UK Border Agency

Lord Avebury Excerpts

Thursday 19th July 2012 Lords Chamber

Moved by

[Lord Avebury]

That this House takes note of the role and performance of the UK Border Agency.

[Lord Avebury]

My Lords, it is not before time that your Lordships examined UKBA, a service whose own officials said yesterday is “falling apart at the seams”. There are more than 150,000 people, including 3,900 criminals, who have been refused an extension of stay but whose whereabouts are unknown. Nor is there a strategic plan to manage these cases. The location and removal of absconders is considered a low priority for UKBA and the effectiveness of the intelligence used to support arrest visits is not measured to ensure an efficient use of resources.

The Commons Home Affairs Committee recommended that bonuses amounting to £3.5 million should be withheld from senior UKBA staff but it seems that the banks are not the only enterprises where failure is rewarded. The Prime Minister told the Liaison Committee that he believed in,

“a small bonus … that you only get if you meet some stretching targets”,

so why are UKBA staff still getting bonuses?

The failure over the missing persons is not an isolated case. Major organisational changes at Heathrow, including the introduction of team-based working, a new shift-working system and the amalgamation of immigration and customs roles, were not effectively planned and were introduced at Heathrow’s busiest time of the year. In spite of deploying extra staff to reduce the scandalous queues at Heathrow, the delays were even worse in June, only a few weeks ahead of the Olympic Games. UKBA is bringing in volunteers who will receive three days’ training instead of the six weeks plus four weeks of mentoring that UKBA staff have to undergo before they are let loose on passengers at our ports of entry. The independent monitoring board was scathing about the short-term holding facilities for children at Heathrow, which it described as “disgraceful” and “deplorable”.

Then there was the fiasco of the so-called legacy cases, which were laid aside for a variety of reasons until they reached an estimated total of 450,000, which UKBA promised had to clear by July 2011. It failed in spite of repeated assurances given by Ministers, and there are still 80,000 cases today. Mr Whiteman, the new head of UKBA following the abrupt departure of his predecessor, has said that all these cases will be resolved by the end of the year. But how can anyone have confidence in this new promise when they consider the broken undertakings of the past?

Where cases in the new archive have been processed since July 2011, nine out of 10 have been granted three years’ discretionary leave, so that they have to reapply at the end of that period and yet again after another three years. Is this an efficient way of using UKBA’s diminished resources? Staff numbers are being slashed by 22% in the five years from 2010 to 2015, which means the loss of 5,300 jobs. Asylum Casework is already understaffed, so inevitably less time will be available for individual decisions and more applicants will be wrongly refused.

The wrong way to reduce the workload is to take away the right of appeal against refusal of family visit applications. The success rate of appeals in these cases rose from 19% in 2004 to 45% in 2010 so, in future, half of all applicants who are wrongly rejected will have to reapply, at a cost of £78 for a single visit, to get the decision reversed. By the time the second application is granted, the occasion for the visit, be it a wedding or an anniversary, will be long past and there will be a stain on the person’s record, which is bound to affect any of their future applications. It is contrary to natural justice to refuse an application on the grounds that information has not been supplied, the requirement for which could not have been known at the time the application was made, as the agency is doing. It is up to the UKBA to explain clearly and unambiguously what information the applicant has to supply.

The tribunal statistics for the year to March 2012 give a stark picture of the unreliability of UKBA decisions on immigration and asylum applications overall. Fewer than half the appeals made were dismissed and my noble kinsman may be able to confirm that the 36% of appeals allowed was an all-time record. These figures show that the criteria being applied are too harsh. In addition to the incalculable personal consequences of faulty decision-making, there is also an avoidable burden on the tribunals. The Government told the Home Affairs Select Committee that they are committed to driving up their appeal win rate by improving the quality of decision-making and by withdrawing cases that are no longer sustainable. Should not the UKBA have a definite target for reducing decisions overturned by the First-tier Tribunal, and would my noble kinsman care to give an estimate of the savings if it could be reduced to, say, 20%?

