsory nor is made a condition of purchase and
sale of the ticket;
- UK authorities will make available to persons
travelling to/from the UK the information required by Article
10 of Directive 95/46/EC [on the protection of personal data]
and will also assist the carriers to communicate this information
to travellers;
- A single contact point will be established by
UK authorities to allow data subjects to exercise their data protection
rights;
- Appropriate safeguards will be applied to transfers
of data to third countries, in line with what is requested by
the UK data protection authority.[18]
The letter went on to emphasise that it would be
for the data protection authority in the country in which the
data processing occurred to decide whether it was appropriate
for the carriers to collect such data: in other words, carriers
could not collect such data from passengers bound for the UK unless
the local data protection authorities had confirmed this was compatible
with national law.
11. We note that the European Commission's opinion
seems to have stayed unchanged despite the renewed security concerns
arising from the so-called 'Christmas Day bomber': the European
Commission wrote in almost identical terms to the Director-General
of the Chamber of Shipping on 1 February 2010.[19]
12. We asked the carriers who had given evidence
to us in July and October last year to inform us about progress
in dealing with both the practical problems we had identified
and the question of compatibility with the EU Treaty.[20]
We were told that negotiations over the practical difficulties
faced by the maritime sector had yet to result in clear agreed
solutions, though some progress had been made; and the sector
was puzzled by the fact that UKBA had in effect told it that no
changes had to be made to the programme in the light of the European
Commission's letter on legality. As far as the airlines were concerned,
although many of the technical problems had been resolved, that
sector was worried by two developments: the Prime Minister's Statement
that the e-Borders scheme would enable the UK authorities to obtain
full details on everyone on a flight 24 hours in advance of departure[21]
(currently it is possible to provide this only a few minutes before
take-off); and the concern that the sector was operating contrary
to EU law by requiring EU citizens to provide API on intra-EU
travel, contrary to the European Commission's letter.
13. The Government's response to our Report on e-Borders
acknowledged that a significant number of practical issues remained
to be settled, including the questions of whether airlines would
be required to provide per passenger or batch messaging; how e-Borders
would operate in the context of juxtaposed border controls for
Eurostar and the Dover-Calais route; how data on ferry passengers
in general could be collected; the particular problem of avoiding
long delays while collecting data from coach passengers; the difficulty
of dealing with the fact that passengers on Eurostar and other
cross-Channel trains may disembark at intermediate stations; and
it accepted that further urgent work needed to be done with both
the European Commission (on the interpretation of its letter of
17 December) and other EU Member States (on compatibility of the
programme with their national data protection legislation).[22]
14. We asked Lin Homer and Brodie Clark of UKBA about
the Commission's letter and the continuing difficulties highlighted
by the carriers.[23]
They assured us that negotiations were proceeding smoothly with
all parties and solutions were being found to the problems. In
particular, they referred to a meeting to be held with the European
Commission "in a couple of weeks' time".[24]
Given the slow progress so far in discussions with the maritime
and rail sectors, and the number of practical problems (some technical,
others to do with a physical inability to send data) experienced
by the aviation industry even during and after roll-out, we remain
sceptical about whether UKBA will be able to solve the remaining
problems swiftly. We note that there is still, in Mr Clark's words,
the need for "a conversation with the Commission" to
clarify what is required in order to make the programme compatible
with freedom of movement;[25]
and, despite the continuing negotiations, UKBA was unable to inform
us of any specific progress on the national data protection issues
with individual Member States. We remain of the view that the
current timetable will be impossible to achieve, and it is still
not clear whether all or some intra-EU travel will have to be
omitted from the programme, either on freedom of movement or on
national data protection grounds.
15. We note that UKBA has recently provided the
Chamber of Shipping with the information we had previously asked
it to supply about the UK's discussions with the European Commission.
This is helpful, but we consider it would be still more helpful
to involve the carriers in the imminent meeting between UKBA and
the European Commission so that they have a much clearer idea
of what the Commission believes EU law actually requires in practical
terms.
16. We note the Government's strongly-held view
that the e-Borders project is vital to the security of the UK's
borders, in terms of combating illegal immigration, serious crime
and terrorism. This being so, the fact that so many major difficulties
with the programme remain to be resolved causes us serious concern.
We recommend our successors to keep a close watching brief on
this programme.
1 Respectively. The work of the UK Border Agency,
Second Report of Session 2009-10, HC 105-I and The E-Borders
Programme, Third Report of Session 2009-10, HC 170 (hereafter
Second Report and Third Report respectively) Back
2
The work of the UK Border Agency: Government response to the
Committee's Second Report of Session 2009-10, Third Special
Report of Session 2009-10, HC 370 (hereafter Government response) Back
3
Ev 18 Back
4
Ev 21 Back
5
Ev 30-Ev 43 Back
6
Asylum: Getting the Balance Right? A Thematic Inspection: July-November
2009 (hereafter Chief Inspector's report) Back
7
Second report, paras 2-10; Government response, reply to Recommendation
1. Back
8
Qq 56-59 Back
9
See, for example, Lin Homer's oral evidence to the Committee on
8 July 2009, Qq 54-58, published in Second report, Volume II Back
10
Chief Inspector's report, paras 1.1-1.26 Back
11
See, for example, paras 1.17-1.18 Back
12
Oral evidence taken on 8 July 2009, Q 58 Back
13
Qq 1ff Back
14
Q 84 Back
15
Q 156 Back
16
Third Report, paras 13-48 Back
17
API or Additional Passenger Information data, also known as TDI
or Travel Document Information, are the data held in the machine
readable zone of a passport or identity document. Back
18
Ev 30 Back
19
Ev 41 Back
20
See Ev 34-Ev 43 Back
21
Prime Minister's Statement to the House of Commons on Security
and Counter-Terrorism, HC Deb 20 January 2010, cols 303-305 Back
22
Ev 18, paras 5, 14, 17, 20, 27 and 28 Back
23
Qq 136-155 Back
24
Qq 149 and 152 Back
25
Q 153 Back
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