Home Office delivery of Brexit: immigration Contents

Conclusions and recommendations

Introduction

1.The delay to the proposed White Paper has caused anxiety for EU citizens in the UK, uncertainty for UK businesses, and concern in Parliament about the consistency with which the Government is approaching post-Brexit immigration policy. It is extremely regrettable that the Government has delayed the White Paper and that there now appears to be no clear timetable for it to be published at all, or for the promised Immigration Bill. We recognise the Government’s desire to wait for evidence from the Migration Advisory Committee before setting out proposals for the long term. We also recognise that the details of the transition arrangements will be subject to negotiations. Nevertheless, the Government has a responsibility to Parliament, the public, EU citizens who will be affected, employers and the public servants it expects to deliver the policies to provide some urgent clarity on its intentions. (Paragraph 7)

2.The Government should immediately set out more detailed plans for the registration of EU nationals already here, and its objectives for the negotiations over the transition period. Failure to do so soon will deny Parliament and those affected the opportunity to scrutinise or debate the Government’s plans before they are finalised with the EU, despite the fact that this is such a crucial policy area. That is unacceptable. It will also make it impossible for UKVI, Border Force and Immigration Enforcement to do their job properly. As we set out in this report, these directorates are already overstretched and face significant challenges in delivering new policies on Brexit. Expecting them to make late changes without time to plan or consult puts them in an impossible position. (Paragraph 8)

UK Visas and Immigration

European casework

3.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. (Paragraph 16)

4.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. (Paragraph 17)

5.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:

6.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. (Paragraph 19)

7.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. (Paragraph 20)

8.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. (Paragraph 21)

9.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. (Paragraph 23)

10.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. (Paragraph 29)

11.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. (Paragraph 30)

12.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. (Paragraph 35)

13.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. (Paragraph 36)

EU nationals arriving during transition

14.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. (Paragraph 42)

15.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. (Paragraph 45)

16.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. (Paragraph 46)

Post-transition arrangements for EU nationals

17.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. (Paragraph 48)

18.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. (Paragraph 50)

Decision-making processes

19.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. (Paragraph 69)

20.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. (Paragraph 70)

21.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. (Paragraph 71)

22.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. (Paragraph 72)

Potential for improving non-EU migration operations

23.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. (Paragraph 74)

24.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. (Paragraph 77)

25.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. (Paragraph 79)

Dublin III Regulation

26.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. (Paragraph 82)

IT systems

27.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. (Paragraph 87)

Border Force

28.We are increasingly alarmed about the impact that inadequate resources are having on the capacity for Border Force to operate effectively. This is a system which has not functioned properly for a number of years, in large part due to insufficient staffing. The consequences of a lack of resources have implications for the smooth operation of the border, the morale and wellbeing of staff, and the quality of frontline immigration services. (Paragraph 93)

29.The Government needs to clarify whether it wants additional checks at the border on EEA nationals entering the UK after March 2019 or not. It is clear to us that Border Force does not currently have the capacity to deliver this and will struggle to put sufficient additional capacity and systems in place—particularly if it also faces additional pressure to carry out customs checks as a result of the Government’s decisions on a customs union. We have warned in a previous report that it would be unacceptable to switch Border Force staff away from security and immigration checks to deal with new customs checks. (Paragraph 99)

30.Border Force’s staff are committed and professional but they are already overworked and there is an over-reliance on agency workers who lack the experience and skills of their permanent colleagues. We welcome the decision to recruit more staff but in our view the number identified by the Home Office is very likely to be insufficient to backfill existing vacancies, let alone deal with any additional workload that different entry requirements would present. We recommend that the Home Office increase the number of permanent Border Force staff. It should also recognise and urgently address the problem of low morale amongst Border Force staff who carry out such crucial and sensitive work. (Paragraph 100)

31.The terms of the UK’s exit from the European Union will have a significant impact on the management of both goods and people at the border. There are real concerns that Border Force will struggle to cope with an expansion of its activities, and that airports and other points of entry to the UK lack the physical capacity to carry out additional checks on people and goods. We urge the Government to be realistic about the current limitations in the way Border Force operates and the lack of time left to make substantial changes to the border arrangements for either goods or people before March 2019 without significant disruption, problems or security challenges. Rushed and under-resourced changes will put border security at risk. The lack of clarity on the future relationship with Ireland also poses particular challenges for Scottish and Welsh ports, and of course for Northern Ireland. As we recommended in our report on customs, we believe that the Government should aim to agree transitional arrangements with the EU which involve no practical change to customs operations, either in the UK or the EU. (Paragraph 101)

32.The roll-out of more e-passport gates at ports is welcome and may help free up Border Force resources if EEA nationals can continue to use them after Brexit. As the Independent Chief Inspector has made clear, there need to be sufficient staff to monitor e-passport gates, particularly when there are safeguarding concerns in respect of children and potential victims of modern slavery. The Government should set out what action it is taking to ensure this risk is properly managed. (Paragraph 105)

Immigration enforcement

33.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. (Paragraph 110)

34.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. (Paragraph 115)

35.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. (Paragraph 120)

36.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. (Paragraph 121)

37.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”. (Paragraph 122)

38.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. (Paragraph 127)





9 February 2018