Conclusions and recommendations |
The Agency's handling of the asylum and immigration
1. The Inspector's report makes it clear that, contrary to its public claims, the Agency was not carrying out its full programme of checks on legacy cases either before or after they were placed in the controlled archives. The Agency has repeatedly told this Committee that it could have confidence that legacy applicants were no longer in the country as an extensive checking programme carried out over five years had not found any trace of them. We know that there are a significant number of failed asylum seekers and illegal immigrants living in the UK and avoiding contact with public authorities. Recent figures from the London School of Economics put the number of illegal immigrants in the UK at 618,000 and in 2008 the Red Cross reported that it had been approached for help by 10,000 destitute asylum seekers. Therefore, no tracing programme was likely to discover everyone who had slipped through the net. The fact that a sustained and thorough tracing programme did not even take place makes it even less likely that individuals living here have been identified. It is possible that tens of thousands of individuals whom the Agency has not been able to trace are still here.
The Agency's response to the Chief Inspector's
2. Mr Whiteman did not however inform this Committee that the Agency had regularly supplied it with incorrect information since 2006. This in our view is unacceptable and undermines Mr Whiteman's claims to take the provision of accurate information to the Committee seriously. No senior official in the Border Agency took any steps to alert this Committee to what had happened until the Independent Chief Inspector published his report. This is hardly the mark of a transparent organisation which recognises its accountability to Parliament. Instead the Agency appears to have tried to sweep its mistakes under the carpet in the hope that they would remain unnoticed.
3. We are astonished that the Agency provided this Committee, and its predecessors, with information that turned out to be patently wrong on so many occasions over the last six years. If it was not attempting to mislead the Committee then it must be a sign that senior officials had no idea as to what was actually going on in their organisation. We find it very hard to believe that no one within the Agency had any idea that checks were not being carried out as they should have been and we expect the Agency to share the findings of its disciplinary investigation with us as soon as it is completed.
4. However, we welcome the establishment of the Performance and Compliance Unit within the Agency,
We also welcome the oversight that the Chief Inspector will have of its work.
We expect this to mark the beginning of a move towards greater transparency on behalf of the Agency; transparency that is evidenced by accurate and clear information provided to Parliament in a timely manner.
Checks against DWP's databases
5. We expect the Agency to provide us with a copy of the Department of Work and Pensions' statement about the checks performed by the Agency against its databases. The Agency must also tell us how many of the cases this statement of assurance applies to.
6. We are satisfied that misallocation to the controlled archive of cases with a 'matchkey three' against DWP data has, most likely, been corrected appropriately.
7. It is totally unacceptable for case records to be missing such fundamental data which enables them to undergo important security checks. We cannot understand how this can have been allowed to happen for so many applications. We recognise that this issue is a historical rather than a current failing on the Agency's behalf and one that should be attributed to its leadership at the time the applications were made. The Agency says it is satisfied with the action it took to try and improve the data quality by reformatting it.
However, given that 328 cases were still unable to undergo a PNC check and 28 were unable to be checked against the Watchlist we regard this as a most unsatisfactory consequence.
Cases with a hit on the Police National Computer
8. We understand that these individuals are unlikely to pose a security risk but we are puzzled that there is no contact information available for any of them. In the example given by the Agency (holding a shotgun licence), licence-holders have to supply their name and address
9. Given the Agency's poor record in carrying out checks on legacy cases prior to April 2012 we are by no means reassured that this issue has been addressed properly. We recommend the Agency re-examines these cases individually before closing them and reports its findings to this Committee. The public has a right to know about individuals who may be living in their communities with no legal right to be here and who may have committed criminal offences whilst in the country
10. We are concerned to hear that the authorities do not have contact details for individuals who are awaiting prosecution or who have recently been in contact with the police. It is vital that the Agency continues to work with the police and prosecutors to try and locate these individuals.
11. We are disappointed that even after the Inspector's discovery in April 2012, the Agency failed to carry out its programme of checks properly. This is especially worrying given that the controlled archives were to be closed upon completion. We had expected the Agency to take a thorough approach to the task, one that demonstrated awareness of its responsibility to trace all the individuals it was possible to trace and to ensure that all cases were closed appropriately.
