Home Office delivery of Brexit: immigration Contents

4Immigration enforcement

106.Immigration Enforcement is responsible for identifying and dealing with people who are in the UK illegally. This can include individuals who have entered the country unlawfully, breached their original conditions of entry, or have failed in their application for asylum. It oversees the removal of immigration offenders and is ultimately responsible for immigration removal centres such as Brook House and Yarl’s Wood. Individuals who are found to be in the UK illegally may be required to report regularly at immigration centres or police stations while officials from Immigration Enforcement make preparations to remove them.

107.In our recent report on building consensus on immigration policy, we described the challenges facing Immigration Enforcement. They included difficulties tracking overstayers and removing offenders, constrained resources, and mistakes in data leading to attempts to remove people who were lawfully resident in the UK. We discuss some of those challenges in more detail below, and assess the potential impact of Brexit on the work of the directorate.

108.The Government’s approach to meeting freedom of movement obligations has meant that EEA nationals have so far been largely beyond the scope of enforcement action. For example, under freedom of movement rules the Government could have chosen both to require the registration of EEA nationals, and to take steps to remove people who were not self-sufficient after three months, but has not done so. The Government’s approach is expected to change once the UK leaves the EU—or at the end of any transitional arrangements—and the Home Office will have to engage with a large new cohort of people. However there is currently no clarity about how the new registration scheme for existing EEA nationals resident in the UK or the new registration scheme for new EEA arrivals after March 2019 will be enforced. For example, it is unclear what enforcement the Government anticipates for resident EEA nationals who fail to apply for temporary or settled status before the end of the two-year grace period or for arrivals during transition who fail to register their presence. It is therefore impossible to assess how far the Immigration Enforcement directorate is equipped to deal with changes after March 2019 or after the transition period. The Government’s decision to require existing EU nationals resident in the UK to register in order to secure settled status may suggest that those who do not register in the grace period will be subject to enforcement; if this is the case, it could clearly result in a hugely significant increase in caseload compared to there being no such requirement.

109.Any changes to immigration rules for EEA nationals which makes admission time-limited will create additional challenges for Immigration Enforcement. If the number of people subject to visa restrictions increases so too will the need for enforcement action against those who breach their visa restrictions.

110.Enforcement is important for the credibility of any system. Clarity is needed for the public, EEA citizens who could face enforcement action and for Parliament on what the Government intends on enforcement. Immigration Enforcement need to know so that they can make plans, and there also needs to be proper opportunity to scrutinise the Government’s proposals to make sure they are effective, credible and fair. We recommend that the Government sets out as soon as possible what enforcement arrangements it believes are appropriate for EEA nationals in relation to registration of both existing residents when the grace period ends, and of new arrivals after March 2019. It should also set out a strategic plan for Immigration Enforcement including any additional resources and staff it will need.


111.The Immigration Enforcement directorate has seen its workforce fall from 5,315 in 2014–15, to 4,969 in 2016–17. In their report on Implementing Brexit, the Institute for Government concluded that “enforcement teams must be appropriately scaled up to ensure they can police an EU immigration regime on top of the non-EU activity.”127 Lucy Moreton of the ISU told us that she expected a small-scale recruitment exercise to begin shortly but that it was unlikely that such an exercise would do more than backfill existing vacancies. David Wood alerted us to £30 million in grants from the EU to fund measures such as charter flights for removals that will end once the UK leaves the EU. He told us that “there is going to be enormous pressure on resources and the ability to cope with this, which if well planned, thought of and resourced can be managed.”128 Other evidence we received suggested that the Home Office might struggle to meet Mr Wood’s three conditions, not least because existing resources were already under pressure.129

Monitoring of non-compliant individuals

112.Home Office guidance states that a ‘reporting event’ must be a means of bringing a case to a conclusion, through removal, voluntary departure or the granting of leave. In November 2017, two ICIBI reports were published on the Home Office’s management of the reporting and removal system.130 The inspection found that clarity of purpose, and the intention that reporting events should be meaningful, were seriously compromised by the practical difficulties of managing a large reporting population (around 80,000) and by poor communication and coordination between different Home Office units. It was noted that “recording and treatment of non-compliance with reporting restrictions was inconsistent, and there was little evidence of effective action to locate absconders.”131

113.Previously, in December 2016, the Chief Inspector had found almost 7,000 recorded instances of a scheduled reporting event not being completed. Home Office guidance sets out a ‘three stage process’ when an individual fails to report, starting with a telephone call or letter to re-establish contact, progressing to a home visit, and finally putting the case forward for “absconder action”. As at 31 December 2016, there were almost 60,000 declared absconders. The Independent Chief Inspector reports that in both inspections:

I found people and processes under strain. The numbers required to report routinely mean that it is extremely difficult for staff at Reporting Centres to ensure that reporting events are ‘meaningful’, in terms of encouraging voluntary departures or resolving barriers to removal. Meanwhile, the removal of FNOs is regularly frustrated, often by last minute legal challenges, and monitoring non-detained FNOs effectively is a challenge and one that raises obvious public protection concerns.132

