Written evidence from the Home Office

When I appeared before the Committee on 5 November with Mandie Campbell, Michael Spurr and Steve Rodhouse, I undertook to write to you with further information on several points. Please find these addressed below.

FNO detention periods

The Committee asked for details of the FNO who had been detained longest under immigration powers. There is currently a failed asylum seeker in immigration detention who has been detained for 5 years and 9 months. He was initially jailed for 12 months for assault, and on release was put into immigration detention because of a history of absconding and violent behaviour, meaning his release would present a risk to the public. The individual continues to be disruptive and refuses to comply with the removal process. We continue to pursue deportation.

Early Removal Scheme (ERS) – 18 month rule

Our previous approach of not commencing deportation action until 18 months before the earliest release date was guided by the fact that FNOs were able to submit evidence of changing personal circumstances, such as health conditions or the birth of a new family member, to revive previously rejected Article 8 claims.

However, the Immigration Act means that Immigration Enforcement is no longer constrained by the need to consider human rights close to the deportation date. The Act makes the process of deportation more assertive and tightens the law in regard to representations made late in the deportation process, including where FNOs claim that their personal circumstances have changed, by putting beyond doubt that some Article 8 rights accrued after a person is informed of their liability for deportation carry little weight. It also sets out when the public interest requires the deportation of foreign criminals, notwithstanding their Article 8 claim, and has reformed the statutory appeals regime, meaning a refusal to revoke a deportation order does not automatically generate a fresh appeal right.

It is worth noting however that considering cases earlier than 18 months before the earliest release date would only be possible in the relatively few cases where FNOs have sentences of over four years.

FNOs released without consideration for deportation

Below is a breakdown of the offences committed by the 151 released without consideration for deportation since 2009:

141 of those released without consideration have been traced. The sentences and offences of the 10 FNOs who remain untraced since being released without consideration are as follows:

• 18 months (drugs with intent to supply).
• 6 months (drugs with intent to supply).
• 12 months (alteration/possession of a false instrument).
• 1 year, 9 months (possession and/or use of false instrument).
• 6 months (possession and/or use of false instrument).
• 11 months (supplying drugs).
• 6 months (possession, and/or use of false instrument).
• 12 months (ABH/GBH).
• 4 months (drugs with intent to supply).
• 8 months (production of a controlled drug (class B)).

The final 8 month sentence listed above relates to the one FNO who has been released without consideration in the last three years and not subsequently traced.

As outlined in the report, we did originally provide the NAO with incorrect data on this issue, for which I apologise. This error was identified during the factual accuracy checking stage.  The NAO was unable to reconcile the 151 figure with Home Office reporting to the Home Affairs Select Committee. This is because regular reporting to the HASC on these cases only commenced in 2012, replacing previous ad hoc reporting arrangements. Since this period we are confident that we have reported any releases without consideration that have come to light.  We offered to take the NAO through the 151 cases but unfortunately they were unable to do so in the time available. I have sent a copy of this letter to the NAO.

Publication of Independent Chief Inspector (ICI) reports

Section 50 of the UK Borders Act requires ICI reports to be laid before Parliament by the Home Secretary. Practices were amended in January this year to ensure compliance with the legislation and this was announced to Parliament via a written ministerial statement from the Home Secretary.

Appeals following introduction of the Immigration Act

The non-suspensive appeals provisions in the Immigration Act for criminal deportations were introduced in July 2014 and since then over 150 FNOs have been removed pending appeal. Early indications are that there has been a reduction in the number of in-country appeals and an overall reduction in the proportion of decisions being appealed since August.

FNOs living in the community/FNO absconders

Please see attached data set which sets out offences committed and sentence lengths.

Legal basis for FNO compensation and amounts paid

Compensation is paid when a court awards damages, or the Secretary of State settles out of court claims (usually for unlawful detention). The Secretary of State’s powers to detain FNOs pending deportation are set out in paragraph 2 of Schedule 3 to the Immigration Act 1971 and section 36 of the UK Borders Act 2007.

The Secretary of State must exercise her powers of detention in accordance with the Hardial Singh principles, which set out the principles for detaining someone for immigration purposes. These principles were endorsed and set out by the Supreme Court in March 2011 as follows:

• The Secretary of State must intend to deport the person and can only use the power to detain for that purpose.
• The deportee may only be detained for a period that is reasonable in all the circumstances.
• If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention.
• The Secretary of State should act with reasonable diligence and expedition to effect removal.

