9.The UK Visas and Immigration directorate (UKVI) currently has responsibility for managing around three million visa applications a year from overseas nationals who wish to come to the UK. Under the Government’s Brexit proposals, UKVI will be expected to implement a scheme to regularise the status of EU citizens already here, a registration process for new arrivals after March 2019, and any new immigration visa, work permit or registration requirements that the Government proposes after the transition process ends. Whatever the arrangements, this will be a very substantial increase in UKVI workload starting this year.
10.Just over three-quarters of applications currently managed by UKVI are for visas to visit the UK while the remainder are for longer term purposes such as work, study and family reunion. UKVI also considers applications for permanent residency, citizenship, asylum and other forms of humanitarian protection, and manages the system of sponsorship for employers and educational establishments in relation to individuals from outside the EEA.
11.The majority of UKVI’s work currently focuses on non-EEA nationals but, post-Brexit, that is expected to change. The Government has set out its intention to require potentially in excess of three million EEA nationals and their family members already resident in the UK to register their status—an exercise that is unprecedented in scale. The Home Office has also said that EEA nationals arriving during the transition period will be subject to a new registration process, and the Prime Minister has suggested that they should not expect to be treated the same as those resident in the UK before Brexit.
12.On 8 December 2017 UK and European Commission negotiators reached agreement in principle on protecting the rights of EU nationals in the UK and UK nationals in the EU. The agreement allows—but does not compel—the UK Government to require EU nationals resident in the UK before Brexit to register their status, and provides a timeframe for this process of at least two years from the date of Brexit. The UK Government has indicated that it wishes the process to begin on a voluntary basis six months before the UK leaves the EU.
13.EU nationals and non-EU family members will be able to apply for ‘settled status’ if they have been resident in the UK for five years or longer. Those who have lived in the UK for less than five years will be required to apply for ‘temporary status’ before applying for settled status once their period of residency reaches five years. The agreement means that UKVI will have around two and a half years to register over three million people and grant them either temporary or settled status. This is a huge task, not least given the growing delays which already exist in other parts of the system, and which remain unaddressed. We have not examined the desirability of the registration policy in this report. However, we note that there are alternative ways to recognise proof of rights under the Withdrawal Agreement by means other than a registration document, which might reduce this task considerably.
14.The Government expects to extend the scheme to resident citizens of Norway, Iceland, Lichtenstein and Switzerland living in the UK. However, there has been no firm announcement about whether the arrangements and timetable for these citizens will be exactly the same. It is also not clear what the Government’s intentions are towards third-country nationals currently present in the UK under EU-derived rights-based legal judgments—for example non-EU carers of dependent EU nationals covered by the Zambrano case.
15.There is also a lack of clarity for those EU citizens who have completed five years of continuous residence in the UK but who are temporarily living outside the country, for example an EU national who has lived in the UK for many years but has spent the last 12 months caring for an elderly relative in their home country. The Citizens’ Rights Directive establishes that continuity of residence is not affected by periods of absence of less than six months, but those EU citizens in more exceptional circumstances face no guarantees after Brexit.
16.The lack of detail and uncertainty for EEA nationals with just months to go before the process to confirm their status is supposed to start and only a year to go before Brexit is not only difficult and stressful for those affected, it also raises serious questions about UKVI’s level of preparedness and ability to deliver a new system. If key questions are not swiftly resolved and delivery plans drawn up, we do not believe that UKVI will be capable of delivering significant changes to the system either at the border or on registration by March 2019.
17.It is deeply regrettable that the Home Office does not now intend to publish the promised White Paper on Immigration until autumn of this year. This means continued anxiety for individuals and heightens the prospect of UKVI having insufficient time to plan properly to deliver its services. Much greater clarity is needed now on a series of issues which are causing uncertainty for EEA citizens, employers and UKVI staff. We recognise that some issues will not be resolved until the negotiations on phase 2 have progressed. Nevertheless, there are some issues—such as how the Government plans to address applications from longstanding residents with absences of longer than six months—which it should be possible for the Government to resolve without further negotiations.
18.Further uncertainty has been caused by the Prime Minister’s recent comments on arrivals of EEA citizens after Brexit day, during the transition period. The Government needs to provide far greater transparency about its intentions so that people can plan for their futures. For example, we need further clarification on:
19.The Home Office should also draw up contingency plans in case agreement on the transitional arrangements on immigration is not reached this spring making it difficult to get new arrangements in place in time for March 2019. The contingency plan should set out what fall-back policies will operate and what systems and resources will be in place so that UKVI, individuals and employers can plan.
20.The Government should not wait for the White Paper but should set out now clear and accessible guidance on the rights that EU27 and UK citizens can expect to exercise after Brexit. This should cover not only the implications of the agreement reached in the Joint Report on phase 1 of the Brexit negotiations, but also the Government’s intended solutions to those issues left outstanding. The Government should commit to a process of ongoing communication with those affected by Brexit to provide reassurance and clarity to those whose circumstances will change, including producing material aimed specifically at those in exceptional circumstances.
21.Citizens of Norway, Iceland, Lichtenstein and Switzerland living in the UK, and third-county nationals who are in the UK under EU-derived rights based on previous legal judgments currently face even greater anxieties than EU nationals. The Government should specify that EEA citizens will have the same rights as EU nationals and should clarify that they will be covered by the same registration process. Similar concerns apply in relation to the limited pool of non-EEA nationals with derived rights, including under Zambrano, Metock and Surinder Singh case law, who appear to have been ignored during the first phase of negotiations.
22.The Government has agreed that registration for resident EU nationals will be a simple, online process and that there will be a “presumption in favour of granting status”, a user-focused approach to correcting errors in the application process and a statutory right to appeal. Its intention is to use existing government data to reduce the amount of evidence required: applicants will be asked to confirm their identity and nationality and declare any criminal convictions. The cost of an application will not exceed the cost of a passport and those who have a valid permanent residence document will not face a fee. The Minister for Immigration told us that he expected the necessary IT system to be finished and in test in the first part of this year.
