Background
1. This is the second in a series of reports
which we intend to make into various aspects of the work of the
UK Border Agency, based on the regular updates we receive from
the Agency in the form of letters and subsequent evidence sessions.[1]
The Home Affairs Committee has received such updates since 2006,
and in the past these have focused on issues such as the deportation
of foreign national prisoners and the historic backlog in asylum
cases. A number of these issues are now nearing completion, and
we take the opportunity in this report of flagging up other areas
of interest on which we expect the Agency to keep us informed
in its regular letters. In light of the fact that a number of
the new areas of interest are likely to be long-term concerns
and not matters that can be resolved swiftly, we have decided
to request that the frequency of the updates be reduced from quarterly
to three times a year, to enablewe hopemore substantive
progress to be reported. We would like the updates to be provided
by the Agency early in November, March and July each year.
2. We publish with this report the latest quarterly
letter (dated 2 March 2011) and oral evidence from the Acting
Chief Executive of the UK Border Agency, Mr Jonathan Sedgwick,
the oral evidence from the Independent Chief Inspector of the
UK Border Agency, Mr John Vine, a further letter from Mr Sedgwick
(dated 1 March 2011) about the restructuring of the Agency and
a supplementary letter (dated 9 May 2011) sent by Mr Sedgwick
after the evidence session with him.
Asylum cases
UK BORDER AGENCY'S LEGACY CASES
3. During the late 1990s and early 2000s the
Home Office built up a backlog of between 400,000 and 450,000
unresolved asylum cases. The UK Border Agency's target for clearing
this backlog is the summer of 2011, and it has made huge efforts
to meet this deadline, including employing contract staff to perform
basic administrative tasks in relation to the applications, thus
freeing the Agency's own caseworkers to concentrate on the substance
of decision-making. It seems likely that the UK Border Agency
will be able effectively to meet that target, although there are
likely to be a few cases still open in July because the applicants
are awaiting removal, are awaiting prosecution or are engaged
in litigation to try to remain in the UK.[2]
As reported on 2 March 2011, the situation with the backlog was
as follows:
| Total number concluded
|
Removals | 38,000 (9%) |
Grants | 161,000 (40%) |
Others* | 205,500 (51%) |
Total | 403,500
|
Conclusions by main applicant and dependents (rounded
to nearest 500.)
This compares with the situation as of 1 November
2010 (the date of the previous update letter from the Agency):[3]
| Total number concluded
|
Removals | 35,000 (11%) |
Grants | 139,000 (42%) |
Others* | 160,500 (48%) |
Total | 334,500
|
Conclusions by main applicant and dependents
(rounded to nearest 500.)
However, the target seems to have been achieved largely
through increasing resort to grants of permission to stay (during
the course of the legacy operation, Ministers approved revised
guidance allowing caseworkers to consider granting permission
to stay to applicants who had been in the UK for 6-8 years, rather
than the 10-12 years that applied at the start of the backlog-clearing
process)[4] or the parking
of cases in a controlled archive, signifying that the applicant
cannot be found and the Agency has no idea whether or not the
applicant remains in the UK, legally or otherwise.[5]
Cases are checked against watchlists for a period of six months
before they are filed as 'concluded' in the controlled archive.
4. As we noted in our Fourth Report, a large
number of caseswe estimated at least 61,000had reached
or would shortly reach the six months deadline and would be reported
as having been concluded. This calculation was based on the fact
that 18,000 cases were already classified as concluded in the
controlled archive while another 43,000 were still in the six
month waiting period.[6]
Our estimate now appears to have been conservative: Mr Sedgwick
has told us that 40,500 cases have already been so concluded,
and up to 34,000 others are waiting for the six months to elapse.[7]
Assuming that most of the 34,000 cases will eventually be placed
in the controlled archive, in about 74,500 of the 400-450,000
casesapproximately one in sixthe UK Border Agency
has been completely unable to trace what has happened to the applicant.
We consider this indefensible. Moreover, public confidence in
immigration controls is severely undermined by such situations.
A robust immigration system requires those administering it
to have an appropriate system in place that will mean applicants
are not lost or untraceable.
5. It appears likely that the programme to
clear the historic backlog of asylum cases will in essence be
completed within five years, as originally intended. However,
this will have been achieved as the result of a major redeployment
of permanent staff and after the incurring of significant extra
expenditure on temporary staff. When the UK Border Agency produces
its next letter for us, which should be the final report on this
legacy, we expect the Agency to have made an estimate of the total
cost of this programme. Moreover, fewer than one in ten of the
cases will have resulted in the removal of the applicant from
the UK. To a certain extent, this is not surprising: some of the
cases date back nearly 20 years, and the longer a case is left
uncompleted, the more likely it is that the applicant will have
married or had children born in the UK, leading to a greater probability
that settlement will be allowed for family reasons. We understand
that Ministers would have been unwilling to announce an amnesty
for the applicants caught up in this backlog, not least because
this might be interpreted as meaning that the UK was prepared
more generally to relax its approach towards migration; but we
consider that in practice an amnesty has taken place, at considerable
cost to the taxpayer.
