Thematic Inspection Report of How the Agency Manages Foreign National Prisoners

8/3/2019 Thematic Inspection Report of How the Agency Manages Foreign National Prisoners

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Our Purpose

We ensure independent scrutiny o the UK Border Agency, providing condenceand assurance as to its eectiveness and efciency.

Our Vision

Tat the UK Border Agency delivers air, consistent and respectul services, and toact as a catalyst or improvement.

All Independent Chie Inspector o the UK Border Agency inspection reports canbe ound at www.independent.gov.uk/icinspector

Email us: [email protected]

Write to us: Independent Chie Inspector o the UK Border Agency5th Floor, Globe House89 Eccleston Square

London, SW1V 1PNUnited Kingdom


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Contents

Foreword from John Vine CBE QPM 2

1. Executive Summary 3

2. Summary of Recommendations 5

3. The Inspection 6

4. Background 7

5. Inspection Findings: Decisions on the entry, stay and removal of people

should be taken in accordance with the law and the principles of good administration 11

6. Inspection Findings: Decisions to detain must be lawfulFunctions should be carried out having regard to the need to safeguard and

promote the welfare of children 19

7 Inspection Findings: All people should be treated with dignity and respectand without discrimination except where the law permits difference of treatment 24

8. Inspection Findings: Personal data should be treated and stored securelyin accordance with the relevant legislation and regulations 27

9. Inspection Findings: Complaints procedures should be in accordancewith the recognised principles of complaints handling 29

10. Inspection Findings: The implementation of policies should be continuously

monitored and evaluated to assess the impact on service users and associated costs RiskstotheefciencyandeffectivenessoftheAgencyshouldbeidentied,

monitored and mitigated 30

Appendix 1: Inspection Criteria 31

Appendix 2: Glossary 32

Appendix 3: Acknowledgements 34


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Foreign national prisoners are a diverse group o people coming rom manydierent countries, having committed a range o oences and each having theirown individual ties to the UK. Te management o oreign national prisonersby the then Immigration and Nationality Directorate became a major publicand political concern in 2006, ollowing the revelation that over 1,000 had beenreleased without consideration or deportation.

Tis inspection assessed how well the UK Border Agency is applying the powersrelating to deportation o oreign national prisoners.

Te Agency has deported over 20,000 people since 2007, with annual gures averaging over 5,000since the law was changed to provide or automatic deportation in cases where oreign nationalprisoners are sentenced to 12 months or more. O the overall number deported, more oreignnational prisoners are being deported under specic Early Removal or Facilitated Returns schemes.

I ound that the Agency is now monitoring the deportation o oreign national prisoners more closelyand has assessed the numbers and costs o oreign national prisoners both in detention and living inthe community. Te UK Border Agencys Board now also monitors associated risks.

However, the Agency can still improve the way it handles oreign national prisoners.

Firstly, a signicant number o appeals continue to be allowed against decisions to deport, in mostcases because deportation would breach the UKs obligation to the individual under the Human

Rights Act. As the law clearly provides or oreign national prisoners to be exempt rom the automaticdetention provisions in these circumstances, and notwithstanding the complexity o some cases, Ibelieve the Agency must do more to align its decision-making with the judgement o the courts.

Secondly, although more oreign national prisoners were deported beore the end o their sentence,I ound the overwhelming majority o those who had yet to be deported were detained at the end otheir sentence under immigration powers. Where decisions to detain are based, in part, on the risk tothe public, I expect the Agency to set out the evidence o whether a person is likely to re-oend andto ensure that detention is not the deault position in all cases. Te Agency should also ensure thatcasework is carried out in a more timely manner and that there is a change in the level o authorityrequired to authorise release as well as to detain.

Finally, I ound a sharp rise in the number o oreign national prisoners whom the Agency has notdeported or cannot deport immediately at the end o their sentence and are thereore detained orreleased into the community. Tese cases cannot be ignored and represent a growing cost to thetaxpayer. More must be done to actively manage these cases and, in particular, to obtain the traveldocumentation necessary or deportation.

I have set out eight recommendations or improvement, which I expect to be implementedimmediately.

John Vine CBE QPMIndependent Chie Inspector o the UK Border Agency

Foreword from John Vine CBE QPM


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1. Te UK Border Agency is responsible or deciding, in accordance with the law, whether oreignnational prisoners should be deported rom the UK. Where deportation is being considered, it alsodecides whether a person should be detained at the end o their prison sentence or released into thecommunity with a requirement to report to the Agency i deportation has not occurred prior to theend o the prison sentence. Tis inspection assessed the eectiveness and eciency o the Agency inmanaging oreign national prisoners.

2. Between 2007 and 2010, a total o 20,360 oreign national prisoners were deported rom the UK. In2010, 5,235 oreign national prisoners were deported. More than 2,500 (49 per cent) o these letthe UK under a Facilitated Returns Scheme, which provided a cost-eective method o deportation.Greater emphasis had been placed on this scheme by the Agency with 19 per cent more oreignnational prisoners deported than in 2009. A proportion o these people had been deported prior tothe end o their custodial sentence under an Early Removal Scheme with consequent reduction in thecost o detention.

3. Tere was evidence o some good practice in decision-making with case owners proactively obtaininginormation rom other public service agencies to ensure that decisions refected all available evidence.However, the Agency had also made decisions to deport beore oreign national prisoners hadsucient chance to make representations and, in ve cases o our le sample, decisions to deport hadbeen taken without the reasons being provided to the oreign national prisoner.

4. We ound a signicant disparity between the Agencys and the courts interpretation o whether aoreign national prisoner should be entitled to remain in the UK on human rights grounds. Between

March and December 2010, the Agencys decisions to deport had been overturned in 425 casesby the First-ier ribunal the overwhelming majority on human rights grounds. Tis contrasted

with gures showing 151 oreign national prisoners being granted permission to remain on initialconsideration by the Agency. In the 12 months to February 2011, 32 per cent o appeals lodged byoreign national prisoners against deportation had been successul.

5. Tere were a growing number o people whom the Agency had decided to deport, but had notdone so, primarily because o diculties in enorcing returns to particular countries, including theavailability o travel documents. In 52 cases o our le sample (39%) the oreign national prisonerhad yet to be deported. In May 2011 there were 3,775 oreign national prisoners in the community

who had not been removed at the end o their custodial sentence. Tere was consistent awareness bysta and managers o the diculties in obtaining travel documents, but no evidence that the issuesand timescales were actored systematically into the handling o each case.

6. Te Agency continues to rely on accurate reerral o oreign national prisoners rom prisons and thecourts. Work had taken place to reduce the risks o incorrect reerrals although the Agency was stillseeking to locate 12 people who had been released directly rom court or who had not been reerredcorrectly.

7. By January 2011, over 1,600 oreign national prisoners were detained under immigration powersat the end o their custodial sentence, pending deportation. Te average length o detention hadincreased rom 143 days in February 2010 to 190 days in January 2011, and 27 per cent o all oreignnational prisoners who were detained ater their custodial sentence had been detained or longer than

12 months.

1. Executive Summary


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8. Te Agencys policy presumes the release o oreign national prisoners at the end o their sentencesubject to an assessment o the risk they pose to the public and the risk o absconding. However,oreign national prisoners had remained in detention in 94 out o 97 cases sampled (97 per cent),

where they had completed their sentence and where deportation was being pursued. Release neededto be authorised at senior Board level, in contrast to a decision to detain, which could be taken by

lower management.

9. Tere was genuine ear and reluctance to release, given the potential implications o a oreign nationalprisoner committing a urther oence, but no evidence that a detailed assessment o the risk oreoending had taken place in each case. Tere was also a disparity between the number o peoplereleased rom detention by the Agency and the number released on bail by the courts. BetweenFebruary 2010 and January 2011, the Agency released 109 oreign national prisoners rom detentioncompared with 1,102 released on bail by the courts.

10. Te Agency had increased the amount o contact with oreign national prisoners who were servingtheir custodial sentence. However, there were no minimum standards or the level o contact that case

owners should have, and consequently there were variations in practice. Te Agency had not carriedout an assessment to determine whether greater contact would be benecial in terms o timeliness oraccuracy o decision-making.

11. Te standard o le management varied, with some containing documents arranged in a logical order,while others lacked inormation explaining actions that had been taken. In 11 o the cases sampled(8 per cent), inormation relating to people other than the oreign national prisoner was held on le

with no explanation as to why this had happened. In addition, there was a risk that data obtained ororeign nationals who had been acquitted o an oence would be retained unlawully in the absenceo a clear retention or destruction policy.

