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The work of the UK Border Agency (November 2010-March 2011)

Date of Publication: 
2 June 2011
Summary: 

The text of the Home Affairs Committee report on The Work of the UK Border Agency. Media report that the Committee found an "amnesty" has been quietly granted to more than 160,000 asylum seekers over the past five years.

[EIN note: The full report is available at http://www.publications.parliament.uk/pa/cm201012/cmsel....pdf]

© Parliamentary copyright 2011

House of Commons
Home Affairs Committee

The work of the UK Border Agency
(November 2010–March 2011)

Ninth Report of Session 2010–12

Volume I: Report, together with formal
minutes, oral and written evidence

Ordered by the House of Commons
to be printed 24 May 2011

HC 929
Published on 2 June 2011
by authority of the House of Commons
London: The Stationery Office Limited
£11.00

[…]

Background
Asylum cases
UK Border Agency's legacy cases
New asylum cases
Immigration
Immigration statistics
Enforcement of Points-based system: Tier 2 (skilled employees)
Enforcement of Points-Based System: Tier 4 (students)
Family reunions
Child detention
Immigration Tribunals
E-Borders
Asylum and immigration contracts
Remuneration of Home Office and UK Border Agency officials
Correspondence with Members of Parliament
[…]

Background

1. This is the second in a series of reports which we intend to make into various aspects of the work of the UK Border Agency, based on the regular updates we receive from the Agency in the form of letters and subsequent evidence sessions. [1] The Home Affairs Committee has received such updates since 2006, and in the past these have focused on issues such as the deportation of foreign national prisoners and the historic backlog in asylum cases. A number of these issues are now nearing completion, and we take the opportunity in this report of flagging up other areas of interest on which we expect the Agency to keep us informed in its regular letters. In light of the fact that a number of the new areas of interest are likely to be long-term concerns and not matters that can be resolved swiftly, we have decided to request that the frequency of the updates be reduced from quarterly to three times a year, to enable—we hope—more substantive progress to be reported. We would like the updates to be provided by the Agency early in November, March and July each year.

2. We publish with this report the latest quarterly letter (dated 2 March 2011) and oral evidence from the Acting Chief Executive of the UK Border Agency, Mr Jonathan Sedgwick, the oral evidence from the Independent Chief Inspector of the UK Border Agency, Mr John Vine, a further letter from Mr Sedgwick (dated 1 March 2011) about the restructuring of the Agency and a supplementary letter (dated 9 May 2011) sent by Mr Sedgwick after the evidence session with him.

Asylum cases

UK BORDER AGENCY'S LEGACY CASES

3. During the late 1990s and early 2000s the Home Office built up a backlog of between 400,000 and 450,000 unresolved asylum cases. The UK Border Agency's target for clearing this backlog is the summer of 2011, and it has made huge efforts to meet this deadline, including employing contract staff to perform basic administrative tasks in relation to the applications, thus freeing the Agency's own caseworkers to concentrate on the substance of decision-making. It seems likely that the UK Border Agency will be able effectively to meet that target, although there are likely to be a few cases still open in July because the applicants are awaiting removal, are awaiting prosecution or are engaged in litigation to try to remain in the UK. [2] As reported on 2 March 2011, the situation with the backlog was as follows:

 

Total number concluded

Removals

38,000 (9%)

Grants

161,000 (40%)

Others*

205,500 (51%)

Total

403,500

Conclusions by main applicant and dependents (rounded to nearest 500.)

This compares with the situation as of 1 November 2010 (the date of the previous update letter from the Agency): [3]

 

Total number concluded

Removals

35,000 (11%)

Grants

139,000 (42%)

Others*

160,500 (48%)

Total

334,500

Conclusions by main applicant and dependents (rounded to nearest 500.)

However, the target seems to have been achieved largely through increasing resort to grants of permission to stay (during the course of the legacy operation, Ministers approved revised guidance allowing caseworkers to consider granting permission to stay to applicants who had been in the UK for 6-8 years, rather than the 10-12 years that applied at the start of the backlog-clearing process) [4] or the parking of cases in a controlled archive, signifying that the applicant cannot be found and the Agency has no idea whether or not the applicant remains in the UK, legally or otherwise. [5] Cases are checked against watchlists for a period of six months before they are filed as 'concluded' in the controlled archive.

4. As we noted in our Fourth Report, a large number of cases—we estimated at least 61,000—had reached or would shortly reach the six months deadline and would be reported as having been concluded. This calculation was based on the fact that 18,000 cases were already classified as concluded in the controlled archive while another 43,000 were still in the six month waiting period. [6] Our estimate now appears to have been conservative: Mr Sedgwick has told us that 40,500 cases have already been so concluded, and up to 34,000 others are waiting for the six months to elapse. [7] Assuming that most of the 34,000 cases will eventually be placed in the controlled archive, in about 74,500 of the 400-450,000 cases—approximately one in six—the UK Border Agency has been completely unable to trace what has happened to the applicant. We consider this indefensible. Moreover, public confidence in immigration controls is severely undermined by such situations. A robust immigration system requires those administering it to have an appropriate system in place that will mean applicants are not lost or untraceable.