NEW ASYLUM CASES
6. The Economist
reported in June 2009 that another backlog of asylum cases was
forming: "the backlog of new cases (excluding the old 'legacy'
lump) more than doubled in 12 months, to nearly 9,000 by last
summer (2008)".[8]
More recent media reports cite the figure of 25,345 new asylum
cases submitted since 2008 which are awaiting conclusion.[9]
On the other hand, the quarterly digest of immigration statistics
published by the Home Office shows that, as of December 2010,
11,625 of the asylum cases submitted since April 2006 were still
pending, 5,980 of which were awaiting an initial
decision and 3,415 of these were more than six months old.[10]
The Independent Chief Inspector of the UK Border Agency confirmed
to us that there was a new backlog, the size of which was not
clear. He suggested we should ask the new head of the Agency,
once appointed, for firm information about the size of the backlog.[11]
We shall, and we expect a full breakdown of these figures in the
next tri-annual letter.
7. In February 2010 the Independent Chief Inspector
of the UK Border Agency was of the view that the Agency would
not, and could not, meet the target for completing 90% of asylum
cases within six months, the deadline for which was December 2011.[12]
We concluded in our last report that there was a real danger that
cases that could not be completed within six months would accumulate
and form a new backlog as officials struggling to meet the target
abandoned these for the new cases constantly coming in.[13]
The Government's response to our report states that the
90% target is being abandoned in favour of measurement against
a basket of indicators, comprising:
- Intake
- Decisions taken within 30 days
- Quality of decision
- Grant rate
- Percentage of decisions overturned at appeal
- Conclusions at six, 12, 18 and 36 months
- Cases removed by 12 months
- Number and age profile of the outstanding caseload
- Asylum support costs
- Productivity (conclusion per caseowner FTE) and
- Unit cost.[14]
8. As we pointed out in our last report on
the Agency, the main aim of its managers should be to improve
the quality of initial decision-making as this would avoid the
substantial delays, financial costs and human suffering that occur
now.[15] We welcome
the move away from a single target for asylum caseworkers, as
this carries the risk of distorting priorities. However, a 'basket'
of eleven indicators may lead to excessive bureaucracy and reporting
requirements and/or a degree of confusion amongst staff as to
how they are supposed to determine priorities. However output
is measured and accounted for, the key is quality control by those
managing the caseworkers on a day-to-day basis. In a number of
his reports the Independent Chief Inspector of the UK Border Agency
has praised the hard work and dedication of caseworker staff,
but has noted inconsistency in the quality of decision-making
and administration between different offices. Ultimately, whether
or not the 'basket' approach succeeds will depend on better training
for line managers, in particular improving their awareness of
best practice, and then trusting them to exercise their discretion
appropriately.
9. We note that the UK Border Agency intends
to publish information about every stage of the asylum process,
from the number submitting applications for asylum through the
speed and quality (as measured by robustness) of initial decisions
to the outcome of appeals and tribunals.[16]
We look forward to receiving this information and we intend to
keep the issues relating to the processing of asylum claims under
review.
Immigration
IMMIGRATION STATISTICS
10. The Government is using a modified Points-Based
System in order to control migration from outside the European
Economic Area to the UK. It has set as its aim the reduction of
net annual immigration to the 'tens of thousands'. We have undertaken
several inquiries into aspects of the Points-Based System, starting
with Tiers 1 (highly skilled migrants)and 2 (skilled employees)
in the autumn of 2010 and Tier 4 (student visas) earlier this
year.[17] In
both reports, we noted that it was not clear whether the modifications
proposed by the Government would reduce net immigration to the
tens of thousands. The latest annual figure published is net immigration
of 242,000 in the year to September 2010 (this and the 226,000
figure to June 2010 are provisional at present). These figures
include UK citizens and those from within the EEA as well as non-EEA
citizens.[18] Since
we published our reports, the Home Secretary has stated her confidence
that the changes in relation to Tier 4, though not a cap on student
numbers, will have the effect of reducing the number of students
by 70,000 to 80,000 pa.[19]
Given that this reduction in student numbers is central to the
Government's immigration policy, we will monitor progress in achieving
it and the overall net immigration figure. At present it is unclear
how the reduction will be made.
11. We have already reported our view that
it is a mistake to include students as 'migrants' unless or until
the student makes an application or demonstrates the intention
to wish to settle.[20]
The official reason for including students in migration numbers
is that this is the way that numbers are measured by the United
Nations. We understand this reasoning, but regard it as flawed.
The Government has indicated an intention to reduce migration
numbers to tens of thousands rather than hundreds of thousands,
and it is clear that their target in terms of that commitment
relates to settlement rather than those who come to the UK to
study and have every intention of leaving after the completion
of their studies. Including student visas in the measurement
places undue political pressure on the Government and its agencies,
risks having a consequent and damaging impact on colleges, universities
and local economies and is not part of a fair assessment of the
Government's success or otherwise in meeting its stated intentions.
