Managing and removing foreign national offenders

There has been very little progress in removing foreign national offenders from the UK, despite firm commitments in 2006 to remove more and a substantial increase in resources to do so. When this Committee reviewed the management and removal of foreign national offenders in 2006 it found systemic failure. The Home Office treated the detention, release and deportation of convicted foreign national criminals as separate, uncoordinated operations, and there was poor communication between the bodies involved. In 2006 the Home Office committed to comprehensive action to improve arrangements for the deportation of foreign national offenders. But it has failed to achieve this and little sustained progress has been made. At 31 March 2006 there were 10,231 foreign nationals in prison. At 31 March 2014 there were 10,649. The number of foreign national offenders removed from the UK peaked at 5,613 in 2008–09 and has not matched that level since. Indeed the figure fell to 4,539 in 2011–12 and despite an improvement to 5,097 in 2013–14 remains below the 2008–09 levels. This is despite the fact that the number of staff working on foreign national offender cases has risen from less than 100 in 2006 to over 900 in

The Home Office still lacks the data it needs to manage foreign national offenders effectively. This Committee pointed out in 2006 that the Home Office did not have 6 the key data it needed to manage foreign national offenders and that there had been inconsistencies in the evidence provided to the Committee. Very little appears to have changed in the following eight years. The Home Office admitted that its data are still incomplete, poor in places and does not support decision making. It could not answer some of our basic questions during the evidence session on matters such as the reoffending rates of foreign national offenders discharged from prison and living in the community. Furthermore, on key areas of concern, such as the number of foreign national offenders released into the community without being considered for deportation, data are incomplete. The Home Office does not know the costs of managing and removing foreign national offenders, and so does not know which interventions or processes are most cost-effective. Our recent report Reforming the UK border and immigration system found very similar issues across other Home Office areas. Recommendation: The Department needs to fundamentally rethink what management information strategy it needs, including identifying the data it needs across all its immigration information systems. It must then act to implement the required changes without further delay.

Opportunities to prevent foreign nationals committing offences and going to prison are being missed. The risk of foreign criminals entering the UK undetected is increased by the lack of data at the border on crimes that have been committed overseas. Furthermore, police forces have been slow to recognise the importance, when arresting foreign nationals, of checking their immigration status and whether they have a criminal record overseas and they rarely use search powers to find evidence of identity and nationality. Only 30% of foreign nationals arrested were checked against one key overseas database for a criminal record in 2013–14, and the great majority of police forces do not have automated links between fingerprint machines in their police stations and the Home Office’s immigration databases. At least £70 million a year could be saved if police forces made better use of the information available on these databases. Operation Nexus, a pilot to improve the identification and removal of immigration offenders, shows promise but it has not been rolled out across police forces, despite the idea first being considered in 2007. We are also concerned that the Home Office chose to delay publication of the Independent Chief Inspector of Borders and Immigration's report on Operation Nexus for 5 months after he had completed it. Recommendation: The Home Office, working with the police, needs to make much better use of existing information from overseas and at home, to prevent more potential foreign national offenders from entering the UK, to ensure all arrested foreign nationals not entitled to remain in the country are removed, and to help other criminal justice bodies better manage foreign national offenders throughout the system.

Processing foreign national offender cases for removal takes too long and costs too much. There are unnecessary delays in starting the process for removing foreign national offenders. At the most basic, it takes on average 32 days to send out the 50 question paper form and almost half of these forms are ignored or not returned. The Home Office has not been making a decision on whether to deport foreign national 7 offenders until 18 months before their earliest removal date from prison, even though it has not needed to apply this limit to individuals sentenced after 2008. The approach to case working is grossly inefficient: 20 of the 52 cases reviewed by the National Audit Office had avoidable processing delays, including 7 where the Home Office did not work on the case for an average of 76 days, and a further 6 cases where delays were caused by administrative errors. The Home Office accepts that the reason for failing to remove a foreign national offender in a third of cases was caused by factors within its control. We found the position to be worse. In many other cases factors which the Home Office classifies as outside its control are actually due to its own poor management and case working practices, such as where flights are missed or cancelled. Recommendation: The Home Office and the Ministry of Justice should undertake a full review of the end-to-end process for foreign national offender removal, focusing on where procedures can be streamlined and made more efficient.

