House of Commons - UK Border Controls - Home Affairs Committee

UK Border Controls - Home Affairs Committee Contents

1 Inquiry into the provision of UK Border Controls

Sequence of events

1. On Friday 4 November 2011, it was reported that Brodie Clark, the Head of the UK Border Force, had been suspended along with two other Border Force officials while claims that he had authorised the relaxation of border checks without ministerial approval were investigated. The Home Secretary made a statement to the House on Monday 7 November in which she suggested that Mr Clark had exceeded the terms of an agreed trial of a risk-based approach to entry controls. The Home Secretary stated:

She announced the establishment of three inquiries into the issue, two led by civil servants and one by the Chief Inspector of the UK Border Agency.[2] The following day, Mr Clark left the Home Office and announced that he would be pursuing a claim for constructive dismissal.

2. The precise facts of the case are disputed and the Home Office has denied us access to original documents that would have helped us to clarify the sequence of events and we shall consider this further below. The main sequence of events was as follows:

In December 2010, the UK Border Force began work on devising a pilot of 'risk and intelligence-led' border checks, as a possible alternative to the process-based system in which every person is subject to the same checks at the border, depending on their nationality and visa status.[3]
In July 2011, the scope of a trial was agreed by Ministers. Under the terms of the pilot, officers could use their judgement to decide whether to read the biometric chip, which contains a second photograph of the passport holder, in UK and EEA passports (where they had such a chip). They could also use their judgment to decide whether or not to check children travelling in school parties or with parents against the Home Office Warnings Index (a "watch list" of suspected terrorists), rather than being required to do so in all cases. A third proposal from the Border Agency, that checking the fingerprints of non-EEA nationals requiring visas (a process known as "Secure ID") should no longer be done automatically in all cases, was not approved by Ministers.
On 29 July, an Interim Operational Instruction was issued to UK Border Force staff setting out the agreed terms of the trial, to take effect from 29 July until mid-September.[4]
On 14 September, the pilot was reviewed and it was agreed that it should be extended until 4 November on the basis of encouraging preliminary results.
Between 26 September and 19 October, John Vine, the Independent Chief Inspector of the UK Border Agency, made an inspection at Heathrow Terminal 3, during which he says he raised concerns with Brodie Clark about the frequency with which Secure ID checks were being suspended.
On 2 November 2011, Mr Vine met Rob Whiteman, Chief Executive of the UK Border Agency. During this meeting, Mr Vine referred to the suspension of Secure ID at Heathrow. It is not clear to us why there was a delay of several weeks between Mr Vine's discovery and his decision to raise the issue with Mr Whiteman at a routine meeting.
Following this meeting, Mr Whiteman held discussions with both Mr Clark and Jonathan Sedgwick, former acting Chief Executive of the UK Border Agency. He told us that Mr Sedgwick confirmed that Ministers had not consented to the suspension of Secure ID as part of the pilot. Mr Whiteman also said that Mr Clark admitted during the course of these discussions that he had gone beyond Ministerial authority, although Mr Clark denies that he made such an admission to Mr Whiteman during those discussions.
On 3 November, Mr Clark was suspended pending an investigation. Home Office Ministers and the Permanent Secretary were informed of the situation.
On 7 November, the Home Secretary made a statement to the House on UK Border Force.
On 8 November the Home Secretary gave evidence to this Committee. In the evening of the same day, Brodie Clarke left the UK Border Agency, claiming constructive dismissal.
On 15 November we took evidence from Brodie Clark and Rob Whiteman.
On 22 November we took evidence from Helen Ghosh DCB, Permanent Secretary at the Home Office and Damian Green MP, Minister for Immigration.
On 8 December we took evidence from Jonathan Sedgwick, International Group Director of the UK Border Agency, who was the acting Chief Executive of the UK Border Agency during the summer of 2011.

