Immigration Bill Committee

Written evidence submitted by Tony Smith CBE, Former Director General, UK Border Force (IB 05)

IMMIGRATION BILL 2015-2016

Background / Qualifications

I served in the UK Home Office between 1972 and 2013, at all grades from immigration officer through to Director General of the UK Border Force. I held a number of posts in immigration enforcement in London during that period, notably as an immigration officer (1979 – 1984); a Chief Immigration Officer (1986 – 1991); an Immigration Inspector (1994 – 1997); Head of London Immigration Enforcement (2003 – 2005); and Regional Director for London and the South East in the UK Border Agency (2007 – 2010). As such I have a significant depth and breadth of experience in immigration enforcement work in the United Kingdom, including dealing with illegal workers and their employers.

Proposed Amendments

My proposed amendments relate entirely to Part 1 of the Bill, Section 8 (Offence of Illegal Working). I propose that this clause be deleted from the Bill. It follows that section 8 (3) (4) (providing for committal with a view to a confiscation order being considered under s 70 of the Proceeds of Crime Act 2002) is also deleted. I believe the inclusion of this section will place an unnecessary burden on immigration enforcement and the criminal justice system at a time of shrinking resources; and it will do little to discourage or deter illegal working when other more effective tools (such as administrative removal and employer sanctions) are available.

Context

As stated above I have extensive experience of managing illegal working in the UK spanning a career of over 40 years in the Immigration & Nationality Department, the UK Immigration Service, the Border and Immigration Agency, the UK Border Agency and the UK Border Force at all levels up to and including Director General. It is important we learn the lessons of the past before implementing new legislation in this area.

Joint Overstayers Exercise (JOE)

In 1979 – whilst serving as an immigration officer at Heathrow -I was seconded to a unit called the "Joint Overstayers Exercise (JOE)" team based at Harmondsworth in Middlesex. Prior to that, immigration officers were based primarily at the ports of entry and the enforcement of the Immigration Act 1971 (and in particular the prosecution of immigration offences) was a matter for the police. Due to a lack of any police skills or training in determining immigration status, the Home Office decided to deploy immigration officers to inland work to test the extent to which immigration offenders were remaining unlawfully or working without permission. Under the JOE arrangement, immigration officers would attend police stations to work alongside dedicated police officers (often known as Divisional Enquiry Officers) to follow up on cases where immigration offences were suspected in that particular Division. I was allocated to the West London area.

Section 24 prosecutions

It soon became clear that there were considerable numbers of illegal immigrants working in specific professions such as cleaning and catering. Most had either overstayed their leave to enter or were working in breach of their conditions of entry. However, unless we could prove that an individual had entered illegally (i.e. without first obtaining leave, or by employing deception) the only option available to us at that time was to prosecute under Section 24 of the Immigration Act 1971. Where the person had overstayed the charge would be under section 24(1)(b)(i); where the person had leave to remain but had breached a condition (eg by working without permission) the charge would be under section 24(1)(b)(ii). Both were (and still are) summary offences only.

Proving the offence was not always straightforward, and often time consuming. It is common practice for overstayers to switch identity (and often nationality) and to destroy their original travel documents. In addition to occupying scarce police resources and cells, it often demanded witness statements from the Home Office and others to secure a prosecution. Immigration officers were never trained to prosecute; they were more familiar with their schedule 2 powers to detain and remove offenders administratively. At the same time many police officers did not see immigration offences as "harmful", preferring to focus more on other more serious offences. Even when we did arrive at the Magistrates Court, and secured a conviction, offenders were usually given only a small fine and deportation was rarely recommended by the court. It was not uncommon to find the same offenders back working illegally again in the community even after conviction, whilst the Home Office embarked upon a lengthy and bureaucratic process towards administrative deportation.

Administrative Removal

The main lesson we learned from the JOE experiment was that the criminal justice system is not the most effective way to manage immigration offenders. It tied up the police and the courts unnecessarily and failed to fulfil the required intention of the Immigration Law – that where a foreign national breaches a condition of entry, then he has broken his contract with the State and should ordinarily be removed from the territory. This led to the concept of "administrative removal". It was deemed more effective and efficient to serve a notice of intention to deport an overstayer – with associated powers of detention under Schedule 3 to the Immigration Act – than to prosecute under Section 24.

Proceeds of Crime

In my experience, illegal workers invariably have very limited means at their disposal. They are usually paid at or below the minimum wage; and any funds they do accrue are quickly remitted overseas. This is not a sensible group to target under the Proceeds of Crime Act – nor will it act as a deterrent. In the same way that deploying scarce resources on prosecutions will limit the capacity of immigration enforcement to achieve more removals, deploying scarce resources on POCA work to seize assets that don’t exist will be wasteful and unproductive.

