News

Bail for Immigration Detainees (BID) welcomes the recent Inspection Report released by John Vine, the Independent Chief Inspector of the UK Border Agency (UKBA), detailing his findings and recommendations following an assessment of the UKBA’s efficacy and efficiency in managing and using its powers to deport Foreign National Prisoners (FNPs)

BID prefers the term Foreign National Ex-Offender (FNEO) for those individuals who have finished their custodial sentence, as they are no longer prisoners.

A FNEO is typically a non-British citizen that is currently or has in the past been under the authority of the criminal justice system, and at present, this category makes up approximately 13 per cent of the entire UK prison population. Under the UK Borders Act 2007, there exists a so-called ‘automatic deportation’ provision for FNEOs, which in most cases, requires the Secretary of State to make a Deportation Order against a foreign national sentenced to 12 months or more for a single conviction. The Chief Inspector’s report outlines the difficulties inherent in the UKBA’s practices toward FNEOs, and he provides a number of recommendations to be implemented immediately to improve the UKBA’s handling of such cases.

The report recognises three broad categories of problems in the UKBA’s application of its powers relating to the deportation of FNEOs, including a marked disparity between the number of initial deportation decisions made by the UKBA and the number of appeals allowed against deportation decisions on human rights grounds by the courts, a rise in FNEOs that are not or cannot be deported and are detained at the end of their prison sentences under immigration powers, and inadequate administrative practices.

Regarding the significant disparity between the UKBA’s and courts’ interpretation of whether a FNEO is entitled to remain under the Human Rights Act 1998, over 32 per cent of appeals against deportation decisions were successful in the year leading up to February 2011. The Chief Inspector therefore recommends the UKBA should better align its decision-making process around deportation of FNEOs with court judgments on human rights and should consider all evidence available when deciding if a FNEO should be deported. This would require the UKBA to take all reasonable steps to acquire information from other public services necessary to make a correct deportation decision, minimising the risk of incorrect decisions and the consequent cost of appeals. Regardless of the politics and public scrutiny surrounding the Human Rights Act, and Article 8 in particular, the report recognises that appeals will continue with a significant cost to the taxpayer, even where the likely outcome will be that the FNEO is entitled to remain, unless the UKBA makes efforts to follow the courts’ decision-making process.

An even more worrying problem outlined in the report is the growing number of FNEOs given deportation decisions that have not yet been deported, usually due to difficulties in enforcing returns to specific countries and in acquiring necessary travel documentation. The majority of FNEOs yet to be deported are then usually detained upon the completion of their prison sentences, where there exists a policy presumption that FNEOs will be released subject to an assessment of risk to the public and of absconding. However, the report found that in 97% of cases examined, the individual was held in detention under immigration powers post-sentence where deportation is being pursued, and there are currently over 1,600 FNEOs detained under immigration powers. The average length of detention has increased from 143 to 190 days, and 27% of FNEOs detained after their sentence ended have been detained for longer than 12 months. It is BID’s experience that foreign national ex-offenders routinely spend more time in detention than the length of their custodial sentence.

A “genuine fear and reluctance” to release FNEOs therefore seems to exist says John Vine, but there is no evidence that a detailed risk assessment of re-offending takes place in each case. This fear and increasing media and political scrutiny are “fuelling a culture where the default position is to identify factors that justify detention rather than considering each case in accordance with the published policy.” Further, the majority of cases were originally convicted of non-violent offences and there is a sharp disparity between the number of detainees released from detention by the UKBA and the number released on bail by the courts. The report stresses that where a decision to detain has been based on a risk to the public, the UKBA must set out evidence of the likelihood to re-offend in order to ensure that detention is not the default position.

The report also recognises administrative inefficiencies within the UKBA’s practices that tend to increase the number of FNEOs detained and the length of time they are detained. The UKBA has in the past made deportation decisions before the affected FNEOs had a sufficient chance to make representations, and some decisions were taken without providing any reasons for deportation. Additionally, the UKBA has no minimum standard for the level of contact case owners should have with their cases, and there has been no assessment of whether more contact would be beneficial in terms of decision-making accuracy or the timeliness of the length of a FNEO’s detention. The report notes that under current practice, UKBA casework is generally not timely and more authority is required to grant a FNEO’s release, whereas decisions to detain are made by lower management. Case file management is not standardised, and in some cases, no information is provided to explain why certain actions were taken and decisions made, a further example of the lack of evidence used by the UKBA to assess a FNEO’s potential risk to the public and of absconding.