UK Border Agency: Follow-up on Asylum Cases and E-Borders Programme - Home Affairs Committee Contents


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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Prepared 7 April 2010