5. It appears likely that the programme to clear the historic backlog of asylum cases will in essence be completed within five years, as originally intended. However, this will have been achieved as the result of a major redeployment of permanent staff and after the incurring of significant extra expenditure on temporary staff. When the UK Border Agency produces its next letter for us, which should be the final report on this legacy, we expect the Agency to have made an estimate of the total cost of this programme. Moreover, fewer than one in ten of the cases will have resulted in the removal of the applicant from the UK. To a certain extent, this is not surprising: some of the cases date back nearly 20 years, and the longer a case is left uncompleted, the more likely it is that the applicant will have married or had children born in the UK, leading to a greater probability that settlement will be allowed for family reasons. We understand that Ministers would have been unwilling to announce an amnesty for the applicants caught up in this backlog, not least because this might be interpreted as meaning that the UK was prepared more generally to relax its approach towards migration; but we consider that in practice an amnesty has taken place, at considerable cost to the taxpayer.

NEW ASYLUM CASES

6. The Economist reported in June 2009 that another backlog of asylum cases was forming: "the backlog of new cases (excluding the old 'legacy' lump) more than doubled in 12 months, to nearly 9,000 by last summer (2008)". [8] More recent media reports cite the figure of 25,345 new asylum cases submitted since 2008 which are awaiting conclusion. [9] On the other hand, the quarterly digest of immigration statistics published by the Home Office shows that, as of December 2010, 11,625 of the asylum cases submitted since April 2006 were still pending, 5,980 of which were awaiting an initial decision and 3,415 of these were more than six months old. [10] The Independent Chief Inspector of the UK Border Agency confirmed to us that there was a new backlog, the size of which was not clear. He suggested we should ask the new head of the Agency, once appointed, for firm information about the size of the backlog. [11] We shall, and we expect a full breakdown of these figures in the next tri-annual letter.

7. In February 2010 the Independent Chief Inspector of the UK Border Agency was of the view that the Agency would not, and could not, meet the target for completing 90% of asylum cases within six months, the deadline for which was December 2011. [12] We concluded in our last report that there was a real danger that cases that could not be completed within six months would accumulate and form a new backlog as officials struggling to meet the target abandoned these for the new cases constantly coming in. [13] The Government's response to our report states that the 90% target is being abandoned in favour of measurement against a basket of indicators, comprising:

• Intake

• Decisions taken within 30 days

• Quality of decision

• Grant rate

• Percentage of decisions overturned at appeal

• Conclusions at six, 12, 18 and 36 months

• Cases removed by 12 months

• Number and age profile of the outstanding caseload

• Asylum support costs

• Productivity (conclusion per caseowner FTE) and

• Unit cost. [14]

8. As we pointed out in our last report on the Agency, the main aim of its managers should be to improve the quality of initial decision-making as this would avoid the substantial delays, financial costs and human suffering that occur now. [15] We welcome the move away from a single target for asylum caseworkers, as this carries the risk of distorting priorities. However, a 'basket' of eleven indicators may lead to excessive bureaucracy and reporting requirements and/or a degree of confusion amongst staff as to how they are supposed to determine priorities. However output is measured and accounted for, the key is quality control by those managing the caseworkers on a day-to-day basis. In a number of his reports the Independent Chief Inspector of the UK Border Agency has praised the hard work and dedication of caseworker staff, but has noted inconsistency in the quality of decision-making and administration between different offices. Ultimately, whether or not the 'basket' approach succeeds will depend on better training for line managers, in particular improving their awareness of best practice, and then trusting them to exercise their discretion appropriately.

9. We note that the UK Border Agency intends to publish information about every stage of the asylum process, from the number submitting applications for asylum through the speed and quality (as measured by robustness) of initial decisions to the outcome of appeals and tribunals. [16] We look forward to receiving this information and we intend to keep the issues relating to the processing of asylum claims under review.

Immigration

IMMIGRATION STATISTICS

10. The Government is using a modified Points-Based System in order to control migration from outside the European Economic Area to the UK. It has set as its aim the reduction of net annual immigration to the 'tens of thousands'. We have undertaken several inquiries into aspects of the Points-Based System, starting with Tiers 1 (highly skilled migrants)and 2 (skilled employees) in the autumn of 2010 and Tier 4 (student visas) earlier this year. [17] In both reports, we noted that it was not clear whether the modifications proposed by the Government would reduce net immigration to the tens of thousands. The latest annual figure published is net immigration of 242,000 in the year to September 2010 (this and the 226,000 figure to June 2010 are provisional at present). These figures include UK citizens and those from within the EEA as well as non-EEA citizens. [18] Since we published our reports, the Home Secretary has stated her confidence that the changes in relation to Tier 4, though not a cap on student numbers, will have the effect of reducing the number of students by 70,000 to 80,000 pa. [19] Given that this reduction in student numbers is central to the Government's immigration policy, we will monitor progress in achieving it and the overall net immigration figure. At present it is unclear how the reduction will be made.