12. Te Agency received 144 complaints rom oreign national prisoners between February 2010 and

January 2011; the overwhelming majority relating to the standard o service provided by the Agency,and 31 o these had been substantiated. Tere was an inconsistent understanding amongst sta o

what constituted a complaint, with the risk that some complaints were not being identied. Seniormanagers received eedback on the nature o complaints, although we ound no evidence o specicoperational changes that had occurred as a result.

13. Te Agency routinely monitored the number o oreign national prisoners deported, the numberdetained ollowing completion o their sentence and the length o detention. It had assessed the likelynumbers and costs o oreign national prisoners remaining in detention or living in the community,and monitored risks at senior Board level.

14. Sta changes arising rom measures to reduce costs were being introduced with a likely short-termdrop in the number o deportations as new sta received training.


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We recommend that the UK Border Agency:

1. Reduces the number o decisions to deport that are overturned on appeal.

2. Ensures that oreign national prisoners are provided with the reasons why they are beingdeported at the time the decision is made.

3. Develops clear timescales or obtaining travel documentation in individual cases to ensurethat deportation action can be taken more quickly where appropriate.

4. Actively manages all cases where oreign national prisoners have yet to be deported, andconsiders regularly whether deportation can be enorced or whether a person is entitled toremain in the UK.

5. Ensures that each individual decision to detain or release a oreign national prisoner at theend o their sentence takes ull account o the risk o reoending, in line with publishedpolicy and any assessments produced by the National Oender Management Service.

6. Changes the level o authorisation required to release oreign national prisoners at the end otheir sentence in line with its policy that presumes release.

7. Analyses whether the requency and nature o contact between case owners and oreignnational prisoners can improve the quality and timeliness o decisions.

8. Ensures that les contain data relevant only to the subject o that le; and ensures the timelydestruction o data where a person has been acquitted o an oence.

2. Summary of Recommendations


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3.1 Te role o the Independent Chie Inspector o the UK Border Agency was established by the UKBorders Act 2007 to examine the eciency and eectiveness o the UK Border Agency. In 2009, theIndependent Chie Inspectors remit was extended to include customs unctions and the work o UKBorder Agency contractors.

3.2 Te Chie Inspector is independent o the UK Border Agency and reports directly to the HomeSecretary.

Terms of reference

3.3 Te inspections terms o reerence were to inspect whether the UK Border Agency is using its powersto deport oreign nationals eciently and eectively. In conducting the inspection, we assessed the

Agency against the criteria set out in Appendix 1.

Methodology

3.4 Te on-site phase o the inspection took place between 23 March and 11 May 2011.

3.5 A range o methods were used during the inspection, including:

ReviewingtheUKBorderAgencyspolicyandproceduresrelatingtoforeignnationalprisoners; Interviewingcaseworkers,managersandUKBorderAgencystainprisonsandimmigrationremoval

centres; Samplingthecaselesof132foreignnationalprisoners,whoseearliestdateforreleasefromcustody

was July 2010. We chose July 2010 as it allowed us to assess whether caseworking had started earlyenough and whether oreign national prisoners had been deported ater completing their custodialsentence.

3.6 Te inspection team provided eedback on high-level emerging ndings to the UK Border Agency on4 July 2011.

3.7 Te inspection identied eight recommendations or improvement. A summary o recommendationsis provided on page ve o this report.

3. The Inspection


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4.1 Concerns around oreign national prisoners rose to prominence in 2006 when statistics issued by theHome Oce revealed that 1,0231 oreign national prisoners had been released rom custody withoutbeing considered or deportation. O these, around 686 oreign nationals had served sentences or

what were categorised as other oences2; 144 people or more serious oences3 and 36 people orthe most serious4 oences.

4.2 Te release o these gures led to the replacement o the then Home Secretary and raised a question

over how to manage oreign national prisoners nearing the end o their sentences. Te issue wasbolstered by a thematic report by Her Majestys Chie Inspector o Prisons5 soon ater the HomeOce gures were released. Te report criticised the then Immigration and Nationality Directorate6or ailing to work coherently and eciently with oreign national prisoners to ensure that theyreceived appropriate attention, support and a plan o action ater their sentences nished.

The foreign national prisoner population and detention

4.3 Te term oreign national prisoner (FNP) is commonly used to describe any non-British citizenunder the authority o the criminal justice system. Tis means that people who have been remanded,convicted or sentenced or a criminal oence, are regularly reerred to as oreign national prisoners.Te term is also requently used to reer to:

Foreign nationals who are detained under immigration powers ater they had served their sentences,either in prison or an immigration removal centre; and

Foreign nationals who have been released into the community by the court service on bail or by theUK Border Agency while their deportation status is considered.

4.4 We recognise that oreign national prisoners who have completed their custodial sentences areeectively ex-prisoners in the same way that British nationals are. However, or the purposes othis report and or ease o reading, we reer to all oreign nationals in custody, detention and thosereleased into the community as oreign national prisoners.

4.5 Between 1996 and 2006, the number o oreign national prisoners in prisons in England and Walesdoubled, but it has remained relatively constant over the last ve years. Te most recent gures showthat there are currently 10,779 oreign nationals in the prisons estate, representing approximately 13per cent o the overall prison population. 10,091 (94 per cent) o the population are male and 688(six per cent) are emale7.

1ThisgurecoveredtheperiodbetweenFebruary1999andMarch2006.

2 Other offences include arson, burglary, deception, fraud, theft, drugs offences, driving offences, robbery, false imprisonment, customs

offencesandassistingillegalentryintotheUK.Itshouldbenotedthattheofcialguresshowed158FNPsasnotconcluded.

3 More serious crimes refers to other sex offences, kidnapping, grievous and actual bodily harm, indecent assault and other violent

crimes.

4 Most serious offenders were categorised as people convicted of murder, manslaughter, rape and child sex offences.

5ForeignNationalPrisoners:athematicreview,HMIPJuly2006.

6AtthetimeofHMIPsthematicreview,immigrationfunctionsweretheresponsibilityoftheImmigrationandNationalityDirectorate,a

directoratewithintheHomeOfce.

7 Offender Management Statistics Quarterly Bulletin, England and Wales; as of 30 June 2011.

4. Background


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4.6 Foreign national prisoners are located in a number o prisons across the UK. In some prisons thereare large numbers o non-British nationals while in others a much smaller number o people areaccommodated. However, since 2008, there has been some reorganisation resulting in a concentrationo adult male oreign national prisoners in certain prisons such as HM Prison Canterbury and HMPrison Bullwood Hall. Tis more concentrated population has not included women and young

people, who continue to be accommodated across a number o other prisons.

4.7 Foreign national prisoners come rom many dierent countries. For example, in our le samplethere were 45 dierent nationalities represented. Te type o oence committed by oreign nationalprisoners varies. A breakdown o the index oences committed by the 132 oreign national prisoners

whose les we sampled can be seen in Figure 1.

Figure 1: Breakdown of index offences

Index offence Number Percentage (%)

Fraud and forgery36 27

Drugs 30 23

Violence against the person 29 22

Robbery 13 10

Theft and handling 7 5

Sexual 6 5

Burglary 2 2

Motoring 1 1

Other 8 6

TOTAL 132 100

4.8 O the 132 les sampled, the shortest custodial sentence received was our months and the longestwas lie imprisonment8.

The process for considering whether foreign national prisoners should be deported

4.9 Where a oreign national has received a custodial sentence, prisons are required by the NationalOender Management Service (NOMS) to reer details o the person to the UK Border Agency inthe ollowing circumstances:

Where deportation has been recommended by the court;

I the person is an EEA national sentenced to 24 months or more, or 12 months where the oenceinvolves drugs, sex or violence9;

I the person is a oreign national sentenced to 12 months or more;

I the person is a oreign national sentenced to less than 12 months but where the current sentenceand any previous sentences within the last ve years total 12 months or more.

8 Two foreign national prisoners had been sentenced to indeterminate sentences, therefore the length of their sentence was not known.

9 This does not apply to nationals of the Republic of Ireland.


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4.10 A reerral should also be made where the criteria above are met but the nationality o the person isunclear (i, or example, they do not have any documentation to provide evidence). Cases should bereerred to a dedicated part o the UK Border Agency, which is responsible or considering whetheroreign national prisoners should be deported. Tis is known as the Criminal Casework Directorate(CCD). At the time o the inspection, CCD had 868 members o sta based in Croydon, Liverpool

and Leeds with a small number based in prisons.