Managing the removal of foreign national offenders in prison needs to be better coordinated. There are 14 designated prisons where immigration officers work with prison officers to remove foreign national offenders earlier in their sentence. But a lack of coordination between immigration and prison officers can reduce opportunities to speed up foreign national offender removal. For example, in one prison visited by the National Audit Office immigration officers and prison officers could not use each others’ IT systems because of different levels of security clearance. The Home Office has not evaluated whether the use of designated prisons is working or represents value for money. Indeed the impact of focusing immigration offenders in a small number of prisons means that some prisons with large numbers of foreign nationals have no coverage from immigration officers. Recommendation: The Home Office and the National Offender Management Service should evaluate whether designated foreign national offender prisons result in more early removals, and if so extend their use. While this work is ongoing both organisations should make a renewed effort to ensure that within each designated prison, immigration officers and prison officers work together as if they are a single team.

Schemes designed to remove foreign national offenders from the UK have not delivered the required results. There are a number of schemes through which the government can facilitate or encourage a foreign national offender to leave the UK by the end of their sentence, but they are having limited success and there are over 5,600 foreign national offenders still in prison, immigration removal centres or living in the community after the end of their sentence while the Home Office continues to try to deport them. Only 37% of the foreign national offenders removed in 2013–14 left as part of the Early Removal Scheme. Take up of the Facilitated Returns Scheme, which offers foreign national offenders financial incentives to comply with the deportation process, has almost halved from 2,432 in 2010–11 to 1,347 in 2013–14 after the Home Office reduced the amount payable to participants. In addition, very few foreign national offenders are transferred under Prison Transfer Agreements to their home country to serve the remainder of their prison sentence. Most of these agreements are voluntary and rely on the consent of the foreign national offender 8 which is often refused. Transfers between EU states will no longer require this consent from the end of 2014, but many EU countries have yet to implement the EU Prison Transfer Agreement. For instance, Poland, which has a large number of foreign national offenders in the UK, will not be required to receive compulsory transfers until December 2016. Recommendation: The Home Office needs to assess which schemes work best in removing foreign national offenders early and quickly. The Department should revisit its current assumptions and expectations so that policy and resource decisions are evidence based, and reflect both political and practical issues. 9 1 Progress in managing and removing foreign national offenders since 2006

The Home Office admitted that it did not know the cost of managing foreign national offenders and accepted that its cost data were not robust enough to enable it to make a judgment as to which of its interventions or processes were more cost-effective than others, and whether the management of foreign national offenders as a whole was value for money. In the absence of existing information, the National Audit Office estimated that the cost of managing and removing foreign national offenders during 2013–14 was £850 million, some £100 million more than managing an equivalent number of British national prisoners.11

While accepting that there were weaknesses with its data, the Home Office maintained that the quality of its data and management information had improved over the last 18 months, and that further improvement was a priority.12 However, we concluded in our recent report Reforming the UK Border and Immigration System that the quality of data was still poor across wider border and immigration business areas.13 7 Qq 2–5, 172 8 Qq 2–4, 318 9 Qq 59–62 10 Qq 196–201 11 Qq 101–105; C&AG’s report para 4.12 12 Qq 59–62, 66 13 Reforming the UK border and immigration systems, Committee of Public Accounts, Twentieth Report of Session 2014–15, HC 584 11 2 Preventative and early intervention measures to reduce the number of foreign national offenders

