2 Foreign national offenders |
- 57 of the foreign national offenders released in 2006 without being considered for deportation are still untraced as of 3 April 2012
- 3,900 foreign national offenders in total are living in the community as of 4 April whilst the Agency tries to deport them
- 74 days was the average length of time it took to remove a foreign national offender in 2011 after their sentence came to an end
- 454 offenders were released into the community between 1December 2011 and 31 March 2012 despite being subject to deportation action
- 650 foreign national offenders were removed under the Early Release Scheme, between 1 December and 31 March 2012 accounting for just over half of all removals
- 270 removal attempts failed over the period 1December 2011-31 March 2012
Progress in dealing with historical problems
4. The UK Border Agency does not have a strong record in deporting
foreign national offenders. Neither did its predecessor, the Home
Office's Immigration and Nationality Directorate. For example,
in 2006 1,013 foreign offenders were released back into the community
after their sentence when they should have been deported.
5. Although the Agency has since made progress in
identifying foreign nationals liable for deportation, prisoners
are still being released without being considered for deportation,
as thousands of former offenders carry on living in our communities
and attempts to deport them fail repeatedly.
Progress in locating and deporting
the 2006 cohort
6. The Agency has updated us on its progress in locating
and deporting the 1,013 offenders in the 2006 cohort.
|Total cases concluded
||Of which deported or moved
||Of which NOT reported or removed
||Still in deportation process
||Serving a custodial sentence
Table 1: Status update on the Agency's work to
locate and deport the 2006 cohort
7. Since November 2011 the Agency:
- made no further progress in
finding the 57 former prisoners whose location is unknown;
- deported only two former prisoners; and
- gave 12 former prisoners leave to remain in the
8. In total the Agency has removed 399 of the 2006
cohort, while 445 have been given leave to remain. In this Committee's
view progress in locating and concluding these cases is too slow
and more often than not results in offenders being given leave
to remain rather than being deported. The individuals concerned
have committed serious crimes in the UK, which warranted at least
a 12-month prison sentence. Unless there are exceptional circumstances
in individual cases they should all be deported.
9. The Home Secretary has announced changes to
the immigration rules which will limit the rights of offenders
to oppose deportation under Article 8 of the European Convention
on Human Rights (ECHR), which guarantees the right to respect
for private and family life. These changes are welcome and are
long overdue. We expect these measures to drive up the proportion
of foreign offenders that the Agency is able to deport.
PROGRESS IN LOCATING THE 2010-2011
10. In 2010 a further 28 prisoners were released
without being considered for deportation.
Although the Agency has managed to trace 25 it is still unable
to find the remaining three.
We discuss the process of referring foreign offenders to the Agency
below. We hope that the Agency will adopt our recommendations
for preventing this problem from recurring.
TOTAL NUMBER OF FOREIGN OFFENDERS
LIVING IN THE COMMUNITY
11. The Agency has given us a breakdown of all the
foreign offenders released in the last five years who still remain
in the UK.
Figure 1: The Number of FNOs released into the
community pending deportation
12. We note that:
- altogether there are 3,900
foreign offenders subject to deportation action who are living
in our communities;
- 2,467 of these cases, or 63%, are over two years
- 166 further cases cannot be included in the chart
above as the Agency has not recorded the date on which the prisoners'
sentences ended and so do not know how long they have been living
in the community.
13. We welcome the reduction in the number of foreign
offenders released within the last year who are still living in
the UK. The Agency has worked hard to reduce the average time
it takes to deport a foreign offender on completion of their sentence
from 131 days in 2008 to 74 days in 2011.
We are pleased to see that progress is being made in this area,
however we are concerned about the large backlog going back as
far as five years.
14. We recommend that the Border Agency sets up
a team to examine why these offenders have not been deported and
to take the action that is necessary to ensure they are. We fear
that if it is not dealt with quickly it will become another backlog
which will burden the Agency, deflecting its focus from current
Foreign national offenders released
over the period
15. The Agency has continued to experience difficulties
in deporting offenders released in the last four months. 454 individuals
subject to deportation proceedings were released over the period,
90% of them by the courts.
We are concerned about the number of offenders who are released
on bail by the courts when the Agency has advised they should
remain in detention prior to deportation. As these arrangements
fall within the remit of the Ministry of Justice we will draw
this to the attention of the Secretary of State for Justice and
the Justice Select Committee.
16. Of the cases released, 427 remained outstanding
and living in the community at the end of the period. Only 16
of these individuals have been re-detained as action against them
progresses. We are concerned at the large number of foreign offenders
who remain in the community when they should have been deported.
17. The Agency tells us that deportation has been
delayed for the reasons set out in figure 2 below.
Figure 2: Breakdown of outstanding FNO cases over
18. Casework and legal challenges are the two most
significant causes for delay:
- the majority of cases, 51%,
are outstanding due to 'casework issues' or because they are still
awaiting a casework decision; and
- legal challenges to deportation decisions account
for 35% of the ongoing cases.
