The Home Office would like to thank the Committee for its report on the work of the immigration directorates published in June 2016. The Government’s response is below.
Conclusion/Recommendation 1 – This Committee has in the past expressed concern about the way in which internal service standards operate. Since UKVI introduced its own customer service standards in 2014 we have seen the goalposts shifted, as UKVI have changed the parameters without consultation or explanation, and a lack of transparency, particularly when UKVI choose to exclude vast numbers of cases from the standards and provide only general observations to justify such action. We reiterate the conclusion from our previous report that if service standards are to mean anything their application must be transparent and the criteria on which they are based justified. Whenever UKVI wishes to amend the customer service standards, this Committee must be notified by a letter from the head of UKVI. (Paragraph 7)
UKVI implemented new service standards across all in-country immigration application routes on 1 January 2014; the previous Immigration Minister wrote to all of his Parliamentary colleagues in January 2014 detailing these new standards and wrote specifically to the Chairman of the Home Affairs Select Committee. Those in-country standards have not changed since their implementation, neither have the parameters to classify whether a case is deemed straightforward and subject to them, or complex and excluded from them. Should UKVI change these standards it will notify the committee as it did in 2014.
Conclusion/Recommendation 2 – UKVI states that it is meeting its service standards for in-country visa applications in the overwhelming majority of cases, although we note that the number of cases in progress that will not meet these service standards, while very low, is steadily increasing. We also note that, at the end of Q4 2015, the number of cases that had been received but had yet to be inputted was 85% higher than at the end of the previous quarter despite the overall number of applications being lower. We are concerned that this may be the first sign of a backlog developing. In response to this Report, the Home Office must set out the steps which UKVI is taking to address this potential backlog. (Paragraph 8)
UKVI closely monitors the number of cases that approach, and exceed, the published customer service standards. Cases that are approaching the service standard target date are identified and dealt with as a priority; however, in some rare circumstances UKVI is not able to make the decision within the timescales set. In these instances the customer is notified of the reason for the delay, and provided with an anticipated date on which they can expect a decision.
The majority of cases that missed these service standards were in Nationality and Tier 1 routes. We are taking steps to improve our monitoring of this and in Q1 2016 the number of cases outside of service standards reduced to 126.
During 2015 overall demand did fall, and this was primarily driven by Tier 4. The majority of Tier 4 applications are submitted via an online process, rather than a paper based application which requires manual keying. Online applications are therefore directly integrated into our case-working system and do not feature in Outstanding, Not Input (OSNI). By contrast during Q4 2015 paper based intake in Citizenship and European routes was above forecast, and so generated increased OSNI demands. The majority of the OSNI at the end of Q4 2015 was in these routes. Therefore the link between falling intake and less manual input is not always direct.
Within UKVI we are currently in the process of moving our in-country application processes from paper to digital submission which will eventually eliminate OSNI in the future. Currently both Tier 4 and Tier 2 applications are submitted digitally, and in the majority of cases are instantly created on the IT system as soon as the customer presses submit. More routes will shortly be adopting this process which benefits both the business and the customer.
Conclusion/Recommendation 3 – In response to this report UKVI must explain why so many cases in the family reunion and refugee resettlement categories have not been progressed within the customer service standards and what steps are being taken to address this. Processing of such applications should be a particular priority given the ongoing humanitarian crisis in the Middle East and Europe. (Paragraph 9)
Published statistics show that UKVI took on average 40 days to resolve a Family Reunion application in Q4 2015, and 19 days to resolve a Refugee Resettlement Programme application in Q4 2015; which can be found at:
https://www.gov.uk/government/publications/international-operations-transparency-data-february-2016 – Visa_04: Time taken (days) to resolve applications for refugee/humanitarian family reunion out of country visa applications).
UKVI are working to reduce this average figure for Family Reunion applications. As the committee notes, published statistics show some Family Reunion and Refugee Resettlement Programme applications were unresolved and a long way outside our service standards. These applications were lodged at visa decision making centres that have now closed. The applications were transferred to other locations for processing, and have since been resolved. We expect that figures for subsequent quarters when published will show a much more satisfactory position.
There are no published service standards for Refugee Resettlement cases. The decision to resettle is a difficult and complicated one for the vulnerable people involved, often taken after having remained in their home region for as long as possible. The numbers resettled in a particular period will depend on a range of factors including the flow of referrals from UNHCR in the field and the availability of suitable accommodation and care packages in the UK. We will manage the flows based on need and in support of the wellbeing of the people and communities involved, rather than rushing to meet a time target. However the average time figures will continue to be published.
Conclusion/Recommendation 4 – In our Report Immigration: Skill Shortages we concluded that the period of time allowed for an organisation to give further information in the event of a suspension or revocation of a licence was not long enough. We note that UKVI does not agree that the current arrangements require review. We remain concerned and will continue to monitor the system of sponsorship. We will hold UKVI to account if we find that the process of suspension and resolution is not being administered effectively. (Paragraph 11)
The vast majority of sponsors are able to submit representations against the suspension of their sponsor licence within that timeframe (from the date of the letter/email the sponsor has 20 working days to provide representations against the suspension of their licence). Extensions are granted when a sponsor provides credible reasons for not being able to meet the published deadline for sending in their representations against the suspension of their licence. We always look to work in a collaborative way.