Our inquiry

3. On 8 November, the day after her statement to the House, the Home Secretary gave evidence to us and again repeated the assertion that Mr Clark had gone beyond Ministerial authority. That evening, Mr Clark issued a statement in which he said that the Home Secretary had made his position untenable. He announced that he had left the Home Office and would be making a claim for constructive dismissal in the light of the behaviour of the Home Office and comments made to Parliament by the Home Secretary:

4. There have been several high-profile failings for which the UK Border Agency has been responsible in the past and there are ongoing concerns about the Agency's performance. For this reason, we hold three sessions each year with the UK Border Agency Chief Executive and regularly produce a report on the workings of the Agency.[6] We continue to monitor the work of the UK Border Agency closely, and as part of that process we decided to investigate this matter.

The pilot and the suspension of Mr Clark

5. Before the pilot was introduced, entrants to the UK were all supposed to be subject to a standard range of checks at the border, depending on whether they were EEA or non-EEA nationals and, in the case of non-EEA nationals, whether or not they held a visa. Border Force officers had no authority to waive checks, except under the Home Office Warnings Index ('HOWI') Guidance, described below. In late 2010, the UK Border Force started development on a pilot of 'risk-based' border checks, allowing the Border Force to use intelligence reports and officers' own judgement to target the passengers and luggage on flights that were considered to be high-risk. In its draft form, this pilot allowed three checks to be omitted at officers' discretion—opening the biometric chip in British and EEA passports, checking children against the Warnings Index, and checking the fingerprints of visa holders to confirm their identity (Secure ID). Only the first two of these measures were agreed to by Ministers. The third, which allowed the suspension of the automatic use of Secure ID in all cases, was not.

6. The biometric check consists of opening a second, electronic copy of the photograph of the passport holder, stored on a microchip, in order to ascertain that the original photo has not been tampered with. The Warnings Index is a database of terrorist suspects and others who are not to be admitted to the country. Finally, Secure ID is a fingerprint check. Foreign nationals applying for a visa must provide their fingerprints which are then checked against immigration and criminal databases. On arrival at a UK port, Secure ID is used to ascertain that the person carrying the visa is the person who was granted the visa.

7. According to the leaked interim operational instruction, the agreed pilot measures therefore were to be undertaken "for short periods at a time [...] (up to several hours)" in order to avoid having to use customs officers to staff passport control desks where there was a high risk associated with goods entering the country, or where delays at passport control could have a more serious or critical impact on the operations of the post, such as a risk to passengers' health and safety, a "baggage crisis", passengers being detained on aircraft or disruption to flight schedules.[7] The pilot started at the beginning of August. It was initially due to finish in late September but was extended to 4 November.

8. In her statement to the House, the Home Secretary accused Mr Clark of taking the pilot further than had been agreed:

When he appeared before us, Mr Clark initially denied that he had exceeded Ministerial authority. He did admit though that he had allowed the suspension of Secure ID to continue at Heathrow when he learnt of it in early 2011 and confirmed to the Committee that he had not sought specific Ministerial authority to do this despite suspension of Secure ID having not been approved when he proposed it as part of the pilot:[9]

Nicola Blackwood:

Brodie Clark

Nicola Blackwood:

Brodie Clark:

Nicola Blackwood:

Brodie Clark:

Nicola Blackwood:

Brodie Clark:

Mr Clark said that the suspension of the Warnings Index checks and Secure ID checks had been carried out not as an extension to the 2011 risk-based pilot but under a policy approved by Ministers in 2007, known as the Home Office Warnings Index (HOWI) Guidance,[11] although he later stated that the policy for suspension of Secure ID in health and safety emergencies had only been in place since 2010.[12] Indeed, it is not possible that the Home Office Warnings Index Guidance 2007, in its original form, could have expressly authorised the suspension of Secure ID as the check was not introduced until March 2010. Mr Clark has denied any knowledge of biometric checks on non-EEA nationals being abandoned[13] and Rob Whiteman acknowledged to the Committee that Mr Clark had not admitted to authorising the suspension of biometric checks on non-EEA nationals to him at any point but that their conversations had focussed on the suspension of Secure ID and the use of HOWI Guidance for suspension of checks at Calais.'[14]

