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

Conclusions and recommendations

Progress in locating and deporting the 2006 cohort

1.  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. (Paragraph 9)

Total number of foreign offenders living in the community

2.  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. (Paragraph 14)

Casework and the prisoner referral mechanism

3.  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. (Paragraph 20)

4.  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. 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. (Paragraph 23)

5.   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 and deportations. (Paragraph 24)

Casework and international challenges

6.  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. (Paragraph 26)

Legal challenges

7.  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. (Paragraph 27)

Methods being used to trace archived cases

8.  We are pleased to see that the asylum backlog is beginning to fall. There has been a reduction of 13,000 asylum cases and 500 immigration cases in the Controlled Archive since December 2011. There are now 80,000 asylum cases and 21,500 immigration cases remaining as of the end of March this year. We expect the Agency's manual audit to prove useful in identifying new ways to trace individuals and expect an update in our next inquiry. We recommend that in addition to this manual audit, the Agency expands its checks to include a wider range of databases, such as those held by local authorities, the Driver and Vehicle Licensing Agency, and utility company records. If there are any statutory obstacles to this data-sharing, the Agency should identify them in its response to this Report. (Paragraph 36)

Assessing the Agency's performance: Initial decisions

9.  The Agency has had a historic problem with a large backlog of asylum cases awaiting initial decision. This backlog peaked in January 2000 at 120,400 cases awaiting an initial decision. Given this track record we are concerned that the Agency seems unprepared to allow us to regularly keep track of how quickly it gives initial decisions on asylum cases. In the evidence he gave to us Mr Whiteman restated his commitment to transparency and openness but this will prove to be a hollow commitment unless the Agency is willing to provide information that will allow its performance to be monitored regularly. Parliament must be in a position to know at once if a new backlog starts to build up at the initial decision stage. (Paragraph 40)

10.  We note that 63% of cases are now being concluded within 12 months an improvement on the previous year where 56% of cases were concluded within this timeframe. However we are concerned at the large number of cases that remain outstanding for years. We acknowledge that there will be difficulties in resolving a proportion of complex asylum cases. However, to have resolved only 63% of cases after a three-year period seems to us to be a very slow rate of conclusion. We believe this could lead to a new backlog building up as more cases are added to the "awaiting conclusion" pile. We expect the Agency to tell us what the main obstacles to concluding these cases are and we hope that its new performance statistics released in August will show an improvement. (Paragraph 43)

Number of visas issued

11.  We are pleased to see that students remain a core part of the migrant flow into the UK. The UK has a market in international higher education worth £7.9bn and it is important that we continue to encourage this sector to flourish. The Prime Minister's aim to reduce migration from "the hundreds of thousands to the tens of thousands" cannot be achieved without drastically reducing the number of people who come to study in Britain. It is likely that this would damage a strong sector of our economy and also the cultural diversity of our universities. We recommend that the government should exclude students from their net migration target. This will enable the government to encourage students to come to the UK whilst maintaining their position on curbing immigration. It is important that the UK does not fall behind its international competitors in this market by making the itself a less attractive option for international students. We do not believe that the UK would benefit if the government achieved its aim of reducing the number of student visas issued by 25%. (Paragraph 46)

Student visas: nationality

12.  In order to maintain public confidence in the immigration system it is important that only genuine students are able to come to the UK via the student route. We welcome this development, which is in keeping with previous recommendations from this Committee. We recommend the Agency makes face to face interviews compulsory for all foreign students where it is practical and appropriate to do so. The option of an online interview could overcome problems with distance. This will deal with concerns before the students enter the UK, not after. This will uphold public confidence in the immigration system and help to counter damaging Government rhetoric which conflates a reduction in the number of student visas with eliminating fraud in the system. (Paragraph 48)

Visa processing times

13.  We note that the Agency has improved its processing times for Tier 4 visa applications in the first quarter of this year and is consistently meeting its targets. We expect to continue to see a strong performance from the Agency in this area. (Paragraph 50)

Immigration casework in progress

14.  We recognise that the changes to the family route may have precipitated an increase in applications before the changes come into force, but we are concerned that resource is being concentrated in some areas at the expense of others and we will expect evidence on this point when Mr Whiteman next appears before the Committee. We hope that in its efforts to address individual problem areas the Agency is not causing backlogs to build in others. (Paragraph 53)

Target 2: UK Border Agency to represent 90% of appeals

15.  We recommend that the Agency be represented at 100% rather than 90% of all tribunal hearings. As we have said previously it is unacceptable for the Agency not to appear in court to defend its decision, a no-show on their part may waste court time and taxpayers' money. If the Agency is going to withdraw its objection in a particular case it should do so much earlier in order to:

  • reduce the uncertainty and pressure on appellants as well as
  • reducing the costs on the public purse and
  • avoiding additional pressure on the tribunal system. (Paragraph 64)

Target 4: Reduced appeal volumes

16.   A poor performance in appeals should instigate a drive to improve initial casework decisions and guidance for applicants. Closing off a route of appeal, by preventing appeals against Family Visit Visa decisions, is not an acceptable way in which to reduce the number of appeals. The aim must be to give clear and speedy clearance to those whose application is genuine and to give a clear and speedy rejection to those whose application is being refused. (Paragraph 67)

