The work of the Immigration Directorates (Q1 2016) Contents

5Immigration Enforcement

The Migration Refusal Pool and curtailment of leave

61.Anyone whose temporary or permanent migration application is refused by UK Visas and Immigration or whose leave to remain has expired enters the Migration Refusal Pool (MRP). The MRP was set up in 2008. Asylum applications are excluded from it. It includes people who might have left the UK (but departure has not yet been confirmed) or secured a grant of leave in a different way (and records have not yet been linked to show this). Immigration Enforcement manages the MRP, and this forms a major part of its workload. Cases leave the pool as people are confirmed to have left the UK, are granted leave, or lodge an appeal or new application. We considered the MRP in detail in our Q4 2015 Report. 44

Figure 13: Size of Post 2008 Migration Refusal Pool at end of quarter

Source: Home Office, Immigration enforcement transparency data, May 2016 (and previous data releases), Table Post_MRP_01

Improved performance

The Post-2008 Migration Refusal Pool is the smallest it has been in four years. At the end of Q1 2016 there were 151,541 cases in the pool, down from 161,199 at the beginning of the quarter. 45

62.In September 2012, the Home Office contracted Capita to carry out a data cleansing operation on the Migration Refusal Pool cases. The work to contact and determine the circumstances of those individuals in the pool is ongoing and includes the new cases being transferred into the pool on a daily basis. In Q1 2016, Capita assessed 22,700 cases. Capita confirmed that 11,500 individuals had departed the UK but 11,700 cases were passed back to the Home Office to progress because there was a barrier to contact and in a further 4,100 cases Capita confirmed that no contact could be made.

63.In response to a 2014 National Audit Office report on the Government’s reforms to the UK Border and Immigration system, the Home Office explained that those cases passed back to the Immigration Enforcement directorate included duplicated records and people discovered to have been granted leave to remain via a different route or who were involved in a judicial review.46 A 2016 inspection of the curtailment process for Tier 4 visas by the Independent Chief Inspector of Borders and Immigration in 2016 found that cases were being entered into the pool unnecessarily, for example when an individual was still entitled to be in the UK.47

64.Around half of the cases in the Migration Refusal Pool (MRP) examined by Capita have been returned to the Home Office, but no breakdown is provided as to why those cases were returned. We note that the number of cases in the MRP has begun to fall, but we remain concerned about the large number of cases sent to Capita for processing only to be returned to the Immigration Enforcement directorate. We note also the Independent Chief Inspector of Borders and Immigration’s recent report which concluded that cases were being entered into the pool unnecessarily. This suggests to us that the Home Office continues to lack an effective and efficient system for managing its immigration casework, a theme which we have noted many times. The Home Office must explain why so many cases transferred to the Migration Refusal Pool for processing by Capita are being returned to the Immigration Enforcement directorate and what steps it is taking to reduce this obvious inefficiency.

65.The pre-2008 cases stood at 223,000 when the MRP was created. To date Capita has assessed 175,800 of the pre-2008 records. By the end of Q1 2016 there were 54,429 records remaining in the pre-2008 Migration Refusal Pool, down from 55,547 at the end of the previous quarter. 48

Figure 14: Number of records in the pre-2008 Migration Refusal Pool

Source: Home Office, Immigration enforcement transparency data, May 2016, Table Pre_MRP_01

66.The Government should make a commitment to clear the pre-2008 migration cases and put forward a specific deadline by which to do this. Progress on clearing those cases has slowed significantly over the last six months. Given that the bulk of the work has been outsourced there is a clear cost to work being prolonged.

Immigration detention

67.Immigration detention is the practice of detaining asylum seekers and other migrants for administrative purposes, to enable their claim to be resolved, or their possible removal. In Q1 2016, 7,286 individuals entered immigration detention, the lowest number since Q2 2014.49 48% of those who left immigration detention in Q1 2016 were removed from the UK. At the end of Q1 2016, 2,925 individuals were held in detention, 12% more than the previous quarter. Current trends suggest that over half of these people will be released.