In Q4 2015 we received 13 requests for extensions of representation deadlines from sponsors that we suspended, and we agreed to nine of these requests. Each request is judged on its own merits and where there are compelling reasons to allow an extension then we will.
Conclusion/Recommendation 5 – UKVI is meeting its own 40-day performance target on processing sponsor applications. We question whether that standard is sufficiently stretching, given that the average number of days taken to process an application has consistently been less than the customer service standard. (Paragraph 12)
The customer service standard of 40-days relates to the latest date by which a sponsor can expect to receive a decision, but we will always look to deliver a decision as soon as we can, and are constantly seeking to improve our process. On average in Q4 2015 an organisation waited 22 days for a decision. However, the awarding of a sponsor licence is an important decision and we need to make sure that we undertake robust checks, including visiting the organisation, and in some cases we need to take up to 40 days to make this decision.
Conclusion/Recommendation 6 – Over the last 12 months the number of actions taken against sponsors has remained broadly consistent while, over the same period, the number of follow-up visits has more than halved. This suggests that UKVI has successfully improved the targeting of its post-licence enforcement work. The Home Office must explain the extent to which pre-registration visits have served to prevent potentially illegitimate sponsors from gaining sponsorship status. UKVI should also consider whether increasing its investigative actions at this stage of the process might prove an efficient use of resources over the longer term. (Paragraph 15)
Undertaking a visit is an important tool that we use when assessing applications to become a sponsor. We refer applications for visits on a risk basis. In Q4 2015 we referred 16% of licence applications for a visit, and 71% of these were eventually refused.
We believe our risk approach in assessing licence applications is working, and visits are just one element of assessment that we use.
Conclusion/Recommendation 7 – Universities UK told us that institutions find the compliance regime around student visa sponsorship to be opaque, and that there is a lack of constructive engagement with the sector and a lack of feedback from the Home Office. This sector generates over £10 billion of export earnings for the UK economy and deserves more respect. (Paragraph 18)
Conclusion/Recommendation 8 – We note the Independent Chief Inspector of Borders and Immigration’s conclusion that the absence of direct feedback to sponsors makes it unlikely that the number of unnecessary notifications submitted each year will reduce significantly. We agree with the ICIBI that this will perpetuate the continued waste of time by academic institutions and the Home Office in processing large volumes of worthless notifications. We will add the number of unnecessary notifications to future Committee reports as a key indicator of the performance of UKVI. (Paragraph 19)
We are working collaboratively with the education sector to clarify their roles and responsibilities as sponsors, and also take feedback on issues and problems that they face. For example, as recently as June we held two workshops with education sector representatives which included sessions on notifications and reporting. A number of similar events are continuing throughout July.
We do accept that the system of reporting could continue to be improved, and we are making that a core element of the overhaul of the IT system that supports sponsoring organisation. We reiterated this in our response to the ICI findings in which we said that:
1.3 It is anticipated that a new caseworking system, Integrated Platform Technology (IPT), will provide the Home Office with numerous new capabilities which may include a reporting function back to sponsors informing them of a status change following a notification. IPT is still in the early stages of development, and whilst UKVI is seeking such functionality, it cannot be confirmed that this will be viable.
1.5 UKVI continues to work with the education sector to ensure its understanding of the Sponsorship guidance and its requirements in terms of reporting activity to UKVI. This continued joint working will educate sponsors on reporting only the necessary information required by UKVI.
It is worth noting that whilst some notifications do not lead to a curtailment consideration that does not mean they are worthless. In total in Q4 2015 we received 29,606 notifications from sponsors, of which 4,561 (15%) might not have been required. We are continuing to work on our future IT systems, and collaborating with the education sector to reduce this number.
In respect of compliance reports, we have a dedicated inspection team for the Higher Education sector, known as HEAT (Higher Education Assurance Team). They were formed in collaboration with Universities UK and Guild HE, and their terms of reference, which have been shared with Higher Education Institutions (HEIs), specifically state that all compliance reports will be shared and that the team will discuss issues in detail after the visit. We have had very complimentary feedback from the sector on the team, and are not aware of any instances in which HEAT have failed to share reports with HEIs. If the committee does have specific examples then we will of course look into them.
HEAT is part of UKVI’s wider sponsorship compliance network which is currently undergoing a restructure, and we can confirm that under the new compliance structure the roles and responsibilities of HEAT will continue to be delivered, including ensuring that HEIs receive detailed compliance reports following an inspection.
The Home Office has answered 87 questions in relation to English Language Testing asked of it by the committee and on 16 June the previous Immigration Minister submitted Home Office written evidence on the matter which has been published on the Home Affairs Select Committee website. The responses to points 9 to 14 should therefore be read in conjunction with that material.