Home Office Warnings Index Guidance

9. The Home Office has refused to provide us with a copy of the HOWI Guidance, a document we believe to be of importance as it has been discussed extensively in oral evidence to this Committee, as well as in the House itself. It is our understanding that it was developed to deal with health and safety situations in which it became necessary to downgrade border checks to respond to or avert a crisis such as a fire in the airport;[15] a build-up of passengers in the arrivals hall that prevented passengers from disembarking from more recently landed aircraft and, in turn, preventing aircraft from landing;[16] and, at Calais, queues of vehicles backed up to the motorway, presenting a road-safety risk.[17]

10. Mr Clark told us that the relaxation of Secure ID and of Warnings Index checks was carried out under these guidelines, not under the terms of the pilot.[18] Secure ID was not introduced until 2010,[19] several years after the HOWI Guidance was issued. However, Mr Clark's view was that the Secure ID check was less important than the Warnings Index check. It was one of nine checks that were carried out on visa entrants, and one of the least important in his view, whereas the Warnings Index check was the principal counter-terrorist check. His reasoning was that, if the circumstances warranted the suspension of the Warnings Index check, they must surely have warranted to suspension of the fingerprint check.[20] In oral evidence to the Committee, however, Rob Whiteman explained that he believed that the reason Ministers were opposed to any reduction of Secure ID checks was because they did not agree with Brodie Clark's assessment of them as 'secondary checks'[21] due both to the deterrent effect of the check and because "of course, if somebody is found by that, it is actually quite a high-risk case—if somebody has gone to the position of forging the photograph in comparison with the photograph on the chip—so, although the number might be very low, Ministers were of the view that the risk value of an incident would be high."[22]

11. We are shocked at the sheer number of times the HOWI guidelines have been invoked—almost 100 times at Calais alone.[23] Mr Clark told us that the guidelines had been used on at least 50 occasions between May and July 2011 and then on a further seven occasions between August and October 2011.[24] The Immigration Minister, when questioned about the number of times the guidelines had been implemented, confirmed that he expected to be informed every time a situation occurred which required the relaxation of border controls.

Chair:

Damian Green:

However, when questioned on whether he thought that the HOWI Guidance was being used inappropriately Rob Whiteman told the Committee:

Nicola Blackwood:

Rob Whiteman:

Either the number of staff at the border is inadequate to cope with passenger numbers, or senior staff have been too ready to authorise the suspension of Warnings Index checks, or some combination of the two. In either case, Ministers should have been made aware and, if they were not, this is serious failing on the part of senior Agency staff.

12. We are very concerned that the Home Office Warnings Index Guidance 2007 might be being used inappropriately at local level as a management tool instead of an emergency provision. We recommend the Agency conduct a full review of its use of the Guidance since its introduction, clarify to all ports the limits of authority which they have to implement it and ensure that robust reporting and monitoring mechanisms are in place for its continued use.

Brodie Clark's departure from the UK Border Agency

13. There are clear disagreements between Mr Clark, Mr Whiteman and Dame Helen about the sequence of events that led up to Mr Clark's departure. Mr Clark has indicated that he is bringing a claim for constructive dismissal against his former employer. These matters are, or might soon be, for consideration by an employment tribunal. We therefore make no comment about the circumstances of Mr Clark's departure from the UK Border Agency, but we are grateful to him for coming to give evidence to us at a time when he was under a great deal of personal pressure, and for declining to speak to the media until he had done so.

Communications between the UK Border Agency and the Home Office

14. the UK Border Agency is described as "an executive agency of the Home Office" but it is in fact an integral part of the Department. While it has its own management and budgetary structure, the UK Border Agency is still under the aegis of the Home Office and it no longer formulates its own policy—that is the responsibility of Home Office Ministers, on the advice of Home Office and UK Border Agency officials. The Permanent Secretary has provided us with a detailed description of the various ways in which Home Office Ministers and officials exercise oversight of the UK Border Agency.[27]

15. The oversight described by Dame Helen appears to be extensive at all levels. This, if nothing else, indicates that at some point there must have been a substantial and serious breakdown in communication. In evidence to us, the Permanent Secretary admitted that the nature of the discovery of these relaxations of border checks—by the Independent Inspector rather than one of the many boards which oversee the work of the UK Border Agency—indicated that the current methods of oversight were not effective.