23.We welcome the Government’s announced intention to make the registration process for EU residents a smooth process, using information shared by other government departments such as HM Revenue & Customs to demonstrate residency. It is important that these commitments are put into practice. However, given previous failures to implement new information-sharing and digital services across government, this carries significant risks.
24.The Immigration Minister explained to us that UKVI aimed to increase headcount by around 1,200 staff to deal with the processes around Brexit: 700 staff had already been recruited and a further 500 had received job offers and were expected to start by April 2018. He told us that the recruitment of additional staff was based on Home Office analysis of likely volumes and the number of staff required to manage them. The PCS disputed whether an additional 700 staff had been recruited; its assessment was that recent recruitment had only provided an additional 240 staff to deal with European casework in addition to the 540 already in post dealing with existing European casework.
25.Forecasting the required staffing levels for a system that has yet to be tested, for a relatively unknown but unprecedented number of applicants whose circumstances will vary, is not a simple task. While many applications will be straightforward and government data will exist to prove five years’ residency there will be many people for whom it will be more difficult to prove their right to settled status such as spouses who have not been economically active, people who have worked in the cash economy and individuals who have exercised their rights in different ways or who have been absent from the UK for periods of time. There will also be those who might struggle to engage with the process, for example people who do not have a good grasp of English, who are elderly or very young, particularly children in care, or who lack access to a computer.
26.In addition to the problem of complex cases there is also the issue of managing demand. Ian Robinson, Partner at Fragomen LLP, told us that:
[ … ] the worst thing in the world would be that they launch the policy and within a week they have a million or 2 million applications and they cannot cope, because everybody loses confidence. They need to have the space to identify easy-win groups and push them through first.
Mr Robinson suggested EU nationals with permanent residence might be a good starting point on which to test the system.
27.UKVI has a poor accuracy record. We and our predecessors have reported on the high levels of errors and delays in other parts of the immigration system. As detailed below, for example, both the ICIBI and internal Home Office reviews of asylum processes have identified poor decisions being made and bad practice in the categorisation of cases as ‘non-straightforward’ to set them outside the service standards and therefore allow overstretched, understaffed and inexperienced caseworking teams greater leeway. Concern was raised with us that UKVI lacks the resources and decision-making capacity to deal with the challenge of Brexit in light of these existing problems, especially given that workload is expected to increase significantly. The Immigration Law Practitioners’ Association (ILPA) told us that “in light of the Home Office’s history of errors when under pressure”, they were concerned that there “will be more cases of people being wrongly deported or asked to leave the UK or have their bank accounts frozen.”
28.Nor will the additional burden be limited to the Home Office. It remains unclear what enforcement regime will apply to EEA nationals or the extent to which civil society, from banks and hospitals to employers and landlords, will be expected to verify their status before offering a service.
29.The Home Office has failed to convince us that UKVI will have the necessary resources to manage the huge challenge of Brexit. We do not believe sufficient staff and systems are yet in place to operate a smooth and effective registration system for EU citizens currently resident here. While we welcome the Government’s decision to increase the number of staff who handle European casework, the evidence we heard suggests the Home Office is planning moderate adjustments for an immense bureaucratic challenge. We are also concerned that it will not be sufficient to cope with surges in demand or large numbers of applications that are not straightforward. A failure to deal with such demands efficiently is likely to undermine confidence in the system.
30.We recommend that the Government clarify its recruitment and retention plans for immigration services and publish concrete and evidence-based strategies for managing the workload. In addition, the Home Office should develop a clear process to manage the flow of applications to ensure peaks in demand are avoided and put in place robust contingency plans to deal with any backlogs that may develop. The Government should not rule out an extension of the grace period as a contingency plan. It should also ensure that cost is not a barrier and be prepared to waive the fee for particular groups of applicants, such as children in care, who often face insecurity when they transition to being treated as adults. The delays to the White Paper and the lack of any timetable for answering the basic, unresolved questions about the registration process make it even more difficult for the Home Office to deliver the scheme.
31.The European casework section of UKVI that will be responsible for processing applications for settled and temporary status is currently clearing a backlog of applications for permanent residency after the referendum result in June 2016 led to a surge in applications. At the beginning of 2017, there were 115,875 applications for permanent residency outstanding, a threefold increase on the year before. The number of outstanding applications has since halved and casework staff have managed to keep average processing times within the six-month target, though many individuals have been waiting much longer. The backlog was dealt with by a mix of recruitment, agency staff and overtime. Lewis Silkin LLP praised the commitment and hard work of UKVI’s European casework team, but joined many other witnesses in criticising the overall application process and the failure of the Home Office to anticipate increased demand for its services.
32.The process for applying for permanent residency involves a lengthy form, requires evidence of comprehensive sickness insurance for people who have not been in employment and onerous demands for information, including details of absences from the UK over the qualifying period. Some of the information required—such as details of employment—will already be held by government. Danielle Cohen, an immigration lawyer, questioned the need to supply details of absence from the UK, arguing that either the Government already had the information or, if it did not, would not be able to verify the accuracy of what was provided. There is a narrow margin for error—around one in four applications are refused or marked invalid, often due to perceptions that insufficient information had been provided. Magrath Sheldrick LLP told us they were receiving refusal letters based on “extremely light reasons” and that they had been advised by the Home Office that it was not feasible for UKVI staff to request missing documents so applications judged incomplete were rejected.
33.Since November 2015 a permanent residence document has been a necessary step on the way to citizenship. Witnesses to our inquiry suggested that this requirement, besides being bureaucratic, was unnecessary and should be scrapped. Danielle Cohen explained:
We have invented a requirement for permanent residence before you become a British national. We know that the whole point of getting permanent residence is to become a British national, so there is an application that the Home Office is dealing with now that is completely unnecessary. [ … ] Having obtained the permanent residence for my client now, I will advise them that they will have to do exactly the same process again in two years’ time.