Conclusion/Recommendation 9 – It is extraordinary that the Home Office has carried out no independent investigation itself of the allegations of fraud in relation to English language testing and instead has relied on evidence from ETS, one of its approved providers and a party under criminal investigation. We note the failure of ETS, an organisation that has received millions of pounds in fees from those sitting the tests, to give evidence in court on this matter. (Paragraph 23)
Whilst the committee notes in its report published on 3rd June 2016 that the Home Office carried out no independent investigation of the allegations of fraud, it will be aware that in early June 2014 the Home Office sent a team headed at Director level to the USA to view and understand the ETS process of establishing cheating.
The Home Office did not simply take ETS notification of fraudulent tests at face value and ensured that appropriate steps were taken to understand the processes operated by ETS and why ETS were satisfied that they were able to identify to the correct standard where fraud had occurred.
Professor J P French Chairman of JP French Associates Forensic Speech & Acoustics Laboratory and Prof of Forensic Speech Science at York University has carried out an independent expert review and confirmed that the ETS analysis process was robust and much more likely to produce false rejections than false positives.
In addition the Home Office has undertaken criminal investigations since 2014 which have resulted in 115 suspects (college directors, test centre administrators, agents and proxy test takers) having been arrested and/or interviewed. Nine people have been convicted and further 21 defendants are to appear in several criminal trials this year.
We are not aware of any non-compliance by ETS with directions issued by the First-Tier or Upper Tribunal. ETS has provided witness statements from their staff for criminal proceedings. Following the discovery of the English language test cheating, ETS Global BV closed its office based in the UK.
Conclusion/Recommendation 10 – It is wholly unsatisfactory that the Home Office initially informed us that it did not hold information on how many people with ‘questionable’ English language test results had been able to re-sit the test or be interviewed by the Home Office, when it was able to provide this information a few weeks later. It is also unacceptable that the Home Office was unable to tell us how many of the tests related to people who were not applying under the Tier 4 student visa process, how many cases relating to the ETS debacle were currently before a Tribunal, or how many tests ETS found to be valid. We find it deeply concerning that the Home Office was unable to provide this information given the gravity of this matter and the number of people affected. We are also not satisfied by the definitions of tests declared ‘valid’, ‘not-valid’ or ‘questionable’. (Paragraph 29)
When the Home Office replied to questions from the chair on 29 March regarding interviews and re-sits of “questionable” English Language Test, officials were unable to provide the data as requested. Following the appearance of the Second Permanent Secretary on 12 April, further analysis of the data was commissioned which allowed for the response given on 6 May.
It remains the case that the Home Office systems cannot simply classify cases as “ETS” or otherwise. Consequently it is not possible to identify and quantify the number of tests relating to people not applying under T4. Over the course of their immigration history it is very common for people to make a series of applications in different routes. Similarly, people who had invalid or questionable ETS certificates may have initiated appeals on entirely unrelated matters (for example the refusal of an Asylum or Human Rights claim). Our data systems are therefore unable to identify appeals definitively as either “ETS” or not. Oliver Robbins informed the committee in his letter of 29 April 2016 that 8,975 tests were valid.
The committee has asked for clarification of the classification of the tests which were reviewed by ETS. Where an ETS TOEIC test certificate was found to be invalid, all three sets of analyses undertaken by ETS (involving automated speech recognition software followed by two trained listeners both separately analysing the matched voices) had to independently find that a match of the voice on two or more tests in different names did exist within the batch of test recordings. A test would be deemed questionable either where there was no unanimous finding from the voice analyses that a proxy test taker was used or where there was no direct evidence of cheating, but ETS could not be confident in the test result because of test centre irregularities, such as a large number of confirmed invalid results at the same test centre. As set out in the previous answer, the report from Professor J P French has confirmed that the ETS analysis process was robust and much more likely to produce false rejections than false positives.
Conclusion/Recommendation 11 – The recent judgment of the Upper Tribunal on the operation of the English language testing system raises serious questions about the conduct of the Home Office. The Home Office appears to have accepted at face value, and continues to accept, claims of widespread fraud from ETS—a company that was part of the problem, had already been discredited and is subject to criminal investigation. This is deeply troubling, particularly given that an expert witness has raised serious questions over the reliability and accuracy of ETS’s analysis and first did so well over a year ago. Despite this, arrests and removals have continued. In any circumstances the lack of independent assessment would be difficult to comprehend but when the consequences of such a decision include thousands of people suffering the trauma of detention and removal from the UK, such actions lead us to seriously question the judgement of the Home Office. (Paragraph 34)
The Home Office does not agree with a number of aspects of the Upper Tribunal ruling and is very pleased to have been granted permission to appeal this case to the Court of Appeal. It is worth noting, however, that in deciding Qadir and SM the Upper Tribunal confirmed that the Home Office discharged the initial evidential burden so that a Tribunal could find that fraud took place and that there was abuse of the ETS testing system. It went on to say that each appellant before the Tribunal will need to establish an innocent explanation for their involvement.