11. We have already reported our view that it is a mistake to include students as 'migrants' unless or until the student makes an application or demonstrates the intention to wish to settle. [20] The official reason for including students in migration numbers is that this is the way that numbers are measured by the United Nations. We understand this reasoning, but regard it as flawed. The Government has indicated an intention to reduce migration numbers to tens of thousands rather than hundreds of thousands, and it is clear that their target in terms of that commitment relates to settlement rather than those who come to the UK to study and have every intention of leaving after the completion of their studies. Including student visas in the measurement places undue political pressure on the Government and its agencies, risks having a consequent and damaging impact on colleges, universities and local economies and is not part of a fair assessment of the Government's success or otherwise in meeting its stated intentions. The same applies to genuine cases in which people come to the UK to contribute to the work of specific companies, with no intention of permanent settlement. It is our contention that the government success in reducing migration numbers should be measured net of the figures of the genuine student and expert employment that are properly granted. Clarifying these issues will be helpful to Parliament in holding the Government to account, will be helpful to the Agency in improving its reporting systems and would be fairer to Government than a slavish adherence to the UN definition for the purposes of accounting. It is of course the case that the UN definition will have to be used in providing returns for the UN's own purposes of international comparison of migration flows.

ENFORCEMENT OF POINTS-BASED SYSTEM: TIER 2 (SKILLED EMPLOYEES)

12. In his February 2011 report on implementation of Tier 2 of the Points-Based System, the Independent Chief Inspector of the UK Border Agency was very critical of the standard of decision-making on applications and the capacity of the Agency to ensure that neither sponsors nor visa-holders breached the terms of the visa. [21] In particular he noted:

• inconsistent approaches to the decision making process on Tier 2 cases which meant that some applications were refused because of minor omissions of evidence or information whereas others were given additional time to supply the missing information;

• applicants were having to make and pay for subsequent applications because of minor omissions which could have been addressed with minimal effort by the Agency;

• as a result of subsequent applications, the Agency was having to use additional resources to make further assessments and decisions;

• there was no evidence of a systematic approach to ensure that post-licensing visits were carried out on sponsors retrospectively; and

• the Agency did not routinely take the required action to curtail Tier 2 migrants' leave to remain in the UK when they had stopped working for their sponsor.

However, this was less a criticism of the staff, whom he found to be professional, enthusiastic and committed, than of inadequate guidance, quality control and management, and—in relation to inspecting employers and taking action against migrants who had breached their visas or overstayed—grossly inadequate resources.

13. As already highlighted in this report, the Chief Inspector's findings on inconsistency in decision-making and managerial failings are not unique to this area of the Agency's business. We wish to focus here on the issue of enforcement, comprising the elements of ensuring that sponsors are not abusing the system and that individuals with no right to remain in the UK are removed. The Chief Inspector reported that, while database checks had been made on all sponsors:

as a result of around 6,000 sponsor applications being received only a few weeks prior to the Agency's 'go-live' date in November 2008, a significant number of sponsors were placed on the register without adequate checks being made on them first. For example pre-licensing visits had not been carried out in all cases that warranted them. When we asked for confirmation as to how many cases fell into this category, the UK Border Agency were unable to provide this as this information was not collected.

The Chief Inspector was told that the Agency planned to carry out post-licensing visits on those sponsors when resources allowed, and that it intended to prioritise visits to those sponsors considered to pose more of a risk than others. In practice, the main priority was to provide assurance on Tier 4 sponsors (educational institutions sponsoring students) as these were perceived to pose a much higher risk than Tier 2 sponsors, although no one had tested this assumption. We find it unacceptable that the Agency can operate on untested assumptions in this way. Moreover, there were too few Visiting Officers to carry out inspections, particularly in the Midlands and London which held high concentrations of sponsors, with the result that in some places there was a wait of about four to six weeks for a visit to be carried out. The Chief Inspector reported concerns about variations in the quality of Visiting Officers in relation to the standards of their reports, their training and professional standards, and a particular concern about a lack of clarity around the role of Visiting Officer: "Visiting Officers have both a customer service function where they assist sponsors, and an enforcement and compliance role. These are two completely different functions which are not necessarily complementary." [22] The Chief Inspector said that staff, managers and even some sponsors considered that these shortcomings undermined the rigour of the Points-Based System as a system of migration control. [23]

14. We asked Mr Sedgwick about the lack of checks on sponsors, and he replied:

We don't accept that people have been put on the register without proper checks being made. All Tier 4 sponsors receive a visit before they go on to the register. In relation to Tier 2 and Tier 5 sponsors, we take a number of factors into account: how well we know the company, its sector, its age, its size, and we take a decision about whether on a risk basis we need to visit that company or not. No one is put on the sponsor register without us being confident and sure that they are a fit and proper company to be a sponsor. [24]

The Chief Inspector, however, said he believed that the Agency should completely review the database of sponsors, carry out any necessary checks and ensure that the system was kept up-to-date as sponsors changed and as more information about existing sponsors became available. He acknowledged this would not be easy with the current pressures on resources, but he thought it would be achievable if the Agency 'worked smarter'. [25] We recommend that this is done.

