3Fair and clear rules need to be properly enforced
38.The National Conversation found that most people do not know what the immigration rules are, nor do they have confidence that they are based on fair principles. British Future told us that people want to know that the system is under control and that rules are being enforced, but do not have confidence that this is happening. They found clear support for people coming to the UK to work and contribute, but serious concern about people coming to claim benefits or cause harm, and a strong sense that there are not proper border or criminal checks.
39.British Future stressed to us that, for many people on their citizens’ panels, the real issue around immigration was a perceived lack of control. Jill Rutter told us that “almost everybody wants better enforcement, better control, and that is a consistent theme”, but that the idea of control was closely linked to the demand for security checks and ‘criminal vetting’ rather than simply a concern about numbers.32 At the same time we heard considerable evidence of concern that the system is not working fairly for individuals or families and that, given the scale of high profile errors and delays, there is also a lack of confidence in the accuracy or fairness of individual decisions. If the immigration system is perceived as being unfair on those who play by the rules, but too easy to get round by those who do not, then it will not have credibility or public confidence. Based on evidence, we believe there are areas for reform that would improve confidence as well as making the system fairer and more effective
Complexity
40.There have been 11 Immigration Acts passed in the last 50 years and amendments to the Immigration Rules are made on a regular basis with, in reality, little or no significant parliamentary scrutiny and little, if any, public consultation. This has led to many people, including immigration tribunal judges, to complain that the system has become far too complex. Colin Yeo, immigration and asylum barrister at Garden Court Chambers, explained to us that the rules had become so complicated that it was now very hard to make a successful application without a lawyer. He described the current situation as “a terrible way to run an immigration system”.33 Not only does complexity hinder those who must engage with the system, it increases the challenge faced by officials tasked with making life-changing decisions.34 It is also difficult for the public to consent to a system they cannot understand. Information provided online is complex and sometimes apparently contradictory. The Home Secretary told us that she had ordered a review of the rules:
I have already requested the Law Commission to review our immigration laws with a view to simplifying them. There were 20,000 different pieces of regulation for non-EU regulations and we have now got them down to 4,000. It is incredibly important—I share your frustration—and this is a personal mission of mine to make sure that we simplify the immigration rules so that your constituents and mine can use it in a more user-friendly way and that it can just be clearer for people where they can and where they cannot apply.35
41.We welcome the Home Secretary’s commitment to simplifying immigration law and look forward to seeing tangible improvements. People are less likely to have confidence in a system which they cannot understand or access easily. These clearer rules should be underpinned by clear principles and values—reflecting for example the importance of contributing to the country and the economy, supporting family life, safeguarding security, meeting international humanitarian obligations, and the rights and responsibilities of those who come. Information needs to be provided in a clear, consistent and easily accessible format, especially online. We recommend that these principles are debated and set out clearly in the Annual Migration Reports. The procedures for making and scrutinising immigration rules and amendments to them require significant change to enhance consultation and parliamentary accountability.
Errors and delays
42.A particularly prevalent concern raised over the course of our inquiry has been the scale of errors and delays in the immigration system. There have been regular reports in recent months of people with a lawful right to be in the UK being caught up in the system, often via errors in the visa application process or problems with the data retained by the Home Office.36 The Independent Chief Inspector of Borders and Immigration (ICIBI) has issued repeated warnings about the quality of decision-making for visa applications. For example, in the recent inspection of entry clearance processing operations in Croydon, the inspection team concluded that “the impact of failing to get the first-line quality assurance right is not only that today’s wrong decisions are not identified and corrected, but that the understanding and performance of decision makers does not improve because individuals are not receiving timely and constructive feedback”.37
43.Reports by the Parliamentary and Health Service Ombudsman show that the Home Office is one of the main departments receiving complaints and has the highest uphold rate. The main problem identified by the Ombudsman concerned immigration casework, where procedural errors, delays and poor decisions meant people had to endure “prolonged uncertainty”.38 In the second quarter of 2017, 47% of the 14,170 determined appeals against Home Office immigration decisions were granted.39 Errors are highly inefficient, costly, and have a severe impact on the lives of each applicant. ILPA stated that overburdened resources meant the Home Office lacked the capacity to plan effectively or anticipate changing service needs.40 Instances where Home Office officials have wrongly instructed EU nationals to leave the country have further undermined confidence in the ability of the UK immigration system to operate fairly.