The same applies to genuine cases in which people come to the
UK to contribute to the work of specific companies, with no intention
of permanent settlement. It is our contention that the government
success in reducing migration numbers should be measured net of
the figures of the genuine student and expert employment that
are properly granted. Clarifying these issues will be helpful
to Parliament in holding the Government to account, will be helpful
to the Agency in improving its reporting systems and would be
fairer to Government than a slavish adherence to the UN definition
for the purposes of accounting. It is of course the case that
the UN definition will have to be used in providing returns for
the UN's own purposes of international comparison of migration
flows.
ENFORCEMENT OF POINTS-BASED SYSTEM:
TIER 2 (SKILLED EMPLOYEES)
12. In his February 2011 report on implementation
of Tier 2 of the Points-Based System, the Independent Chief Inspector
of the UK Border Agency was very critical of the standard of decision-making
on applications and the capacity of the Agency to ensure that
neither sponsors nor visa-holders breached the terms of the visa.[21]
In particular he noted:
- inconsistent approaches to
the decision making process on Tier 2 cases which meant that some
applications were refused because of minor omissions of evidence
or information whereas others were given additional time to supply
the missing information;
- applicants were having to make and pay for subsequent
applications because of minor omissions which could have been
addressed with minimal effort by the Agency;
- as a result of subsequent applications, the Agency
was having to use additional resources to make further assessments
and decisions;
- there was no evidence of a systematic approach
to ensure that post-licensing visits were carried out on sponsors
retrospectively; and
- the Agency did not routinely take the required
action to curtail Tier 2 migrants' leave to remain in the UK when
they had stopped working for their sponsor.
However, this was less a criticism of the staff,
whom he found to be professional, enthusiastic and committed,
than of inadequate guidance, quality control and management, andin
relation to inspecting employers and taking action against migrants
who had breached their visas or overstayedgrossly inadequate
resources.
13. As already highlighted in this report, the
Chief Inspector's findings on inconsistency in decision-making
and managerial failings are not unique to this area of the Agency's
business. We wish to focus here on the issue of enforcement, comprising
the elements of ensuring that sponsors are not abusing the system
and that individuals with no right to remain in the UK are removed.
The Chief Inspector reported that, while database checks had been
made on all sponsors:
as a result of around 6,000 sponsor applications
being received only a few weeks prior to the Agency's 'go-live'
date in November 2008, a significant number of sponsors were placed
on the register without adequate checks being made on them first.
For example pre-licensing visits had not been carried out in all
cases that warranted them. When we asked for confirmation as to
how many cases fell into this category, the UK Border Agency were
unable to provide this as this information was not collected.
The Chief Inspector was told that the Agency planned
to carry out post-licensing visits on those sponsors when resources
allowed, and that it intended to prioritise visits to those sponsors
considered to pose more of a risk than others. In practice, the
main priority was to provide assurance on Tier 4 sponsors (educational
institutions sponsoring students) as these were perceived to pose
a much higher risk than Tier 2 sponsors, although no one had tested
this assumption. We find it unacceptable that the Agency can
operate on untested assumptions in this way. Moreover, there
were too few Visiting Officers to carry out inspections, particularly
in the Midlands and London which held high concentrations of sponsors,
with the result that in some places there was a wait of about
four to six weeks for a visit to be carried out. The Chief Inspector
reported concerns about variations in the quality of Visiting
Officers in relation to the standards of their reports, their
training and professional standards, and a particular concern
about a lack of clarity around the role of Visiting Officer: "Visiting
Officers have both a customer service function where they assist
sponsors, and an enforcement and compliance role. These are two
completely different functions which are not necessarily complementary."[22]
The Chief Inspector said that staff, managers and even some sponsors
considered that these shortcomings undermined the rigour of the
Points-Based System as a system of migration control.[23]
14. We asked Mr Sedgwick about the lack of checks
on sponsors, and he replied:
We don't accept that people have been put on the
register without proper checks being made. All Tier 4 sponsors
receive a visit before they go on to the register. In relation
to Tier 2 and Tier 5 sponsors, we take a number of factors into
account: how well we know the company, its sector, its age, its
size, and we take a decision about whether on a risk basis we
need to visit that company or not. No one is put on the sponsor
register without us being confident and sure that they are a fit
and proper company to be a sponsor.[24]
The Chief Inspector, however, said he believed
that the Agency should completely review the database of sponsors,
carry out any necessary checks and ensure that the system was
kept up-to-date as sponsors changed and as more information about
existing sponsors became available. He acknowledged this would
not be easy with the current pressures on resources, but he thought
it would be achievable if the Agency 'worked smarter'.[25]
We recommend that this is done.