Chair:

Dame Helen Ghosh:

It may be that this confusion has been compounded by the number of changes that have taken place in the past year - the appointment of a new Permanent Secretary at the same time as the departure of the Agency Chief Executive in January, the interregnum of nine months before Mr Whiteman was appointed in September, and the transfer of the policy arm of the Agency to the Home Office in August but it is not acceptable for a communications system to be so dependent on individual officials as this would suggest.

16. There are a number of areas where communication appears to have broken down. The Permanent Secretary informed us that the Home Secretary had not been told when the pilot was introduced in July 2011 of the previous HOWI guidance agreed to by her predecessors.[29] Border Agency officials, including Mr Clark, appear to have acted on the assumption that she would have been. Indeed when questioned, Mr Clark said that he "would be surprised if they [the Home Secretary and the Immigration Minister] did not know of these policies or understand them."[30] Even after Mr Clark's suspension, there was disagreement over the application of the pilot and the HOWI Guidance and the Home Secretary did not refer to the HOWI Guidance when she made her statement to the House. The Independent Chief Inspector of the UKBA has highlighted differing views among front line staff at Heathrow about which checks were supposed to be implemented, under which circumstances. It would seem that concerns highlighted by Mr Sedgwick about the risk of the pilot being over-interpreted did not result in measures which might have avoided later recriminations.[31]

17. Brodie Clark maintains that he informed the Agency strategy board in December 2010 of his use of HOWI guidelines to address the issues arising from overwhelming numbers of passengers. He has stated that both Lin Homer, the then Chief Executive (currently Chief Executive at HMRC) and Dave Wood, the board member who has been asked by the Home Secretary to carry out an inquiry into Mr Clark's conduct, were present at this meeting and no objections were raised to his implementation of this guidance.[32] If this was the case then the entire board would share collective responsibility for not ensuring that the Home Secretary was briefed on the matter. It would also seriously undermine the credibility of the inquiry being carried out by Mr Wood.

18. However, Mr Sedgwick disputed this claim, although he had not been present at the meeting. He told us that the point had been made in passing, in the context of a wider discussion on aviation security:

We have requested a copy of the slide presentation from the Home Office, which again has been refused. Without access to the slide, we are unable to comment on either assertion. It is surprising, that even a passing reference to the suspension of Secure ID and Warnings Index checks did not ring alarm bells for such senior staff and that they did not, even at that stage, alert Ministers to the issue.

19. It is clear to us that there were problems in communicating the remit of the pilot to Agency staff. In evidence to us, the Independent Chief Inspector of the UKBA, John Vine, described the inconsistency of passport checks at Heathrow Terminal 3. He also "noted a degree of confusion amongst both immigration officers and more senior management about what was permitted under [the pilot], resulting in inconsistent implementation".[34]

20. Mr Sedgwick also described how, following the first weekly report on the pilot, he had raised concerns with Brodie Clark that it appeared that the pilot measures were being used too routinely at Heathrow. He said that following this discussion, Mr Clark spoke to staff at Heathrow and changes were made.[35] However, when Mr Vine and his inspection team visited Heathrow between 26 September and 19 October, he was informed by staff that the pilot was in operation between the hours of 6am to 9am and 6pm to 9pm as a matter of daily routine. This indicates that Mr Sedgwick's fears about over-interpretation of the pilot might have been well-founded, but that there was no effective intervention by Mr Sedgwick or his staff to deal with the issue. This was despite Mr Clark's apparent instructions following both Mr Sedgwick's and, later, Mr Vine's comments on the issue.[36]

Memo from Brodie Clark to Graham Kyle (dated 11 October 2011)

I had a conversation with John Vine recently - part of which was an update on his current review of aspects of the work at Heathrow.