44.Our predecessors warned repeatedly about the need to improve the performance of the immigration system. The sheer number of people within the immigration system means that mistakes, particularly those based on inaccurate data, are highly unlikely ever to be eradicated completely. However, the impact of errors can be deeply damaging and traumatic for individuals and delays can leave families in limbo for long periods. The huge increase in delays in processing asylum applications are particularly worrying. The Home Office needs to do much more to reduce errors and to speed up accurate decision-making. We will examine the Home Office’s capacity to deliver effective immigration services in more detail in a separate report to be issued shortly. In the meantime, we urge the Home Office to do more to respond to the recommendations of the Independent Chief Inspector of Borders and Immigration, and to improve quality assurance and the recruitment, training and retention of immigration officials.
Enforcement and control
45.Statistics show that enforcement performance has deteriorated, causing significant problems for the credibility of the system, and consequently for public confidence in the integrity of the rules. As we have discussed earlier, unofficial estimates of high numbers of people living here illegally cause concern and alarm. Enforced removals have reduced in recent years and the number of voluntary returns has fallen over the last 18 months.41 Over the last two years the number of illegal working penalties issued has reduced by a quarter with a similar drop in the value of such penalties.42 A 2015 report by the ICIBI found that less than a third of the fines levied on companies hiring illegal workers were collected and it took an average of more than two years for the money to be paid.43 Our predecessors noted that the penalty regime was not a sufficiently effective deterrent against employing illegal immigrants.44
46.In his November 2017 report, the ICIBI found that the Home Office’s Reporting and Offender Management (ROM) processes were seriously compromised by the practical difficulties of managing a large reporting population (individuals found to be in the UK illegally but not yet removed) and by poor communication between staff responsible for the ROM system and other Home Office units responsible for managing and making decisions about asylum or immigration cases.45 He found that there were almost 60,000 individuals who had failed to report and had been declared absconders, of which over 750 were former foreign national offenders.46
47.David Wood told us that he believed that the immigration enforcement system had never been well resourced.47 Mike Jones of the PCS union believed that the impact of 400 fewer staff in Immigration Enforcement had damaged its capacity to deal with cases properly, as it needed more staff to “act on the intelligence that they get and act on it in reasonable time”.48 He also told us that a lack of resources for making decisions in UKVI meant that, by the time information reached Immigration Enforcement officers, people had moved on.49
48.The introduction of exit checks and the crosschecking of that data with information held on visas should improve opportunities for early enforcement. It should allow immigration overstayers to be detected early on before they have been living here for a long time and, if the system is adequately resourced, and allowing for due process and adherence to fair rules, their swift removal.
49.The problem of constrained resources is not limited to the UKVI and Immigration Enforcement directorates. A July 2017 report by the ICIBI found that there were long periods of non-attendance by Border Force staff at some locations and there have been recent incidents where Border Force officials have not been available to meet flights, causing passengers to be held until officials could be transferred from other ports of entry.50 At the end of December the Home Office announced that it was exploring the use of volunteers to staff small air and sea ports in an effort to bolster the resources available to Border Force.51
50.Immigration rules need to be enforced effectively if the unacceptable failures of the past, which have led to public anxiety over whether the system is fair, are to be avoided. There must be a much greater focus on early enforcement. Exit checks will assist in the detection of overstayers but more resources must be made available to support enforcement and action against those who knowingly employ people with no legal right to be in the country.
51.We are concerned, in the context of budget cuts and evidence we have received about staffing gaps, to see reports that the Home Office is considering using volunteers to staff the border. We are alarmed by suggestions that volunteers might take on roles that should be carried out by full-time, trained staff, particularly when this involves protecting the integrity and security of the UK border. We will examine this issue in our forthcoming separate report on the capacity of the Home Office to deliver immigration services, which will include our assessment of the capacity of Border Force to fulfil its functions effectively.