The Home Office accepted that it did not routinely have data on its border systems about people who have committed crimes overseas. The Home Office told us that it was working to fill gaps in the information it holds so that it would be better placed to refuse entry at the border to foreign nationals who have committed offences.14 It plans to join the Schengen Information System, which shares warning alerts about foreign nationals within its member countries.15 In addition the Home Office told us that it was leading negotiations with European partners to share proactively information on criminals convicted of serious offences. It is also working with the Metropolitan police and the British Transport police to gather information about low-level offending and aims to include this data in its front-line systems. 16

The Metropolitan Police told us that from the police perspective it was important for public safety that officers carry out the checks and searches required when they arrest someone suspected of being a foreign national to help establish whether they are wanted abroad, their immigration status, and what their previous offending might have been. Despite the importance of these checks and searches they are simply not happening in the vast majority of cases.17

For example, following the publication of the National Audit Office’s report, the police’s use of the Association of Chief Police Officers Criminal Records Office’s connection to the European Criminal Record Information System to check on foreign nationals’ criminal histories in overseas countries had increased from 30% to 40% of foreign nationals arrested, mostly as a result of a significant increase in checks carried out in London.18 In addition, automatic checks between fingerprint machines in police stations and the Home Office’s immigration database—to ensure foreign nationals have permission to remain in the country—were now available to 5 out of 43 police forces, up from only 1 at the start of 2014.19 The National Audit Office estimated that at least £70 million could be saved each year by simply making better use of databases and information on foreign nationals.20

Operation Nexus, a pilot scheme launched jointly in 2012 by the Home Office and Metropolitan Police Service to improve police identification of immigration offenders and increase awareness about checks and searches, appeared to be working well in London. 14 Q234 15 Qq 160–161 16 Q 234 17 Qq 120–123; C&AG’s report para 2.1, 2.3, 2.11–2.13 18 Q 125 19 Qq 131–132; Letter from DAC Rodhouse to the Committee 13 November 2014 20 Q 130; C&AG’s report para 2.15 12 However, it has not been rolled out across all police forces, despite the idea first being considered in 2007.21 The Independent Chief Inspector of Borders and Immigration completed an inspection on Operation Nexus in June 2014, but the Home Office prevented the publication of his report for over 5 months. The Independent Chief Inspector told us that lengthy delays in publishing reports risked reducing the effectiveness of independent inspection, which depended to a large extent on timely publication of findings, and that this was contributing to a sense that the independence of his role was being compromised.22 It is absolutely essential that the integrity and independence of the Chief Inspector should be maintained and that there is no interference in the timing of publication of his reports.

There are 14 designated foreign national prisons in England and Wales (including two foreign national offender-only prisons) where immigration officers work with prison officers to try and persuade offenders to comply with immigration and removal requirements to secure their earlier removal. The Home Office told us that this arrangement helped to increase foreign national offender removals and that in its foreign national-only prisons 86% of offenders were removed within their early release period. The National Audit Office, however, has been unable to substantiate this figure.23 We also heard that some prisons with large numbers of foreign nationals, such as Bristol, had no coverage from immigration officers.24 The National Offender Management Service admitted that, while better than in the past, immigration officers and prison officers still did not work well enough together, and it would be looking to improve and share best practice more widely in future.25 As an example of poor joint working, the National Audit Office noted that immigration officers and prison officers could not use each others’ IT systems in one prison it had visited, because of different levels of security clearance.26 21 Qq 133–135; C&AG’s report para 2.11–2.12 22 Qq 138–147; C&AG’s report para 2.12; Letter from the Independent Chief Inspector of Borders and Immigration to the Committee, 12 November 2014 23 Qq 250–251; C&AG’s report para 2.17 24 Qq 109–110 25 Qq 265–266 26 Q268 13 3 Removing foreign national offenders from the UK