114.The longer someone is in the country unlawfully the more difficult it is for them to be removed. In our previous report, we concluded that the introduction of exit checks would make it easier to identify those who had overstayed their visa but warned that sufficient resources needed to be in place for the process to work efficiently.133 Immigration Enforcement is reliant on information from other Home Office directorates. The PCS told us that a lack of resources in other parts of the Home Office meant that by the time Immigration Enforcement officers were notified of a decision to remove, individuals had moved on.134

115.We have previously called on the Government to improve its enforcement of the immigration rules to help build confidence in the system and thereby move towards greater consensus on immigration policy. Improved enforcement requires the efficient identification and removal of those in breach of immigration laws. The reintroduction of exit checks will contribute to this but only if there are sufficient staff in place to process the casework. Current resources are clearly stretched even in advance of any Brexit changes. The Government should set out plans to improve the resourcing of Immigration Enforcement and recruitment and retention of its staff. As with UKVI and the Border Force, it is important that Brexit does not distract from or prevent action to improve enforcement across the rest of the immigration system.

Hostile environment

116.Over recent years the Government has increasingly chosen to outsource much of the enforcement function to employers, educators, landlords and providers of public services under the policy known as the ‘hostile environment’. This has involved implementing a series of measures aimed at making it so difficult to live unlawfully in the UK that those here illegally will leave and those seeking to come without permission will be deterred from doing so. The policy includes measures to limit access to work, housing, healthcare, and bank accounts, to revoke driving licences and to reduce and restrict rights of appeal against Home Office decisions.135

117.If the Government was to extend the hostile environment to include EEA nationals, it would mean that many people who have not previously come into contact with immigration rules and processes, such as small businesses employing one or two EEA nationals, would be required to understand and apply them. There is also evidence that hostile environment measures are changing behaviour towards people lawfully resident in the UK. Studies show that some landlords and employers are refusing to engage with foreign nationals for fear of criminal sanctions if they make a mistake in applying the rules.136

118.There are also concerns that people are refusing to report crime or seek medical help because they are afraid their details will be shared with the Home Office; and indeed it has been reported that a victim of rape was herself arrested when immigration checks conducted after she reported the crime identified that she was in the UK unlawfully.137 On 31 January 2018 the Health Select Committee wrote to NHS Digital asking it to withdraw immediately from a Memorandum of Understanding with the Home Office that allows for the sharing of patients’ addresses for immigration tracing purposes, whilst it conducts a full review of its decision on the public interest test for such requests.138 David Wood cautioned that, post-Brexit, with pressure on resources there was a risk of an “over-concentration on simple-to-remove Europeans” while “more harm-based cases” received less attention.139

119.The Home Office has not set any targets against which to measure the effectiveness of the hostile environment policy. In fact, since its inception, the number of both enforced and voluntary returns has fallen. The Independent Chief Inspector told us:

Of the 40 reports that I have produced since I have been doing this, the one that has caused me the most irritation was the report into the hostile environment and the response that I got from the Department, where I believe they do need to do more to understand the effects of the provisions that have been brought in through the 2014 and 2016 Immigration Acts and to be able to give an account of the effectiveness of those measures, or not.140

He went on to explain that what he would have expected to have seen by now is some evidence that the hostile environment is working “so that there is some justification for the two pieces of legislation and for all of this effort that is being put into this by a whole variety of people.”141

120.The hostile environment is a policy that is broad in scope and which relies for its implementation on many different parts of society, including colleges, landlords, employers, and banks. We find it unacceptable that the Government has not yet made any assessment of the effectiveness of the policy and call on them urgently to do so.

121.We question the appropriateness of a policy that discourages individuals from reporting a crime or seeking medical attention. We call for this aspect of the policy to be reviewed and recommend that sensitivity and discretion be used while that review is underway. We note that the Health Select Committee has asked NHS Digital to cease sharing patient data with the Home Office for immigration enforcement purposes whilst it carries out a review of the process.

122.We are very concerned at the possibility that the hostile environment could be extended to include EEA nationals and apply to an estimated three million more people living legally in the UK without any evidence that the policy is working fairly and effectively. This has the potential to create further errors and injustices, which we have already seen causing unnecessary distress, and to increase the administrative burden on individuals, employers and landlords, without any evidence that the system works. It also cuts across the strong words of the Prime Minister that the UK wants EU citizens living here to stay, if the Government then chooses to subject them to a policy described as the ‘hostile environment”.


123.Individuals who are subject to immigration control may be detained in an Immigration Removal Centre while their case is resolved or until they can be removed. Medical Justice report that there is already a trend toward an increase in the detention of EU nationals. They warn that a significant increase in the detention of EU nationals following Brexit would potentially put increased pressure on a detention system which is already struggling to cope with the current volume of people detained, and which fails properly to safeguard vulnerable individuals.142 We are considering the Government’s use of detention in a separate inquiry, launched following revelation of abuse at Brook House Immigration Removal Centre.