In the event that the court finds that detention was unlawful, but would and could have been imposed lawfully, damages will normally be nominal. Otherwise, damages will be substantive (See R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12 and R (Kambadzi) v Secretary of State for the Home Department [2011] UKSC 23 for authoritative statements of the key principles).

Private law claims can potentially be made a number of years after the event. There have been a number of occasions in recent years where the courts have awarded compensation to FNOs. The amounts paid over the last two and a half years are as follows:

* The FNO payments are a subset of the total unlawful detention compensation payments.

Immigration officers in prisons

As of 30 September there were 10,319 FNOs in the prison estate. 21% are currently held on remand and monitored but not routinely seen by Home Office staff. The majority of FNOs who meet the criteria for deportation are held in the hub, spoke and FNO only estate. There are some FNOs who are unsuitable for allocation to the hubs and spokes, such as those subject to ongoing court proceedings or those on offender behaviour programmes. These FNOs have access to immigration officers in regular surgeries and on request.

The Home Office has 93 staff permanently based in prisons or working across prison regions dealing with FNOs who meet the criteria for deportation. These officers are deployed as follows.

FNO only prisons:

Hub prisons:

We also have mobile teams specifically set up to service the needs of the prisons in other regions:

Access to immigration officers in prisons

In addition to these arrangements, local enforcement teams also attend prisons to work with FNOs, for example:

• HMP Bristol, Wales and South West (category B local prison): 597 prisoners, 59 FNOs. Immigration officers based in the local area attend weekly and at the request of the prison.
• HMP Featherstone, West Midlands (category C ‘spoke’ prison): 699 prisoners, 72 FNOs. Officers from the local hub attend every six weeks.
• HMP Frankland, North East (category A high security prison): 759 prisoners. 50 FNOs. All offenders are currently serving more than 10 years to life and immigration officers from the North East regional team attend this prison twice a year.

Hub, spoke and FNO only prison performance

During the audit we provided the National Audit Office (NAO) with the attached data on FNO removals performance as evidence that this approach increases removals.

Facilitated Removal Scheme (FRS) costs and numbers

The FRS was established in October 2006 to facilitate the removal of non-EEA FNOs who wish to return to their home country. It is subsidised by the EU. Under FRS foreign nationals receive a package of reintegration assistance provided through the International Organization for Migration. This includes a payment of between £750 and £1500 to help them build a new life on return to their home country of which £500 is given on a pre-paid card on departure from the UK.

The maximum amount payable under FRS reduced from £5,000 to £1,500 in October 2010. The total cost of the facilitated returns scheme between 2006 and March 2009 was £4.3m.The table below sets out the costs of the FRS for FNOs since 2009/10, and removals since 2007/08:

These costs include staffing and administration costs for the FRS Scheme, flights for those removed, and resettlement assistance (including administration of the scheme overseas). FRS removals have dropped by 45% since we reduced the levels of assistance provided.

We further changed FRS criteria in the summer of 2014, including refusing applications onto the scheme where the FNO had sought to appeal beyond the First Tier Tribunal and making acceptance onto the scheme provisional until an ETD has been obtained.

Electronic tagging

Currently the Home Office can request that immigration judges make release on bail conditional on tagging but the final decision is for the court. It would require primary legislation to allow the Home Office to compel these individuals to wear an electronic tag. Where the Home Office releases an individual on immigration bail, tagging can be conditional on release.

FNOs who try to return to the UK

Deported FNOs who attempt to return to the UK will be automatically refused entry. Where Immigration Enforcement officers encounter deported FNOs who have re-entered the UK (i.e. by evading controls) they are removed as soon as possible.

FNOs who re-offend and FNOs involved in the riots

The Committee asked for the number of FNOs who have gone on to re-offend following their release into the community and further details on FNOs who were involved in the riots. This information is not immediately accessible from our data systems and involves manual collation and checking of data. We are currently working to produce and quality assure this data and I will write again once we have done so.

Mark Sedwill

Permanent Secretary

27 November 2014

(a) All figures quoted have been derived from management information and are therefore provisional and subject to change. This information has not been quality assured under National Statistics protocols.                                                                     

(b) A Foreign National Offender (FNO) is defined as an individual with a criminal case, on the Home Office's Case Information Database, and may include individuals with asylum cases.                                                                     

(c) Figures are a snapshot of the 758 absconder caseload that was provided by the CC Trace & Locate team                                                                     

(d) Figures relate to main applicants only.                                                                     

(e) Figures that are 4 or less have been (*) as the numbers are too small to disclose