Employer Sanctions

Whilst opposed to the introduction of more criminal offences for illegal workers, I support the harsher criminal penalties imposed upon their employers by section 9 of the Bill. Thus far many employers have evaded prosecution because it is hard to prove they have "knowingly" employed somebody illegally. I also support the amendment to the "knowingly" test to become "reasonable cause" for the same reason.

However in my experience prosecution is usually reserved for the more persistent offenders, with civil penalty measures being more appropriate (and easier to enforce) in most cases. In that regard, it is important to invest in the civil penalty scheme and employer compliance framework; and to ensure that adequate resources are in place to translate notices of liability into the enforced payment of the financial penalties imposed.

Document and Identity Fraud

The Committee should know that there is widespread abuse of document fraud in the field to overcome the illegal worker rules. This often manifests itself in the production of false identity documents including (in particular) EEA identity cards. Although the EU Council has called on all Member States to adopt common designs and security features for EEA identity cards since 2005, not all EEA countries have done so. When I was Regional Director in the UKBA (2007 - 2010) my enforcement teams uncovered a significant number of "forgery factories" in London who were manufacturing fake EEA identity cards. These were mainly being sold to migrants from non EEA countries who were working illegally in the UK. Although these documents would likely be identified as fraudulent at the border, they are usually sufficient to pass the "reasonably apparent" test to an employer. The same is likely to apply to the implementation of landlord sanctions. Records of EEA nationals entering the UK are not retained, and there is no obligation for EEA nationals to secure a biometric residence permit to remain here.

Equally the UK has not adopted a "permanent resident" card for foreign nationals with indefinite leave to remain in the UK (such as the US green card for example). Although biometric residence permits have been in place since 2008 for new applicants, there is still a significant market for pre 2008 documents (such as Home Office stamps and letters). This – coupled with the lack of a National Identity Register in the UK or a biometric identity card – will continue to frustrate the intent of the Bill, which is to place a greater obligation on landlords and service providers to check immigration status. Many will pass themselves off as EEA nationals (eg North Africans as French, South Americans as Spanish or Portuguese) or as people who were given indefinite leave to remain a long time ago (by producing false or fraudulent stamps and documents).

Therefore the lack of a national identity register in the UK – covering not just UK citizens but also EEA citizens and UK permanent residents – will make it harder for employers and landlords to confirm identity and entitlement of employees and tenants.

Ancillary Issues – Appeals and Returns

Returns

Ultimately the key test of a successful immigration enforcement operation is the return of those who breach their conditions of entry or who are no longer entitled to stay here. Whilst I welcome the streamlining of the appeals process there are likely to be lengthy legal challenges to this which have frustrated removals for many years, culminating in the recent decision by the Court of Appeal to declare the detained fast-track system unlawful. The use of asylum and human rights claims to frustrate the removals process – often on numerous occasions – is a major tactic employed by lawyers to keep their clients in the UK. Additionally most countries now refuse to document their own nationals for removal, or are extremely tardy in doing so. The breakdown of the Dublin Convention and the failure of EU Member States to manage asylum applications or to control the external border means that significant numbers of people claiming asylum in the UK should be returned to their first point of entry to the EU. Yet in the past UK courts have held that asylum processes in countries like Greece and Italy are not sufficiently robust to allow us to return applicants there. Some of these cases are still ongoing.

Notice of Removal and subsequent challenges thereto

Enforcement guidelines now require that most immigration offenders detained in the field are given 72 hours’ notice before removal directions can be set. This invariably sets off a chain of events leading to new applications for asylum or human rights to thwart removal. In these circumstances it is often very difficult to bring a case to a final conclusion where removal becomes inevitable. So long as lawyers are able to bring new evidence to bear at the point of arrest or detention, and the EU continues to evade its responsibilities under the Dublin Convention, we will continue to struggle to achieve returns.

Conclusion

Given the ongoing difficulties in achieving returns, it is ever more important that we invest what scarce resources we have in our pre – entry controls to prevent irregular migration in the first place; and that we do not waste scarce resources trying to enforce a new offence of illegal working. It would be unhelpful to implement this clause only to see a report from the Chief Inspector of Immigration to the Home Secretary in a couple of years’ time complaining that it was never used.

Immigration Enforcement teams should focus decreasing resources upon other remedies such as administrative removal and civil penalties; and they should be encouraged to work with employers, service providers and housing authorities within their local areas to ensure that they are properly equipped to identify irregular migrants and deny them services accordingly. History shows us that prosecuting illegal workers would be a retrograde step; there are already multiple provisions for prosecution available in the current law for prosecution that are seldom used for the reasons set out above. Other remedies such as administrative removal and employers sanctions are far more effective in achieving the desired outcome, if properly applied.

October 2015

Prepared 21st October 2015