In these particular appeals, the Upper Tribunal found that these particular appellants had discharged this burden. We disagree with these findings and also how the Tribunal interpreted the evidence of Dr Phillip Harrison of JP French Associates, an expert witness who gave evidence on the automatic speaker recognition system used by ETS and the extent to which it would have produced false positive results (incorrectly matching two voices as being from the same person). Permission to appeal to the Court of Appeal was granted in relation to the proper interpretation of Dr Harrison’s evidence. The Court of Appeal will accordingly be considering this matter in due course.
In addition, we have subsequently obtained further expert advice from Professor Peter French of JP French Associates who with the benefit of additional information from ETS has been able to provide clearer conclusions on the reliability of ETS’ systems, in particular that:
It is simply not correct to suggest that we have taken claims of widespread fraud from ETS at face value. The response to question 9 sets out the steps we have taken to understand the processes operated by ETS and ensure their reliability. We also have an array of other evidence from both the criminal investigation undertaken by the Home Office and the work of our Sponsorship teams, which confirmed that over 400 colleges revoked before these issues were discovered had sponsored many of those with invalid ETS certificates.
Conclusion/Recommendation 12 – We have received evidence that people were only told why their visas were being revoked after extensive requests for information, and that those affected did not have the opportunity to review and contest evidence presented against them. It does not seem to us fair that the UK is removing people from the country without, as a minimum, making them aware of the evidence against them. It is clear that, if the problem of fraud in English language testing is not handled properly, the UK risks causing extensive damage to its reputation as a leading destination for international study, not to mention the emotional and financial cost to the individuals affected. (Paragraph 35)
Conclusion/Recommendation 13 – We do not condone fraud and it is right that swift and proportionate action is taken when fraud is uncovered. However, given the severity of the consequences, the Home Office must only act when it is certain that it can meet the burden of proof. The recent case in which two students appealed successfully against the Secretary of State’s decision for removal raises serious questions about the way in which the Home Office has responded to the allegations of fraud within English language test centres. This decision appears to have been a knee-jerk reaction to the Panorama documentary. The Home Office’s action is already having wider ramifications. (Paragraph 37)
We welcome the committees assertion that swift and proportionate action should be undertaken when fraud is uncovered.
As set out in the previous Immigration Minister’s statement to the House of Commons in June 2014, and confirmed by subsequent Criminal Investigations and the work of our sponsorship teams, the abuse of the English Language Testing system was an organised fraud on an industrial scale.
It is absolutely not correct to say that the Home Office response to this was in any way a “knee-jerk” reaction. Following the Panorama programme the Home Office put all pending applications on hold (where an ETS test had been submitted) whilst we took stock of the problem, started to investigate, and only started to take action once extent of the fraud started to become clear.
Since then we have proceeded in a measured and proportionate way. Our approach has clearly distinguished between those ETS informed us had obtained invalid certificates and those they assessed as questionable.
As set out in previous answers we have taken a number of steps to ensure that the ETS process for producing “invalid” results was robust. Our assessment has been verified by Professor French’s expert report which concluded that the methodology used by ETS would have resulted in substantially more false rejections than false positives.
The Courts have consistently found that our standard evidence is sufficient to satisfy the presumption of fraud. The most recent key ruling in this regard was from the Court of Appeal on 29 June 2016 in the case of Shezhad & Chowdhury.
It is worth noting that nobody with a questionable test certificate had action taken against them for that reason without first being given the chance to re-sit a test and attend an interview.
Similarly, suspended sponsors have been given reasonable time in line with standard arrangements (20 working days) to make their case and extensions of time have been granted where requested and appropriate. The Courts have consistently upheld Home Office revocation decisions when they have been challenged. In some instances they have found that the standard of English in coursework at some of these colleges was in their words “truly abysmal”.
The abuse of English Language testing was part of a pattern of wider abuse of the student immigration route. In total between 2010–2014 more than 750 colleges were removed from the sponsor register and over 400 of those revoked pre-discovery of the ETS issue turned out to have sponsored large numbers of invalid ETS test certificate people.
The Home Office made all reasonable efforts to help non-ETS students at colleges revoked following discovery of the ETS fraud. There were almost 5000 such students. With the Sponsorship Working Group and HEFCE (Higher Education Funding Council for England) we set up an online portal offering 800 alternate courses at 62 different sponsors.
The way the Home Office handled sponsorship compliance issues resulting from the ETS issues has been reviewed by the Independent Chief Inspector of Borders & Immigration. His report commented that “the Home Office for the most part handled the ETS incident well” he found that letters sent to suspended sponsors “clearly explained the reasons for these actions” he went on to find that the Home Office operation “was a success in terms of the way UKVI swiftly mobilised to deal with the problems with ETS identified [and that]…the outcomes… improved the effectiveness of the Tier 4 compliance regime”.
Overall the quality of the overseas student cohort in British further and higher education has been dramatically transformed since the start of 2014. The response to the ETS issue plus a number of other key operational and policy changes has helped to deliver this. This year (2016/17) the in-country refusal rate for student extension applications is on course to be the lowest in 8 years reflecting the change in the quality of the student cohort.