4.11 Te Agency then needs to consider the relevant law. Provisions in the UK Borders Act 2007 cameinto orce on 1 August 2008 that introduced an Automatic Deportation provision or oreignnational prisoners. Under the Act10, the Secretary o State is required to make a Deportation Orderagainst a oreign national prisoner who has received a sentence o imprisonment o 12 months ormore (in a single sentence or a single conviction), unless they all within one o six exceptions11. Teexceptions are:

Where deportation would breach the persons rights under the European Convention o HumanRights (ECHR) or the UKs obligations under the Reugee Convention;

Where the person was under the age o 18 on the date he or she was convicted; Where the person is a citizen o a country belonging to the European Economic Area (EEA),

is exercising treaty rights, or is a close relative o an EEA national exercising treaty rights anddeportation would breach those rights;

Where the person is subject to extradition proceedings instigated by another government;

Where the person is held under specied provisions o the Mental Health Act 1983 or its associatedlegislation; and

Where deportation would contravene the United Kingdoms obligations under the Council o EuropeConvention on Action Against racking in Human Beings.

4.12 I a oreign national prisoner does not meet the Automatic Deportation criteria they may still acedeportation where:

Te court has recommended that a person should be deported, regardless o the length o theirsentence12;

It would be conducive to the public good. Tis might occur where a person had received two orthree sentences over a particular period, which in total amounted to 12 months13;

Tere are grounds to deport a person or reasons o public policy, public security or public health.Tese provisions apply to nationals o the EEA and their amilies where they are exercising reatyrights14.

4.13 Where a person has been sentenced to less than 12 months and their deportation is not considered tobe conducive to the public good, they may nevertheless be removed i they do not have permission toremain in the UK. Tis is reerred to as administrative removal, rather than deportation.

10 Section 32(5).

11 At Section 33. In addition a person is also exempt if they are subject to Sections 7 or 8 of the Immigration Act 1971. Section 7 provided

an exception to deportation for certain people who were resident in the UK when the 1971 Act came into force; Section 8 provided

exceptions for seamen, aircrews and other special cases.

12 Section 3(6), Immigration Act 1971.

13 Section 3(5)(a), Immigration Act 1971.

14 Regulation 19(3)(b) Immigration (European Economic Area) Regulations 2006.


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Timing and nature of deportation

4.14 Te law provides or oreign national prisoners to be deported beore they complete their sentencein the UK. Tis is known as the Early Removal Scheme and means that people may be deported upto 270 days beore they would otherwise be released. Te purpose o this provision is to ensure that

oreign nationals liable or deportation leave the UK as soon as possible, thereby reducing the costso keeping them in custody. Under this mandatory scheme, prison governors approve the removalo eligible oreign national prisoners15, unless there are exceptional or compelling reasons why theyshould not be deported.

4.15 Foreign national prisoners can make an application at any time to be removed under a FacilitatedReturns Scheme. I successul, they can be deported once they all within the Early Removal Schemeperiod. Tis scheme provides oreign national prisoners with a package consisting o a cash payment(which can only be accessed once they have let the UK) and a reintegration allowance to help theoreign national prisoner adapt to lie in their own country. Te package decreases i the oreignnational prisoner does not choose to leave during their custodial sentence. Te purpose o the scheme

is again to encourage oreign national prisoners to leave the UK as soon as possible and reduce thecosts associated with continued custody.

4.16 Te amount that oreign national prisoners are entitled to under the scheme can be seen in Figure 2.

Figure 2: Incentives available under Facilitated Returns Scheme

Application receivedbefore 01.09.2010

Application receivedafter 01.09.2010

and 30.09.2010 andis removed before

31.03.2011

After 01 October2010

Applicationmade beforecustodialsentencecompleted

Prepaid card or 500on departure and5,000 (less the 500cash payment made onremoval)

Prepaid card or 500 ondeparture, 5,000 (less the500 cash payment made onremoval)

Maximum o 1500.Tis includes 500 ona prepaid cash card

Applicationmade aftercustodialsentencecompleted

3,000 (less the 500prepaid card paymentmade on removal)

3,000 (less the 500 prepaidcard payment made onremoval)

Maximum o 750.Tis includes 500 ona prepaid cash card

Rights of appeal

4.17 Foreign national prisoners are entitled to appeal against their deportation to the independent Courtsand ribunal Service. I their deportation is under the automatic deportation provisions, they mayonly appeal once they have let the UK, unless they claim that deportation would breach their humanrights, be contrary to the Reugee Convention or, i they are an EEA national, that deportation

would breach their rights under Community treaties. Tose people deported prior to the Actscommencement or under other deportation provisions can appeal while they are in the UK andcannot be deported until their appeal has been determined.

15FNPsareineligibleiftheyareservinganindeterminatesentence;areonremandordetainedunderimmigrationpowers;aresubjectto

furthercustodialrequirements;haveoutstandingcriminalchargesoranoutstandingconscationorder.


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Number of foreign national prisoners removed

Between 2007 and 2010, 20,36016 oreign national prisoners had been removed rom the UK.Figures or each year are set out in Figure 3.

Figure 3: Foreign National Prisoners removed / deported by year

FNP's removed/deported by year

4200

5395 55305235

0

1000

2000

3000

4000

5000

6000

2007 2008 2009 2010Year

Number

How foreign national prisoners were removed

5.1 In 2010, more than 2,500 oreign national prisoners had been deported under a Facilitated ReturnsScheme (FRS) 49 per cent o the total.17 Tis represented an increase rom the gures or 2009

when 30 per cent were deported under the scheme.

5.2 Te costs o the scheme are set out in Figure 4.

Figure 4: Facilitated Return Scheme costs

Period of time Approximate cost ()

October 2006 March 2009 4.3 million18

2009 2010 (Financial year) 7.1 million (including 2.3 million EU unding)19

2010 2011 (Financial year) 9.7 million (including 2.7 million EU unding) projected20

16DataprovidedbyUKBAtotheHomeAffairsCommittee:UKBAadvisedthattheseguresweresubjecttodatacleansing.

17ForeignNationalPrisoners:OperatingReview,May2011.

18HomeOfceresponsetoaFreedomofInformationrequest,2July2010:http://www.homeofce.gov.uk/about-us/freedom-of-

information/released-information1/foi-archive-immigration/15085-ERS-and-FRS/?view=Standard&pubID=830739

19 Response by Damian Green, MP, Minister of State (Immigration), 14 December 2010 to questions by Keith Vaz, MP.

20 Ibid

5. Inspection Findings:Decisions on the entry, stay and removal of

people should be taken in accordance with thelaw and the principles of good administration


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5.3 A proportion o these people had been deported prior to the end o their custodial sentence underthe Early Removal Scheme, which according to estimates rom the Agency meant around 500 prisonplaces in any given month were no longer taken by oreign nationals21. Te estimated savings were1.5 million per month to the National Oender Management Service.

5.4 We believe that the ocus on both the Early Removal Scheme and the Facilitated Returns Scheme isa sensible approach or the Agency to take. Deportation whatever the method and timing incurscosts to the taxpayer. Te evidence points clearly to these schemes being more cost-eective thanenorcing deportation at the end o a persons sentence. For example, or applications made ater1 October 2010, the maximum package available to a person deported under the FRS would be500 in cash and 1,000 payment in kind or reintegration assistance (e.g. purchase o a vehicle orpayment o rent or shop premises).

5.5 In comparison, the cost o detaining a person or two months at the end o their sentence wouldbe 6,600. It also aords the individual greater dignity and, with the FRS and the provision o re-integration assistance, the opportunity to adapt more quickly to lie in their country o origin. Given

the schemes clear benets, it is important that the Agency continues to promote it consistently andeectively.

Decision-making

5.6 When making a decision on whether a oreign national prisoner should be deported, the Agencyshould consider all the evidence available to it. Although the onus is on oreign national prisonersto inorm the Agency o any reasons why they should not be deported, the Agency should take allreasonable steps to obtain and consider inormation that will allow it to make the correct decision.Depending on the acts o the case, this may require case owners to obtain inormation rom otherpublic services such as the police or local authorities or to proactively seek urther inormationrom oreign national prisoners themselves. Such an approach minimises the risk o incorrect

decisions and the consequent cost o appeals.