Another immigration expert, Ian Robinson, suggested that if the Home Office had removed the requirement to obtain a permanent residence document before applying for citizenship, it would have freed up resources and might not have needed to recruit so many new staff.
34.There are indications that Brexit has caused an increase in the number of applications for citizenship in some categories and processing times are reported to have lengthened significantly. ILPA told us that overburdened resources meant that the Home Office “lacks the capacity to effectively plan and anticipate changing service needs.” They believed that “this reactionary state of constantly putting out fires, rather than preventing them [is] the greatest threat to the Home Office’s capacity to deliver Brexit.”
35.We welcome the Government’s announcement that EU citizens with a permanent residence document will not have to provide any further proof of residence, and we urge the Government to make the process as automatic as possible to reduce unnecessary burdens on both individuals and the UKVI. We recommend that the Government remove the requirement for EEA nationals to obtain a permanent residence document before applying for citizenship. The process is bureaucratic and unnecessary and scrapping it would immediately free up much needed resources and make it easier for people to apply for citizenship—something which we believe the Government should seek to encourage.
36.The Government failed to put resources in place in time to meet the predictable post-referendum surge in applications for a permanent residence document, and a backlog developed. Many of those who applied for permanent residency may now be considering applying for citizenship. The Government should prepare for such a scenario, including by exploring whether the process can be streamlined.
37.Both the UK and EU have called for a transition period between the date of Brexit and the UK moving to new post-Brexit arrangements. The Prime Minister has stated that the transition period should last around two years while the EU’s negotiating directive, adopted on 29 January 2017, calls for a slightly shorter period that “should not last beyond 31 December 2020” mirroring the end-point of the EU’s current multi-annual budget. It is unclear whether the Government’s proposals for a two-year grace period for those applying for settled or temporary status are linked to the proposed two-year transition period or what the implications will be for UKVI operations if the grace period extends beyond the transition period.
38.It is not yet clear how the Home Office is preparing for any transition period. Adrian Berry of ILPA told us that one of his key concerns was “the lack of preparation for any transitional arrangements both in the period down to the date of Brexit and any transitional period thereafter”. The Government has indicated that post-Brexit it wishes to maintain visa-free entry for EU nationals and that it will introduce a “straightforward system of registration and documentation” for those arriving during the period of transition and who wish to remain in the UK for an extended period. A registration scheme is permissible under Freedom of Movement rules and is already a requirement in several other EU Member States. The scheme, described by the Minister for Immigration as “an essential preparation for the new regime”, is expected to apply for the duration of the transition period before the Government moves to longer term arrangements based on the economic and social needs of the UK, guided by advice from the Migration Advisory Committee (MAC).
39.The Government has not yet set out what it wants the proposed registration scheme to look like or whether conditions would be attached. Nor is it clear whether the Government intends registration of arrivals after March 2019 to be required before people could start work or rent a house.
40.The Secretary of State for Exiting the European Union has stated that, during the transition period, the UK will continue with “the existing EU structure of rules and regulations” and that “people will of course be able to travel between the UK and EU to live and work”. The Prime Minister, by contrast, has suggested that EU nationals arriving during transition should not expect to be subject to the full rights available under Freedom of Movement rules or expect to be treated the same as those resident in the UK before Brexit.
41.The EU negotiating position is that it wants to see the continued application of Freedom of Movement rules for the duration of the transition period. This would include the right for EU nationals moving to the UK during transition to join the pathway to settled status and to bring with them non-EU family members.
42.Given the difference of view between the EU and the Government on the rights of EU nationals arriving in the UK during transition, it appears that there will not be final clarity until the completion of phase two negotiations. It is concerning that we do not have clarity about what the Government actually wants the rules, rights and registration for new arrivals after 2019 to look like, and we do not even know what the Government is seeking to achieve from the negotiations in this area. The Government should set out now what its proposed arrangements are for EU citizens arriving during the transition period so that they can be debated in Parliament, so that the public, employers and EU citizens who may be planning to come here after March 2019 have an idea what they might expect, and so that UKVI can plan. The Government should also set out how these will be different from the arrangements for EU nationals living here already. If, instead, the Government expects to apply the same arrangements as for existing residents, it should say so. We had hoped that these issues would be resolved in an imminent White Paper. Given the delays, this cannot wait for the White Paper at the end of the year, because by then it will be too late to plan and too late for Parliament to scrutinise the Government’s intentions.
43.If a new registration scheme and set of arrangements for people arriving during the transition period is adopted, the scheme will need to be developed from scratch and be operational by 30 March 2019. MillionPlus conveyed their doubts that the Home Office “has anywhere near the capacity (both in terms of resource and infrastructure) to perform this task successfully.”
44.We heard from union officials that a lack of clarity and direction about the Department’s plans for Brexit was frustrating an already over-stretched workforce. They told us that it can take up to nine months for new staff to be recruited and trained. On current figures the Government’s proposals would require Home Office staff to register—and potentially enforce immigration rules—for an additional 230,000 people in each year of the transition period.
45.For a new registration scheme for EEA nationals arriving post-Brexit to be operational from 30 March 2019 we would expect key resources to have been allocated by now, recruitment plans to be in progress and the development of necessary IT systems to be underway. If this remains the Government’s intention, it should now set out the details, cost and resource implications of the proposed scheme as well as indicating the data it intends to collect, the criteria which will be applied, and the extent to which the proposed scheme will be subject to negotiation with the EU.