In a high proportion of the cases where people lose an appeal for leave to enter or remain, the decision is taken to deport them. As an official told the chief inspector, the UKBA is operating as though,

“a decision to deport equals a decision to detain”,

despite the presumption of liberty in policy. A study by Matrix Evidence for the NGO Detention Action shows that the UKBA is wasting £377 million over a five-year period on the detention of migrants who are ultimately released. That rises to £390 million if the persons who cannot be deported are given the right to work. No account is taken of the cost of treatment for the mental and physical ill health of long-term detainees, or of their loss of productivity.

About 27,000 migrants enter detention per year and nearly 11% of them are detained for more than three months. Of these longer-term detainees, nearly 40% are ultimately released on bail or temporary admission. The right way to deal with this unacceptable situation would be to detain only migrants who can be deported within a lawful or reasonable period. This applies, for example, to prisoners who are detained at the end of their sentences, even when it is known that their country of origin will not accept them back. Where the decision to detain is based on the risk to the public, the agency should provide the evidence that the migrant would reoffend. Perhaps my noble kinsman could say whether this recommended practice has been adopted.

Some people are being deported with inadequate documentation and are being returned here by their countries of origin. As the Minister will be aware, there are serious allegations of ill treatment during deportation, though G4S was replaced as the contractor following the death of Jimmy Mubenga on a flight to Angola. Its successor, Reliance, admits that its staff are loutish and aggressive and lack respect for minorities and women. On asylum, the Minister for Immigration has received two reports from the UNHCR about errors in the detained fast track, a matter also raised by the chief inspector, who points out that one in three of those initially routed through the DFT is subsequently released.

The treatment of women in the asylum system is raised by Women for Refugee Women and in a recent report for Asylum Aid on gender-related claims in the EU member states, including the UK. Asylum Aid says that although we are often in advance of other EU countries, the UKBA rarely refers to the UNHCR gender guidelines, and practice by the courts is variable. The Minister points to the revised instructions on managing gender-based asylum claims and to a thematic review of relevant cases, but he does not mention the UNHCR guidelines. That review uncovered faults in the decision-making process, such as a lack of investigation in cases involving domestic violence and whether an applicant’s gender would affect her ability to seek state protection. According to Asylum Aid, our own guidelines are not well implemented and they do not include important procedural aspects that are found in the UNHCR gender guidelines.

Women for Refugee Women says that under the LASPO Bill the withdrawal of legal aid in non-asylum cases will undermine the availability of vital legal representation in complicated and often ill-understood asylum cases and it asks whether the UKBA will monitor the impact of LASPO to see whether its apprehension is justified. Its also says that two-thirds of the women who participated in its research become destitute during the asylum process, having to rely on charities for food. This needs to be pursued within the NGO. Our legislation requires that the special needs of asylum seekers and their family members who are vulnerable persons must be taken into account when providing or considering support, but there is no obligation to carry out or arrange for the individual evaluation of a person’s situation to determine whether she has special needs. This is a gap that needs to be filled.

Turning to LGBTI asylum seekers, the UKBA conducted a quality audit to assess the impact of the training. There seems to have been a definite improvement, with a higher proportion of these claims being accepted, but the audit uncovered some concerns. I would be grateful if my noble kinsman could say why the audit has not been published nearly a year after it was produced.

Finally, I would like to mention torture victims, who are routinely being held in immigration detention centres in breach of the Immigration Rules. This is according to a Medical Justice report, The Second Torture, which details 50 such cases. Fourteen of them have now been granted leave to remain in the UK, but only one of the 50 was released from detention pending determination of the asylum claim, as the rules provide. Two of the 50 were forcibly returned to their countries of origin and endured torture for a second time. Both managed to flee again, claimed asylum for a second time, and were detained again in the UK. One of them now has leave to remain on the basis of the risk he faces in his country of origin. All but two of those 50 in the sample have now been released, underlining the failure to house them in the community when they first made credible allegations of their torture. That would have cost £5,000 instead of the £23,000 bill for keeping them in custody for 226 days. That was the average length of time for which the 50 were detained.