Table 15: Number of people entering immigration detention at the end of each quarter

Quarter	Total	Male	Female	Of whom were children
2014 Q1	7,031	5,899	1,132	25
2014 Q2	6,995	5,877	1,118	27
2014 Q3	8,341	7,049	1,292	32
2014 Q4	7,997	6,903	1,094	44
2015 Q1	7,569	6,530	1,039	41
2015 Q2	8,146	6,957	1,189	38
2015 Q3	9,029	7,791	1,238	31
2015 Q4	7,702	6,534	1,168	18
2016 Q1	7,286	6,267	1,019	23

Source: Home Office, Immigration Statistics, January to March 2016, Detention data tables, dt_04q

Figure 15: Numbers leaving detention and removed from country

Source: Home Office, Immigration Statistics, January to March 2016, Table dt_05q

Figure 16: Number of people in immigration detention by quarter

Source: Home Office, Immigration statistics, May 2016, Table dt_13_q

Worse performance

The UK is the only country in Europe without a time limit on detention. More people had been detained for longer than 2 months in Q1 2016 (1,066) than the previous quarter (983). Of these, 94 people had been detained for over a year, an increase from 81 in the previous quarter.

Table 16: People in detention by length of detention

Length of detention	End of 2013	End of 2014	End of 2015	Q1 2016
3 days or less	115	157	120	240
4 to 7 days	74	52	48	117
8 to 14 days	326	333	241	348
15 to 28 days	521	622	533	479
29 days to less than 2 months	767	795	652	675
2 months to less than 3 months	350	479	319	381
3 months to less than 4 months	243	399	211	170
4 months to less than 6 months	180	228	190	228
6 months to less than 12 months	145	289	174	193
12 months to less than 18 months	37	65	55	65
18 months to less than 24 months	22	25	26	22
24 months to less than 36 months	13	12	6	6
36 months to less than 48 months	3	4	2	1
48 months or more	0	2	0	0
Total less than 2 months	1,803	1,959	1,594	1,859
Total more than 2 months	993	1503	983	1066
Total	2,796	3,462	2,607	2,925

Source: Home Office, Immigration Statistics, January to March 2016, Table DT_11_q

68.The Government has responded to Stephen Shaw’s September 2015 Review into the welfare of vulnerable people in detention by bringing forward a new ‘adults at risk’ policy. The policy was published in draft in May 2016 alongside amendments to the Immigration Bill.50 The Government expects its new ‘adults at risk’ policy to lead to a “reduction in the number of vulnerable people detained, to a reduction in the length of time for which people are detained generally, to a quicker and more efficient use of the detention estate and, as a result, to an improvement in the welfare of those detained.”51

69.The policy sets out that the clear presumption will be that detention will not be appropriate if a person is considered to be ‘at risk’ but that the appropriateness of detention must also be weighed against considerations of immigration control. The policy states that “a failure to remove within the expected timescale might also tip the balance to the extent that release becomes appropriate.”

70.Ten months on from Stephen Shaw’s report on detention, the number of people spending more than two months in detention has increased. The Government aims to address the problem of long detention in its ‘adults at risk’ policy. The policy states that “a failure to remove within the expected timescale might also tip the balance to the extent that release becomes appropriate.” This does not strike us as a firm commitment to reduce the length of time people are detained. We will monitor the implementation of this policy closely. It must meet our and Mr Shaw’s recommendations that the length of detention be reduced. If it fails to do so then further interventions such as a statutory limit on detention will have to be considered.

Children in detention

71.The Government has committed to end the detention of children for immigration purposes. Although the number of children entering detention has significantly reduced from a high of 322 children entering in just one quarter, Q3 2009, the practice has not stopped entirely. In Q1 2016, 23 children entered immigration detention, up from 18 children in the previous quarter.

Worse performance

Of the 23 children who left detention in Q1 2016, seven were held more than three days (one child for more than three months) compared to none in the previous quarter.