12. We know that there are a large number of failed asylum and immigration applicants living in the shadows in the UK who are unlikely to have records on many of the databases searched by the Agency. Based on evidence seen so far we do not believe that the checking programme, even when properly completed, can offer reassurance that all 80,300 applicants whose cases the Agency has now closed have left the UK.
13. We are unsure as to how any matches with the controlled archive cases will be achieved. We expect the Agency to tell us what mechanisms it has in place for flagging up individuals it come into contact with who have a record in the closed archives.
Asylum cases that were not reported to this Committee
14. It is appalling that a senior civil servant should have misled the Committee in the way that Ms Homer did and that she continues, even in the light of the Inspector's findings, to try and evade responsibility for her failings. Reference to important figures in an obscure footnote in a previous letter is not an acceptable response. The Inspector's findings about the asylum and immigration backlog are the latest in a long line of failings in the Border Agency, many of which occurred throughout Ms Homer's time as Chief Executive.
15. This whole episode raises serious concerns about the accountability of the most senior civil servants to Parliament. It is shocking that after five years under Lin Homer's leadership an organisation that was described at the beginning of the period as being 'not fit for purpose' should have improved its performance so little. Given this background, we are astounded that Ms Homer has been promoted to become Chief Executive and Permanent Secretary at Her Majesty's Revenue and Customs and can therefore have little confidence in her ability to lead HMRC at what is a challenging time for that organisation. Indeed we note from Ms Homer's appearance before the Public Accounts Committee in January that one million letters were left unanswered at HMRC throughout 2012 and that 100,000 of these still remained unanswered on the date of her appearance before the Public Accounts Committee.
16. We recommend that Parliament be given a stronger role in the pre-appointment scrutiny of civil servants who will be leading government departments and we believe this strengthens the case for select committees to be given the power of veto. The status quo, in which catastrophic leadership failure is no obstacle to promotion, is totally unacceptable. We recommend that in future any failures of this nature should have serious consequences for the individual's career.
17. This statement appears to be at odds with the report from the Chief Inspector which found that these cases represented 30-40% of the CAAU's casework and that staff were upset that this substantial element of their work was not being reported to this Committee. It is difficult to see how both the Chief Inspector's findings and Mr Whiteman's statement can be correct and we expect Mr Whiteman to clarify the issue immediately.
18. We expect the Agency to tell us how these 11,000 Active Review cases relate to the group of 33,000 cases uncovered by the Chief Inspector. We also note that, far from having cleared the backlog, the Agency appears to be setting up a new directorate, the Complex Casework Directorate, to solve the more difficult cases which still remain outstanding. The Agency needs to tell us how this new Directorate is related to the CAAU and the backlog casework that they are currently concluding.
Use of Terminology
19. The Agency did not conclude its work on the legacy programme within its original target time. Rather than admit this, it simply sent the cases which it had reviewed but not yet concluded off to a new unit, the Case Assurance and Audit Unit (CAAU). We are disappointed that the Agency chose to address the issue in this way. The Agency's action in setting up a further Directorate, the Complex Casework Directorate, to conclude difficult older cases suggests to us that, despite its claims, the Agency has no intention of taking a more transparent approach to terminology and reporting in the future.
20. Keeping the cases in the Case Resolution Directorate and concluding them properly would have been a more prudent and transparent approach than establishing the Case Assurance and Audit Unit to take on cases which were not concluded by the Case Review Directorate.
Correspondence with applicants' legal representatives
21. We agree that this shambolic approach to correspondence is likely to have led to many cases being placed in the controlled archives when in fact the applicant was trying to make contact with the Agency. The deluge of correspondence was no doubt the result of the Agency publicly claiming to have cleared its backlog when it had not done so and a poorly timed mail merge exercise to the nine thousand or more individuals whose cases were passed to the CAAU without even being reviewed by the CRD. On this issue alone, of totally misplaced boxes of correspondence involving thousands of cases, we can only conclude the organisation has been poorly led and mismanaged. We hope that the Agency will learn from this episode and undertake to finish programmes properly in the future instead of fudging its terminology to meet targets.
Key issue: tackling the backlog of ex-FNOs living
in the community
22. The Committee is pleased to note that the Agency is making some progress in locating and removing ex-FNOs from the 2006 cohort who were released without being considered for deportation.