5.7 Our le sampling showed variation in the level o inormation used by case owners to make theirdecision. In some cases, case owners proactively sought inormation rom prisons and the probationservice. Tis enabled a complete picture o the oreign national prisoners circumstances to beavailable beore the decision was made. An example o this approach is set out in Case Study 1.

21ForeignNationalPrisoners:OperatingReview,May2011.


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Case Study 1 Basing a decision to deport on all available evidence

Te oreign national prisoner Mr S: received a sentence o our years imprisonment or drug oences.

Te UK Border Agency: wrote to Mr S inorming him that he was liable to be deported and asking or any reasons why

he should not be deported to be provided within 28 days;

contacted both the prison and probation services to obtain Mr Ss pre-sentence report andassessment o risk to the public;

contacted the police to obtain additional inormation about Mr Ss ormer partner in the UK inlight o his claim that deportation would breach Article 8 (right to a private and amily lie) othe European Convention o Human Rights; and

assessed this evidence as a whole beore deciding that deportation was appropriate.

Chie Inspectors comments: Te Agency correctly allowed Mr S 28 days to provide reasons why he should not be deported.

In light o the claim that deportation would breach Article 8 o the ECHR, the Agencyidentied the need to make urther enquiries and contacted the police to provide additionalrelevant inormation.

Ensured that an assessment o risk provided by the prison and probation services inormed thedecision to deport.

5.8 However, in other cases deportation decisions had been made beore the oreign national prisonerhad been given sucient opportunity to set out any reasons why they should not be deported. Anexample o this is set out in Case Study 2.


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Case Study 2 Making a decision before the evidence was available in full

Te oreign national prisoner Mr E: received a sentence o nine months imprisonment or using a copy o a stolen passport to

enquire about bank charges. Te court also recommended that he be deported ollowing hiscustodial sentence.

Te UK Border Agency: wrote to Mr E on 7 May 2009 inorming him that he was liable or deportation and asking or

any reasons why he should not be deported to be provided within 28 days;

decided to make a Deportation Order on 27 May 2009 beore the 28 days had elapsed stating that No representations have been received rom you;

revoked the Deportation Order against Mr E on 25 March 2011 because MR E had not beengiven the appropriate time to provide any reasons why he should not be deported.

Chie Inspectors Comments: It was unacceptable that a decision to deport was made beore Mr E had been given the ull 28

days to set out any reasons why he should not be deported.

Mr E was detained unnecessarily, as a result o this error, or 180 days at a cost o 19,800.

5.9 Te Agency is required to inorm a oreign national prisoner o the reasons why it intends to deportthem. Clearly this is necessary so that the oreign national prisoner can consider whether the Agencysreasons have taken account o any representations they have made and, consequently, whether theyshould appeal. In the majority o cases that we sampled, the Agency had clearly set out the reasons atthe time it inormed the oreign national prisoner it intended to deport them. However, this had not

happened in ve cases, an example o which is set out in Case Study 3.

Case Study 3 Making a decision to deport without providing the reasons why

Te oreign national prisoner Mr M received a sentence o 12 months imprisonment or aray.

UK Border Agency: wrote to Mr M on 8 July 2010, inorming him that it had made a decision to deport him but

did not provide any reasons or this;

inormed Mr M that i he wished to appeal he would need to do so within ve days (as he wasdetained).

A Senior Caseworker (SCW) did not authorise the reasons why he should be deported until 22July 2010, two weeks ater Mr M had been told he was being deported.

Mr M appealed against deportation on 15 July.

Chie Inspectors comments: It was unacceptable that Mr M did not receive the reasons why he was being deported until 26

July 2010. Tis was 18 days ater he had been told he was being deported.

He was thereore obliged to appeal to saeguard his position without being aware o the reasons

or the decision.


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5.10 Te Agency must prevent this in uture. It is imperative that people are given the reasons why adecision has been made. Failure to do so is not only unair on individuals; it may also result inunnecessary appeals being made at additional cost to the taxpayer. We also believe that this practicecould be contrary to legislative provisions that require the Agency to give reasons or immigrationdecisions (regulation 5 o the Immigration [Notices] Regulations 2003).

Foreign national prisoners who are not deported

Those entitled to remain

5.11 It is important to note that the law provides or people to remain in the UK i, or example,deportation would breach their human rights or the UKs obligations under the Victims o rackingConvention.

5.12 Between March and December 2010, the Agency gave permission to 151 oreign national prisonersto remain in the UK, as deportation would have breached their human rights. In the majority o

cases this refected Article 8 o the ECHR the right to private and amily lie where issues such asthe length o time a oreign national prisoner had lived in the UK or whether they had children herewould be relevant. Between February 2010 and January 2011, 425 oreign national prisoners wontheir appeal against the Agencys decision to deport them; this was 32 per cent o the appeals lodgedagainst decisions to deport. Again, these were won primarily on the grounds o Article 8. All those

who won an appeal were given, or were in the process o being given, permission to remain in theUK.

5.13 Our le sample contained similar ndings. Tirty-three cases 25 per cent o the sample resultedin the oreign national prisoner being given permission to remain in the UK, either on initialconsideration by the Agency or ollowing an appeal. Where appeals were allowed, the majority wereon the basis that deportation would place the UK in breach o its obligations under the HumanRights Act. O the 16 cases in the sample where appeals were allowed, 63 per cent o cases wereallowed or these reasons as set out in Figure 5.

Figure 5: Basis of allowed appeals

Basis of allowed appeal Number Percentage (%)

Deportation would breach human rights 10 63

Deportation not justied in light of all evidence22 4 25

Deportation would breach rights under Refugee Convention 1 6

More than one ground 1 6

TOTAL 16 100

5.14 Te Agency was carrying out work to assess the reasons or allowed appeals and had instituted aquarterly review to identiy cases where deciencies had contributed to the appeal being allowed. It isimportant that this continues and results in action, given the importance o reducing the number oallowed appeals, both or individuals who are entitled to remain, and because the cost is considerable over 480,000 or the 425 appeals that were allowed between February 2010 and January 2011.23

22 Where the court found that the presumption in favour of deportation was outweighed, where deportation was not contrary to the

RefugeeConventionorHumanRightsAct.

23 Based on the cost of an oral hearing for asylum cases of 1,137. The Agency was unable to provide an alternative cost for deportation

appeals.


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5.15 We are in no doubt that the interpretation o Article 8 is complex and case law continues to evolve.However, the act that nearly three times as many cases were granted on appeal, compared with thenumber granted by the Agency initially, is o considerable concern. In interviews, sta and managersconsistently set out their view that the UK courts and tribunals had increasingly interpreted Article8 more leniently than the ECHR. As a result, sta and managers thought that the domestic courts

were more likely to nd that deportation would be unlawul than the ECHR would. We are not in aposition to critique the interpretation placed on Article 8 by the courts, and note that the governmentrecently launched a consultation on the balance to be struck between an individuals right to respector private and amily lie and the public interest in public protection and maintaining immigrationcontrols. However, the Agency must work to reduce the number o decisions that are overturnedon appeal and take ull account o the courts decisions in deciding whether deportation action isappropriate or whether it would breach a persons rights under Article 8. I not, there will continue tobe a cycle o appeals, at considerable cost to the taxpayer even though the outcome will eventually bethat the oreign national prisoner is entitled to remain in the UK.

Other cases where foreign national prisoners are not deported

5.16 O the les we sampled, 47 had resulted in the oreign national prisoner being deported 36 percent. As indicated in paragraph 5.12 above, a urther 33 had been given permission to remain 25per cent. Te remaining 52 39 per cent had not yet been deported, but were not entitled tobe given permission to remain in the UK, even ater an appeal. In all these cases the Agency waspursuing deportation action but was unable to physically deport the individual. Te principal reason

was due to the diculty in obtaining travel documentation or the oreign national prisoner.

5.17 Tis is a signicant issue that needs to be understood, addressed and managed appropriately. InMay 2011, 3,775 ormer oreign national prisoners had been released rom custody, as there wasno prospect o them being deported within a reasonable period o time, and were living in thecommunity. O these, 3,259 had served sentences or what were categorised as other oences; 429or more serious oences and 87 or the most serious oences. In addition, over 1,600 oreignnational prisoners remained in detention under immigration powers, having completed theirsentence.