15. Sponsors have a responsibility to inform
the UK Border Agency if a sponsored migrant ceases working for
them. If someone holding a Tier 2 visa reaches the end of their
contract or leaves their job while there is still more than six
months before their leave to remain in the UK expires, the leave
to remain should be curtailed to 60 days, during which they are
expected to leave the United Kingdom: if they do not leave, they
remain in the country illegally. The Chief Inspector reported:
We were concerned to find that the UK Border Agency
does not routinely take action to curtail the leave to remain
of migrants who stop working. When we were onsite, we were unable
to ascertain from the Agency how many migrants had been reported
as having ceased working and should have their leave curtailed.
The Agency subsequently provided us with figures taken from their
systems on 22 December 2010 which were as follows:
150 Tier 2 cases identified as requiring curtailment
action were outstanding; and
Approximately 3000 sponsor notifications were outstanding,
an unquantified proportion of which would require curtailment
action.[26]
The report added: "We were consistently told
by managers and staff that the Agency does not have sufficient
resources to take the required curtailment action."[27]
The Chief Inspector was told that the system would be automated
under the changes to be made to the Agency's IT systems in the
summer of 2011.[28]
16. Again, inspections by the Chief Inspector
have demonstrated that failures to act upon intelligence of possible
illegality are not confined to the area of enforcement of Tier
2 visas. A recent inquiry into preventing and detecting customs
and immigration offences revealed that the Agency receives more
than 100,000 allegations a year from members of the public, many
of which relate to suspected illegal entry into or continued residence
in the UK. However, the Agency could not provide the Chief Inspector
with information about the proportion of allegations that had
led to enforcement action, let alone the number that had led to
the prevention or detection of crime.[29]
The Chief Inspector told us that in general the Agency needed
to focus far more on outcomes rather than processes. He also was
of the view that, although co-operation between and co-ordination
with the police in the form of the Serious Organised Crime Agency
was improving, the UK Border Agency needed to improve its relationships
with sponsors such as colleges and with its own caseworkers.[30]
17. The Points-Based System can function effectively
only if there is confidence that sponsors will not abuse the system
and that anyone who no longer qualifies for leave to remain is
compelled to leave the UK. While Mr Sedgwick affirmed the Agency's
belief in the integrity of all sponsors, we note that even among
the more rigorously inspected Tier 4 sponsors, bogus institutions
and failures in control continue to be discovered. The lighter
inspection regime for Tier 2 sponsors may be justified, but, given
that the Agency does not even know how many sponsors were not
visited before registration and given the backlog of post-registration
visits, we cannot share Mr Sedgwick's confidence in the robustness
of the system.
18. We are also concerned about the lack of
effective action to ensure the removal of those who no longer
have a right to remain in the UK. Media discussion of illegal
immigrants often concentrates on those who enter the UK illegallythose
smuggled in or who enter the UK clandestinelybut those
who work with such migrants consider it possible if not probable
that most illegal immigrants entered the country legally but then
overstayed or broke the terms of their visas. In this context,
we note the recent work of the National Audit Office indicating
that anything up to 181,000 people could have overstayed their
visas (work, student or family reunion) in the last four yearsthough,
given the lack of checks leaving the UK, this is at best a rough
estimate.[31]
We do not underestimate the difficulty of
tracking down those who wish to remain in this country illegally,
but with some Tier 2 migrants the Agency has the advantage of
being alerted by the sponsor to the change in the migrant's status.
Of course, even if the Agency does move to curtail leave to remain,
it often takes no direct action to ensure that the migrant leaves
the UK; however, presumably none of the methods used to deter
illegal migrantschecks on employers, scrutiny of the benefits
and NHS databasesare engaged until the Agency records the
fact that the Tier 2 permission has expired, and the longer the
delay in initiating these checks, the more likely it is that those
wishing to stay illegally can 'disappear'.
19. We are also very concerned about the Chief
Inspector's findings that the Agency is inconsistent in the way
it handles allegations from members of the public of illegal entry
or overstaying andin particularabout the confusion
he found among the Agency's own caseworkers about when and how
to report suspicions about applicants to the Agency's intelligence
units.[32] The
concerns of the public and information given by them needs to
be acted upon speedily and those who report these matters should
be kept informed of what happens to this information.
20. In the Agency's next update letter, we
would like to be informed what action has been taken to close
these gaps in the system of immigration controls.
ENFORCEMENT OF POINTS-BASED SYSTEM:
TIER 4 (STUDENTS)
Student visas
21. In March 2011 the Government announced a
number of changes to Tier 4 (Students) and Tier 1 (Post Study
Work) of the Points-Based System. The first round of implementation
came into effect on 21 April 2011. Further changes will take effect
in summer 2011, in April 2012 and by the end of 2012.[33]
We intend to monitor the situation in order to scrutinise the
effect of these changes. However, because the changes are both
complex and being implemented over a period of time, we will need
a range of information in order to analyse the results effectively.