Figure 17: Children leaving immigration detention who were held more than 3 days

Source: Home Office, Immigration statistics, January to March 2016, Table DT_09q

Rule 35 reports

72.Rule 35 of the Detention Centre Rules is intended to be a key safeguard in ensuring that vulnerability in detention is identified. It states that medical practitioners are required to report to the Home Office any detainee whose health is likely to be injuriously affected by detention, and any detainee they are concerned may be a victim of torture. The chart below shows the number of Rule 35 Reports made to the Department since the beginning of 2013 and the number of people released from detention as a result. Stephen Shaw’s September 2015 Review concluded that the large number of Rule 35 reports that did not then result in release from detention showed that the system designed to safeguard vulnerable people was failing. He recommended that an alternative be immediately considered. 647 Rule 35 reports were made in Q1 2016, 17% more than the previous quarter. Although just 32% of those Reports resulted in release, this was an increase on the 27% of Reports resulting in release in Q4 2015.

Figure 18: Rule 35 reports

Source: Home Office, Immigration Enforcement Data, May 2016, Table DT_03

73.We welcome the increase in the number of people who are considered unfit for detention being released. However, as we have repeatedly stated, it is unacceptable that the large majority of detainees subject to Rule 35 Reports remain in detention. The Shaw review makes clear that safeguards for vulnerable people should be increased. The Government’s ‘adults at risk’ policy must satisfy this objective.

Foreign national offenders (FNOs)

74.The Government has said it wishes to deport as many Foreign National Offenders (FNOs) as possible to their home countries. In 2013, the Government produced an Action Plan on FNOs with the aims of increasing removals from 4,600 to 5,600 a year over the following three years, and reducing the number of FNOs in the UK by 2,000 over the same period. In 2015, 5,602 FNOs were returned. The chart below shows that in Q1 2016, 1,418 FNOs were returned, roughly the same as the previous quarter and 7% more than the first quarter in 2015.52

Figure 19: Number of FNOs returned

75.The principal mechanism by which FNOs are deported from the UK’s jails is via the early removal scheme (ERS). The nine-month early removal scheme applies to prisoners serving sentences of three years or more who are first considered for release at the halfway point of 18 months or more. In Q1 2016 501 FNOs were removed under the ERS scheme. The UK also has compulsory prisoner transfer arrangements with all EU Member States, with the exception of Ireland and Bulgaria under the Council Framework Decision 2008/909/JHA (the EU Prisoner Transfer Agreement). Poland has a partial derogation which expires in December 2016. The arrangements have not proved particularly successful. Since the transfer agreement was implemented in 2013, 19 prisoners were transferred from prisons in England and Wales in 2014, 38 in 2015 and 29 in the first half of 2016.53

76.At the end of Q1 2016 there were 9,971 foreign nationals held in custody and NOMS-operated Immigration Removal Centres. This represents an increase from 9,895 at the end of 2015 but a 5% decrease compared to 31 March 2015. The foreign national population in custody in England and Wales represents just under 12% of the total prison population.54 The five most common nationalities after British nationals in prisons in England and Wales are Polish, Irish, Romanian, Jamaican and Albanian, accounting for approximately one-third of the foreign national population and one in 20 of the prison population overall. Common barriers to deportation include a lack of travel documentation, asylum claims, and further legal representation.

Worse performance

In Q1 2016, 423 FNOs eligible for deportation were released into the community, up from 416 in Q4. Of these, 396 remained to be deported at the end of the quarter.55
It took an average of 165 days to deport an FNO in Q1 2016, up from 149 days in Q4 2015.56
In Q1 2016, there were 5,985 FNOs living in the community, up 2% from last year. More than half that number had been living in the community for more than two years (see chart below).
There has been a rise in the number of FNOs for which there is no data about the length of time they have been in the community. The proportion affected by data quality issues has risen over two quarters from 10% in Q3 2015 to 16% in Q1 2016.