46.The Government is currently resourcing the European casework section in UKVI to cope with applications from EEA nationals resident in the UK before 30 March 2019. It will need to recruit additional staff if the qualifying period is to be extended to include the transition period or if a separate registration scheme is introduced. In the absence of early decisions and answers, we do not believe that it is feasible for the Government to establish two smoothly functioning registration schemes (one for existing residents and one for new arrivals after Brexit day) by March 2019.
47.Beyond the transition period the Government has not set out yet what immigration approach it believes should apply to EU migration, nor has it said whether it intends this to be considered as part of the Withdrawal Agreement or future trade agreement with the EU. The Government has said it plans to wait for the findings of the study commissioned from the Migration Advisory Committee on the economic and social impact of EU migration.
48.We welcome the Government’s decision to commission evidence from the Migration Advisory Committee before making decisions on the long-term immigration framework, but this should not prevent it consulting more widely in the meantime.
49.Leaving the European Union is likely to require a reconsideration of existing immigration policy, as a consequence of changing trends in immigration to the UK. For example, in January 2018 the cap on Tier 2 (general) visas was reached for the second successive month, causing minimum salary requirements to jump from £30,000 to over £50,000. Cambridge University Hospitals reported that the increase had prevented it from recruiting three doctors—two for intensive care and one specialist in liver and pancreatic surgery.
50.We recommend that the Government assess whether falling EEA net migration has increased employer attempts to recruit from outside the EEA. If the Government finds there is a link between the fall in EEA net migration and the increase in the number of non-EEA nationals whom employers are applying to sponsor to come and work in the UK, we recommend reviewing the current operation of the Tier 2 system.
51.The Government has not yet provided details about what the post-Brexit immigration arrangements might look like, what the costs and benefits might be or what it hopes to achieve—beyond reducing immigration and continuing to attract the ‘brightest and the best’. We will be examining policy options, and the significant trade-offs in relation to economic integration as part of our inquiry into post-Brexit migration policy which will begin shortly. We will also look at the delivery implications of any new system.
52.During our inquiry we heard that implementing changes to immigration policy for EEA nationals would require significant resources and time for both the Home Office and businesses and education establishments seeking to recruit from the EEA. Universities have indicated that they will need sufficient notice to enable them to make the necessary changes to their own processes and systems, as will prospective candidates, to enable them to make informed decisions about their future plans. The Home Office will need to implement the new systems while continuing to aim to deliver its existing functions effectively. The options for post-Brexit migration policy towards EEA citizens will also form part of our forthcoming inquiry.
53.Below we examine the capacity, effectiveness and wider operations of the UKVI to see how it might cope with additional Brexit pressures. We were concerned to ensure that the extra Brexit workload does not impact on the rest of the immigration system. We were also concerned to ensure that weaknesses we have previously identified in the UKVI’s current operations should not become problems in the new EU and EEA operations.
54.During our inquiry, we heard that the sheer complexity of the immigration rules and pressure on staff resources were leading to concerns about decision-making processes within UKVI, both in terms of the accuracy of the decision being made and the procedures being followed.
55.UKVI divides applications into straightforward and non-straightforward cases. Cases that are designated as non-straightforward are not subject to service standards. The internal rules for the Home Office state that cases should not be marked as non-straightforward if the reason for potential delay is within the Department. A snapshot of work in progress at the end of Q3 2017 showed that 139,314 in-country applications were classed as straightforward, and all but 818 of them still fell within designated service standards. 71,355 cases (34%) were classed as non-straightforward/complex of which 11,660 were over a year old—a significant increase from 2,372 cases that had been outstanding for more than a year in Q3 2016. More than half of asylum applications waiting for an initial decision have been classified as non-straightforward. At the end of Q3 2017 almost 7,000 out of the 11,830 asylum cases categorised as non-straightforward had been waiting more than a year for an initial decision.
56.In his inspection of the Croydon processing centre the ICIBI found that a third of the cases his team examined were inappropriately being marked as non-straightforward to set them outside the service standards. In 15 of 36 non-straightforward asylum cases, inspectors noted the absence of any evidence that managers had considered whether the barrier to processing could be cleared quickly enough for the decision to be made within six months. Internal Home Office reviews of non-straightforward asylum cases found significant overuse of the categorisation and ‘bad practice’ in failing to resolve inappropriate or out of date barriers. The ICIBI suggested that staffing problems, particularly staff turnover and a shortfall at manager level, could explain the poor categorisation of cases and delays in processing them. Staff in the asylum casework unit told inspectors that the pressure to clear straightforward asylum cases within the six-month target had resulted in a reduction in the quality of interviews and decisions and the de-prioritisation of non-straightforward cases.
57.For many applicants, a case being classed as non-straightforward means being without a passport for a long time while they wait for the Home Office to process their case. A BBC investigation found that the longest time an applicant for Indefinite Leave to Remain (ILR) had to wait for a residency decision between January 2014 and June 2017 was 719 days. An applicant pays a fee of £2,297 but the cost to the Home Office to process it is only £252. Danielle Cohen told us:
If you look at the cost [for Further Leave to Remain], my client will pay on average £993 plus £500 for the NHS. If you are an applicant with a wife and two children, this is £5,000. If you break it down to the hourly rate, it is approximately £700 an hour for a caseworker to discuss the case. You would expect for this level of expenditure that we will have somebody who is trained to deal with this. If you compare it to any other service that the person will be able to get for £700 an hour, you would be expecting a certain level of service.
The Independent Chief Inspector found that UKVI lacked a process to ensure that decisions were still made as quickly as possible once a case had been marked as non-straightforward. In his report on asylum casework he called for a 12-month service standard for non-straightforward cases. The Home Office did not accept the recommendation but has committed to reviewing guidance and processes for non-straightforward cases. It has developed the Next Generation Casework project, based in Bootle, to recruit 140 new Decision Makers for a period of 12 months to concentrate on clearing non-straightforward cases. When the ICIBI went to inspect operations at Bootle in July 2017 he found only one member of staff in place out of a projected 250. When challenged the Department cited delays in the recruitment process, particularly around the vetting of staff.