15. Sponsors have a responsibility to inform the UK Border Agency if a sponsored migrant ceases working for them. If someone holding a Tier 2 visa reaches the end of their contract or leaves their job while there is still more than six months before their leave to remain in the UK expires, the leave to remain should be curtailed to 60 days, during which they are expected to leave the United Kingdom: if they do not leave, they remain in the country illegally. The Chief Inspector reported:

We were concerned to find that the UK Border Agency does not routinely take action to curtail the leave to remain of migrants who stop working. When we were onsite, we were unable to ascertain from the Agency how many migrants had been reported as having ceased working and should have their leave curtailed. The Agency subsequently provided us with figures taken from their systems on 22 December 2010 which were as follows:

150 Tier 2 cases identified as requiring curtailment action were outstanding; and

Approximately 3000 sponsor notifications were outstanding, an unquantified proportion of which would require curtailment action. [26]

The report added: "We were consistently told by managers and staff that the Agency does not have sufficient resources to take the required curtailment action." [27] The Chief Inspector was told that the system would be automated under the changes to be made to the Agency's IT systems in the summer of 2011. [28]

16. Again, inspections by the Chief Inspector have demonstrated that failures to act upon intelligence of possible illegality are not confined to the area of enforcement of Tier 2 visas. A recent inquiry into preventing and detecting customs and immigration offences revealed that the Agency receives more than 100,000 allegations a year from members of the public, many of which relate to suspected illegal entry into or continued residence in the UK. However, the Agency could not provide the Chief Inspector with information about the proportion of allegations that had led to enforcement action, let alone the number that had led to the prevention or detection of crime. [29] The Chief Inspector told us that in general the Agency needed to focus far more on outcomes rather than processes. He also was of the view that, although co-operation between and co-ordination with the police in the form of the Serious Organised Crime Agency was improving, the UK Border Agency needed to improve its relationships with sponsors such as colleges and with its own caseworkers. [30]

17. The Points-Based System can function effectively only if there is confidence that sponsors will not abuse the system and that anyone who no longer qualifies for leave to remain is compelled to leave the UK. While Mr Sedgwick affirmed the Agency's belief in the integrity of all sponsors, we note that even among the more rigorously inspected Tier 4 sponsors, bogus institutions and failures in control continue to be discovered. The lighter inspection regime for Tier 2 sponsors may be justified, but, given that the Agency does not even know how many sponsors were not visited before registration and given the backlog of post-registration visits, we cannot share Mr Sedgwick's confidence in the robustness of the system.

18. We are also concerned about the lack of effective action to ensure the removal of those who no longer have a right to remain in the UK. Media discussion of illegal immigrants often concentrates on those who enter the UK illegally—those smuggled in or who enter the UK clandestinely—but those who work with such migrants consider it possible if not probable that most illegal immigrants entered the country legally but then overstayed or broke the terms of their visas. In this context, we note the recent work of the National Audit Office indicating that anything up to 181,000 people could have overstayed their visas (work, student or family reunion) in the last four years—though, given the lack of checks leaving the UK, this is at best a rough estimate. [31] We do not underestimate the difficulty of tracking down those who wish to remain in this country illegally, but with some Tier 2 migrants the Agency has the advantage of being alerted by the sponsor to the change in the migrant's status. Of course, even if the Agency does move to curtail leave to remain, it often takes no direct action to ensure that the migrant leaves the UK; however, presumably none of the methods used to deter illegal migrants—checks on employers, scrutiny of the benefits and NHS databases—are engaged until the Agency records the fact that the Tier 2 permission has expired, and the longer the delay in initiating these checks, the more likely it is that those wishing to stay illegally can 'disappear'.

19. We are also very concerned about the Chief Inspector's findings that the Agency is inconsistent in the way it handles allegations from members of the public of illegal entry or overstaying and—in particular—about the confusion he found among the Agency's own caseworkers about when and how to report suspicions about applicants to the Agency's intelligence units. [32] The concerns of the public and information given by them needs to be acted upon speedily and those who report these matters should be kept informed of what happens to this information.

20. In the Agency's next update letter, we would like to be informed what action has been taken to close these gaps in the system of immigration controls.