5.18 Tere were two main categories o person those who could not be deported because o the generalsituation in their country o origin, and those where the Agency was pursuing appropriate traveldocumentation to allow deportation to take place. Tis is because a person cannot be deported romthe UK unless they have a valid travel document. Where the oreign national prisoner has their ownnational passport, there will normally be no diculties with deportation. Where the person doesnot have their own passport, the Agency needs to obtain a urther document rom a oreign nationalprisoners Embassy or High Commission beore it can proceed with deportation. Tese documents

are called Emergency ravel Documents (EDs) and the process or obtaining one, including thetime taken, will vary depending on the relevant country and the checks they wish to make to veriy apersons nationality.

5.19 A persons cooperation with the process o obtaining an ED can determine whether or not anED is issued. Where oreign national prisoners are unable or unwilling to co-operate with the re-documentation process, this poses a signicant challenge to the Agencys ability to remove them. Te

Agency had taken steps aimed at encouraging people to cooperate with the removal process. It hadworked with the National Oender Management Service (NOMS) to embed Agency sta into someprisons housing adult male prisoners. Part o the role or these sta was to increase the amount ocontact between oreign national prisoners and the Agency, with the aim o obtaining inormationabout, and evidence o, the oreign national prisoners identity and nationality. Tis increased contacthad contributed to more oreign national prisoners choosing to return under both the Early Removaland Facilitated Returns Schemes.


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5.20 We appreciate that the re-documentation process is ar rom straightorward. Even where oreignnational prisoners cooperate and provide detail, political and diplomatic issues can aect theavailability o documentation, as can relations with Embassies and High Commissions. Sta andmanagers were aware o the diculties in obtaining travel documentation rom particular countries.However, we saw little evidence that cases were prioritised on the basis o the length o time and

potential diculty in obtaining travel documentation.

5.21 Te scope o this inspection did not include an assessment o the Agencys processes or obtaining,or using, EDs in detail. However, given the ndings in both this inspection and our inspection oasylum24, we intend to carry out a more detailed examination o this in the uture.

5.22 We recognise there are no easy solutions in cases where a person cannot be deported because o theparticular situation in the country o origin and where they have not chosen to leave voluntarily.Senior managers inormed us that several options were being considered, which ultimately mayrequire policy changes. However, we ound no evidence that solutions were imminent. Given thenumber o people yet to be deported and the orecast that this will rise, it is essential that these cases

are managed actively with regular assessments o whether it is easible to enorce deportation; theappropriate levels o reporting to the Agency; and promotion o the Facilitated Returns Scheme.Careul consideration also needs to be given to the point at which an individual may qualiy toremain in the UK on human rights grounds in light o any growing connections with the UK and thelength o time here.

The referral of foreign national prisoners

5.23 Tis inspection ocused specically on the Agencys handling o cases once they had been reerred toit and we did not examine in detail the overall process or reerral o cases to the Agency. However, inlight o the potential risks, we highlight briefy some o the issues below.

5.24 Te Agencys process or deporting oreign national prisoners relies on eective communication withother bodies working in the Criminal Justice System, such as prisons and the courts, who identiyoreign national prisoners. We ound that ollowing the release o oreign national prisoners withoutconsideration in 2006, the Agency had worked more closely with other bodies to develop and reneprocesses or the identication and reerral o oreign national prisoners. However, there remain twoparticular risks that require careul monitoring: releases directly rom court and releases because onationality.

Releases directly from court

5.25 Foreign national prisoners who meet the deportation criteria can be released into the community

directly rom the court without returning to prison. Tis might occur, or example, i a person hadreceived a short sentence and eectively served this while on remand. Between 2009 and 2011, atotal o 48 people were released in this way, only 39 o whom had been located by the Agency withattempts still being made to locate the remaining nine.

5.26 Tis risk had been identied by the Agency and was described as our biggest challenge in the reerralprocess. Te Agency had taken steps to mitigate this risk and had reached agreement with HerMajestys Court Service that it would notiy the Agency o all oreign nationals released in this way.

24Asylum:Gettingthebalanceright?Athematicinspection:JulyNovember2009;http://icinspector.independent.gov.uk/wp-content/

uploads/2010/03/Asylum_Getting-the-Balance-Right_A-Thematic-Inspection.pdf


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Releases because of nationality

5.27 Te identication o oreign national prisoners alls to prison sta in the rst instance, and theverication that a person is a oreign national can be dicult. Prisons are required to inorm the

Agency when a oreign national prisoner, or somebody whose nationality is unclear, arrives in prison

and meets the criteria or deportation. Full instructions on mandatory reerral to the Agency areclearly set out in a Prison Service Order25. However, prison sta are oten reliant on whether theoreign national prisoner is certain about their own nationality or what they are able or prepared todisclose to prison sta on arrival. Tereore there is a risk that the right people are not always broughtto the attention o the Agency. Te Agency inormed us that nine such cases were identied in 2009-10 and six cases in 2010-11. Tree o these had yet to be located by the Agency. We noted that the

Agency was working with the Association o Chie Police Ocers (ACPO) to implement a processwhere nationality and identity will be determined when a person is charged.


Reduces the number o decisions to deport that are overturned on appeal.

Ensures that oreign national prisoners are provided with the reasons why they are beingdeported at the time the decision is made.

Develops clear timescales or obtaining travel documentation in individual cases to ensure thatdeportation action can be taken more quickly where appropriate.

Actively manages all cases where oreign national prisoners have yet to be deported andconsiders regularly whether deportation can be enorced or whether a person is entitled toremain in the UK.

25PrisonServiceOrdersarenationalinstructionsissuedtoHerMajestysPrisonServicebytheNationalOffenderManagementService

on all aspects of prison life. They are currently being replaced by Prison Service Instructions (PSI), which will set out both mandatory and

discretionarypracticeinfuture.AnewPSIisduetobeissuedtoprisongovernorslaterthisyear.ThecurrentguidelinesgoverningFNPsand

immigrationissuesissetoutinPSO4630andareavailableathttp://pso.hmprisonservice.gov.uk/PSO_4630_immigration_and_foreign_

nationals.doc


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The power to detain foreign national prisoners

6.1 Te UK Border Agency has the power to detain oreign national prisoners in Immigration RemovalCentres or prisons once their custodial sentence has nished, or the purpose o removing them romthe UK. Te power may be used where the Agency has yet to complete consideration o whether

the oreign national prisoner should be deported or because, having made the decision to deport, itbelieves it is necessary to detain pending the deportation. Detention on this basis, in accordance withcase-law26, may be or some time.

6.2 Te Agencys detention policy is set out in its Enorcement Instructions and Guidance. Casesconcerning oreign national prisoners are subject to the general policy, which has a presumption inavour o temporary admission or release. Te policy then goes on to say:

Tus, the starting point in these cases remains that the person should be released on temporary admissionor release unless the circumstances o the case require the use o detention. However, the nature o thesecases means that special attention must be paid to their individual circumstances. In any case in which

the criteria or considering deportation action (the deportation criteria) are met, the risk o reoendingand the particular risk o absconding should be weighed against the presumption in avour o temporaryadmission or temporary release. Due to the clear imperative to protect the public rom harm rom a personwhose criminal record is sufciently serious as to satisy the deportation criteria, and/or because o the likelyconsequence o such a criminal record or the assessment o the risk that such a person will abscond, inmany cases this is likely to result in the conclusion that the person should be detained, provided detentionis, and continues to be, lawul. However, any such conclusion can be reached only i the presumption otemporary admission or release is displaced ater an assessment o the need to detain in the light o the risko reoending and/or the risk o absconding.

6.3 Given that the power to detain exists in order or the Agency to acilitate a persons removal,detention will only be lawul while there is a realistic prospect o the Agency removing them, within

a reasonable timescale, which will depend on the acts o the case.

Number of foreign national prisoners detained

6.4 In February 2007, approximately 1,30027 oreign national prisoners were detained under immigrationpowers, while the Agency pursued deportation action against them. By January 2011 this hadincreased to 1,667, which cost the Agency 55m per annum. O these, 907 oreign national prisoners(54 per cent) were detained in IRCs, with the remaining 760 (46 per cent) detained in prisons.

26Rv-GovernorDurhamPrison,Exparte,HardialSingh,19841WLR704706D,

27LetterfromUKBAsthenChiefExecutivetotheHomeAffairsCommittee,19February2007.

6. Inspection Findings:

Decisions to detain must be lawful

Functions should be carried out having regardto the need to safeguard and promote thewelfare of children


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6.5 Te Agencys own preliminary orecasts indicated that the total number o oreign national prisonersdetained under immigration powers would continue to increase.