This can only be in the interest of both those compliant institutions who make up our world class education system and those genuine students who seek to come here to study.
Conclusion/Recommendation 14 – We want to be satisfied that the Home Office’s actions are proportionate and just. The Committee has decided, given the number of outstanding issues relating to English language testing, to undertake a full inquiry into this matter. These issues include procurement and licensing, investigations, inspections and how much money has been spent. As a starting point to this inquiry the Home Office must, in response to this Report, set out the process for out-of-country appeals; the steps which will be taken to ensure a fair hearing; and whether this will include appellants being given access to the evidence against them. We will also be insisting that ETS give evidence to the Committee, something they have failed to do in court. (Paragraph 38)
In terms of the Committee’s comments on out of country appeals, it should be noted that those appellants appealing against a decision which involved a fraudulently obtained TOEIC certificate will be in the same position as all other appellants who appeal from outside the UK. The process for this is already well established by HM Courts and Tribunal Service with thousands of out of country appeals taking place every year. Full guidance for appellants is set out on gov.uk on how this process works.
As part of all appeal hearings, the Home Office produces a bundle of evidence upon which it will rely and a copy is provided for the appellant or their representative. The Courts have consistently found that our standard evidence is sufficient to satisfy the presumption of fraud. The most recent key ruling in this regard was from the Court of Appeal on 29 June 2016 in the case of Shezhad & Chowdhury.
In another recent judgement, that of Kiarie & Byndloss (2015), the Court of Appeal, was also clear that the procedures around overseas appeal were perfectly capable of meeting the “essential requirements of effectiveness and fairness”.
Conclusion/Recommendation 15 – We welcome UKVI’s achievement in greatly reducing the number of asylum applications where a decision has been pending for more than six months. However, over the same period, there has been a sharp rise in asylum cases requiring further review. The Home Office must explain the reasons for this rise. We also remind the Home Office of our recommendation from our Q2 2015 Report that they should publish their service standards for making an initial decision and its performance against them, for both straightforward and non-straightforward asylum cases, which they have so far failed to do. (Paragraph 44)
Concerning the cases pending further review, the increase in cases pending further review is in large part due to the higher number of appeals in the system. HMCTS have increased court listings to seek to address this.
On service standards, the Home Office continually keeps the information it publishes under review. We continue to meet our ambition to decide 98% of straightforward cases within six months of the date of claim. We have met this standard for 18 consecutive months from April 2014 to September 2015.
Conclusion/Recommendation 16 – UKVI is in danger of being overwhelmed by the extent of its asylum casework. The second half of 2015 saw the highest number of applications for asylum since 2003 and as a result the number of cases pending a decision is at its highest ever level. The ongoing migration crisis in Europe suggests that the pressures on UKVI will get worse. We need to process asylum applications as efficiently as possible, not least to prevent pressures building up elsewhere in the system, including in the demand for asylum accommodation. When the number of asylum applications increases, as it did in 2015, more staff should be allocated to dealing with asylum cases to ensure that UKVI can meet its own service standards. (Paragraph 45)
UKVI has continued to strengthen its workforce and has increased the number of Asylum operational staff to cope with demand and to ensure we continue to meet our service standards.
Conclusion/Recommendation 17 – The high number of successful appeals against asylum decisions in respect of Eritrean nationals raises serious questions over the approach taken by the Home Office and the country guidance produced by the UK Government. We repeat the recommendation from our Report on Q3 2015 and call on the Government to reconsider its country guidance on Eritrea as a matter of urgency. (Paragraph 49)
As explained in our previous response, Home Office country information and guidance is based on a careful and objective assessment of the situation in Eritrea using evidence taken from a range of sources such as local, national and international organisations, including human rights organisations, information from the Foreign and Commonwealth Office, and trusted media outlets.
We are currently updating our country information and guidance on Eritrea. This update will include country information which has become available since September 2015 and implement those recommendations made by the Independent Advisory Group on Country Information in December 2015 which were accepted by the Home Office. We will publish the updated guidance shortly.
We recognise that there are human rights challenges in Eritrea – particularly around the national service programme. However, the available evidence does not indicate that every Eritrean will be at risk of persecution and each case will need to be considered on its individual merits.
Conclusion/Recommendation 18 – The Government currently includes progress with the Syrian Vulnerable Persons resettlement programme within the quarterly release of immigration statistics. We recommend that progress with the schemes to resettle ‘children at risk’ both from outside Europe and from France, Greece and Italy, as well as those resettled for family reunion reasons, be similarly included in the statistical release. (Paragraph 51)
Conclusion/Recommendation 19 – Given the significance of the issue, we recommend that information on “take charge” requests received from other EU states under the Dublin Convention is included in the statistical release—including information on the number of requests from each country, the number that involve children, the length of time taken to make decisions on such requests, and the number of requests that are accepted and rejected. (Paragraph 55)
The refugees that we are bringing to the United Kingdom are very vulnerable people. Our prime concern is their safety and protection as they arrive in this country. We believe that one way to protect their privacy and ensure their recovery and integration is to limit the amount of information about them that we make publicly available.