Figure 20: Ex-FNOs living in the community by time since release

Source: Home Office, Immigration enforcement data, May 2016, Table FNO_08

77.We considered the issue of foreign national offenders in detail in our Q4 2015 Report and expressed concern that the number of FNOs in the community was so high. It is Government policy to remove all foreign national offenders, but, despite large numbers of FNOs being returned, the number in the prison estate and living in the community continues to grow. The Government must set out how many of those FNOs in prison and in the community it intends to deport and the barriers that are currently preventing it from doing so; how many of the FNOs in the community are there as a result of being released from the prison estates of Northern Ireland and Scotland and what action the UK Government has taken to secure their removal, both while in prison and once released into the community. The Government should include in its response how many FNOs there are currently in Scottish and Northern Irish prisons.

78.The Committee will explore the implications of the UK leaving the EU in a subsequent inquiry. In our last report we expressed concern over the failure of prisoner transfer arrangements with the EU. The House was told that by the end of the year 50 Polish offenders in British jails would be automatically transferred as the derogation would have ended. Since the UK is still in the EU we expect this commitment to be honoured.

Marriage fraud

79.Marriage fraud is the abuse of marriage where one party deceives the other into believing they are in a genuine relationship. Marriage fraud is different to ‘sham’ marriages in which both parties are aware they are participating in a fake marriage. Marriage fraud can be used by immigrants to gain Indefinite Leave to Remain (ILR) in the UK. Once ILR is obtained, the foreign spouse leaves the marriage, often taking with them material assets of the person they deceived, leaving behind debts accumulated during the marriage, and causing emotional trauma to the defrauded party.

80.The Home Office has made it more difficult for the spouse visa system to be exploited. It has increased the period before a spouse or partner is able to apply for UK settlement from two to five years, providing a tougher test of the genuineness of a relationship. The Home Office has the power to revoke an individual’s Leave to Remain if it is proved that it has been obtained via deception.57

81.Marriage fraud has a devastating impact on the individual’s affected, while those perpetrating the fraud often go unpunished. We are concerned that it is not being treated with the seriousness it deserves, both by the police and, where matters of immigration are involved, by the Home Office. The Home Office must set out how many cases of marriage fraud have been reported to it in the last three years; what investigations have taken place; and how many people have had their Leave to Remain revoked and how many of these have been removed from the UK as a result.

Illegal workers

82.Illegal workers are those who are subject to immigration control and either do not have leave to enter or remain in the UK, or who are in breach of a condition preventing them from taking up the work in question. As set out earlier, examples can include international university students working more than their permitted 20 hours per week during term time or those attending private colleges of further education engaged in any paid work. The Immigration Act 2016 strengthened the sanctions against illegal workers and their employers. The new measures built on legislation in 2014, and included doubling the maximum civil penalty on employers to £20,000 per illegal worker and gave immigration enforcement the power to close premises. Illegal workers can have their wages recovered as proceeds of crime and may face a custodial sentence of up to six months. In the financial year 2014–15 Immigration Enforcement issued 1,974 civil penalties to businesses employing illegal workers.58 The tables below show the number of penalties issued in the last six months of 2015 and the number of employers issued with multiple penalties in the last five years.

Table 17: Civil penalties issued relating to illegal working: Jun–Dec 2015

Regions	No. of penalties	No. of illegal workers found	Value of penalties issues*
London and the South East	552	768	£9,060,000
Midlands and Eastern England	167	275	£3,157,500
North East England, Yorkshire and Humberside	112	136	£1,625,000
North West England	146	207	£2,440,000
Scotland and Northern Ireland	124	202	£2,385,000
Wales and South West England	146	232	£2,920,000
Total	1,217	1,820	£21,587,000

Source: Home Office, Illegal working penalties, totals for July–December 2015, published June 2016

* This figure is the gross value of penalties issued. The recoverable value will be reduced due to adjustments made following objections and/or appeals.