Hostile environment
52.In addition to Government-led activity, employers, landlords and others providing a service to migrants are increasingly expected to help enforce immigration rules. They can face fines or, in some circumstances, a custodial sentence, if found to be providing a service to an illegal immigrant. Sponsors must report any change in circumstances that may suggest an individual is not complying with their visa rules. Many of the measures designed to make life difficult for individuals without permission to remain in the UK were first proposed in 2012 as part of a ‘hostile environment policy’. The aim of the policy is to deter people without permission from entering the UK and to encourage those already here to leave voluntarily. It 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.52 The majority of these proposals became law via the Immigration Act 2014, and have since been tightened or expanded under the Immigration Act 2016.53
53.David Bolt told us that a major concern he had was that “the Home Office does not have in place measurements to evaluate the effectiveness” of the hostile environment provisions.54 In particular, he reported that there had been a failure to “understand the effects of the provisions that have been brought in through the 2014 and 2016 Immigration Acts”.55
54.While the hostile environment is currently aimed at non-EU nationals without valid leave to be in the UK, there are regular reports of people with a lawful right to be here (including UK and EU nationals and non-EU nationals with valid leave) being caught up in the system, often via errors in an application process or problems with data retained by the Home Office. An inspection by the ICIBI of data provided by the Home Office to banks found that 10% of the 169 cases inspected had incorrectly been included on the list of ‘disqualified persons’.56 People wrongly identified as being in the UK without leave typically receive a letter stating they are liable to removal and must make immediate arrangements to leave the country. This traumatic experience is often compounded by difficulties in contacting the Home Office and a reluctance by the Department to accept that it has made an error. When we put these figures to David Bolt, he said there had been a “conscious shift towards encouraging compliance rather than enforcing”.57
55.In his inspection of the revocation of driving licences, the ICIBI raised further concerns over the quality of Home Office data. He observed:
[ … ] the Home Office did not appear to appreciate the seriousness of such errors for the individuals affected, and its proposed avenue of redress for individuals who had left the UK with valid leave outstanding, and had subsequently had their licence revoked, was inadequate.58
56.People who are lawfully resident in the UK are also being caught up in the hostile environment policy as landlords and employers seek to minimise perceived risk to themselves. In a survey by the Residential Landlords’ Association (RLA), 42% of respondents stated that they were less likely to rent to people who do not have a British passport because they feared criminal sanctions if they made a mistake under the legislation.59 There are reports of employers restricting access to job vacancies, for example by insisting that all non-EU applicants provide a biometric residence permit—despite this only applying to recent arrivals; or by limiting the vacancy to applicants with British passports—which is illegal.60 ASSIST Sheffield and South Yorkshire Refugee Law and Justice charities report a reluctance from banks and building societies to open accounts for refugees with leave to remain. They contend that the hostile environment policy fosters social division and discrimination.61 The ICIBI also noted that the absence of indicators against which to judge the policy’s impact made it harder for the Home Office “to answer concerns about the potential damage to communities and to individuals”.62
57.The Government should not rely on its “hostile environment” policy as a panacea for enforcement and building confidence, especially given the current concerns about accuracy and error. We are concerned that the policy is unclear and, in some instances, too open to interpretation and inadvertent error. Not only can these errors be deeply damaging and distressing to those involved—as with letters being sent to EU nationals about their right to live in the UK—they also undermine the credibility of the system. Recent high-profile reports of the Home Office threatening to deport individuals based on inaccurate and untested information, and before an independent appeal process, risk undermining the credibility of the whole system. This is particularly worrying in advance of the need to register EU nationals in preparation for Brexit.
Immigration detention
58.Individuals who are subject to immigration control may be detained indefinitely by an immigration officer while their case is resolved or until they can be removed. Around 30,000 people enter the detention estate each year and there are typically just under 3,000 people in detention at any one time. While the majority of people in detention will leave the estate within two months, many will remain in detention for far longer, and cases of people being detained for over a year are not uncommon.
59.In 2016 the Home Office asked Stephen Shaw, a former Chief Inspector of Prisons, to review the Department’s approach to the welfare of vulnerable people in detention. In his report, Mr Shaw notes that: “It has been argued internationally that immigration detention is ‘one of the most opaque areas of public administration.’ It would be in everyone’s interests if in this country it was less so.”63 Elsewhere, Stephen Shaw concluded that “there is too much detention; detention is not a particularly effective means of ensuring that those with no right to remain do in fact leave the UK; and many practices and processes associated with detention are in urgent need of reform.” The Home Office has asked Stephen Shaw to conduct a follow up review to his 2016 report. He began the review on 4 September 2017 and is expected to report in the middle of this year.
60.It is clear there are serious deficiencies in the effectiveness and operation of detention at present. We are looking further at the use of immigration detention following the revelations of abuse at Brook House Immigration Removal Centre. We welcome the Government asking Stephen Shaw to follow up his 2016 report on the welfare of vulnerable people in detention and expect to consider this issue in more detail once he concludes his important work.