Length of detention

6.6 Te average length o time in detention or oreign national prisoners who were detained underimmigration powers at the end o their custodial sentence had increased signicantly betweenFebruary 2010 and January 201128. In February 2010, oreign national prisoners were detained oran average o 143 days; by January 2011 this had increased to 190 days, an increase o 33 per cent.

We ound that this was due to a higher percentage o oreign national prisoners having been detainedunder immigration powers or over 12 months. In May 2011, 27 per cent o all oreign nationalprisoners who were detained ater their custodial sentence had been detained or longer than 12months. Te Agency predicted that the percentage o oreign national prisoners detained or longerthan 12 months would continue to increase. Senior managers indicated that the increase was dueprimarily to the number o oreign national prisoners who were not complying with attempts toobtain travel documentation and that this was infuenced by more oreign national prisoners being

deported under the Early Removal Scheme and were thereore not being detained at the end o theirsentence.

Factors affecting length of detention

Timeliness of consideration

6.7 Given the deprivation o liberty or the oreign national and the cost to the taxpayer, it is essentialthat time spent in detention ater completion o a sentence is kept to an absolute minimum. One othe main actors aecting this is the point at which the Agency begins consideration o deportation.

6.8 Te Agencys policy is that deportation decisions should not be made more than 18 months beorea oreign national prisoners release date. Tis refects case law (Chindamo v SSHD 00/H/02345),

which says that the appropriate time or a deportation decision to be taken is towards the end o aprison sentence, shortly beore deportation is carried out. Sta and managers were aware o this and adatabase was used to monitor when action should be taken on cases.

6.9 However, during our le sample we ound clear examples where the Agency had not made a decisionas early as it could have on whether a person should be deported. As a result, the oreign nationalprisoners were potentially detained or longer than necessary. An example o such a case can be seenin Case Study 4.

28FiguresreferonlytothosedetainedinImmigrationRemovalCentres.TheAgencywasunabletoprovidecomparableguresforthose

detained in prisons.


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Case Study 4 Example of delay in caseworking

Te oreign national prisoner Mr A: claimed asylum in January 2007;

received a sentence o 12 months imprisonment or a sexual assault in January 2010; and

completed his custodial sentence in July 2010.

Te UK Border Agency: had not made a decision on Mr As asylum claim between 2007 and completion o Mr As

sentence;

detained Mr A under immigration powers in July, immediately ater he had completed hiscustodial sentence;

carried out an asylum screening interview with Mr A on 17 January 2011; and

made a decision to make a Deportation Order, in which his asylum claim was rejected, whichwas served on Mr A on 26 May 2011.

Chie Inspectors comments: Tere was no explanation o why the asylum claim had not been considered between 2007 and

2010.

Tere was no assessment o the cost implications or the impact on Mr A o continued detentiondue to the:

ailure to consider his asylum claim between his sentence in January 2010 and the end ohis custodial sentence in July 2010;

delay o approximately six months between his detention under immigration powers andhis asylum interview; and

urther delay o our months between his asylum interview and the decision to reuse hisclaim.

6.10 It is essential that the Agency considers the complexity o each oreign national prisoners case inassessing when casework should begin. Clearly, there are greater complexities i a person has raiseda ear o return to their own country. Similarly, i a person has spent a number o years in theUK or has amily in the UK, there will need to be greater consideration o the actors relevant todeportation.

6.11 Tis is particularly relevant where the oreign national prisoner has children in the UK, as occurredin 38 o the 132 les we considered. Te case owners we interviewed were ully aware o the Agencysobligations to saeguard and promote the welare o children. Tere was consistent evidence rominterviews that, at the very least, the Agencys Oce o the Childrens Champion were consulted inany case where it was proposed to deport a oreign national prisoner who had a child in the UK. Caseowners were also required to consult with local authority childrens services and the Children andFamily Court Advisory and Support Service to obtain inormation on the childs circumstances.

6.12 Although this awareness existed, and despite the added complexity o these and other types o cases,we did not nd evidence that the Agency had processes in place to identiy and highlight them sothey received intensive caseworking as early as possible. In particular, we did not nd there was any

imperative to avoid, as ar as possible, the detention o a oreign national prisoner ater the end otheir sentence.


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The presumption of release

6.13 Our le sample indicated that oreign national prisoners were highly likely to be detained underimmigration powers at the end o their custodial sentence. O 97 cases where the person hadcompleted their custodial sentence and the Agency was seeking their deportation29, 94 had been

detained under immigration powers (97 per cent). In one case, the oreign national prisoner had beenreleased and in a urther two cases there was no indication on the le o whether or not the personhad been detained.

6.14 We noted the Agencys policy which sets out that substantial weight must be given to the risk ourther oending and o harm to the public when considering whether detention is appropriate andthat particularly substantial weight must be given when someone has been convicted o particularoences, including violence against the person and sexual oences.

6.15 Clearly, there will be a number o cases where the prospect o removal is imminent and the risko urther oending or absconding is such that detention is appropriate. However, o the cases

sampled by us where the oreign national prisoner had been detained under immigration powers,the highest percentage concerned convictions or raud and orgery and these oences are not listedin the Agencys policy as oences where particular weight or particularly substantial weight shouldbe given to the risk o urther oending or harm to the public. Despite this, such cases were alsooverwhelmingly likely to result in detention. Te individual circumstances o such cases may again

justiy detention, but the sheer weight o cases resulting in detention is o concern and, in our view,there remains a culture that detention is the norm. Indeed, one member o sta said, A decisionto deport equals a decision to detain. Te Agency needs to ensure that it takes ull account o anyreports that are provided by the National Oender Management Service detailing the risk o a personreoending, and that it sets out in detail the evidence o risk o reoending in each decision todetain.

6.16 In interviews with sta and managers, we encountered genuine ear and reluctance to release oreignnational prisoners rom detention in case they committed a urther crime. Tis, together with thepotential media and political scrutiny, is uelling a culture where the deault position is to identiyactors that justiy detention rather than considering each case in accordance with the publishedpolicy.

6.17 Tere is a clear disparity between the approach taken by the Agency in deciding to detain theoverwhelming majority o oreign national prisoners at the end o their sentence and decisions torelease taken by the ribunal ollowing applications or bail. Te respective gures or the period romFebruary 2010 January 2011 are set out below and demonstrate that the number released by the

Agency was less than ten per cent o the number released by the ribunal.

Figure 6: Number of foreign national prisoners released from detention (Feb 2010 Jan2011)

Released from detention Number of foreign national prisoners

By the UK Border Agency (and subject to arequirement to report to the Agency on a regularbasis)

109

By the ribunal 1,102

OAL 1,211

29 This does not include cases where the foreign national prisoner had been deported prior to the end of their custodial sentence.


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6.18 Tis approach to detention was reinorced by the level o authorisation required in the Agency toeither detain or release a oreign national prisoner. In accordance with the Agencys own guidance,our le sample showed that the initial decision to detain oreign national prisoners at the end otheir sentence was, in most cases, taken at lower management level (the Higher Executive Ocergrade). Tis contrasted starkly with the procedure or release o a oreign national prisoner that had

to be authorised by a senior manager o Board level (and, up until shortly beore the inspection hadto be authorised personally by the Chie Executive o the Agency). Tis was a level even higher thanrequired to authorise detention or 12 months or more (senior manager o Director level).

6.19 Te dierent levels o authority required to release or detain sit very uneasily with a policy whichpresumes that oreign national prisoners will be released at the end o their custodial sentence. Werecognise the need to ensure that decisions to release are consistent, one o the reasons reerred to ininterviews with managers. However, consistency o decision-making is equally, i not more importantin decisions to detain oreign national prisoners, and this cannot justiy a procedure that stands insuch stark contrast to the published policy.

We recommend that the UK Border Agency: Ensures that each individual decision to detain or release a oreign national prisoner at the end

o their sentence takes ull account o the risk o reoending in line with published policy andany assessments produced by the National Oender Management Service.

Changes the level o authorisation required to release oreign national prisoners at the end otheir sentence in line with its policy, which presumes release.


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7.1 We noted that the UK Border Agency had taken steps to work more closely with oreign nationalprisoners beore they reached the end o their custodial sentence. Some prisons had dedicatedimmigration teams, whose activity included:

agency sta attending the prison regularly;

interviewing all oreign national prisoners shortly ater they were inducted into the prison; and

agency sta holding regular immigration surgeries.