Notwithstanding this, the Government is committed to publishing data in an orderly way as part of the regular quarterly Immigration Statistics, in line with the Code of Practice for Official Statistics. We will ensure that data is made available on the s.67 of Immigration Act 2016 to bring unaccompanied refugee children from Europe to the UK; the Vulnerable Children’s Resettlement Scheme (VCRS) and “take-charge” requests will be similarly included. The next set of figures will be in the quarterly release on 25 August 2016 and will cover the period 1 April – 30 June 2016. These numbers are updated each quarter.
Conclusion/Recommendation 20 – Unaccompanied asylum seeking children resettled in the UK have every right to expect that the UK will offer them protection. It is important that individuals are not removed to countries that are known to be unsafe when they reach 18 years of age, particularly people who have become ‘westernised’ during their time in the UK and who lack support networks in the country to which they are deported. The Government should reconsider its approach to dealing with former unaccompanied asylum seeking children. The welfare of the individual must be the overriding concern, bearing in mind that they are individuals who have already suffered and that their anxiety will only be exacerbated by an extended period of uncertainty about their future on reaching their 18th birthday. (Paragraph 58)
The United Kingdom has a proud history of granting asylum to those who need it and all applications are carefully considered before a decision is made, in accordance with the UK’s obligations under the Refugee Convention and the ECHR. Anyone who does need our protection will be granted it. The UK does not remove individuals who face a real risk of persecution on return – removal is only enforced where we are satisfied it is safe and reasonable to do so after an assessment of individual circumstances. In the event that an application is refused most cases are also subject to appeal before an independent court.
The majority of unaccompanied children who have applied for asylum in the UK are found to not require the UK’s protection. However, in recognition of their vulnerability, the Home Office does not return unaccompanied children, whose asylum claims have failed, unless it is satisfied that suitable reception arrangements are in place in the country to which they are to be returned. Decisions on whether it is appropriate to return unaccompanied children are carefully considered on a case-by-case basis, subject to an individual assessment of each child’s best interests, which are a primary consideration.
The majority of unaccompanied asylum seeking children are assessed as being aged 16 to 17 at the time of their arrival in the UK. If suitable reception arrangements are absent in the country of return, the child will usually be granted leave to remain until their 18th birthday. While in the UK, failed unaccompanied asylum seeking children have access to the same services that are provided to other looked after children, regardless of their immigration status or nationality, whether it be in relation to education, accommodation or health care needs. On turning 18 these adults will be expected to take steps to return to their country of origin or show that they qualify for further leave to remain. If the applicant believes that they qualify for leave to remain in the UK, they will have an opportunity to apply for this and the application will be carefully considered by the Home Office.
Former unaccompanied asylum seeking children who have turned 18 years of age and have no legal basis to remain in the UK, are expected to leave voluntarily, otherwise their removal will be enforced. Removal is only enforced when we and the courts conclude that it is safe to do so, with a safe route of return.
Conclusion/Recommendation 21 – We are disappointed that far fewer legacy asylum cases were concluded in 2015, compared with previous years. The Home Office must explain why the rate of cases being concluded has reduced, and what the overall target is for clearing the remaining backlog. (Paragraph 65)
UKVI undertook to review and communicate decisions on these legacy cases (migration and asylum cases pre-dating March 2007) by the end of 2014. Other than in exceptional circumstances this commitment has been met.
The cases which remain to be ‘concluded’ are those where the person has now been told clearly that they have no basis to be in the UK and should leave but have yet to do so.
Conclusion/Recommendation 22 – The Government has accepted the Independent Chief Inspector of Borders and Immigration‘s recommendation to take the steps necessary to locate and identify those individuals amongst the more than 71,000 curtailment not pursued (CNP) cases who have remained in the UK illegally, with a view to effecting their removal. As with the process with Older Live Cases we expect statistics on progress in dealing with this issue to be published on a quarterly basis. (Paragraph 76)
UKVI is currently running details of the 71,000 cases referenced in the ICI report against Home Office systems using various criteria to identify those that have left the UK or regularised their stay and those that have may still have a continuing footprint in the UK. Once completed UKVI will approach HMRC, DWP and Experian to undertake a further data match and confirm the whereabouts of any of the 71,000 that remain in the UK unlawfully. We will keep the Committee updated on the progress of this work including any agreed subsequent cross Departmental action.