ENFORCEMENT OF POINTS-BASED SYSTEM: TIER 4 (STUDENTS)

Student visas

21. In March 2011 the Government announced a number of changes to Tier 4 (Students) and Tier 1 (Post Study Work) of the Points-Based System. The first round of implementation came into effect on 21 April 2011. Further changes will take effect in summer 2011, in April 2012 and by the end of 2012. [33] We intend to monitor the situation in order to scrutinise the effect of these changes. However, because the changes are both complex and being implemented over a period of time, we will need a range of information in order to analyse the results effectively.

22. We expect the UK Border Agency to provide the following information in its tri-annual letter:

how many applications for Tier 4 (General) visas have been granted in that period;

how many applications for Tier 4 (General) visas have been refused and the reasons for these refusals in that period;

how many applications for Tier 4 (Student Visitor) visas have been granted in that period;

how many applications for Tier 4 (Student Visitor) visas have been refused and the reasons for these refusals in that period;

how many applications for Tier 4 visas have been refused on the basis of fraudulent evidence at UK-based processing centres in that period;

how many applications for Tier 4 visas have been refused on the basis of fraudulent evidence at overseas processing centres in that period;

a graph showing processing times for Tier 4 visas, differentiating between UK-based and overseas processing posts in that period;

a graph showing the number of Tier 4 sponsors who are highly trusted sponsors, A rated sponsors and B rated sponsors;

the number of first time visits to Tier 4 sponsors in that period;

the number of follow up visits to Tier 4 sponsors in that period;

the number of 'gifted student' exemptions from language requirements a) applied for and b) granted in that period;

the number of Post Study Work visas a) applied for and b) granted in that period;

the number of Student Entrepreneur visas a) applied for and b) granted in that period, and

the number of students required to leave and/or deported for breaking the terms of their visas in that period.

Bogus Colleges

23. During the evidence session on 5 April, Mr Sedgwick emphasised that all "Tier 4 sponsors receive a visit before they go on to the register", adding "every new case goes on the register and we have visited every existing case. Of course, it may be possible that not every visit results in the identification of problems in a particular college but, as you know, we currently have very substantial numbers." He said: "We have been increasing the productivity of our visit staff. We have been collecting more and better information about this." [34] At the time of the evidence session 70 out of a total of 2,372 colleges were suspended.

24. In order to scrutinise the Agency's management of the sponsor lists, we expect the UK Border Agency to provide the following information in its tri-annual letter:

how many bogus colleges have been closed in that period;

how many bogus colleges have been removed from the register in that period;

how many other sponsors have had their licences revoked in that period;

how many sponsors have had their licences suspended in that period;

how many sponsors have been fined for misuse of their licence in that period;

how many sponsors have been prosecuted for misuse of their licence in that period;

what other sanctions have been used against sponsors who misused their licence in that period, and

a list of the colleges suspended in that period, indicating which remain suspended, which have been reinstated and which have been permanently removed from the register.

FAMILY REUNIONS

25. We note the Government's confirmation that it intends to make proposals in relation to the family reunion immigration route later this year. In the meantime, a variety of developments are taking place in relation to marriages involving a partner from outside the EEA. As our most recent report shows, [35] we continue to be concerned about the incidence of forced marriages: we intend to keep this issue under review. We are also concerned that the number of sham marriages contracted solely for immigration purposes may increase as a result of the withdrawal of the Home Office's certificate of approval scheme following a judicial ruling that it was incompatible with Human Rights law. We wish to be informed what impact the Government expects the withdrawal of the certificate of approval scheme to have, and what other measures, if any, the Government intends to take to deter sham marriages.

Child detention

26. In our last report on the Agency, we noted the Government's announcement that the detention of children for immigration purposes was to end as of 11 May 2011, [36] and that the Yarl's Wood family unit had now closed. We added: "We hope not to have to return to this issue in the future." [37] Unfortunately, the situation has proved less clear-cut in practice, with, amongst other things, questions about the use of alternative accommodation for families awaiting removal from the UK. The next update letter from the Agency should contain an account of how many children have been detained for immigration purposes, for how long, where and in what circumstances since the 11 May deadline.

Immigration Tribunals

27. In recent years the UK Border Agency has been frequently criticised for perceived failings in relation to asylum and immigration cases appealed to immigration tribunals. This criticism takes two forms: that the Agency often is not even represented at tribunal hearings, and that too many Agency decisions are overturned on appeal. The Chief Inspector recently stated:

Staff and managers highlighted that the UK Border Agency was not able to provide Presenting Officers for every appeal due to limited resources. PBS [Points-Based System] cases were regarded by the Agency as generally a lower priority than cases of foreign national prisoners or asylum cases. This was clearly a source of some frustration but managers told us that they were working with the regional Presenting Officers' Units to try to improve the situation and to be clear on the types of cases when it was vital to have representation. The lack of a clear approach to providing representation at appeal was also highlighted in our inspection of Asylum in 2009. This is an issue we expect the Agency to resolve. [38]