22. We expect the UK Border Agency to provide
the following information in its tri-annual letter:
- how many applications for
Tier 4 (General) visas have been granted in that period;
- how many applications for Tier 4 (General)
visas have been refused and the reasons for these refusals in
that period;
- how many applications for Tier 4 (Student
Visitor) visas have been granted in that period;
- how many applications for Tier 4 (Student
Visitor) visas have been refused and the reasons for these refusals
in that period;
- how many applications for Tier 4 visas have
been refused on the basis of fraudulent evidence at UK-based processing
centres in that period;
- how many applications for Tier 4 visas have
been refused on the basis of fraudulent evidence at overseas processing
centres in that period;
- a graph showing processing times for Tier
4 visas, differentiating between UK-based and overseas processing
posts in that period;
- a graph showing the number of Tier 4 sponsors
who are highly trusted sponsors, A rated sponsors and B rated
sponsors;
- the number of first time visits to Tier 4
sponsors in that period;
- the number of follow up visits to Tier 4 sponsors
in that period;
- the number of 'gifted student' exemptions
from language requirements a) applied for and b) granted in that
period;
- the number of Post Study Work visas a) applied
for and b) granted in that period;
- the number of Student Entrepreneur visas a)
applied for and b) granted in that period, and
- the number of students required to leave and/or
deported for breaking the terms of their visas in that period.
Bogus Colleges
23. During the evidence session on 5 April, Mr
Sedgwick emphasised that all "Tier 4 sponsors receive a visit
before they go on to the register", adding "every new
case goes on the register and we have visited every existing case.
Of course, it may be possible that not every visit results in
the identification of problems in a particular college but, as
you know, we currently have very substantial numbers." He
said: "We have been increasing the productivity of our visit
staff. We have been collecting more and better information about
this."[34] At the
time of the evidence session 70 out of a total of 2,372 colleges
were suspended.
24. In order to scrutinise the Agency's management
of the sponsor lists, we expect the UK Border Agency to provide
the following information in its tri-annual letter:
- how many bogus colleges have been closed in
that period;
- how many bogus colleges have been removed
from the register in that period;
- how many other sponsors have had their licences
revoked in that period;
- how many sponsors have had their licences
suspended in that period;
- how many sponsors have been fined for misuse
of their licence in that period;
- how many sponsors have been prosecuted for
misuse of their licence in that period;
- what other sanctions have been used against
sponsors who misused their licence in that period, and
- a list of the colleges suspended in that period,
indicating which remain suspended, which have been reinstated
and which have been permanently removed from the register.
FAMILY REUNIONS
25. We note the Government's confirmation that
it intends to make proposals in relation to the family reunion
immigration route later this year. In the meantime, a variety
of developments are taking place in relation to marriages involving
a partner from outside the EEA. As our most recent report shows,[35]
we continue to be concerned about the incidence of forced marriages:
we intend to keep this issue under review. We are also concerned
that the number of sham marriages contracted solely for immigration
purposes may increase as a result of the withdrawal of the Home
Office's certificate of approval scheme following a judicial ruling
that it was incompatible with Human Rights law. We wish to
be informed what impact the Government expects the withdrawal
of the certificate of approval scheme to have, and what other
measures, if any, the Government intends to take to deter sham
marriages.
Child detention
26. In our last report on the Agency, we noted
the Government's announcement that the detention of children
for immigration purposes was to end as of 11 May 2011,[36]
and that the Yarl's Wood family unit had now closed. We
added: "We hope not to have to return to this issue in the
future."[37]
Unfortunately, the situation has proved less clear-cut in
practice, with, amongst other things, questions about the use
of alternative accommodation for families awaiting removal from
the UK. The next update letter from the Agency should contain
an account of how many children have been detained for immigration
purposes, for how long, where and in what circumstances since
the 11 May deadline.
Immigration Tribunals
27. In recent years the UK Border Agency has
been frequently criticised for perceived failings in relation
to asylum and immigration cases appealed to immigration tribunals.
This criticism takes two forms: that the Agency often is not even
represented at tribunal hearings, and that too many Agency decisions
are overturned on appeal. The Chief Inspector recently stated:
Staff and managers highlighted that the UK Border
Agency was not able to provide Presenting Officers for every appeal
due to limited resources. PBS [Points-Based System] cases were
regarded by the Agency as generally a lower priority than cases
of foreign national prisoners or asylum cases. This was clearly
a source of some frustration but managers told us that they were
working with the regional Presenting Officers' Units to try to
improve the situation and to be clear on the types of cases when
it was vital to have representation. The lack of a clear approach
to providing representation at appeal was also highlighted in
our inspection of Asylum in 2009. This is an issue we expect the
Agency to resolve.[38]
Mr Sedgwick told us that the Agency is represented
at 83% of tribunal hearings,[39]
adding that some of the remaining hearings are low-risk as the
Agency knows that the appellant is not going to attend and the
judge will be able, on the basis of the evidence before him or
her, to "come to a proper decision."[40]
However, in our oral evidence session it was not clear whether
such decisions based on written representations were counted among
the 17% of 'non-appearances'.[41]
Mr Sedgwick has subsequently confirmed that, where the Agency
has received notice that the case is to be decided on the basis
of written representations only, these are not counted as 'non-appearances'.[42]
As far as losing cases is concerned, the quarterly immigration
statistics for September-December 2010 show that about 27% of
asylum appeals were allowed (ie the Agency lost the case), 67%
were dismissed and 6% were withdrawn.[43]
Overall, including immigration appeals also, in the same three
months, 39% were allowed (14,800 cases), 42% dismissed (15,700)
and 19% withdrawn (7,300).[44]
28. We sought more detailed information about
the reasons why cases were lost or the Agency was not represented.