The Home Office’s approach to processing cases is inefficient: 20 of the 52 cases reviewed by the National Audit Office had avoidable processing delays, including 7 where the Home Office did not work on the case for an average of 76 days, and 6 where delay was caused by administrative errors. To gather information the Home Office sends each foreign national offender a 50-question paper form, but this takes on average 32 days to send out, and almost half are ignored and not returned. The Home Office accepted that there were administrative failures and difficulties in the system that need to be remedied.27

In 2013–14 there were 1,400 occasions where the Home Office was ready to remove a foreign national offender from the UK but the removal failed. The Home Office classified more than a third of the failed removals as within its control (523 cases), and the remaining two-thirds (930 cases) as outside its control. However, the Home Office told us that in fact the boundaries between the two classifications were far from clear cut and that some failures classified as outside its control were in fact due to poor management practice such as where flights were cancelled, and it intended to address all causes of failed removals in future.28

There are a number of schemes through which the government can facilitate or encourage a foreign national offender to leave the UK by the end of their sentence, but at 31 March 2014 there were over 1,400 foreign national offenders still in prison and immigration removal centres after the end of their sentence, and a further 4,200 living in the community while the Home Office continued to try to deport them.29 Only 37% of the foreign national offenders removed in 2013–14 left as part of the Early Removal Scheme. Take up of the Facilitated Returns Scheme, which offers foreign national offenders financial incentives to comply with the deportation process, has almost halved from 2,432 in 2010–11 to 1,347 in 2013–14 after the Home Office reduced the amount payable to participants from up to £5,000 each to up to £1,500 each. Some foreign national offenders held in prison beyond the end of their sentence have sued the Home Office successfully for unlawful detention, under provisions of the Immigration Act 1971 and Borders Act 2007. The Home Office told us that since April 2012, courts have awarded £6.2 million in compensation for unlawful detention to 229 foreign national offenders, an average of over £27,000 each.30

The Home Office maintained that it considered all foreign national offenders for removal at the earliest possible point, but following a judicial review ruling has not made a decision whether to deport any foreign national offender until 18 months before their earliest removal date.31 The Home Office agreed that it only actually needed to apply this 27 Qq 8, 11 and 18; C&AG’s report para 3.13 28 Qq 5–10; C&AG’s report paras 3.21–3.22 29 Qq 33–35; C&AG’s report paras 12, 3.17 30 Qq 38–54; Letter from Mark Sedwill to the Committee, 27 November 2014 31 Qq 11–16 14 rule to cases sentenced before 1 August 2008, but applied the rule to all cases as it wanted to use the most up to date information to avoid foreign national offenders successfully appealing against deportation on the basis of a change of personal circumstances. The Home Office assured us that the new Immigration Act 2014, once fully implemented, would change fundamentally the way it manages foreign national offenders and will allow it to speed up and increase removals, especially as the Act will reduce the number of grounds open to a foreign national offender to appeal against deportation from 17 to 4. The Home Office subsequently informed us that since July 2014, 150 foreign national offenders had been removed despite ongoing appeals as a result of the new Act.32

Over the past 4 years the number of British nationals returned to UK prisons through prison transfer agreements to serve the remainder of their sentence here, was broadly double the number of foreign national offenders removed from the UK.33 The National Offender Management Service told us that very few prison transfer agreements currently take place, as most rely on the consent of the prisoner and others were the result of negotiations to secure the return of British nationals from abroad. In February 2014, the National Offender Management Service assured us that the new compulsory agreements with EU Member States would significantly increase numbers. However, we note that despite 18 of the 28 Member States having now agreed to the compulsory EU prison transfer agreement there is no significant improvement.34 In addition, Poland and Ireland, which have the two largest populations of foreign nationals in the prison estate, will not have compulsory agreements in place for some time—Poland has an exemption from the EU prison transfer agreement until December 2016.35 32 Qq 4, 175; Letter from Mark Sedwill to the Committee, 27 November 2014 33 Q120 34 Qq 209–215 35 Qq 216–217; C&AG’s report para 3.20 15