17.  There are a number of simple changes the Agency could make to reduce the volume of appeals it handles. Firstly the refusal notices they issue should set out in clear bullet points why the application has been rejected. If, for example, it is due to missing documentation the applicant should be asked to provide this to the Agency as part of the same application. It should then be reviewed within an acceptable timescale. This could reduce both the time it would take for the applicant to get a decision and the resources spent on appeals. Secondly, we understand that the Agency does not specify all the documentation it requires to grant an application. For example they ask for 'proof of funds' instead of bank statements. We recommend that the Agency list specific documents that they require in order to grant an application. This will ensure that the application process is as clear as possible and should reduce the amount of verification work and appeals work that has to be done at a later stage. (Paragraph 68)

18.  The best way to communicate with applicants is through a clear website that works properly and sets out what is expected from the applicant at each stage of the process. The Agency's website is frequently inaccessible as vital pages do not download. The Agency needs to address the problems people are encountering with its website immediately. (Paragraph 69)

Pre-registration inspections

19.  We acknowledge that the Agency carries out pre-registration visits for all Tier 4 sponsors but recommend that this should be extended to cover all sponsors in Tier 2 and Tier 5. The proportion currently receiving a pre-registration visit is insignificant. Proper pre-registration scrutiny of sponsors is the key starting point for preventing abuse of the immigration system. We are concerned that the Agency's approach may be more risky than risk-based. We will require additional information from the Agency as to how it assesses the risk posed by sponsors in this area. (Paragraph 72)

20.  The Agency says that it arranges the greater proportion of its visits in advance as it needs to be sure of access to key people and documents as part of the inspection. We understand the need for this but, as the visits are made in a response to perceived risks or intelligence leads, we recommend that all visits are unannounced. If the Agency is not able to access some of the people and documentation on the day then follow up interviews and document review could take place subsequent to the visit. Interviewees could be required to come to the Agency's premises to save the Agency time and money. This would considerably strengthen the enforcement system and help to restore public confidence that the government is clamping down on illegitimate immigration. If we are to eliminate bogus colleges from the education landscape and employers that abuse the immigration system then visits will have to be unannounced, robust and thorough. (Paragraph 74)

Action against non-compliant sponsors

21.  We are sceptical about the efficacy of reducing the number of Certificates of Sponsorship or Confirmations of Acceptance for Studies that a sponsor can issue. This is tantamount to endorsing fraud, provided that it is confined to a small scale. If a sponsor is failing to comply with their duties or is deceiving the Agency then their licence should be revoked. The Agency should take tough enforcement action against those who abuse the immigration system. (Paragraph 77)

Action taken against Tier 4 works liable for curtailment action

22.  We recommend that the Agency urgently reviews its operations in this area to pinpoint the cause of the problem. If we are to maintain public confidence in our immigration system then it is vital that we have prompt and robust enforcement mechanisms. We will keep a close watch on this area of the Agency's work and investigate the causes of the continuing backlog. We regard enforcement action against individuals as a key indicator of the Agency's work and we will be monitoring it closely. (Paragraph 82)

Migration refusal pool

23.  We are extremely disturbed to hear that there is yet another large group of individuals who the Agency are unable to account for. We expect the Agency to set out, in its response to this report, its action plan and timeline for dealing with the problem. (Paragraph 83)

24.  We repeat our previous recommendation which is that people who make genuine complaints need to be told about the outcome. (Paragraph 86)

Progress on the National Allegations Database

25.  Overall, only 4% of the intelligence reports received from the public resulted in an enforcement visit taking place. The Agency is performing well in assessing tip-offs from the public quickly but we are interested however in the low yield of actionable intelligence that results from these tip-offs. We will be asking the Agency to identify the main reasons for this. We understand it may be the result of the quality of the information reported to the Agency and we expect to hear from the Agency what its plan is to improve the quality of the information it receives when the database goes live. (Paragraph 88)

26.  It is important for the public to know how many of the Agency's enforcement visits result in arrest and removal. We expect the Agency to provide a full breakdown of the outcomes of its enforcement visits over the period 1December 2011 to 31 March 2012 in its response to this report. (Paragraph 89)

Changes in staffing and remuneration

27.  We are pleased to see that the Agency is sharing support staff with Border Force, which will help to reduce costs. We also welcome the increase in the Enforcement and Crime group, an area of the Agency's work that has long needed addressing. We are pleased that despite the need for budget cuts the Agency is keeping a flexible view of staffing levels, increasing them where there is need to improve results. We expect that it will continue to do so. (Paragraph 91)

Senior staff bonuses

28.  In our previous report we stated that the senior Agency staff should not receive bonuses as the Agency's performance was still poor overall. Since then the 2010/11 bonus figures have been released which show that, despite a reduction in the number of staff receiving bonuses, 24% of them still did. We agree with the Prime Minister that If agencies don't perform, just like if companies don't perform, there should not be bonuses—that is absolutely clear.

As this report makes clear the Agency is not performing as it should do in a number of important areas. Until it improves its performance its senior staff should not receive bonuses (Paragraph 95)

29.  We further recommend that bonuses that have been paid in the past contrary to the recommendations of this Committee should be repaid by the recipients. (Paragraph 96)

MPs' correspondence

30.  We note that the Agency came within a few percentage points of achieving its target for completing actions in response to referrals by MPs in every quarter of 2011, and that performance is slowly improving. We hope that the Agency will continue to provide this high standard of service. (Paragraph 100)

31.  We welcome the good progress the Agency has made towards meeting its target of responding to 95% of e-mails from MPs within 20 working days. However we emphasise that its responses must contain the information requested in order to be of value. Otherwise it is simply pushing the problem further down the line. (Paragraph 101)

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Prepared 23 July 2012