58.We have also been made aware of errors made elsewhere in the administrative process. Magrath Sheldrick LLP told us that the transfer of entry clearance processing to Sheffield had resulted in an increase in mistakes, including incorrect requests for supporting documents and settlement applications not being marked as a priority despite that service being purchased. They report being told that staff were under ‘huge pressure’.
59.In addition to mistakes in administrative processes we were told that poor decisions were being made. In his inspection of the Croydon processing centre, the ICIBI found that over a third of refusal notices inspected were unsatisfactory due to reasons including factual inaccuracy, inappropriate grounds for refusal and unclear refusal reasons. A 2016–17 Home Office internal quality assurance analysis of asylum decisions found 24% to be below satisfactory.
60.The Independent Chief Inspector told us that staffing problems had contributed to poor decision-making, a view echoed by the PCS union. In Croydon he found that staffing levels were almost permanently well below headcount, that there was a lack of experienced staff, particularly at quality assurance level and that there were high turnover rates. In the ICIBI inspection of asylum caseworking, screening officers told inspectors that they were being ‘pushed to the limit’ while Decision Makers reported that a ‘relentless’ focus on meeting the six-month target meant they felt under extreme pressure. The ICIBI found that a focus on keeping application throughput within service standards had led to few opportunities to identify poor decision-making and improve it. He told us:
I think there has been a lot of pressure on those first-line managers to get through the volumes and so there is less capacity to provide that support, challenge, assurance function that is needed. That is an area where I have repeatedly said that more needs to be done.
61.The concerns of the ICIBI were echoed by a former Home Office employee who reported that his asylum workload was driven by targets to the extent that casework which would not contribute towards meeting a target—such as calling social services about a child—was disincentivised. The former employee noted new recruits dealt with traumatic claims with little emotional training, preparation or support and that changes to immigration rules had been accompanied by very little training in how to implement them properly. We heard concerns from the PCS that caseworkers on Family and Human Rights Cases (FHRU) faced pressure to reduce a 49,000 caseload but that there was a lack of training, support and mentoring. The PCS told us that there was an 18–month delay on FHRU cases and high staff turnover had led to a heavy reliance on agency staff to do the casework with one week’s training.
62.Appeals against Home Office decisions relating to permission to remain in the UK, deportation from the UK and entry clearance to the UK can be made to the First-tier Tribunal Immigration and Asylum Chamber (FTTIAC). The number of appeals has fallen significantly since the 2014 and 2016 Immigration Acts reduced appeal rights, the introduction of the policy of ‘deport first, appeal later’ and removal of eligibility for legal aid from most mainstream non-asylum immigration cases.
63.While the number of people appealing decisions has fallen, the proportion being upheld has remained relatively constant. In Q3 2017 the FTTIAC disposed of 17,203 appeals; of the 14,113 determined, 49% were allowed/granted, although this varied across the Immigration Act 2014 categories. Danielle Cohen told us that “many of my colleagues who are judges complain [ … ] that the first time a case gets a proper consideration is when it gets to court, and that is not the best use of court time.” The Government argued in response to concerns raised by our predecessors about the high number of decisions being overturned that “An allowed appeal is not in itself an indication that the initial decision was incorrect at the time” and suggested that successful appeals may be due to evidence being submitted that was not available at the time of the initial decision. Adrian Berry, Chair of ILPA, told us that appeals are often made when a person has access to legal advice for the first time.
64.In Chapter 4, we consider enforcement, and it is unclear currently what additional enforcement action there is likely to be for EEA nationals. Recent statistics are already showing a steep increase in the number of enforcement actions taken against them. Any increase in action against EEA nationals may have a knock-on effect on tribunal workloads as decisions and enforcement actions are appealed. Tribunals are already under pressure; although backlogs are reducing it can still take many months for cases to clear the FTTIAC. It currently takes 28 weeks for an asylum case to be heard, while most of the other appeal categories take over 52 weeks to be cleared. It is not uncommon for appeals to be listed only to be adjourned for many months due to a lack of court time on the day.
65.Colin Yeo told us that an effective way for the Home Office to stop cases going to court was to have good “feedback loops” and to learn from mistakes, but that restricting access to justice was not helpful. The ICIBI has recently undertaken an inspection focusing on the Department’s approach to litigation. Inspectors heard Litigation Operations Managers in Croydon describe their relationship with decision-making units as “poor”. They explained that they experienced resistance from Decision Makers when they asked them to reconsider a case because Decision Makers “would always defend their decision and want to contest a claim.” The ICIBI concluded:
[ … ] longer-term, the greatest potential for reducing the scale and costs of litigation appear to lie in improved initial decision making, so that fewer individuals have cause to make a claim and fewer of those who do so progress beyond the PAP [pre-action protocol] stage.
66.The inspection also found that budgets for legal costs and compensation payments were overspent in 2016–17 but that equivalent budgets are planned to reduce by almost a fifth in 2019–20. The ICIBI reported that “This will require an exceptional level of cost saving efficiencies. The inspection found no evidence to support such optimism.” Responding to concerns raised in the ICIBI’s asylum report the Government said it was improving feedback loops so that asylum Decision Makers received more regular information from Home Office Presenting Officers about the quality of decisions and why they might be overturned on appeal.
67.After a decision by a judge in the FTTIAC, either the appellant or the Home Office can apply for permission to appeal against the decision at the second level—the Upper-tier Immigration and Asylum Chamber (UTIAC)—but only on the basis that the First-tier judge made an error of law in the judgment. The Home Office has been accused by the President of the UTIAC of ‘slavishly’ appealing deportation cases to the UTIAC and applying ‘insufficient care’ in identifying errors of law. In the first three quarters of 2017 the Home Office was successful in just 55 out of 276 appeals to the UTIAC and 291 of 1,160 non-asylum appeals.