Mr Sedgwick told us that the Agency does not routinely record
either the reason for non-attendance at an appeal by a presenting
officer or the reason why an appeal was allowed. However, he said,
sampling had shown that for some types of case (especially in-country
Points Based System and entry clearance appeals) the most commonly
cited reason for an appeal being allowed was that new evidence
had been produced which had not been available at the time of
the original decision. As for non-appearances by presenting officers,
Mr Sedgwick said:
We may take pragmatic decisions not to attend in
some cases, instead relying on written submissions to the court
where a case is strong or the appellant has indicated they will
not be in attendance, thus preventing cross examination, or where
the witnesses' credibility is not in question.[45]
The Chief Inspector told us that when the New Asylum
Model system was first introduced, it was intended that there
would be no presenting officers but that the relevant caseworker
would represent the Agency at any appeal. This had been found
impractical as it took up too much of the time of caseworkers,
hindering their core work of making initial decisions.[46]
29. It appears that the Agency is more likely
to lose immigration than asylum appeals. The Agency indicates
that this is largely owing to immigration applicants failing to
provide information, but it is not clear whether the applicants
do so deliberately (in the hope that by slowing down the process
they may increase the chance of being allowed to remain in the
UK) or because they were given insufficient or inaccurate information
about what was required when they first applied.
30. We note the actions the Agency is taking
to improve both the quality of decision-making and the efficiency
and effectiveness of its response to the appeals process.[47]
However, it is unacceptable for applicants to arrive at a tribunal
having waited years for a decision only to find the Home Office
is not represented. We believe this undermines the credibility
of the appeals system. If the Agency does not intend to defend
its decision it should inform the other party in order to save
court time and taxpayers' money, and to ensure there is a fair,
proper and compassionate process.
31. Media reports have referred to the Government
considering abolishing the right of appeal for those refused entry
clearance to visit family members.[48]
We trust there is no such intention, and it would not be appropriate
for the authorities to be judge and jury when refusals occur,
and the matter is pursued by solicitors or MPs making representations
on behalf of the sponsors. It is far better to retain the present
appeal system, be rigorous in deciding on applications and, moreover,
have in place an effective control system to deal promptly, and
we emphasise promptly, with anyone who stays any time at all beyond
the authorisation given.
E-Borders
32. The e-Borders programme provides for electronic
collection and analysis of information on all passengers entering
or leaving the UK from carriers (including airlines, ferries and
rail companies). On its website in June 2009, the UK Border Agency
claimed to be "working closely with the travel industries,
whose support is crucial to the programme's success." This
was not the finding of our predecessor Committee, which noted
a number of significant practical problemsin IT, in logistics
and financialfaced by transport operators in adhering to
the requirements laid down by the Agency and its contractor, Raytheon.[49]
Neither the Agency nor Raytheon appeared to be addressing the
industry's concerns.
33. When our predecessor Committee began to inquire
into the programme in the summer of 2009, the timetable for implementing
the e-Borders programme was:
- 2009: the e-Borders operations
centre, the National Border Targeting Centre (NBTC) starts operating;
- December 2009: e-Borders aims to collect details
of 60% of all international passengers and crews from a range
of carriers and to check that 60% against lists of people who
are of interest to authorities;
- December 2010: e-Borders aims to collect details
of 95% of passengers and crews;
- April 2011: UK Border Agency starts to "activate
modernised entry methods" at UK ports;
- July 2012: improvements including an ability
to give clearance to passengers who are already on a train;
- March 2014: e-Borders is fully operational, covering
all international travellers using all UK ports, including matching
passengers' arrivals to their departures.
As of April 2011, the e-borders system was collecting
details of about 55% of passengers and crew on airlines, although
this rose to 90% of passengers and crew for journeys outside the
EU.[50] There was no
coverage of ferries or trains. All deadlines other than the first
were missed.
34. After our predecessor Committee's highly
critical report on the programme, it was announced that the Home
Office had suspended and thenin July 2010dismissed
the contractor. The Home Office became involved in litigation
with Raytheon, leading (by the time Mr Sedgwick appeared before
us) to a process of binding arbitration. During the period of
the contract, Raytheon had been paid £188 million.[51]
The Home Office began the process of moving support for the programme
to two new contractors: in November 2010, IBM took over the running
of the basic database; and in April 2011 Serco took over provision
of the Carrier Gateway (the interface between carriers and the
Agency) and the National Border Targeting Centre (which provides
the checking of passenger names and other details against watchlists).