Conclusion/Recommendation 23 – Immigration detention is costly, as is the compensation which has to be paid when detention is found to be unlawful. The adverse effects of detention on an individual’s mental health are also well-established. We support the recommendations of the independent reviewer, Stephen Shaw, that the Home Office should both do more to reduce the length of time that detainees are held and investigate alternatives to detention. Particular attention should be paid to those who are held in detention for the longest periods. We welcome the Government’s commitment to an independent case review after three months’ detention, and the new statutory automatic presumption of bail after four months’ detention. We will closely scrutinise the impact of these changes. We recommend that the Government publish a timetable for implementation, as well as a date for Stephen Shaw’s short follow-up review. We share Stephen Shaw’s view that further legal interventions, such as a statutory time limit on detention, will need to be considered if there has not been a significant impact on the length of detention. (Paragraph 80)
The Government is committed to implementing reforms to the way in which we manage people in immigration detention. This includes peer review and challenge on the appropriateness of detention, the introduction of internal cross-system review panels and a duty for the Home Office to arrange consideration of bail before the First Tier Tribunal.
The purpose of inviting Stephen Shaw to undertake another short review is in order to assess progress against the key actions from his previous report. It is therefore important to allow sufficient time to implement and bed in the reforms originating from his recommendations. The Government has already indicated that it anticipates the review will take place towards the end of 2017 and will confirm this in due course after further discussion with Stephen Shaw.
Conclusion/Recommendation 24 – The Government’s decision to move some way towards the recommendation in the Shaw review to end the detention of pregnant women is welcome. However, it falls short of the absolute exclusion recommended by Stephen Shaw. We expect any future instances of pregnant women being detained to be a last resort; and the occurrences and length and circumstances of detention must be recorded in future data releases so that we can properly assess whether the new safeguards are being adhered to in practice. (Paragraph 85)
Central recording of the number of detained women who have disclosed their pregnancy started in August 2015. Options for the collection of wider data on pregnant women in detention are being considered as part of the Immigration Act 2016 implementation.
Conclusion/Recommendation 25 – We welcome the increase in the number of people who are considered unfit for detention being released. However, it is disappointing that a large majority of detainees subject to Rule 35 Reports remain in detention. Stephen Shaw’s independent review observed that such a high level of rejection showed that the system designed to safeguard the welfare of vulnerable people was failing and recommended that an alternative be immediately considered. The Government has committed to addressing this with a new ‘adult at risk’ policy. We look forward to seeing the details of the new policy, but in the meantime the Government must do more to provide protection for vulnerable people, including seeking alternatives to detention. (Paragraph 88)
The Government is committed to implementing reforms with regard to the detention of vulnerable people. The Adults at Risk policy was published on Gov.UK on 26 May 2016. Section 59 of the Immigration Act 2016 places part of the policy on a statutory basis and the Government laid the statutory guidance before Parliament on 21 July 2016. The Home Office is also transforming its approach to detained casework, introducing a greater focus on safeguarding and removal. Any individual being considered for detention, will be routed through the new Gate Keeper function, which sits outside of existing case working structures. The Gate Keeper function will provide additional oversight and scrutiny to ensure that detention is the appropriate option for those entering the detention estate, taking into account the particular circumstances of the case including any vulnerability considerations.
Conclusion/Recommendation 26 – The Committee agrees with the Prime Minister that the Government ‘should have done better’ in deporting foreign national offenders from EU countries. The failure to remove these individuals from the UK has been disappointing, and undermines confidence in the immigration system. Whilst there has been a slight improvement in the numbers being deported per year, progress has been too slow and the number of foreign national offenders currently in the United Kingdom is over 13,000, the size of a small town. The Home Office must set out the practical steps it intends to take to significantly reduce this figure. If it fails to do so we will begin setting targets to be monitored in future reports. (Paragraph 91)
In 2015–16, the Home Office removed 5,692 FNOs, the highest since records began. Over 30,000 FNOs have been removed since 2010. This Government puts the rights of the British public before those of criminals, and foreign nationals who abuse our hospitality by committing crimes in the UK should be in no doubt of our determination to deport them. We have legislated to make the deportation of FNOs easier and quicker through the Immigration Act 2014, and since implementation we have seen 3,500 FNOs deported before their appeal was heard.
In 2015–16, the Home Office removed 5,810 FNOs, the highest since records began. Over 32,000 FNOs have been removed since 2010. This Government puts the rights of the British public before those of criminals, and foreign nationals who abuse our hospitality by committing crimes in the UK should be in no doubt of our determination to deport them; however, legal or re-documentation barriers can frustrate immediate deportation.
We have legislated to make the deportation of FNOs easier and quicker through the Immigration Act 2014, and since implementation we have seen 4,435 deported before their appeal was heard. Over 6,500 of the FNOs in the UK are still serving a custodial sentence.
Conclusion/Recommendation 27 – It is deeply concerning that there are 5,789 FNOs living in the community, the highest number since 2012. Over half of these have been living in the community for more than two years. This is unacceptable, and the Government should set out how many individuals are in the community whom they have decided to keep in the UK, and how many they would seek to deport. (Paragraph 92)
Increased checks on overseas criminal convictions have brought more individuals into scope for deportation consideration. This has contributed to the rise in the recorded number of FNOs living in the community. Our tougher approach has led to the deportation of more harmful individuals on the basis of their convictions outside the UK.