68.Complaints have also been made concerning the competency of Home Office Presenting Officers. However, ICIBI inspectors found during their inspection of Country of Origin information that Presenting Officers were often faced with defending untenable positions. Our predecessor Committee repeatedly pointed to high error rates in decisions regarding Eritrean asylum seekers, particularly once the Independent Advisory Group on Country Information (IAGCI) had found that Home Office policy relied on a discredited Danish report and was “completely divorced from, and unconnected to, relevant objective evidence”. With reference to these cases, Presenting Officers described the Home Office’s Country Policy and Information Team position at that time as “embarrassing” and “basically undefendable”. The ICIBI report noted that one official summed it up by saying: “It was agonising to deal with Eritrea cases after the Danish report was rubbished [ … ] We had cherry-picked and flawed information”; and another said: “We are told to argue ‘black is white’ to remove people”.
69.The evidence we have received in this inquiry has revealed a picture of Home Office teams struggling with a lack of resources, high turnover of staff and unrealistic workloads. A lack of experienced staff and pressure to meet targets has meant that mistakes are being made that have life-changing consequences. A lack of first-line supervision is leading to mistakes not being identified or rectified and effective feedback to improve learning from errors is absent. Cases are being moved outside of service standards often with little or no justification, causing delay and frustration for the applicant and too frequently the first time a case receives adequate attention is when it goes to court. We note that the number of cases going to court has fallen but this is largely because access to justice has been restricted, not because initial decisions have improved. This is an unacceptable way to run an immigration system.
70.We recognise and pay tribute to the hard work of individual staff members and teams within UKVI. We are concerned, however, that frontline staff are poorly supported and overworked. UKVI needs improved recruitment and retention and more resources, not just to deal with the forthcoming challenges of Brexit but to reduce existing backlogs and the pressure on the current workforce.
71.Brexit pressures make it even more important that the Home Office addresses UKVI’s serious resource problems. The Home Office should not allow the new challenges arising from managing EU migration to distract or prevent it from addressing these problems, nor do we believe that resources from the rest of the immigration system can be moved away to support Brexit. In addition, the Home Office needs to ensure that weaknesses in the current immigration system—including on recruitment, retention, training, decision-making and management—will not be replicated in the new EU operations.
72.We welcome the opening of the Next Generation Casework project based in Bootle and efforts to increase digitisation but these initiatives will not be enough to solve the serious problems we have identified. As a priority, the Home Secretary needs to focus on addressing the causes of high staff turnover, improving quality assurance processes and feedback loops, and learning from poor decisions, particularly with respect to decisions that are overturned in the courts. Unless urgent remedies are put in place to address failures in recruitment, retention and training, we fear that, because of the extra pressures on the system precipitated by Brexit, current performance will deteriorate in the coming years, compounding the significant problems which already exist.
73.As we have discussed, one of the most important steps the Government can take to improve and streamline the immigration system is to reduce the complexity of the rules and the frequency with which they change. The Supreme Court has described UK immigration law as “an impenetrable jungle of intertwined statutory provisions and judicial decisions”. We heard that the guidance is equally inaccessible with much of it aimed at Decision Makers rather than individual applicants. There was overwhelming consensus in the evidence we received for reform. Yet, if delivered poorly and in a piecemeal fashion, changes to the immigration system to incorporate EEA nationals risk causing further damage to the integrity of the rules and legislation. The Home Secretary told us that simplifying the system was a ‘personal mission’ and that she had asked the Law Commission to review the rules with the aim of making the system more user-friendly.
74.We welcome the review of the immigration rules which the Home Secretary has initiated and urge the Home Office to ensure this work is expedited and its findings implemented. Efforts to simplify the system should not be undermined by the development of rules to incorporate EEA nationals into the immigration system post-Brexit; rather, this should be seen as an opportunity to make bold changes.
75.Beyond simplifying the rules there are other areas where there is considerable repeated bureaucracy in the system. We have already discussed how removing the requirement for a permanent residence document for citizenship applications would immediately reduce a caseload and allow resources to be directed elsewhere. We heard similar calls to simplify the process for granting residency. For example, Coram Children’s Legal Centre told us that, where leave is granted for children it is now for very short periods of time with very long routes to settlement. They gave the following example:
A young person who has lived at least half their life in the UK will still only be granted an initial period of leave for 30 months and will not be entitled to indefinite leave to remain until they have accumulated ten continuous years of such leave, requiring a total of five applications to be made costing up to £8,269 at the current rates.
76.Colin Yeo described to us the additional caseload that the Home Office might face once EEA nationals are included in the immigration system: “it is not just the initial entry, it is also the extension and then the settlement application and then perhaps nationalisation further down the line if they do want to become British. That is a lot of extra work for the Home Office.”
77.In requiring people to apply for repeated extensions before they can achieve settlement the Home Office has increased its own workload as well as added to the costs and complexity for the applicant. We recommend that the Government review and attempt to streamline the process for those who apply based on long residence and where it is recognised they should be able to remain in the UK.
78.The Home Office is working on increasing the digitisation of application processes. Accepting scanned documents, particularly those that are independently verifiable such as council tax bills, electoral register and HMRC and NHS records, would speed up application processes and allow missing documents to be more easily found, which should reduce the frequency with which UKVI reject or refuse applications on the basis that it is unfeasible to request further or missing information. ILPA submitted that the Home Office should allow greater flexibility by empowering solicitors to verify passports; currently only local authorities can offer this service.
79.We do not agree that rejecting an application due to missing information and requiring the applicant to apply again is more efficient than asking people to address perceived problems with their applications. The Government has already accepted that this is the wrong approach for EU citizens in the new registration scheme. It should now consider changing the approach to non-EU migration. UKVI needs to take a more user-focused approach and give people the chance to amend administrative errors before an application is rejected. The increasing digitisation of the application process should help to enable UKVI to embed this change in approach across its work.