Errors in enforcement

124.While the hostile environment is aimed at individuals without valid leave to be in the UK, there are regular reports of people with a lawful right to be here being caught up in the system, often via errors in the application process or problems with the data retained by the Home Office. For example, in September 2017 Haruko Tomioka, a Japanese woman, lawfully present in the UK, was given seven days to leave the country. This followed a two-year period during which time her driving licence had been rescinded, child benefit payments had been stopped (she had also been ordered to repay £5,000), and she was made to report to Becket House Immigration Office on a regular basis. Ms Tomioka had made several attempts to notify the Home Office that she was in the UK legally as her husband was an EU national in employment. The immigration enforcement procedures followed Ms Tomioka making an application for permanent residency. The Home Office have now accepted that Ms Tomioka is in the UK legally.143

125.The expansion of immigration powers and functions has extended the scope for mistakes to be made.144 An inspection by the ICIBI found that a 10% error rate in data provided to banks for enforcement purposes was leading to people lawfully resident in the UK being threatened with removal. In September 2017 Dr Mohsen Danaie, a Canadian/Iranian joint national, was incorrectly identified as a disqualified person during checks by his bank. He was told by the Home Office to take steps to leave the UK immediately and the letter to him stated that he could face six months in prison, forcible removal from the UK and a ban on returning for up to 10 years if he did not leave the country. Dr Danaie’s visa was valid until September 2019.145 The Independent Chief Inspector told us that he expected the Home Office to check the accuracy of its data before it sent it on to be used for enforcement purposes but that the Home Office had rejected his recommendation for it to do so.146 Dr Danaie’s case also raises concerns about the Home Office’s communication processes—that although there are often specific instructions on whom to call to facilitate removal, contact details are frequently not provided for those who need to query the basis of a letter from the Home Office challenging an individual’s right to be in the UK.147

126.Although Home Office advice on its website is clear that EU nationals remain subject to freedom of movement rules, this has not prevented officials from telling some EU nationals that they should leave the country following the rejection of applications for residency. In August 2017, Dr Eva Johanna Holmberg and 105 other EU nationals were wrongly threatened with removal. The European Commission’s chief negotiator, Michel Barnier, cited the Home Office error involving Dr Holmberg as underlining the need for EU citizens’ rights to be under the jurisdiction of the European Court of Justice. In September 2017, Guy Verhofstadt, the European Parliament’s Brexit negotiator, wrote to the Home Secretary in similar terms citing the case of Ms Tomioka. He raised MEPs’ concerns at the recent mistakes by the Home Office and warned: “As you are aware, the interests of both the EU and UK citizens are of paramount concern to the European parliament and the institution will act to protect their interests throughout the process leading to the UK’s withdrawal from the EU.”148

127.The volume and complexity of cases in the immigration system means that it is unreasonable to expect mistakes to be entirely eradicated. However, there needs to be an accessible means for mistakes in enforcement to be rectified quickly. At the moment, it appears that the most effective means for drawing attention to an error is for the case to be highlighted by a national newspaper or raised by a Member of Parliament. As we set out in our previous report, urgent action is needed to address errors in the enforcement process. While the expeditious response to such cases is often welcome, it is no substitute for a proper reconsideration mechanism. We recommend that a dedicated helpline is established for individuals threatened with removal so that they can bring errors to the attention of the Home Office as a matter of urgency.

127 Institute for Government, Implementing Brexit: Immigration, May 2017

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129 Written evidence submitted by MillionPlus [CTD0015], Joint Council for the Welfare of Immigrants [CTD0019], Magrath Sheldrick LLP [CTD0016]

131 Independent Chief Inspector of Borders and Immigration, An inspection of the Home Office’s Reporting and Offender Management processes December 2016 – March 2017, 2 November 2017

133 Home Affairs Committee, Second Report of Session 2017–19, Immigration policy: basis for building consensus, HC 500

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135 Most of the hostile environment proposals became law via the Immigration Act 2014, and have since been tightened or expanded under the Immigration Act 2016.

137 Guardian, Rape victim arrested on immigration charges after going to police, 28 November 2017; Written evidence submitted by the Joint Council for the Welfare of Immigrants [CTD0019]

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142 Written evidence submitted by Medical Justice [CTD0026]

144 Written evidence submitted by Amnesty International [CTD0024]

145 Guardian ‘Leave UK immediately’: scientist is latest victim of Home Office blunder, 26 September 2017; the Home Office has since ‘apologised for any inconvenience caused’ and updated its records

146 Q300

147 Dr Mohsen Danaie found that when he was mistakenly threatened with removal there was a phone number to call for assistance with removal but no number to dispute the basis of the letter. Instead, he had to rely on “sending an email and hoping somebody would respond within a 10-day deadline”.

9 February 2018