The majority of foreign criminals released into the community to await deportation have been released by an immigration judge. All of those released into the community are placed on stringent restrictions whilst the Home Office continues to rigorously pursue their deportation. We have legislated to enable the tagging of all FNOs who are subject to an outstanding deportation order or deportation proceedings, and will be putting operational and commercial arrangements in place to deliver this over the coming months.
We are legislating to ensure that suspects have to confirm their nationality on arrest, and in court, so that checks of overseas convictions can be conducted in all cases and to enable us to obtain travel documents earlier in the process. We are also making better use of information captured in visa applications to facilitate returns, as well as working with other countries to improve re-documentation where necessary.
Conclusion/Recommendation 28 – There are too many Foreign National Offenders from European Union countries still in the United Kingdom. The public is entitled to expect a more efficient process for prisoner transfers and removals between Member States. It is surprising that of the predominant foreign nationalities in UK prisons, the top three are from EU countries: 983 from Poland, 764 from Ireland, and 635 from Romania. The Home Office has failed to tackle this issue sufficiently, as EU prisoners should be the first to be removed and accepted by their countries of origin. In her evidence to the Committee, the Home Secretary was unconvincing in suggesting that remaining a member of the EU will make it easier to remove these individuals from the UK. The clear inefficiencies demonstrated by this process will lead the public to question the point of the UK remaining a member of the EU. (Paragraph 93)
The Government takes a robust approach in considering and pursuing the deportation of FNOs from the European Economic Area (EEA). We removed 3,485 EEA FNOs in 2015–16, up from 1,019 in 2010–11.
The Government uses a number of methods to remove EEA FNOs. Working closely with the Home Office, the Ministry of Justice uses Prisoner Transfer Agreements (PTAs) to target the transfer of prisoners who are serving sentences of four years or more who have more than 18 months left to serve.
It has taken time for all EU countries to introduce the PTA measures into their domestic law. The EU Prisoner Transfer Framework Decision (EU PTFD) sets out time frames for dealing with requests to transfer prisoners under PTAs, requiring a response within 90 days of a request being received. This is a tight timeframe which countries are unable to meet in many cases, particularly where a court process such as an appeal is involved. The PTFD does not set out any penalty for missing the 90 day target, and in reality, the time taken varies significantly from country to country and on a case by case basis.
Nevertheless, 125 prisoners have been transferred under the EU PTFD to date, and the numbers are rising. In 2015, 38 prisoners were transferred under the EU PTFD. This year, 52 prisoners have already been transferred, with a number of further cases agreed.
There is usually insufficient time to secure the transfer of prisoners serving sentences of less than four years. These prisoners will serve two years or less in custody and so are more likely to be removed under the Early Removal Scheme (ERS), which enables FNOs who are subject to deportation or administrative removal to be removed direct from prison and the UK up to 270 days before they would otherwise have been eligible for release. Close working between departments has facilitated the removal of over 2,000 FNOs during 2015–16, an increase of over 300 on the previous year which represents a significant saving for the Ministry of Justice.
Conclusion/Recommendation 29 – In response to this Report we request that the Home Office provides an update on the Voluntary Removal Service operated by Immigration Enforcement. (Paragraph 95)
Voluntary Returns are a key part of the government’s approach to reduce the number of illegal migrants in the UK. While we have made it harder to remain in the UK illegally, we have simultaneously made it easier to get help to leave voluntarily, thereby avoiding arrest and detention.
The creation of the single integrated service – the Voluntary Returns Service (VRS) – has been a key part of this strategy. The service launched in January 2016 and for the first time brought the provision of voluntary returns for the most complex cases together with the capability to deliver high numbers of returns for those in more straightforward circumstances. Integrating these capabilities is estimated to save the Home Office £5m per annum and delivers a more flexible and efficient service.
Engagement with communities is a key part of promoting voluntary returns. Immigration Enforcement run over 40 immigration surgeries each month with faith and community groups throughout the UK, providing advice on the voluntary returns process.
Controlled voluntary returns, where Immigration Enforcement has played an active role in securing the return, rose by 24% in2015/16.
Conclusion/Recommendation 30 – We have regularly expressed concern about the size of the immigration backlog. The current backlog is lower than in Q3 2015 but still over 16,000 cases higher than a year ago. It is deeply concerning that there has been so little improvement. (Paragraph 99)
The Home Office deals with millions of immigration transactions overseas, in country and at the border. At any one time the number of cases across the immigration system will be significant, but this does not necessarily constitute a backlog.
UKVI is operating within its service standards on all principal application types and therefore does not have backlogs in these areas. The number quoted at Table 26 of the committees report reflects case working across the Home Office including live asylum cases, people applying to extend their temporary leave or for permanent residence, as well as those whose applications have been refused and are in the Migration Refusal Pool (MRP). The MRP is not a casework backlog. Many of the individuals in the MRP would have left the UK after their refusal but before Exit Checks were introduced to record their departure. The overall MRP has been consistently reducing as a result of the contact management and casework resource allocated to it.
14 September 2016