Table 18: Civil penalties for illegal working issued to employers

Year	Employers issued 1 penalty in year	Employers issued 2–4 penalties in year	Employers issued 5+ penalties in year	Total penalties issued (matches certified data)
2009–10	2,167	172	0	2,339
2010–11	1,788	111	0	1,899
2011–12	1,291	50	0	1,341
2012–13	1,230,	40	0	1,270
2013–14	2,046	98	5	2,149
2014–15	1,847	122	5	1,974
2015–16	2,328	220	46	2,594

Source: Written question 39756, answered 24 June 2016

*the data provided is for initial penalties only and penalties may have been reduced or cancelled at the objection or appeal stage.

83.The actual amount recoverable will always be lower than the headline figure due to adjustments made following objections and/or appeals. However, notwithstanding these reductions, concerns have been raised that the Home Office is failing to collect all the penalties it issues. In 2013, the BBC found that two-thirds of fines against employers went uncollected. 59 Since then the Home Office has increased its enforcement powers. Owners who ‘phoenix’ their business—the practice of closing down a business to avoid a fine and then opening a similar business but registered to a family member who was not liable for the penalty—can now be subject to enforcement. Between 2008–09 and 2013–14 some £17million was written off because liable companies ceased to trade.60 Businesses that are found to employ illegal workers are now named in regional reports published by the Home Office and directors can face up to two years in prison. The Home Office has also taken steps to improve the collection of fines by outsourcing collection to specialist debt recovery firms and has introduced a payment incentive by reducing the penalty by 30% if paid within 21 days.61

84.Despite the steps set out above, the Independent Chief Inspector of Borders and Immigration (ICIBI), in his 2014–15 inspection How the Home Office tackles illegal working, found that “the most recent figures showed that around 31% of debt raised was recovered and that it took an average of 28.4 months to recover it.” The ICIBI also found that Immigration, Compliance and Enforcement (ICE) teams lacked the skills, experience and capacity to pursue criminal investigations and prosecutions of local non-compliant employers where it was appropriate to do so. 62 The huge increase in employers issued with more than five penalties in a year might indicate that the Home Office has better targeted its enforcement; it could also suggest that the current penalty regime is not a sufficiently effective deterrent.

85. If the current system of civil penalties is to work as a genuine deterrent against illegal working and the employment of illegal workers, then those engaged in that criminal activity must face severe consequences for their actions. Too often in the past, those found guilty have been able to evade the sanctions imposed upon them. It is not acceptable that less than a third of the penalties imposed are recovered, even accounting for appeals and early payment discounts. It is ridiculous for it to take over two years to recover the debt owed. This allows unscrupulous employers to have the benefit of illegal workers and subsequently not pay the sanctions given to them, making a mockery of the system. Rapid progress needs to be made. The Home Office must set out the amount that has been collected for each of the last three years and include the amount collected in all future quarterly reports on illegal working. In our next report our assessment of the civil penalty system will be expanded to include penalties for renting accommodation to individuals not entitled to be in the UK, including what effect this has had on landlords and on those who are entitled to be here seeking accommodation. We will also look to see whether there is evidence about the consequences of the new sanctions on illegal working, in terms of labour exploitation.

Clandestine civil penalty regime (illegal stowaways)

86.Under Section 32 of the Immigration and Asylum Act 1999, those responsible for bringing clandestine entrants (illegal migrants hiding in their vehicles) to the UK may be liable for a civil penalty if they have been found not to have taken reasonable measures to secure their vehicles. HGV drivers caught with illegal stowaways on board their vehicles can be fined up to £2,000 for each stowaway discovered, and their employers can be similarly fined. The penalty regime has not changed since codes of practice on the level of penalty and guidance on security measures were introduced in 2004. In March this year the Government launched a consultation to assess whether the regime could be modernised so that it incentivises operators to invest in high quality security measures and sanctions those who do not.63

87.Around 40 clandestine migrants per day, many from the Calais ‘Jungle’ migrant camp, were discovered in Dover and surrounding areas last summer, with more than 3,600 picked up by the Home Office between July and September 2015.64 It is estimated that around 40,000 attempts by clandestines to enter the UK illegally at the juxtaposed controls at Calais, Coquelles and Dunkerque were prevented by Border Force and the French authorities in 2014–15, compared to around 18,000 in 2013–14 and around 11,000 in 2012–13.65