80.The European Union’s Dublin III Regulation determines which EU state decides a person’s asylum application and the arrangements for transferring asylum-seekers between EU states, including transfers back to the country through which they first entered the EU, and reunion of unaccompanied asylum-seeking children (UASC) with family members in other states. Dublin requires Member States always to assess the “best interests of the child” by taking account of options for family reunion, and the child’s wellbeing, safety and security and their views.
81.Under Dublin III, the definition of family is broader than under the UK’s Immigration rules—encompassing siblings, aunts and uncles, not just parents. In 2016, under the Dublin III Regulation, more than 700 children were transferred from other European countries to be reunited with family in the UK. Many of these children were joining relatives who were not their parents. UNICEF and Save the Children have raised concerns that the European Union (Withdrawal) Bill, as it stands, would transpose the EU’s Dublin III Regulation but, due to the nature of the Regulation, would have no legal effect. They argue that without remedy, this would result in fewer safe and legal routes for UASC to reach the protection of family members in the UK. In response to a recent Parliamentary Question on Dublin, the Immigration Minister stated:
We are considering the options to ensure effective cooperation on the country responsible for processing asylum claims when we leave the EU. This will be a key consideration as part of the process of establishing a new relationship with our European partners.
82.The Government needs to ensure that there is no diminution in the UK’s approach towards meeting its international humanitarian obligations as it leaves the European Union. It should clarify now whether it intends that the Dublin family reunion arrangements will continue to apply during the transition. When the UK’s participation in Dublin ends, whether that is at the moment of Brexit, the end of transition or the introduction of Dublin IV, the Government should make provision for an unaccompanied minor who has a family member in the United Kingdom, who is a refugee or has been granted humanitarian protection, to have at least the same reunion rights with family members in the United Kingdom as they would have had under the Dublin III Regulation. There are also concerns about asylum-seeking children who reach adulthood without their immigration status being determined and who also need certainty and security.
83.Brexit will place increased demand on existing Home Office IT systems and new systems will need to be developed, including for the registration of EU nationals already in the UK and for those who arrive during transition. The Home Office is already in the process of overhauling many of its digital platforms and digitising existing paper-based processes. Sarah Wilkinson, the previous Home Office Chief Technology Officer, set out the scale of the challenge:
We already had an agenda that was bigger than anything the Home Office has ever attempted before. And we were attempting to change every system simultaneously. [ … ] Add Brexit on top of that, and you start to become absolutely brutal about prioritisation. [ … ] We’re going to have to let go of, or postpone, some of the stuff we wanted to do in a pre-Brexit world.
84.The Minister for Immigration explained to us that the system for registering resident EU nationals would be based on existing structures and systems that are used by the Home Office in working with HMRC and the Department for Work and Pensions but that a new user interface would be built. He told us: “We want to make that really simple, intuitive and quick for people”, and that “I want a system in which somebody who completes their part of the process hears from the Home Office in a couple of weeks”. The Home Office does not proactively seek data from other government departments to support visa applications as a matter of routine. To do so for an exercise of the scale of registering more than three million people will rely on a strong commitment from and data compatibility with other departments and agencies.
85.The Home Office has a poor history in developing IT systems. The final cost of the e-borders programme is expected to be over £1 billion and will be delivered at least eight years late. In 2001 a £77 million programme with Siemens for a Casework Application system was cancelled. The objective had been to create a ‘paperless office’, help reduce a backlog of 66,000 asylum cases and provide a single view of individuals. In 2010 a similar scheme called Immigration Case Work (ICW) was developed. It was expected to replace both the legacy Casework Information Database (CID) and 20 different IT and some paper-based systems by March 2014. The National Audit Office (NAO) reported that the ICW programme was closed in August 2013 “having achieved much less than planned, at a cost of £347m.” The PCS also told us that it had raised concerns with the Minister that there are major problems with the new Disclosure and Barring Service IT system. Lewis Silkin also pointed to delays and errors in the issuing of biometric permits that had been common for several months, leaving some applicants unable to demonstrate their right to work or to rent, and complicating or preventing travel.
86.The Infrastructure and Projects Authority’s latest update on Major Projects in the Home Office shows the scale of the overhaul within the Department and identifies a number of risks. Projects directly relating to immigration include Digital Services at the Border (DSaB) (rated Amber/Red by the IPA); the Home Office Biometrics Programme (rated Amber/Green) and the Immigration Platform Technologies (IPT) Programme—the latest iteration of a scheme to replace the key Casework Information Database (CID) (rated Amber).
87.Effective IT systems need to be at the heart of improving delivery of the existing immigration system and, crucially, available to facilitate the increased workload which will inevitably arise from Brexit, whatever the precise terms of the new migration policy turn out to be. We welcome the Government’s commitment to a smooth and streamlined online process for EU citizens who are resident in the UK, and the Minister’s indication that the IT system for registration of EU citizens will be ready for testing early this year. However previous performance provides no assurance that the Home Office is likely to have the necessary systems developed, in place and operating efficiently by the end of March 2019. We request that the Home Office sets out in response to this report an update on the progress of major IT projects across the department and the specific steps it is taking to ensure that IT solutions are in place to accommodate the considerable challenges it will face in delivering post-Brexit immigration services. Effective IT systems also rely on clear and early policy decisions so that they can be designed and tested to deliver effectively. In the absence of a White Paper, or a timetable for it, or answers to a series of basic delivery questions, we believe the risks of IT problems and delays are high.