Te majority o sta and managers who we interviewed believed that the intensive contact helped toimprove the level o communication between the Agency, Her Majestys Prison Service and oreignnational prisoners.

7.2 However, immigration teams were not based in all prisons. Due to logistics and the small number owomen and young oenders in the prison estate, the Agency had allocated teams to specic CategoryC30 adult male prisons only. Other categories o male prisoners and women / young oenders werehoused across a large number o prisons without this level o intensive contact. Te Agency had

processes in place to maintain contact with oreign national prisoners housed in these prisons by,or example, conducting immigration surgeries in there. Despite this, there is a risk that the level oinormation given to oreign national prisoners, and the ability o the Agency to collect inormationrelevant to the decision, may vary depending on the location o prisoner.

7.3 We were interested to nd that despite the concept o each case being managed by a case owner,the level and requency o contact between case owners and oreign national prisoners varied;both in terms o the quantity and quality. Although contact could be made via telephone, there

was no minimum standard or case owners to speak to oreign nationals directly about their cases.In addition, there was no minimum expectation or case owners to visit prisons. Consequently, aoreign national prisoner may never meet or speak to their case owner to discuss inormation that

was required, resolve any outstanding queries or to keep inormed about their case. Some case owners

expressed concerns about engaging more directly with oreign national prisoners.

7.4 While we recognise that contact between the Agency and oreign national prisoners can be initiatedand maintained by immigration teams housed in or visiting prisons, we believe that i a decision in aparticular case would benet rom more direct contact then it should be pursued. I there is evidenceo any security issues then this can be addressed in each individual case.

30 There are four prisoner security categories. These are used to assign adult prisoners to the most relevant prison conditions according

to the severity of their crimes and the risk to the public that they are considered to pose should they escape. Category C prisoners are

classiedasthosewhocannotbetrustedinopenconditionsbutareunlikelytotrytoescape.

7. Inspection Findings:All people should be treated with dignity and

respect and without discrimination exceptwhere the law permits difference of treatment


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7.5 All oreign national prisoners who are serving 12 months imprisonment or more are subject to asentence plan. Tis is case-owned by an oender manager in the National Oender ManagementService (NOMS). Te plans are designed to identiy their needs and to then connect them to relevantprogrammes and services that address and aim to resolve issues specic to their circumstances.Prisoners may have a number o issues (or example, drug addiction, mental health problems,

behavioural or educational needs) that require intervention rom prison-based services and servicesoutside the prison environment.

7.6 Deportation is a signicant part o a oreign national prisoners pathway through the criminal justicesystem. A similar plan to develop a prole o an individual, recognise their immigration issues earlierand to keep them engaged with the process and up to date with case progression may benet both the

Agency and individuals.

7.7 Sta and managers inormed us that the intensive contact management rom immigration teams,particularly those based in prisons, had led to an increase in the number o oreign national prisonersremoved within their Early Removal Scheme period and under the Facilitated Returns Scheme.

7.8 Senior managers said that while the benet o closer contact management had been recognised, therewere insucient resources to enable the Agency to place an expectation on case owners to visitprisons when required, carry out interviews personally and build urther relations with individuals

while deportation is decided. However, no analysis had been carried out that would have allowed theAgency to assess general outcomes, including the:

quality o decision-making;

timeliness o deportation; or

oreign national prisoners level o understanding o the process.

7.9 Tis could have allowed the Agency to determine whether the existing approach was the mostecient and eective way o managing cases. Furthermore, such analyses could highlight whetherthere were any dierences in contact management and the outcomes or oreign national prisonersthat were served by outreach immigration teams.

7.10 It is also important or case owners to understand how the general administration o cases can impacton oreign national prisoners. Our le sample revealed cases where important documents about thecase were served on the prisoner later than they should have been, and in some cases repeatedly,or no apparent reason. Tis could result in oreign national prisoners being unclear about what ishappening to them and when, and as we indicated earlier result in oreign national prisonersbeing detained under immigration powers or longer than necessary. It could also result in appeals

against deportation being lodged in circumstances where a oreign national prisoner did not knowthe ull reasons or the Agencys decision.

7.11 We also ound cases in which oreign national prisoners or their representatives had repeatedlywritten to the Agency to enquire about progress on a case, yet had not received a response. Anexample o such a case can be seen in Case Study 5.


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Case Study 5 Lack of response to correspondence

A oreign national prisoners representative: Wrote to the Agency on:

29 October 2008;

9 December 2008;

13 February 2009;

28 April 2009;

6 May 2009;

20 May 2009.

Wrote a letter o complaint on 22 June 2009.

Te UK Border Agency: did not respond to the six pieces o correspondence that preceded the complaint letter;

responded to the letter o complaint on 4 August 2009, in which the case owner stated, Pleaseaccept my apologies or the lack o response to your letters.

Chie Inspectors comments: It is completely unsatisactory that UKBA ailed to respond to the initial six pieces o

correspondence.

Disappointingly, it would appear that the complaint may have prompted the Agencysresponse.


Analyses whether the requency and nature o contact between case owners and oreign nationalprisoners can improve the quality and timeliness o decisions.


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8.1 Te Agencys les relating to oreign national prisoners contain personal data and, in some cases,sensitive personal data such as the health o an individual or details o claims or asylum. In orderto comply with its obligations under the Data Protection Act, the Agency needs to process suchinormation airly and lawully. In particular it needs to take appropriate technical and organisationalmeasures to prevent unauthorised or unlawul processing o personal data and against accidental lossor destruction o, or damage to, personal data.

Information attached to wrong les

8.2 We ound 11 cases (8 per cent) where the le contained inormation that related to a person orpersons entirely unrelated to the oreign national prisoner with no explanation as to why thisinormation was on the le. An example is set out in Case Study 6.

Case Study 6 Example of data relating to another person held on le

Te oreign national prisoner, Ms G, a Portuguese national, received a sentence o 21months imprisonment or violence against a person.

Te UK Border Agency: attached documents or a Miss K, a Polish national, to Ms Gs le, including Miss

Ks address, payslips, national insurance number, salary details, banking details including her sort code and account number and a tenancy agreement;

also attached documents or a Mr K, a Sri Lankan national, to Ms Gs le. Teseincluded Mr Ks Home Oce reerence number, date o birth and details o hisprevious oences.

Chie Inspectors comments: Tere was no indication o why Miss Ks details were held on le and whether she had

any connection to Ms G.

Mr Ks details were clearly unrelated to Ms Gs case and should not have been held onMs Gs le.

Retention of data

8.3 We noted that the Agency had evaluated a project that captured data about oreign nationals heldin prison on remand. Te Agency told us that in cases where a person had gone on to be ound notguilty, and it had decided that urther immigration action was not appropriate, papers relating to thecharge were destroyed.


Personal data should be treated and stored

securely in accordance with the relevantlegislation and regulations


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8.4 However, we ound that although the entry reerring to the persons charge on the Agencys CaseworkInormation Database (CID) was closed, it was not deleted. As such, there is a risk that personal datacould be held or longer than is required in contravention o the data protection principles.

File management

8.5 Te standard o le maintenance varied. Some o the les sampled had clear minutes and werearranged in a logical order, while others lacked minutes setting out what action had been taken. Tismeant it was dicult to establish quickly what action had been taken or why. Sta inormed us thatpractices varied with some teams:

recording inormation only on the Agencys Casework Inormation Database (CID);

recording inormation only on the le; or

recording inormation on both CID and the le.

8.6 Tis is not ecient and means it is dicult to establish a clear audit trail in all cases. We made asimilar nding in our inspection o asylum31, published in February 2010.

8.7 Files also contained signicant amounts o duplicated documents, which made it more dicult andtime-consuming to navigate through the le. A recent exercise to cleanse les by removing duplicateand unnecessary documents had been carried out by one oce and had signicantly reduced the sizeo les. Tis made it easier to identiy what had happened in each case and potentially cheaper tostore. We did not examine this exercise in any detail, but there is potential or the Agency to do muchmore o this to reduce costs and establish a clearer audit trail or individual cases.


Ensures that les contain data relevant only to the subject o that le, and ensures the timelydestruction o data where a person has been acquitted o an oence.