Mr Sedgwick told us that the Agency is represented at 83% of tribunal hearings, [39] adding that some of the remaining hearings are low-risk as the Agency knows that the appellant is not going to attend and the judge will be able, on the basis of the evidence before him or her, to "come to a proper decision." [40] However, in our oral evidence session it was not clear whether such decisions based on written representations were counted among the 17% of 'non-appearances'. [41] Mr Sedgwick has subsequently confirmed that, where the Agency has received notice that the case is to be decided on the basis of written representations only, these are not counted as 'non-appearances'. [42] As far as losing cases is concerned, the quarterly immigration statistics for September-December 2010 show that about 27% of asylum appeals were allowed (ie the Agency lost the case), 67% were dismissed and 6% were withdrawn. [43] Overall, including immigration appeals also, in the same three months, 39% were allowed (14,800 cases), 42% dismissed (15,700) and 19% withdrawn (7,300). [44]

28. We sought more detailed information about the reasons why cases were lost or the Agency was not represented. Mr Sedgwick told us that the Agency does not routinely record either the reason for non-attendance at an appeal by a presenting officer or the reason why an appeal was allowed. However, he said, sampling had shown that for some types of case (especially in-country Points Based System and entry clearance appeals) the most commonly cited reason for an appeal being allowed was that new evidence had been produced which had not been available at the time of the original decision. As for non-appearances by presenting officers, Mr Sedgwick said:

We may take pragmatic decisions not to attend in some cases, instead relying on written submissions to the court where a case is strong or the appellant has indicated they will not be in attendance, thus preventing cross examination, or where the witnesses' credibility is not in question. [45]

The Chief Inspector told us that when the New Asylum Model system was first introduced, it was intended that there would be no presenting officers but that the relevant caseworker would represent the Agency at any appeal. This had been found impractical as it took up too much of the time of caseworkers, hindering their core work of making initial decisions. [46]

29. It appears that the Agency is more likely to lose immigration than asylum appeals. The Agency indicates that this is largely owing to immigration applicants failing to provide information, but it is not clear whether the applicants do so deliberately (in the hope that by slowing down the process they may increase the chance of being allowed to remain in the UK) or because they were given insufficient or inaccurate information about what was required when they first applied.

30. We note the actions the Agency is taking to improve both the quality of decision-making and the efficiency and effectiveness of its response to the appeals process. [47] However, it is unacceptable for applicants to arrive at a tribunal having waited years for a decision only to find the Home Office is not represented. We believe this undermines the credibility of the appeals system. If the Agency does not intend to defend its decision it should inform the other party in order to save court time and taxpayers' money, and to ensure there is a fair, proper and compassionate process.

31. Media reports have referred to the Government considering abolishing the right of appeal for those refused entry clearance to visit family members. [48] We trust there is no such intention, and it would not be appropriate for the authorities to be judge and jury when refusals occur, and the matter is pursued by solicitors or MPs making representations on behalf of the sponsors. It is far better to retain the present appeal system, be rigorous in deciding on applications and, moreover, have in place an effective control system to deal promptly, and we emphasise promptly, with anyone who stays any time at all beyond the authorisation given.

E-Borders

32. The e-Borders programme provides for electronic collection and analysis of information on all passengers entering or leaving the UK from carriers (including airlines, ferries and rail companies). On its website in June 2009, the UK Border Agency claimed to be "working closely with the travel industries, whose support is crucial to the programme's success." This was not the finding of our predecessor Committee, which noted a number of significant practical problems—in IT, in logistics and financial—faced by transport operators in adhering to the requirements laid down by the Agency and its contractor, Raytheon. [49] Neither the Agency nor Raytheon appeared to be addressing the industry's concerns.

33. When our predecessor Committee began to inquire into the programme in the summer of 2009, the timetable for implementing the e-Borders programme was:

• 2009: the e-Borders operations centre, the National Border Targeting Centre (NBTC) starts operating;

• December 2009: e-Borders aims to collect details of 60% of all international passengers and crews from a range of carriers and to check that 60% against lists of people who are of interest to authorities;

• December 2010: e-Borders aims to collect details of 95% of passengers and crews;

• April 2011: UK Border Agency starts to "activate modernised entry methods" at UK ports;

• July 2012: improvements including an ability to give clearance to passengers who are already on a train;

• March 2014: e-Borders is fully operational, covering all international travellers using all UK ports, including matching passengers' arrivals to their departures.

As of April 2011, the e-borders system was collecting details of about 55% of passengers and crew on airlines, although this rose to 90% of passengers and crew for journeys outside the EU. [50] There was no coverage of ferries or trains. All deadlines other than the first were missed.

