Home AffairsLetter from Mark Harper MP, Minister for Immigration, to the Chair of the Committee, 8 May 2013

During my appearance before the committee on 23 April I agreed to follow up in writing on a number of matters.

Conditional Cautioning

The committee asked whether the views of victims are taken into account when deciding whether to administer a conditional caution.

Wherever possible, the police or prosecutors should obtain the views of the victim. The Code of Practice for Adult Conditional Cautions states that the views of the victim “should be taken into account when deciding whether a conditional caution is appropriate and in determining suitable conditions”. The views of the victim will be important but cannot be conclusive. The decision maker must always consider whether it is in the public interest to offer a conditional caution.

Committee member Steve McCabe MP also asked whether the government would pay for an offender’s journey home following the decision to administer a conditional caution. In many cases, the government would arrange the offender’s departure and pay for their journey home as part of established removal processes. In these cases, the offender might be detained up to the time of departure and the case would be treated as an enforced removal. In some cases, the offender might arrange their own journey home or might already have done so at the time of arrest.

The Government believes that those who commit crimes and have no right to be in the UK should be removed from the country as soon as possible. We believe that in some circumstances—such as foreign nationals who have no right to remain in the UK and admit to committing an offence—the public interest is better served by administering a conditional caution and promptly removing the offender from the UK, rather than prosecuting and potentially imprisoning the offender at the taxpayer’s expense, only to remove them from the country once their sentence is complete.

Any offenders returning illegally in breach of their condition or who fail to comply with the removal process without reasonable excuse should usually be prosecuted for the original offence. The process relies on the incentive to the offender of a speedy departure but provides strong enforcement routes if the offender abuses the process or does not comply with removal.

Right to Work checks for the Olympic and Paralympic Games

Operational Activity

The UK Border Agency (UKBA) worked closely with the Olympic Delivery Authority (ODA) to ensure people working on both the Olympic Park and Athletes’ Village sites were legally entitled to do so. UKBA representatives were on site working in partnership with security staff and contractors checking the documentation for workers before they started work.

From April 2008, two immigration officers were deployed to the Olympic Park with the agreement and support of the ODA. These officers were embedded into the Site Pass issuing process. In February 2009, this deployment was augmented by one officer to also allow coverage of the Athletes’ Village Site Pass process.

The role of these officers was to support site security by identifying persons seeking to use false documents to obtain permanent site passes, and to mitigate the risk of illegal working. They were also available for site security personnel to refer documents presented by persons seeking one day visitor passes to enter the site. Regular contact was also made, during the construction phase, with site Security at the Westfield, Stratford City development directly adjacent to the Olympic Park and Athletes’ Village sites.

Where UKBA officers were not satisfied of an A21 national prospective site worker’s self-employed status and they did not appear to be exempt from the requirement to hold authorisation to work as an employee, the individual would be asked to return with proof of their self-employed status and officers would recommend to ODA that a site pass was not issued until evidence was provided. Intelligence was also passed to HMRC, the owner of employment status legislation.

Education Programme

One year before the operational deployment to the Olympic Sites began in 2008, UKBA initiated a programme of education for HR and recruitment staff working for companies and organisations linked to the delivery of the Games. Education presentations provided information on how companies could comply with legislation related to the prevention of illegal working. This training was often enhanced by providing basic forgery awareness during the same sessions. In total, almost 3000 people from over 250 companies and organisations attended at least one session delivered by the UKBA.

Specifically in relation to A2 issues, nationals of Romania and Bulgaria have no restrictions on genuine self-employment. Additionally, the illegal working provisions of the 2006 Act make no distinction between A2 Nationals and other EU Nationals. Whilst the standard education presentation did touch on how A2 Nationals could establish their right to work in the UK, it was also identified that contracting companies would benefit from guidance from HMRC concerning what could be properly classed as genuine self-employment. The ODA also had an interest in this area as their contracts with companies working on the Olympic Park contained clauses instructing those companies to adhere to a concept of direct employment rather than using self-employment provisions for their workers. This did not apply to the Athletes’ Village. In order to take a coordinated approach, UKBA, HMRC and the ODA presented joint sessions to support contractors’ knowledge of this area in 2009 and again in 2010.

Compliance Visits

Compliance activity began in 2007 and, in line with the Education Programme, targeted companies contracted to work on Olympic Sites in the run up to the Games. Compliance activity consisted of attending company head offices in order to check that copied documents held for employees were a) sufficient to establish a statutory excuse against penalties for employing illegal workers and b) genuine documents.

Companies were selected for visits either on the basis that they were due to deliver large numbers of workers to Olympic related business, or had employees who had been identified by operational officers at the Olympic sites as having false documents or being illegal workers.

Companies visited were informed not to rely on such documents as evidence of identity and/or right to work, and intelligence passed on for possible enforcement action.

Where companies did not appear to be aware of A2 regulations, these were highlighted and an explanation given as to how to legally employ or engage A2 Nationals.

Proceeds of Crime Act- Confiscation Orders

The Magistrates’ court is responsible for the enforcement of a confiscation order. However in cases involving the realisation of assets outside the court’s jurisdiction, real property or enforcing property held in the names of third parties, the Crown Prosecution Service (CPS) is best placed to enforce the order. The prosecutor can apply to the Crown Court for the appointment of an enforcement receiver.

Crime Teams

The Crime Teams in the Home Office are responsible for investigating those involved in organised immigration crime and seek to remove the proceeds of crime by obtaining confiscation orders post conviction. The confiscation orders will be enforced by the courts and/or the CPS.

Confiscation orders and foreign nationals

Where a confiscation order exists the prison will notify the Criminal Casework Directorate, now part of the Immigration Enforcement command within the Home Office, who liaise with the Crown Prosecution Service on the best action to take in each individual case.

It should be noted that once a defendant has served his prison sentence and is not in immigration detention, the Home Office has no power to stop him/her leaving the UK voluntarily even if there is an outstanding confiscation order. The court and/or CPS is responsible for the enforcement of the outstanding confiscation order.

I invite the committee to write to me with the details of the cases that are causing concern that were raised during my evidence session and I will examine these to see if they raise any policy or operational issues which require further attention.

Mark Harper MP
Minister for Immigration

May 2013