31Asylum:Gettingthebalanceright?AThematicInspection.http://icinspector.independent.gov.uk/wp-content/uploads/2010/03/

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Number of complaints made by foreign national prisoners

9.1 Between February 2010 and January 2011, the Agency received 144 complaints rom oreignnational prisoners, 13 relating to misconduct and 131 relating to service. None o the misconductcomplaints were substantiated but 31 o the service complaints had been. A breakdown o thesubstantiated service complaints as categorised by the Agency can be seen below:

Figure 7: Substantiated service complaints, Feb 2010 Jan 2011

Reason for Complaint Number Substantiated

Delay 10

Poor communication 10

Administrative process 4

Wrong inormation 3

Lost documents 2

Complaint handling 2

Total 31

Identication of complaints

9.2 Te Agency has clear guidance setting out its denition o a complaint as: any expression odissatisaction about the services provided by or or the UK Border Agency and / or about theproessional conduct o UK Border Agency sta, including contractors. However, and as wealso identied in our thematic inspection o complaints handling, there was an inconsistentunderstanding by sta o what constituted a complaint. As a result, we believe that there is thepotential that cases alling within the Agencys own denition o complaint may not be identied,considered or responded to in accordance with the Agencys processes or handling complaints.

Use of information obtained from complaints

9.3 Te Agency did monitor complaints received rom oreign national prisoners, and managersconrmed in interviews that eedback on the type o complaints and whether they had beensubstantiated were provided at senior management team meetings.

9.4 A number o examples were provided to demonstrate changes in operational practice arising romcomplaints. Tese included resolution o a backlog that had developed where oreign nationalprisoners had applied or revocation o a deportation order, and additional training where acomplaint highlighted a lack o knowledge amongst caseworkers regarding Multi-Agency PublicProtection Arrangements.

9. Inspection Findings:Complaints procedures should be in

accordance with the recognised principles ofcomplaints handling


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10.1 Te Agency routinely monitored the number o oreign national prisoners deported, the numberdetained ollowing completion o their sentence and the length o time they were detained. It alsotook orward detailed work to orecast the likely numbers, both held in detention and living in thecommunity, by June 2014, along with the associated costs. Risks were monitored at senior Boardlevel.

10.2 As with other public services, the Agency is required to implement savings as part o the governmentscommitment to reduce public expenditure. Te overall number o case owners in the Agency will

reduce rom 1,350 to 54032 to help meet this commitment. While the overall number o peoplemanaging oreign national prisoner casework will remain the same, there may be a short-term impactas caseworkers rom other parts o the Agency are redeployed to the Criminal Casework Directorateand trained in deportation work. Tis may lead to slower processing o cases in the short-term with aconsequential short-term drop in the number o people deported and, potentially, an increase in thelength o time that people are detained.

10.3 o mitigate these risks, senior managers inormed us that the Agency had developed plans to usesurplus sta rom other caseworking areas, thereby temporarily increasing the number o case owners

working in the Criminal Casework Directorate. Plans were also in place to train new sta and tomonitor the risks arising rom this restructure. Although they were condent that this would ensure

that the number o oreign national prisoners removed by the end o the nancial year would nothave been aected, senior managers did acknowledge that it could take longer to remove oreignnational prisoners than it would have previously.


The implementation of policies should be

continuously monitored and evaluated toassess the impact on service users and

associated costs

Riskstotheefciencyandeffectivenessof

theAgencyshouldbeidentied,monitored

and mitigated


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The criteria for this inspection were:

Decisions on the entry, stay and removal o people should be taken in accordance with the law andthe principles o good administration.

Complaints procedures should be in accordance with the recognised principles o complaintshandling.

All people should be treated with dignity and respect and without discrimination in accordance with

the law. Decisions to detain people must be lawul.

Functions should be carried out having regard to the need to saeguard and promote the welare ochildren.

Personal data should be treated and stored securely in accordance with the relevant legislation andregulations.

Te implementation o policies should be continuously monitored and evaluated to assess the impacton service users and associated costs.

Risks to the eciency and eectiveness o the UK Border Agency should be identied, monitoredand mitigated.

Appendix 1:

Inspection Criteria


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Term Description

A

Absconder A term used by the Agency to describe a person who the Agency has lostcontact with, who has breached reporting restrictions or bail conditions and/or who they are unable to make contact with via their last known address.

AdministrativeRemoval

Te process by which oreign nationals with no entitlement to remain in theUK are removed.

Agency Reers to the UK Border Agency.

Article 3 (EuropeanConvention oHuman Rights)

A person may claim that their removal or deportation would breach Article3, where it would place them at risk o torture or to inhuman or degradingtreatment or punishment.

Article 8 (EuropeanConvention oHuman Rights)

A person may claim that their removal or deportation would breach Article 8where it would interere with their amily and private lie.

Automatic

deportation

Te UK Borders Act 2007 introduced a legal obligation on the Secretary o

State to make a Deportation Order against some oreign national prisoners.B

Border andImmigration

Agency (BIA)

Te name o the agency responsible or immigration unctions prior tocreation o the UK Border Agency.

C

Case owner Te UK Border Agency term or an ocial responsible or processing cases ooreign national prisoners. A case owners role includes considering whether aperson should be deported or granted leave to remain in the UK.

Complaint Dened by the UK Border Agency as any expression o dissatisaction about

the services provided by or or the UK Border Agency and/or about theproessional conduct o UK Border Agency sta, including contractors.

Criminal CaseworkDirectorate (CCD)

UK Border Agency directorate responsible or managing cases involvingoreign national prisoners. CCD considers whether a person should bedeported rom the UK, having committed a criminal oence.

D

Data Protection Act1998

Te Data Protection Act requires anyone who handles personal inormation tocomply with a number o important principles. It also gives individuals rightsover their personal inormation.

Deportation Te process used to remove some oreign national prisoners who have

committed criminal oences in the UK. People who are deported can onlyapply to return to the UK ater they have successully applied to have theDeportation Order revoked.

Appendix 2:

Glossary


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Deportation Order An ocial document, signed by the Chie Executive o the UK Border Agency.It requires the person to leave the UK. It also prohibits them rom re-enteringthe UK while it remains in orce.

Director A senior UK Border Agency manager, typically responsible or a directorate,

region or operational business area.E

Early RemovalScheme

A scheme that allows oreign national prisoners to be deported beore theyhave completed their custodial sentence in the UK.

Emergency ravelDocument

A document to allow people who do not have a passport, to travel to theircountry. EDs are issued by a persons Embassy or High Commission.

EnorcementInstructions andGuidance (EIG)

Guidance and inormation or ocers dealing with enorcement oimmigration matters within the United Kingdom.

European

Convention oHuman Rights

A Convention to protect human rights and undamental reedoms.

EuropeanEconomic Area(EEA)

Te European Economic Area (EEA) was established on 1 January 1994ollowing an agreement between the member states o the European Free rade

Association (EFA) and the European Community, later the European Union(EU).

All European Economic Area (EEA) nationals enjoy ree movement rightsin the EEA. Tis means that they are not subject to the Immigration Rulesand may come to the United Kingdom and reside here in accordance withthe 2006 Regulations. Tey do not require permission rom the UK Border

Agency to enter or remain, nor do they require a document conrming theirree movement status.

F

Facilitated ReturnsScheme (FRS)

A scheme run by the UK Border Agency intended to encourage oreignnational prisoners to return to their country o origin.

H

Human Rights Act Legislation, which took eect on 2 October 2000, which meant that the UKsdomestic courts could consider the European Convention o Human Rights.

I

Independent ChieInspector o theUK Border Agency

Te role o the Independent Chie Inspector o the UK Border Agencywas established by the UK Borders Act 2007 to examine the eciency andeectiveness o the UK Border Agency. Te Chie Inspector is independent othe UK Border Agency and reports directly to the Home Secretary.

S

Screening Interview Te process o establishing initial inormation rom an asylum seeker insupport o his or her claim. Te interview is conducted by UK Border Agencysta at asylum screening units in Croydon and Liverpool. Applicants are thenissued with an application registration card as identication while their claim isbeing considered.


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We are grateul to the UK Border Agency or its cooperation throughout the inspection, and or theassistance provided in helping to arrange and schedule inspection activity in Croydon, Leeds andLiverpool.

We are particularly grateul to all sta who participated in interviews and ocus groups.

Assistant Chie Inspector: Mark Voce

Lead Inspector: Gareth Elks

Inspection Ocers: Sally AllbeuryDenise HothamChris Tompson

Inspection Support: Alex Marinkovic

Appendix 3:

Acknowledgements


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