CASEWORK AND THE PRISONER REFERRAL
19. The Agency currently begins the deportation process
18 months before the end of a prisoner's sentence, but this does
not appear to be a sufficient time period given the high proportion
of delayed deportations linked to casework.
20. We recommend that deportation proceedings
begin immediately upon a prisoner being sentenced, which would
enable an increase in the number of foreign national prisoners
the Agency is able to deport via the Early Removal Scheme and
Facilitated returns scheme.
21. Currently the National Offender Management Service
(NOMS) is required to refer foreign national prisoners to the
Agency within five days of sentencing so that deportation procedures
can begin on time. This arrangement is set out in a Memorandum
of Understanding between the two organisations.
22. We were surprised to hear from Rob Whiteman that
the Agency has no independent means of verifying whether or not
NOMS is referring all foreign national prisoners to them or whether
they are doing so within the five day period.
Mr Whiteman said he "believes" that the majority of
cases are referred to them and referred on time but the only proof
of success he was able to offer was the existence of the Memorandum
23. The Agency must have an independent means
of checking whether all foreign nationals entering the prison
system are referred to it. Mr Whiteman admitted that this is how
the situation in 2006 arose but said he is satisfied with the
However, the fact that the Agency is still trying to trace 57
of these prisoners, six years after their release, demonstrates
that the current arrangements are not acceptable. We acknowledge
that Mr Whiteman is working with NOMS to carry out an assessment
of the referral process, but this review has no timetable and
the Agency needs to take action quickly. In order to prevent a
repeat of 2006 we recommend that all foreign nationals are referred
to the Agency directly upon sentencing by the Courts. Relying
on management data from NOMS to identify any prisoners released
in error after the event is not an acceptable or safe backup plan.
24. We are encouraged to hear from Mr Whiteman
that the Agency is working with NOMS to record the time it takes
for NOMS to refer foreign national prisoners to the Border Agency.
This information will be available for his next appearance before
this Committee and will help us to monitor whether the referral
process is working smoothly and contributing to swift transfers
CASEWORK AND INTERNATIONAL CHALLENGES
25. In his evidence Mr Whiteman also told us that
the Agency experienced difficulties in obtaining travel documents
from some receiving countries as the process was convoluted and
slow. There are also
countries who do not cooperate with the returns process.
The Agency says that it is working with the Foreign and Commonwealth
Office (FCO) to resolve the issues but that commenting further
on them in public will inhibit its ability to negotiate with the
26. We doubt that much will be achieved by allowing
those countries who obstruct the return of their own criminals
to carry on evading their international responsibilities by shielding
them with a cloak of secrecy. Although we note the Agency's offer
for a confidential briefing we hope that a more robust challenge
will be issued publicly to these countries by both the Agency
and the FCO. It is not in the UK's national interest to spare
the embarrassment of those countries which refuse to accept the
return of their own criminals who have committed offences in this
country. We recommend that the government publish this list immediately
and update it every 6 months.
27. After casework has been concluded, legal challenges
are the greatest obstacle to deporting foreign offenders at the
end of their sentence. We believe that the interpretation of Article
8 rights currently weighs too heavily on the side of offenders
rather than the safety of the public. Such interpretation allows
criminals facing deportation to live freely in our communities
and to endlessly prevent their removal through spurious claims
about their right to a private and family life under Article 8
of the ECHR. The Article 8 rights of offenders must be balanced
against the rights of law-abiding citizens to live their lives
in peace, free from the threat of crime. We strongly support the
Government's work to prevent the abuse of Article 8 rights, and
hope to see robust measures to shift the balance in favour of
public safety and against foreign criminals.
28. The Border Agency was unsuccessful in its attempts
to remove 270 foreign national offenders over the period, which
accounts for about one fifth of all attempted removals. Approximately
90 of these cases have subsequently been removed since the end
of March. The Agency says that initial failures are due to persistent
legal or logistical failures, or the refusal of an individual
to cooperate in confirming their nationality.
In our view persistent legal challenges support our recommendation
above for robust reform of guidance on interpreting Article 8.
The fact that "persistent logistical failures" also
contribute to the failure of removals is worrying and we will
seek further clarification from the Agency in our next inquiry.
2 Ev 40 Back
Ev 55 Back
Home Affairs Committee, Twenty-first Report of Session 2010-12,
The Work of the UK Border Agency (August-December 2011),
HC 1722, pp5-6 Back
Ev 42 Back
Ev 42. Note: Data is calculated from the Early Release System
(ERS) date, as this is often recorded on Central Information Database,
it does not mean that individuals went during their ERS period,
2: all figures have been rounded to the nearest ten. Back
Ev 42 Back
Ev 40 Back
In his letter to the Committee of 3 May Rob Whiteman told us
that on average throughout 2011 approximately 90% of prisoners
who were released on bail whilst subject to deportation action
were released by the courts (Ev 42). However our calculations
based on the figures provided by the Agency in the same letter
show the figure to be 82% (Ev 41). Back
Ev 42. Note: see footnotes in the evidence for a full explanation
of all categories Back
Ev 55 Back
Ev 56; Qq188-192 Back
Ev 55 Back
Ev 55 Back
Ev 55 Back