88.In 2014–15 drivers and companies were served with more than 3,300 civil penalties, costing businesses nearly £6.5million. According to UK Border Force estimates, one-third of lorries arriving at the border do not have the advised standards of security—which equates to approximately 750,000 vehicles a year. Lorry security is an international issue. Of the 2.2 million powered goods vehicles estimated to be travelling to the UK from mainland Europe in 2014, 1.9 million were foreign registered. British drivers accounted for only 7% of penalties served from March 2013 to April 2014 despite being responsible for 14% of this traffic.66

Table 19: The number of civil penalties levied by Border Force for the carrying of clandestine illegal entrants in each of the last three years

Financial year	Penalty notices issued	Penalties imposed on British drivers and hauliers	Penalties imposed on non-UK drivers and hauliers	Penalties imposed	Penalties received
2012–13	1,690	122	1,568	£890,544	£484,922
2013–14	1,324	94	1,230	£4,070,471	£2,293,699
2014–15	3,321	233	3,088	£6,490,232	£4,050,139

Source: Written question 8663, answered 10 September 2015

*Penalty payments made may not necessarily be for the same year that they were imposed.

89.Data provided by the Home Office show that, as with civil penalties for illegal working, the Home Office has failed to recover the full amount of fines issued. The civil penalty system will not be an effective means of deterring people from smuggling migrants or incentivising better security measures if hauliers and their drivers can simply evade the fines that are imposed. The Home Office must set out how much it has been unable to collect in each of the last three years; the reasons for this failure; and what steps it is taking to improve rates of collection. In order for us to accurately assess the Department’s management of the clandestine entrant civil penalty regime there must be regular data releases, which must include not just the total penalties imposed, but the amount outstanding from previous years. Any reduction in the amount due, including as a result of appeals or any early payment initiative, must be explained. Collection of civil penalties will be one of our key performance measures for the Department.

44 Second Report, Session 2016–17, The work of the Immigration Directorates (Q4 2015), HC 22, paras 72–76

45 Home Office, Immigration enforcement transparency data, May 2016, Post MRP_03

46 BBC News, 175,000 migrants ‘missing’ says National Audit Office, 22 July 2014; National Audit Office, Reforming the UK border and immigration service, 22 July 2014

47 Independent Chief Inspector of Borders and Immigration, A short notice inspection of the Tier 4 curtailment process, July – September 2015, 23 March 2016

48 Home Office, Immigration enforcement transparency data, May 2016, Table Post MRP_03

49 Home Office, Immigration Statistics, January to March 2016, Table DT_04q

50 Home Office, Adults at risk draft policy, May 2016

51 Home Affairs Committee, First Special Report of Session 2016–17, The work of the Immigration Directorates (Q3 2015): Government Response to the Committee’s Sixth Report of Session 2015–16, HC 213

52 Home Office, Migration statistics, January to March 2016, Table RV_07_q

53 HC Deb, Col 1618, 14 June 2016

54 Ministry of Justice, Offender Management statistics bulletin, England and Wales, 28 April 2016

55 Home Office, Immigration enforcement data, May 2016, Table FNO_03

56 Home Office, Immigration enforcement data, May 2016, FNO_10

57 Home Office, Sham marriages and civil partnerships, November 2013

58 HM Government, Immigration Bill 2015, Immigration Factsheet 3

59 BBC News online, Two-thirds fines for illegal workers uncollected, 1 August 2013

60 The Times, Illegal work fines unpaid, 12 August 2015

61 Independent Chief Inspector of Borders and Immigration, An inspection of how the Home Office tackles illegal working, December 2015

62 Independent Chief Inspector of Borders and Immigration, An inspection of how the Home Office tackles illegal working, December 2015

63 Home Office, Clandestine civil penalty – consultation on proposals to improve the civil penalty regime, March 2016