These were existing services: the Home Office had yet to move
onto the question of who was to provide new services, such as
those needed in relation to the London Olympic Games in 2012.[52]
Excluding the cost of third party licences and utilities, Serco
is to be paid £29.7 million over two years and IBM just over
£5 million a year for an unspecified time.[53]
35. Moreover, as our predecessors reported, there
have been considerable concerns about whether the requirements
for carriers to gather data on passengers entering the UK are
compatible with the data protection laws of a number of EU Member
States. Over three years since this issue was first raised by
carriers with the Agency, Mr Sedgwick told us: "we are continuing
to work with a number of EU Member States to ensure that their
data protection authorities are satisfied with the way that the
system is working."[54]
Despite the delays, Mr Sedgwick assured us that exit checks will
be fully implemented by 2015: this is not, however, the same as
an assurance that the whole e-Borders programme will be in place
by 2015, and, indeed, for the reasons set out by our predecessors,
it is difficult to see how the scheme could be applied to all
rail and sea passengers within this timetable given that even
air passengers are not yet fully covered.
36. As we noted in our report on student visas,
flawed evidence inhibits effective policy-making. Counting people
in and out of the country is vital to understanding immigration
and formulating sound, practical immigration policy; and the UK
needs robust systems to protect its borders. When the Government
decided to end Raytheon's contract, after the payment of £188
million, it anticipated that a new contractor would be in place
by November 2010. After a substantial delay, IBM and Serco have
been issued with new contracts and taken over existing operations.
We remain deeply concerned about the e-Borders programme, given
its history, the lack of clarity about the final shape of the
scheme and the high (but still unquantifiable) cost of the e-Borders
programme both to the taxpayer and to carriers. We will expect
rapid progress to be made in this programme by the time of the
next tri-annual letter, in July 2011.
Asylum and immigration contracts
37. We raised with Mr Sedgwick the issue of contracts
with outside bodies for the provision of housing to asylum seekers,
as questions about the appropriateness of some contracts had been
drawn to our attention. In general we have some concerns
about procurement by the Home Office, its agencies and police
forces, some of which we will address in relation to our concurrent
inquiry into the 'New landscape of policing'. Mr Sedgwick has
subsequently told us that the cost of housing asylum seekers is
currently about £140 million pa.[55]
We have noted that the judge in the Andrew Waldron case said
he found it "lamentable" that the Agency had for
four years failed to carry out checks on Mr Waldron that would
have revealed he had made false claims about his qualifications
and had a criminal conviction, which would have cast doubt on
whether he was a fit and proper person to be a contractor to the
Agency.[56] The taxpayer
expects value for money and for contracts to be awarded in a transparent
and fair way. We seek reassurance that this is in fact what happens
and we intend to keep the area of procurement under review.
Remuneration of Home Office and
UK Border Agency officials
38. We welcome the fact that the Home Office
has accepted our previous recommendation to reduce the salary
of the head of the UK Border Agency. However, we note that the
reason given by the Home Office for the high salary paid to the
previous head of the Agency was that it was necessary to ensure
strong leadership and continuity. Both this Committee and the
Independent Chief Inspector have stated on a number of occasions
that many of the problems we have observed result from the Agency
lacking continuity and good management. The sudden departure of
the previous Chief Executive, and the fact that there is still
no permanent successor nearly five months after she left, undermine
the rationale for the high salary given by officials. We look
forward to meeting the new head of the Agency, once appointed.
39. We reiterate our view that it would be
inappropriate for senior officials in the Home Office and its
agencies to receive any bonuses this year, in light of the economic
climate.
Correspondence with Members of
Parliament
40. In our last report on the UK Border Agency
we stated: "When Members write to Ministers, it is expected
that the reply will at least be signed by the Minister. It is
therefore unacceptable that the head of an agency should delegate
this task to junior officials".[57]
The Government's response acknowledges that "the Minister
has authorised the Chief Executive, or their (sic) deputy, to
reply." However, it does not acknowledge that Members in
doing so have the reasonable expectation of a reply from the Chief
Executive in normal circumstances and the Deputy only in the absence
of the Chief Executive.[58]
It also states that Members of Parliament are encouraged to write
direct to the Agency, but while this is adequate in some cases,
sometimes the flow of information becomes bogged down in bureaucracy,
which is normally when the Member writes to the Chief Executive
(or, in frustration, to the Minister). We therefore reiterate
that we expect a response signed by the head of the Agency when
we write to him/her, and we give notice that we intend to seek
views from other Members during the coming months to see whether
concerns remain or whether the Agency has significantly improved
the service given to MPs in representing their constituents.