In passing, he mentioned the occasional and temporary cessation of fingerprint verification. I explained that this was rare - it did not surprise me that it had been invoked during the early September period, given the substantial influx of students. I confirmed that under circumstances where the port infrastructure was at risk of collapse or where there was an imminent likelihood of the police or the port operator requiring us to 'open our gates' on the basis of order and control problems or health and safety risks, then I had accepted the authority through my Duty Director to approve a temporary relaxation on one aspect of our checking process (in favour of retaining the rest of them).

This is the agreement we had reached and I know that you have taken it seriously and cautiously. Nevertheless, I would be grateful if you could follow up his observation and confirm that the particular measure is not being deployed more than is absolutely necessary for the safety and security of the port.

21. It would appear that senior officials had been made aware of the suspension of Secure ID and that there was potential for the pilot to become routine activity yet both situations carried on unchecked. Officials ought to be in constant communication and the effectiveness of the departments of the UK Border Agency ought to be the responsibility of all senior staff, not just the department heads.

22. In evidence sessions when we questioned the failures of communication which allowed this issue to arise, our witnesses maintained that it was not possible for Ministers or senior staff to be aware of the situation. Indeed the Immigration Minister referred to "a Rumsfeldian world of unknown unknowns."[37] However, we firmly believe that this should not be normal practice for any part of Government. If we are to accept the version of events as recounted by Ministers and senior Home Office staff then it creates the impression that Mr Clark was running the UK Border Force without effective checks or balances from either his superiors or immediate colleagues despite the fact that the Border Force is not a separate organisation, nor even part of an independent agency, but is part of the mainstream responsibility of the Home Office and comes directly under the responsibility of the Permanent Secretary and the Board of the Department. There ought to be a much closer working relationship between the various parts of the UK Border Agency. Mr Whiteman described the Agency as being more silo-based[38] than his previous work and it would appear that the Agency's use of this model has enabled a situation where there was at best a single line of communication between the Border Force and Ministers. As a result there was a lack of oversight when this line of communication failed.

23. The chain of communication from Ministers, to senior management, to front-line staff of the UK Border Agency is a long and convoluted one, and it seems to have become seriously fragmented. We recommend that the Chief Inspector of the UKBA carry out a thematic review of the Agency's internal communications and report to Ministers as a matter of urgency.

24. It is difficult to understand how this situation could have arisen, given that the Border Force is not a separate organisation, external to and independent of the Home Office. Nor is it a part of an independent agency, although the way the Border Agency is described in terms of its title, its discrete budget and the plethora of systems for accountability gives an impression of independence and separate accountability. Even the description given to the committee by the Permanent Secretary demonstrated a muddle at the heart of this major Department. We recommend that systems of accountability, responsibility and communications be clarified and that the use of words such as "Agency" in the title of an organisation be only used in future when that organisation is institutionally separate from the Department.

Provision of information to this Committee

25. The Home Secretary has established three separate inquiries into these events. As mentioned above, Dave Wood, the head of the Agency enforcement and crime group and a former Metropolitan police officer, will carry out an investigation into exactly how, when and where the suspension of checks might have taken place. Mike Anderson, the Director General of Immigration at the Home Office, is looking at the actions of the wider team working for Brodie Clark. John Vine, the Chief Inspector, is conducting a review to find out exactly what happened with the checks across the Agency (including ministerial decisions), how the chain of command in the Border Force operates and whether the system needs to be changed in future.