34. After our predecessor Committee's highly critical report on the programme, it was announced that the Home Office had suspended and then—in July 2010—dismissed the contractor. The Home Office became involved in litigation with Raytheon, leading (by the time Mr Sedgwick appeared before us) to a process of binding arbitration. During the period of the contract, Raytheon had been paid £188 million. [51] The Home Office began the process of moving support for the programme to two new contractors: in November 2010, IBM took over the running of the basic database; and in April 2011 Serco took over provision of the Carrier Gateway (the interface between carriers and the Agency) and the National Border Targeting Centre (which provides the checking of passenger names and other details against watchlists). These were existing services: the Home Office had yet to move onto the question of who was to provide new services, such as those needed in relation to the London Olympic Games in 2012. [52] Excluding the cost of third party licences and utilities, Serco is to be paid £29.7 million over two years and IBM just over £5 million a year for an unspecified time. [53]

35. Moreover, as our predecessors reported, there have been considerable concerns about whether the requirements for carriers to gather data on passengers entering the UK are compatible with the data protection laws of a number of EU Member States. Over three years since this issue was first raised by carriers with the Agency, Mr Sedgwick told us: "we are continuing to work with a number of EU Member States to ensure that their data protection authorities are satisfied with the way that the system is working." [54] Despite the delays, Mr Sedgwick assured us that exit checks will be fully implemented by 2015: this is not, however, the same as an assurance that the whole e-Borders programme will be in place by 2015, and, indeed, for the reasons set out by our predecessors, it is difficult to see how the scheme could be applied to all rail and sea passengers within this timetable given that even air passengers are not yet fully covered.

36. As we noted in our report on student visas, flawed evidence inhibits effective policy-making. Counting people in and out of the country is vital to understanding immigration and formulating sound, practical immigration policy; and the UK needs robust systems to protect its borders. When the Government decided to end Raytheon's contract, after the payment of £188 million, it anticipated that a new contractor would be in place by November 2010. After a substantial delay, IBM and Serco have been issued with new contracts and taken over existing operations. We remain deeply concerned about the e-Borders programme, given its history, the lack of clarity about the final shape of the scheme and the high (but still unquantifiable) cost of the e-Borders programme both to the taxpayer and to carriers. We will expect rapid progress to be made in this programme by the time of the next tri-annual letter, in July 2011.

Asylum and immigration contracts

37. We raised with Mr Sedgwick the issue of contracts with outside bodies for the provision of housing to asylum seekers, as questions about the appropriateness of some contracts had been drawn to our attention. In general we have some concerns about procurement by the Home Office, its agencies and police forces, some of which we will address in relation to our concurrent inquiry into the 'New landscape of policing'. Mr Sedgwick has subsequently told us that the cost of housing asylum seekers is currently about £140 million pa. [55] We have noted that the judge in the Andrew Waldron case said he found it "lamentable" that the Agency had for four years failed to carry out checks on Mr Waldron that would have revealed he had made false claims about his qualifications and had a criminal conviction, which would have cast doubt on whether he was a fit and proper person to be a contractor to the Agency. [56] The taxpayer expects value for money and for contracts to be awarded in a transparent and fair way. We seek reassurance that this is in fact what happens and we intend to keep the area of procurement under review.

Remuneration of Home Office and UK Border Agency officials

38. We welcome the fact that the Home Office has accepted our previous recommendation to reduce the salary of the head of the UK Border Agency. However, we note that the reason given by the Home Office for the high salary paid to the previous head of the Agency was that it was necessary to ensure strong leadership and continuity. Both this Committee and the Independent Chief Inspector have stated on a number of occasions that many of the problems we have observed result from the Agency lacking continuity and good management. The sudden departure of the previous Chief Executive, and the fact that there is still no permanent successor nearly five months after she left, undermine the rationale for the high salary given by officials. We look forward to meeting the new head of the Agency, once appointed.

39. We reiterate our view that it would be inappropriate for senior officials in the Home Office and its agencies to receive any bonuses this year, in light of the economic climate.

Correspondence with Members of Parliament

40. In our last report on the UK Border Agency we stated: "When Members write to Ministers, it is expected that the reply will at least be signed by the Minister. It is therefore unacceptable that the head of an agency should delegate this task to junior officials". [57] The Government's response acknowledges that "the Minister has authorised the Chief Executive, or their (sic) deputy, to reply." However, it does not acknowledge that Members in doing so have the reasonable expectation of a reply from the Chief Executive in normal circumstances and the Deputy only in the absence of the Chief Executive. [58] It also states that Members of Parliament are encouraged to write direct to the Agency, but while this is adequate in some cases, sometimes the flow of information becomes bogged down in bureaucracy, which is normally when the Member writes to the Chief Executive (or, in frustration, to the Minister). We therefore reiterate that we expect a response signed by the head of the Agency when we write to him/her, and we give notice that we intend to seek views from other Members during the coming months to see whether concerns remain or whether the Agency has significantly improved the service given to MPs in representing their constituents.