23. However, the overall number of ex-foreign national offenders living in the community whilst awaiting deportation has grown incrementally since the beginning of the year and the backlog of ex-offenders who have been here for over two years remains stubbornly high. The Government is simply not getting to grips with an issue that both endangers and infuriates the public. We reiterate our previous recommendation that ex-FNOs should be considered for deportation earlier in their sentence. The Home Office should work to overcome logistical and legal obstacles to doing so.
Key issue: prioritising the conclusion of legacy
24. When the controlled archives closed the Agency had 33,900 backlog asylum cases and 7,000 backlog immigration cases that it needs to conclude. Most of the individuals concerned will have waited many years to find out the result of their applications. The Agency must now prioritise the conclusion of their cases and work fast to give them a swift decision. The age of the cases and the controversy surrounding the backlog make it important that the Agency considers the merits of each application properly and records the reasons behind its decision making. As we recommended in our Fourth Report of 2010-12, in cases where severe delays in decision-making have been the fault of the Government and not the applicant, and where the passage of time has made evidence harder to find or has led to the applicant's being better integrated into British society, there is an argument in favour of granting the applicant leave to remain.
Key issue: a growing backlog of cases pending
an initial decision for more than 6 months
25. We are concerned to see a 53% rise in the number of asylum seekers awaiting an initial decision for more than six months in the year up to September 2012. The number of cases being concluded within a year has only risen by 3% in the same period, now accounting for only 63% of the total. We recognise that there will be difficulties with some cases but if our asylum system is to function properly the Agency must keep on top of its caseload. The figures for the last year indicate that this is not what is happening, the Agency should review its resource model for processing these cases and make the changes needed to start reversing the increase in the number of cases waiting for an initial decision for longer than six months.
26. The Agency has given applicants a notably poor level of customer service which cannot be serving the Government's aim of keeping the 'brightest and the best' in the UK. Parliamentary Questions reveal that it takes 45 minutes to deal with a case. Given that figure, it is inexcusable that so many people are not having their cases processed on time. In total 28,558 visa applications were not processed within target times in Q3 2012, more than double the number that were, 10, 842. The delays create
a vicious cycle of paperwork as, the longer the delay, the more letters MPs will write and the more bureaucracy there will be to handle. People are paying a high cost to obtain their visas, and more for the premium services. The Agency needs to consider these people more as customers, and fulfil its responsibilities in the timescale it has promised
The Agency must explain to Parliament what has gone wrong throughout 2012, what it is doing to solve the problem and when services will be running within target times again. We note that, in contrast, out of country visa applications are processed within target times and that the Agency often exceeds these targets, as we saw recently in Abu Dhabi. The Agency needs to examine how the strong performance of the International Directorate can be replicated for in-country applications.
Key issue: Acting on rule 35 reports
27. The Agency cannot plausibly claim to take Rule 35 reports very seriously when its Chief Executive does not understand his own guidance. Furthermore Mr Whiteman's answer gave the misleading impression that a proportion of reports may not have a sound medical basis as they were not necessarily made by medical practitioners. We are concerned at the enormous gap between the number of reports received and the number of individuals released. The Agency must tell Parliament the reasons for which its caseworkers overrule the advice of medical practitioners. We reiterate our previous recommendation that the Agency should carry out an immediate independent review of the application of Rule 35 in immigration detention. Further intransigence will continue to pose a risk to individuals, as mental health issues may not be properly identified.
Key issue: closing the Family Visit Visa full
right of appeal
28. We are concerned that the full right of appeal for the Family Visit Visa is being closed off at a time when the Agency is winning only just over half the appeals made against its decisions. We reiterate below the recommendations we made in our previous two reports which should help to reduce the volume of appeals without closing off important routes of appeal. Removing this will create extra pressure on the entry clearance operation with no guarantee it will save time or money.
29. There are a number of simple changes the Agency could make to reduce the volume of appeals it handles. Firstly the refusal notices it issues 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 it asks for "proof of funds" instead of bank statements. We recommend that the Agency list specific documents that are likely to be needed 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. We will return to the issue of the entry clearance operation as the focus of our next report.