26. In order for us to reach a definitive conclusion on these issues, we need access to three key documents:

a) Instructions from the Home Secretary's private office to Agency officials about the terms of the risk-based pilot. We were denied access to this on the basis that the Home Secretary would be providing copies of all relevant documentation to the inquiries being carried out by the Home Office.[39]

b) The Home Office Warnings Index Guidance issued in 2007. We were denied access to this on the basis that the Home Office does not release copies of operational instructions as to do so could have a detrimental impact on the operational effectiveness of border controls.[40]

c) The periodic updates on the progress of the pilot which were provided to Ministers by the Agency. We were denied access to these on the basis that the Home Secretary would be providing copies of all relevant documentation to the inquiries being carried out by the Home Office.[41]

27. Despite agreeing to make both the Home Office Warnings Index Guidelines[42] and the periodic updates[43] available to us when she came before us on 8 November, the Home Secretary has since refused to provide us with these documents. Instead she has referred to the fact that she has appointed two civil servants and the Chief Inspector of the UKBA to inquire into the matter and provided the documents to them.[44] It is not unusual for a Minister of any Government to task civil servants with holding inquiries into events which have caused concern amongst the general public. However, notwithstanding any internal departmental investigations, these documents would have assisted our inquiry in confirming witness accounts and we would normally expect a Government of any party to acquiesce to such a request from a Select Committee. We recommend that the Home Secretary deposit copies of all the documents that have been made available to the three internal investigations in the Library of this House. This will allow this Committee to reach an informed conclusion of our own and would be consistent with the Government's commitment to transparency and accountability.

The risk-based pilot

28. Early data indicate that the pilot has been a success. According to figures used by the Prime Minister, there was a 100% increase in the seizures of firearms, a 10% increase in arrests of illegal immigrants and a 48% increase in the detection of forged documents during the period of the pilot.[45] However, the Permanent Secretary conceded that the pilot would have to be re-evaluated to take in to account the relaxation of other border checks.[46] The findings cited by Ministers are preliminary findings and it is not clear how much weight they carry. We await the publication of a detailed analysis of the evidence provided by the pilot. It is important that an evidence-based evaluation of the pilot—and the opportunity to learn important lessons—are not abandoned because of a controversy that is to do with failures of management and communication rather than the pilot itself. Objective and evidence-based policy-making is too important to be brushed aside and we urge Ministers to have the confidence to make sure that this does not happen.

29. The risk-based pilot was intended to introduce an intelligence-led approach to border security. By minimising the time that staff spent on checking those unlikely to be a serious threat to the UK (such as a school party of EEA children) they were able to focus staffing resources on arrivals from areas which are known to be a source of smuggled goods and illegal immigrants. We fully support the policy intention of Ministers to ensure that staff are being used as efficiently and effectively as possible. The roll out of the pilot is especially important in the context of staffing reduction at the border. It is vital that we do not expect fewer staff to perform at the same levels without any mistakes being made—there has to be a degree of flexibility in the system.

30. The UK Border Agency, in common with the rest of the public sector, must learn to deliver its services with fewer resources. Making "smarter" use of its own staff, giving officers on the ground the freedom to make their own judgements, is part of this and the risk-based pilot could be a promising framework for a new approach. Ministers must ensure that this episode does not discourage staff from using their own initiative consistent with the Government's policies and Ministers are informed within a reasonable period of time.

31. The risk-based pilot must not be scrapped because of this controversy. We recommend that the findings and analysis of the pilot be published in full, with a clear commitment to further action if the initial findings suggest that it indeed has been a success.

1 HC Deb, 7 November 2011, col.45 Back

2 HC Deb, 7 November 2011, col. 45-46 Back

3 The UK Border Force is a part of the UK Border Agency. During our report, we refer to the UK Border Agency as the Agency-we do this although it is an integral part of the Home Office and not a separate arms-length body. Back

4 UK Border Agency Interim Operational Instruction No. BF 01 29 11, dated 28 July 2011. Appended to this report. Back

5 www.fda.org.uk/Media/UK-Border-Force-chief-constructively-dismissed.aspx Back

6 These reports can be found at: www.parliament.uk/business/committees/committees-a-z/commons-select/home-affairs-committee/publications/ Back

7 UK Border Agency Interim Operational Instruction No. BF 01 29 11, dated 28 July 2011. Appended to this report. Back

8 HC Deb 7 November 2011, col.45 Back

9 Q18-23, Q83-86 Back

10 Q84-86 Back

11 Q1, Q38 Back

12 Q18 Back