1 Our first such report was our Fourth Report of Session
2010-11, The Work of the UK Border Agency, HC 587, published
on 11 January 2011-hereafter referred to as 'Fourth Report'. The
Government's response was published as our Eighth Special Report
of Session 2010-11, HC 1027, on 16 May 2011 (hereafter 'Government
Response to Fourth Report'). Back
2
Ev 17, paragraph 9 Back
3
See Fourth Report, paragraph 4 Back
4
Report of the Independent Chief Inspector of the UK Border Agency,
Asylum: Getting the balance right? A Thematic Inspection: July-November
2009, para 1.35 (February 2010) Back
5
See Fourth Report, paragraphs 5 and 7 Back
6
Ibid., paragraph 7 Back
7
Ev 18, para 10 Back
8
After the backlog, a backlog, The Economist (June 18 2009):
www.economist.com Back
9
See, for example, 'New asylum cases backlog builds up', Daily
Telegraph, 26 April 2011, p14 Back
10
Control of Immigration: Quarterly Statistical Summary, Quarter
4 2010 (October-December) , page 5, published 24 February
2011 on www.homeoffice.gov.uk/publications/science-research-statistics/research-statistics/immigration-asylum-research/control-immigration-q4-2010 Back
11
Q 97 Back
12
Asylum: Getting the balance right? A Thematic Inspection: July-November
2009, para 1.40-1.41 Back
13
Fourth Report, paragraph 9 Back
14
Government Response to Fourth Report, pp5-6 Back
15
Fourth Report, paragraph 10 Back
16
Qq 59 and 60 Back
17
First Report of the Committee, Session 2010-11, Immigration
Cap, HC 361, and Seventh Report of the Committee, Session
2010-11, Student Visas, HC 773 Back
18
These figures are taken from the latest in the series of Long-Term
International Migration (LTIM) data published by National Statistics,
which is the Government's preferred measure: see our First Report,
paragraph 11 Back
19
HC Deb, 22 March 2011, col 858 Back
20
Student Visas, Seventh Report of Session 2010-11, paragraph
100 Back
21
A Thematic Inspection of the Points-Based System: Tier 2 (Skilled
Workers), July-August 2010 Back
22
Ibid., paras 5.106-5.108 , 5.110 and 5.115 Back
23
Ibid, paras 5,116-5.118 Back
24
Q 20 Back
25
Qq 79-80 Back
26
A Thematic Inspection of the Points-Based System: Tier 2 (Skilled
Workers), July-August 2010 , paras 5.119-5.121 In his subsequent
evidence to us, the Chief Inspector said he believed the total
of outstanding sponsor notifications was now estimated to be 4,000:
Q 78. Back
27
Ibid., para 5.122 Back
28
Ibid., para 5.123 Back
29
Independent Chief Inspector of the UK Border Agency, Preventing
and detecting immigration and customs offences: A thematic inspection
of how the UK Border Agency receives and uses intelligence, October-December
2010, Chapter 5 Back
30
Q 81 Back
31
National Audit Office, Immigration: the Points Based System-Work
Routes, HC 819 of Session 2010-11 (15 March 2011) Back
32
Q 81 and Preventing and detecting immigration and customs offences,
Chapter 5 Back
33
Home Office, Student Visas: Statement of intent and transitional
measures, March 2011, p2 Back
34
Qq 20, 63 and 64 Back
35
Forced Marriage, Eighth Report of Session 2010-12, HC 880
Back
36
Home Office Press Release of 16 December 2010, 'New compassionate
approach to family returns' Back
37
Fourth Report, paragraph 13 Back
38
A Thematic Inspection of the Points Based System: Tier
2, para 5.55 Back
39
84% between August 2010 and January 2011, according to Mr Sedgwick's
supplementary written evidence: Ev 20 Back
40
Qq 29-31 Back
41
Q 32 Back
42
Ev 20 Back
43
Control of Immigration: Quarterly Statistical Summary, Quarter
4 2010 (October-December) published 24 February 2011 on www.homeoffice.gov.uk/pulications/science-research-statistics/research-statistics/immigration-asylum-research/control-immigration-q4-2010 Back
44
Table 1e in Ministry of Justice, Quarterly Statistics for the
Tribunals Service, Third Quarter 2010-11, October to December
2010, at www.justice.gov.uk/downloads/publications/statistics-and-data/mojstats/quarterly-statistics-tribunals-q3.pdf Back
45
Ev 20 Back
46
Q 89 Back
47
Ev 20 Back
48
Qq 90-91 Back
49
Home Affairs Committee, The E-Borders Programme, Third
Report of Session 2009-10, HC 170; and Home Affairs Committee,
UK Border Agency: Follow-up on Asylum Cases and E-Borders Programme,
Twelfth Report of Session 2009-10, HC 406 Back
50
Qq 42-43 Back
51
Q 45 Back
52
Q 38 Back
53
Ev 21 Back
54
Q 52 Back
55
Ev 21 Back
56
Transcript of Judge Orme's judgment in the case of Regina v Andrew
Waldron at Birmingham Crown Court, 22 December 2010 Back
57
Fourth Report, paragraph 15 Back
58
Government Response, p9 Back
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