Criminal and security checks
61.The National Conversation found that many people believe there are insufficient security and criminal checks in the immigration system. Jill Rutter told us that satisfying the need for “control and vetting” was a key demand of people in its citizens’ panels.64 Many of those who took part in the National Conversation saw this as the most important area where they believed improvements were needed in the immigration system.
62.The public need reassurance that criminal and security checks are properly embedded in the immigration system. The Government should set out the current criminal and security vetting procedures that people are subject to before their arrival in the UK. We recommend the Home Office reviews cross-agency practices for removing foreign national offenders, including where recent arrivals have received custodial sentences and are eligible for removal.
32 Oral evidence taken on 31 October 2017, HC (2017–19) 500, Q6
33 Oral evidence taken on 10 October 2017, HC (2017–19) 421, Q52
34 Free Movement blog, How complex are the UK’s immigration rules and is this a problem, 1 August 2017; Oral evidence taken before the Immigration Public Bill Committee, 22 October 2015 (Morning)
35 Oral evidence taken before the Home Affairs Committee, 17 October 2017, HC (2017–19) 434, Q84
36 Guardian, Fighting the Home Office: Woman’s traumatic two year battle to stay in the UK, 18 September 2017; Guardian, Dutch woman with two British children told to leave the UK after 24 years, 28 December 2016
37 Independent Chief Inspector of Borders and Immigration, An inspection of entry clearance processing operations in Croydon and Istanbul, November 2016-March 2017, published July 2017
38 BBC News, Home Office criticised offer delays in immigration casework, 10 November 2015; Parliamentary and Health Service Ombudsman, Complaints about UK Government Departments and agencies, 2015–16; Written evidence submitted by the Joint Council for the Welfare of Immigrants [CDT0019]
39 Ministry of Justice, Tribunals and gender recognition certificate statistics quarterly - July to September 2017, Table FIA 3
41 Home Office, Immigration statistics, Table RT 01, November 2017
42 Home Office, Migration transparency statistics, November 2017, Table CP02
43 Independent Chief Inspector of Borders and Immigration, An inspection of how the Home Office tackles illegal working, December 2015, para 7.13
44 Home Affairs Committee, Sixth Report of Session 2016–17, The work of the immigration directorates (Q1 2016), HC 151
45 ICIBI, An inspection of the Home Office’s Reporting and Offender Management processes December 2016 - March 2017, 2 November 2017.
46 ICIBI, Management of non-detained Foreign National Offenders, 2 November 2017
47 Oral evidence taken on 10 October 2017, HC (2017–19) 421, Q32
48 Oral evidence taken on 29 November 2017, HC (2017–19) 421, Q361
49 Oral evidence taken on 29 November 2017, HC (2017–19) 421, Q361
50 Independent Chief Inspector of Borders and Immigration, An inspection of Border Force operations at east coast seaports, July 2017; BBC News, Port Border security under strain, July 2017; BBC News, Passengers unable to leave Inverness terminal, November 2016, BBC News, Passengers held at Newquay airport in Border Force wait, October 2017; Written evidence submitted by Daniel Schofield [CDT0031]; Written evidence submitted by PCS [CDT0029]
51 BBC News, Volunteers could guard some UK borders, Home Office says, 31 December 2017
52 Free Movement blog, The hostile environment: what is it and who does it affect, May 2017
53 Illegal entry or overstaying have been criminal offences since the Immigration Act 1971. Convictions have declined since a peak of around 1,000 in 2005 and prosecutions have levelled out at around 400-500 per year.
54 Oral evidence taken on 29 November 2017, HC (2017–19) 421, Q295
55 Oral evidence taken on 29 November 2017, HC (2017–19) 421, Q295
56 Independent Chief Inspector of Borders and Immigration, Hostile environment measures relating to driving licences and bank accounts, October 2016
57 Oral evidence taken on 29 November 2017, HC (2017–19) 421, Q302
58 Independent Chief Inspector of Borders and Immigration, Hostile environment measures relating to driving licences and bank accounts, October 2016
59 Independent, Landlords admit turning away EU citizens to avoid Government regulations, 6 September 2017
60 Guardian, No Europeans need apply: evidence mounts of discrimination in the UK, 11 September 2017
62 Independent Chief Inspector of Borders and Immigration, An inspection of the ‘hostile environment’ measures relating to driving licences and bank accounts January to July 2016, October 2016
63 Review into the Welfare in Detention of Vulnerable Persons: A report to the Home Office by Stephen Shaw, January 2016
64 Oral evidence taken on 31 October 2017, HC (2017–19) 500, Q29
12 January 2018