The effects of wrongful detention on these torture victims were catastrophic, including attempted suicide, self-harm and hunger strikes. Five of them have now launched individual judicial review proceedings, claiming damages for false imprisonment based on the UKBA’s breaches of Rule 35. The UKBA’s response to this report is to say that it is anecdotal and based on a small number of cases. Obviously a small charity does not have the resources to carry out an investigation of every one of the thousands of asylum seekers detained every year to see whether each one has made a torture claim and been ignored. What is needed is an independent review by the chief inspector with help from independent medical experts on torture. Rule 35 is not working and has not worked ever since it was first introduced. In the face of such an abysmal record of failure extending over many years, this survey by Medical Justice is a wake-up call.

Sacking nearly a quarter of the staff, taking away migrants’ appeal rights, refusing applications without just cause, detaining people who are never going to be deported and ignoring torture claims are not the route to sorting out the enormous problems that beset the agency. The cuts should be stopped before things get even worse and the Home Office should address the many recommendations made by the UNHCR, the chief inspector, the Select Committee on Home Affairs and the many expert NGOs whose wisdom is freely available. I beg to move.

--- Later in debate ---

[Lord Avebury]

My Lords, I thank the Minister very warmly for his comprehensive winding-up and for his kind promise to write to those whose questions he could not deal with. I am also grateful for the assurance he gave to my noble friend Lady Williams that what has been said in this debate will be drawn to the attention of the head of the UKBA, and I am sure that it will not be difficult for the agency to find a means of disseminating the Hansard report of the debate to the whole staff. It is important that people in the UKBA should be aware of the widespread concerns that have been expressed.

If I may say so, I thought that my noble friend was a little complacent about some of the issues that were raised. There was the failure to listen to criticisms made by the chief inspector, which were dealt with by the right reverend Prelate and the noble Lord, Lord Marlesford, among others. We have heard repeatedly about the culture of disbelief that prevails in the UKBA. The noble Lord, Lord Judd, and my noble friends Lord Alderdice and Lord Dholakia raised that point. The dangers of outsourcing were particularly emphasised by the noble Lord, Lord Ramsbotham, and I agree with him entirely that the responsibility for escorting deportees needs to be thoroughly examined. Personally, I would take this function away from the sub-contractors who have dismally failed to look after the people in their charge and return it to the UKBA itself so that we can see exactly where the responsibility lies.

My noble friend Lady Williams mentioned discretionary leave to remain, which I do not think was dealt with in the noble Lord’s reply. I am open to correction, but I think that the legacy cases, which she did mention, are nearly all being dealt with by giving people three years’ discretionary leave, for which they have to reapply after three years, instead of giving them indefinite leave to remain. That surely cannot be right. The detained fast track system was raised by the right reverend Prelate and my noble friend Lady Williams, but we did not hear anything from the Minister on that matter. I raised the issue of the failure to have regard to the special needs of women. My noble friend Lady Williams also talked about this, and it has been comprehensively covered by Women for Refugee Women and Asylum Aid.

Finally, this country’s reputation and the effect on our future prosperity and well-being will likely be harmed if we do not attract the people we need in business, management and higher education because of the difficulties that are placed in their way. This was mentioned particularly by the noble Baroness, Lady Hooper, and my noble friend Lord Alderdice. I mention also, of course, the problems that have arisen at Heathrow, which were the subject of a powerful contribution from the noble Lord, Lord Birt. I hope that we shall hear from the Minister about these other matters. They are of equal importance to the ones that he dealt with in his winding-up speech. I hope that, as a result of the distribution of this debate to the UKBA, some attention will be paid to the forceful and legitimate criticisms that we have heard this afternoon.

Motion agreed.