The work of the UK Border Agency (December 2011-March 2012) - Home Affairs Committee Contents

2  Foreign national offenders

Key figures
  • 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
Not located

Table 1: Status update on the Agency's work to locate and deport the 2006 cohort[2]

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 country.

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.[3]

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.


10. In 2010 a further 28 prisoners were released without being considered for deportation.[4] Although the Agency has managed to trace 25 it is still unable to find the remaining three.[5] 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.


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[6]

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 old; and
  • 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.[7]

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.[8] 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 cases.

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.[9] 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 the period[10]

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.


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.[11] 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 of Understanding.[12]

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 current arrangements.[13] 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.[14] 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 and deportations.


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.[15] There are also countries who do not cooperate with the returns process.[16] 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 countries concerned.

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.[17] 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.[18]

2   Ev 40 Back

3   Ev 55 Back

4   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

5   Ev 42 Back

6   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

7   Ev 42 Back

8   Ev 40 Back

9   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

10   Ev 42. Note: see footnotes in the evidence for a full explanation of all categories Back

11   Q169 Back

12   Qq169-172 Back

13   Q170 Back

14   Ev 55 Back

15   Ev 56; Qq188-192 Back

16   Ev 55 Back

17   Ev 55 Back

18   Ev 55 Back

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Prepared 23 July 2012