5 BBC News, , 1 February 2018
6 HM Government, 8 December 2017
8 It is expected that those with “settled status” will have the same entitlement to public funds as British citizens. Those with “temporary status” in the UK, i.e. those on a pathway to settled status, will have similar entitlements to those currently applied to EU nationals lawfully present in the UK but with no right to permanent residence. In practice this means that workers and self-employed individuals may have the same access to benefits as British citizens, while those not working will have more limited access, see HM Government, , June 2017
9 The UK Government’s approach means that registration casework of this cadre of EU nationals will continue for up to five years beyond the two and a half year window as those initially granted temporary status may then pursue settled status when eligible to do so.
10 www.gov.uk, , 11 January 2018
11 Third country EU-derived rights include those from Zambrano, Metock and Surinder Singh cases. Zambrano allows a non-EU national to reside in the UK if they are a carer of an EU national who is dependent upon them to exercise their Treaty rights. Metock allows a non-EU national in the UK illegally to remain if they form a genuine relationship with an EU citizen. Surinder Singh allows non-EU national partners who have been exercising Treaty rights in another Member State to become resident in the UK under EU, rather than UK, rules.
12 House of Commons Library Briefing Paper Number 8183, Brexit: ‘sufficient progress’ to move to phase 2, 18 December 2017
15 Written evidence submitted by the PCS 
16 Q55 [Colin Yeo]; Written evidence submitted by Danielle Cohen ; Q320 [Adrian Berry] Written evidence submitted by Coram Children’s Legal Centre 
17 Guardian, , 13 December 2017
20 Written evidence submitted by ILPA 
21 Free movement blog, , 18 October 2017; and Written evidence submitted by Magrath Sheldrick LLP 
22 Written evidence submitted by the PCS 
23 Written evidence submitted by Lewis Silkin LLP , ILPA , Magrath Sheldrick LLP , and Danielle Cohen 
24 Written evidence submitted by Danielle Cohen 
26 Written evidence submitted by Magrath Sheldrick LLP 
27 Written evidence submitted by Magrath Sheldrick LLP  and Danielle Cohen 
30 Financial Times, , 22 September 2017
31 Written evidence submitted by ILPA 
32 Written evidence submitted by ILPA 
33 BBC News, , 20 December 2017
35 www.gov.uk, , 27 July 2017
36 WQ answered 2 November 2017. The MAC have been commissioned by the Government to “complete a detailed assessment of the role of EU nationals in the UK economy and society” and is expected to report in autumn 2018.
37 HM Government, , 26 January 2018
38 BBC News, , 1 February 2018
39 Written evidence submitted by MillionPlus 
40 Written evidence submitted by the PCS 
42 Financial Times, , 30 January 2018
43 www.gov.uk, , January 2017
44 Written evidence submitted by the Russell Group 
45 Straightforward cases are non-complex cases where the customer has been compliant and met all of their obligations. Service standards (target processing times) apply to these cases. Non-straightforward cases are more complex cases, for example Human Rights claims. In this type of case the department informs the customer of their non-straightforward status and where appropriate takes additional steps such as gaining additional information from the customer, interviewing the customer or undertaking additional checks. Service standards do not apply to these cases.
46 Home Office migration transparency data, , 30 November 2017
47 Home Office migration transparency data, , 30 November 2017
48 Independent Chief Inspector of Borders and Immigration, , July 2017
49 Independent Chief Inspector of Borders and Immigration, , November 2017
51 Independent Chief Inspector of Borders and Immigration, , July 2017
52 Independent Chief Inspector of Borders and Immigration, , November 2017
53 BBC News, , 3 October 2017
55 Qq268–270; Independent Chief Inspector of Borders and Immigration, , November 2017
56 Home Office, , 28 November 2017
58 Written evidence submitted by Magrath Sheldrick LLP 
60 Independent Chief Inspector of Borders and Immigration, , July 2017. A number of decisions have since been revoked
61 Written evidence submitted by the PCS 
62 Independent Chief Inspector of Borders and Immigration, , July 2017
63 Independent Chief Inspector of Borders and Immigration, , November 2017
65 Guardian, , 8 April 2017
66 Written evidence submitted by the PCS 
67 In July to September 2017, FTTIAC receipts decreased by a third (to 9,700) compared to the same period in 2016 continuing the decline seen following the introduction of the Immigration Act 2014.
68 Ministry of Justice, , 14 December 2017; for example 41% of asylum/protection appeals were allowed, 42% of deportation appeals and 58% of human rights appeals.
70 Home Affairs Committee, Second Special Report of Session 2017–19, , HC 551
72 Written evidence submitted by Bail for Immigration Detainees 
73 Ministry of Justice, , 14 December 2017
75 Independent Chief Inspector of Borders and Immigration, , 30 January 2018
76 Independent Chief Inspector of Borders and Immigration, , 30 January 2018
77 Home Office, , 28 November 2017
78 Ministry of Justice, , 14 December 2017; Home Office appeals to the UTIAC: asylum cases 55 cases were allowed, 129 dismissed, 72 remitted to the First-tier and 20 withdrawn; non-asylum cases 291 were allowed, 560 dismissed, 260 remitted to the First-tier and 40 withdrawn
79 Free Movement blog, , 23 November 2015; Free Movement blog, , 9 February 2016; The Times, , 9 November 2017; JCWI
80 Independent Chief Inspector of Borders and Immigration, , 30 January 2018
81 Supreme Court, UKSC 72
82 Written evidence submitted by Coram Children’s Legal Centre 
83 Oral evidence taken on , HC 434, Q84
84 Written evidence submitted by Magrath Sheldrick LLP 
85 Written evidence submitted by Coram Children’s Legal Centre 
87 Written evidence submitted by ILPA 
89 Written evidence submitted by UNICEF and Save the Children 
90 Answer to Written Question , 5 February 2018
91 Computer Weekly, , 6 March 2017
92 Oral evidence taken on , HC 421, Qs 94–99
93 National Audit Office, , HC [2015–16] 608
94 National Audit Office, , HC [2014–15] 445
96 Written evidence submitted by Lewis Silkin LLP 
9 February 2018