Key issue: post licence visits
30. We are concerned that the proportion of post licence visits that are unannounced is declining in all sponsor Tiers. We reiterate the recommendation made in our previous reports that the majority of post licence visits should be unannounced. This should ensure that the enforcement system is both rigorous and gives the public confidence that the government is cracking down on illegal immigration. In its Fifth Report of the Session the Agency committed to test the approach of undertaking 100% unannounced visits on sponsors where it suspects non-compliance by March 2013. We will expect to see the results of this test when we next take evidence from the Agency.
Key issue: tracking the follow up of non-compliance
31. It is unacceptable that the Agency does not know how many of the potential non-compliance notifications received in Q3 2012 had been followed up by the end of the Quarter. If the Agency does not keep track of its performance in this area then it will undermine the work of Sponsors who are required to make non-compliance reports if they suspect a sponsee of breaking the terms of their visa. We reiterate our comments from our previous report:
We recommend that the Agency immediately instigates a way of tracking follow up actions taken on potential non-compliance reports. Without this we cannot see how it can keep track of the number of people who may be breaking the terms of their visa and therefore remaining in the country illegally.
Key issue: tackling the continued growth of the
Migration Refusal Pool
32. The Migration Refusal Pool has increased by 4% since Q2 2012. The Committee welcomes the fact that the Agency has now contracted Capita to concentrate on clearing this backlog and has established performance benchmarks against which to measure the result. The Committee has taken evidence from Capita at the start of this contract and will be closely monitoring its performance throughout. We expect the Government to publish its own assessment of Capita's performance in delivering this contract twice a year.
33. Capita informed the Committee that it was dealing with the existing backlog but was not dealing with more recent refusals. The way to prevent the backlog from growing is to check applicants as soon as they are refused, rather than wait months to do so. The Agency must have sufficient resources in place to carry out timely checks that individuals refused Leave to Remain have left the country. Otherwise the backlog will build in perpetuity.
34. Although we welcome the fact that the Migration Refusal Pool backlog is now to be tackled in a focused way it appears that Capita's contract amounts to telephoning or sending text messages to individuals asking them to leave and cleansing the Agency's data in the process. This is a contract worth between £2.5 and £3m.
We do not understand why the Agency was not able to do this in a strategic and timely way itself.
Key issue: an improved intelligence picture about
the results of allegations made
35. In successive reports we have called for the Agency to inform people who make allegations as to their outcome. We are particularly concerned that a spouse reporting marital fraud, for example, is still being treated as a third party reporting the case. It is important that where a family member is making a report, particularly if they have sponsored the individual in question, they are kept up to date with progress. We will be monitoring closely the performance of the National Allegations Database. As a result of being able to track allegations through the system we expect to see a proper analysis from the Agency as to why such a small proportion of allegations made result in enforcement action being taken.
Departmental information and cooperation with
36. We are concerned by the Agency's failure to meet targets for responding to MPs, as people only turn to their Member of Parliament as a last resort. For this reason, they need to be dealt with in a timely and proper manner. We note that even if the Agency meets these targets it does not mean that cases are resolved. Part of the problem in responding to MPs is the delay in uploading information to the Case Information Database and this must be dealt with as a first step.
37. It is only because of our questioning of the Minister that we heard about the Migration Refusal Pool and even now we are hearing about further backlogs. This is unacceptable. UKBA must disclose all relevant information to Parliament and not wait until it is asked.
Border Agency Backlogs
38. Bearing in mind that this has been an exceptional Quarter, where 96,000 cases in the controlled archives were simply closed, we find that UKBA's progress in dealing with the backlogs is far too slow. At this rate, it would take years to deal with the current backlog.
39. Senior Agency staff should not receive bonuses until there is evidence that the backlog is being substantially reduced and new backlogs are not emerging.
40. Despite the closure of the controlled archives, 96,000 cases since last quarter, the total backlog has only reduced by 1%. New backlogs are continuing to emerge. The Agency's work affects thousands of people's lives, public safety, public services and the economy, but it continues to be an Agency playing catch up. Until we are able to publish a Report on the Agency both without the discovery of a new backlog and with a decrease in the present backlogs we will not be able to declare it fit for purpose.