© Parliamentary copyright 2011

(End)

[1] Our first such report was our Fourth Report of Session 2010-11, The Work of the UK Border Agency, HC 587, published on 11 January 2011-hereafter referred to as 'Fourth Report'. The Government's response was published as our Eighth Special Report of Session 2010-11, HC 1027, on 16 May 2011 (hereafter 'Government Response to Fourth Report').

[2] Ev 17, paragraph 9

[3] See Fourth Report, paragraph 4

[4] Report of the Independent Chief Inspector of the UK Border Agency, Asylum: Getting the balance right? A Thematic Inspection: July-November 2009, para 1.35 (February 2010)

[5] See Fourth Report, paragraphs 5 and 7

[6] Ibid., paragraph 7

[7] Ev 18, para 10

[8] After the backlog, a backlog, The Economist (June 18 2009): www.economist.com

[9] See, for example, 'New asylum cases backlog builds up', Daily Telegraph, 26 April 2011, p14

[10] Control of Immigration: Quarterly Statistical Summary, Quarter 4 2010 (October-December) , page 5, published 24 February 2011 on www.homeoffice.gov.uk/publications/science-research-statistics/research-statistics/immigration-asylum-research/control-immigration-q4-2010

[11] Q 97

[12] Asylum: Getting the balance right? A Thematic Inspection: July-November 2009, para 1.40-1.41

[13] Fourth Report, paragraph 9

[14] Government Response to Fourth Report, pp5-6

[15] Fourth Report, paragraph 10

[16] Qq 59 and 60

[17] First Report of the Committee, Session 2010-11, Immigration Cap, HC 361, and Seventh Report of the Committee, Session 2010-11, Student Visas, HC 773

[18] These figures are taken from the latest in the series of Long-Term International Migration (LTIM) data published by National Statistics, which is the Government's preferred measure: see our First Report, paragraph 11

[19] HC Deb, 22 March 2011, col 858

[20] Student Visas, Seventh Report of Session 2010-11, paragraph 100

[21] A Thematic Inspection of the Points-Based System: Tier 2 (Skilled Workers), July-August 2010

[22] Ibid., paras 5.106-5.108 , 5.110 and 5.115

[23] Ibid, paras 5,116-5.118

[24] Q 20

[25] Qq 79-80

[26] A Thematic Inspection of the Points-Based System: Tier 2 (Skilled Workers), July-August 2010 , paras 5.119-5.121 In his subsequent evidence to us, the Chief Inspector said he believed the total of outstanding sponsor notifications was now estimated to be 4,000: Q 78.

[27] Ibid., para 5.122

[28] Ibid., para 5.123

[29] Independent Chief Inspector of the UK Border Agency, Preventing and detecting immigration and customs offences: A thematic inspection of how the UK Border Agency receives and uses intelligence, October-December 2010, Chapter 5

[30] Q 81

[31] National Audit Office, Immigration: the Points Based System-Work Routes, HC 819 of Session 2010-11 (15 March 2011)

[32] Q 81 and Preventing and detecting immigration and customs offences, Chapter 5

[33] Home Office, Student Visas: Statement of intent and transitional measures, March 2011, p2

[34] Qq 20, 63 and 64

[35] Forced Marriage, Eighth Report of Session 2010-12, HC 880

[36] Home Office Press Release of 16 December 2010, 'New compassionate approach to family returns'

[37] Fourth Report, paragraph 13

[38] A Thematic Inspection of the Points Based System: Tier 2, para 5.55

[39] 84% between August 2010 and January 2011, according to Mr Sedgwick's supplementary written evidence: Ev 20

[40] Qq 29-31

[41] Q 32

[42] Ev 20

[43] Control of Immigration: Quarterly Statistical Summary, Quarter 4 2010 (October-December) published 24 February 2011 on www.homeoffice.gov.uk/pulications/science-research-statistics/research-statistics/immigration-asylum-research/control-immigration-q4-2010

[44] Table 1e in Ministry of Justice, Quarterly Statistics for the Tribunals Service, Third Quarter 2010-11, October to December 2010, at www.justice.gov.uk/downloads/publications/statistics-and-data/mojstats/quarterly-statistics-tribunals-q3.pdf

[45] Ev 20

[46] Q 89

[47] Ev 20

[48] Qq 90-91

[49] Home Affairs Committee, The E-Borders Programme, Third Report of Session 2009-10, HC 170; and Home Affairs Committee, UK Border Agency: Follow-up on Asylum Cases and E-Borders Programme, Twelfth Report of Session 2009-10, HC 406

[50] Qq 42-43

[51] Q 45

[52] Q 38

[53] Ev 21

[54] Q 52

[55] Ev 21

[56] Transcript of Judge Orme's judgment in the case of Regina v Andrew Waldron at Birmingham Crown Court, 22 December 2010

[57] Fourth Report, paragraph 15

[58] Government Response, p9