On 29 June the Home Office published the Independent Chief Inspector of Borders and Immigration report into the Home Office’s “operations to effect the removal of Foreign National Offenders” (FNO) along with its own response to the report. Publication, perhaps deliberately so, coincided with the Appeal Court ruling that the deportation of asylum seekers to Rwanda was unlawful, so it did not receive the attention in the press that it might otherwise have done.
Despite the restrained language, the breakdown of the immigration system is clear from the findings. The inspectorate is careful not to criticise government policy or functions for which it has no responsibility, but the report reveals the serious negative impact the failing criminal justice system is having on immigration policy. Once again, the immigration inspectorate’s report shows that Suella Braverman’s failure to deport FNOs is caused by the government’s own incompetence.
Foreign national offender removal schemes
The inspection focused on two FNO removal schemes:
- The Early Removal Scheme, which allows offenders to return to their homeland before their sentence is finished (the sentence will be reactivated, along with any additional penalties for further breaches of the law, should they return to the UK); and
- The Facilitated Return Scheme, whereby some financial resettlement help is provided by the UK government to encourage a return.
Both schemes are intended to encourage prisoners to voluntarily return to their homelands as soon as legally practicable enabling smoother, quicker and cheaper removals while reducing prison costs.
These schemes can significantly contribute to meeting the Home Office’s removal targets. There are no appeals, court challenges or prisoner generated delays. No lawyers are involved and they operate on the basis of consent.
Eligible FNOs are the ‘low hanging fruit’ of the immigration system. Their importance is indicated by the changes the government has brought in to increase eligibility and take up. The scheme was introduced in 2004 and removal could be up to 135 days before the earliest release date. This was increased in 2008 to 270 days and then increased again to 12 months in 2022.
Poor government data and information
The available data was so poor, that the inspectorate had great difficulty in planning the inspection and reporting on the effectiveness of these release schemes. The inspectorate does not record the numbers of eligible offenders, how many had given consent, who had been released under the scheme, the closeness of their release date to their earliest eligible date (a measure of delay) and how many people were at what stage of the system at any one time. This absence indicates that this basic information was not available in a readily accessible form.
The errors and discrepancies in the information the Home Office produced is quite staggering. One example from the report says:
“To facilitate the case sampling exercise, [the Foreign National Offender Returns Command] provided inspectors with a spreadsheet containing 558 lines of data. Following initial analysis of the information, inspectors removed 242 duplicate records, which had been highlighted by FNORC but not removed from the data set. This left 316 unique cases to assess.
“An examination of the 316 cases revealed that 49 pertained to individuals recorded as being British citizens [and so not eligible for deportation] and one related to an Irish national (against whom deportation action is not taken as a matter of policy) and in one other case, the subject had died.”
Over half the data incorrect
In other words, over half the lines of data provided by the Home Office were incorrect. As “a myriad of spreadsheets [were] used to record case details, monitor workflow, and set priorities, it took ‘days’ for the Home Office to answer a simple question of how many FNOs (of a particular nationality) were in the system and awaiting deportation”.
Poor quality information systems and data has been a constant inspection theme across all Home Office immigration functions. The inspection found that despite criticisms from the National Audit Office (NAO) in 2014, and inspections in 2017 and 2019, data collection and recording has not improved, and matters may be now worse as additional but equally cumbersome reporting requirements have been introduced.
Other inspection findings
The inspectors found other problems with the schemes including the inadequacy of the information ‘hotline’ for FNOs, errors in the fact sheet provided for prisoners and “lack of adequate facilities in some prisons, such as interview rooms or dedicated office space”.
As almost every inspection report into immigration functions has found, staff are doing their best in a system that is working against them. And while senior managers know about and are trying to deal with the systemic problems, they are making little headway.
The data provided by the Home Office does not enable the inspectorate to state how many prisoners were deported at the first opportunity or how many remained in prison until well-beyond their release date. We do know however, that there must have been a considerable number, as those responsible for interviewing prisoners and updating them on the progress of their case are facing the brunt of prisoner dissatisfaction and frustration as their cases are stuck in the system.
Failures in the criminal justice system
Poor immigration and Home Office systems are impacting on the number of FNOs the UK can deport and how quickly. But the inspectorate states that the crumbling criminal justice system is having a greater impact.
As the inspectorate notes, many of those eligible for deportation have spent so long in custody on remand prior to their cases coming to court, they would be released from the court, having already served their sentences, if they were UK citizens. Due to court delays, FNOs and the government are unable to make use of the deportation schemes and FNOs are being returned to custody even though their sentence has ended.
These cases become ‘urgent’ because they should not be in prison and must be reviewed for bail, while those approaching their release date must also be dealt with urgently, or they too will remain in the prison system for longer than is necessary. These urgent review cases caused by criminal justice system backlogs, further increase the delay for other cases:
“Backlogs in the judicial system were the key driver for increases in imminent releases due to cases taking longer to come to trial. The impact of this was additional pressures on the team which adversely affected its capability to focus on making decisions earlier. Other priorities identified by staff members were charter flight cases, which were deemed to be urgent, and FNOs who had signalled an intention to leave the UK at the earliest opportunity.”
Court delays and the use of remand
In February, the crown court backlog of cases awaiting trial stood at 343,519, having risen 6% in the previous 12 months. In London, where a quarter of crown court cases are heard, victims and offenders wait an average 425 days between a charge and court hearing. Priority is given to serious cases where defendants are on remand, due to limitations on how long they can be detained this way. FNOs are more likely to be remanded, being judged more likely to abscond.
The report says:
“Of the 9,797 foreign nationals in prison as at 31 December 2022, 2,951 (30.1%) were on remand, 6,261 (63.9%) had received a custodial sentence, and 585 (6.0%) were classed as ‘non-criminal prisoners’. This latter cohort relates to detainees being held in prison under immigration powers, typically where a prison sentence has been served but the Home Office has taken the decision to maintain detention.”
This indicates that there are at least 500 prisoners at a weekly cost of £818 per prisoner (£409,000 per week, overall) held unnecessarily while awaiting deportation. Not all of these prisoners would have chosen to be deported and some may even be stateless. But, it is also likely that failure to process cases leads to some prisoners not taking up voluntary deportation options and choosing to fight to remain in the UK through the courts.
Government incompetence and inefficiency
Various inspection, home affairs committee and NAO reports have been scathing about Home Office incompetence and inefficiency. The immigration inspectorate found that many ‘late’ asylum appeals and judicial reviews primarily resulted from poor reception and induction systems and processes and denial of access to good legal advice that would expedite decisions. It also found ‘anecdote, assumption and prejudice’ were driving decisions and so leaving the Home Office open to appeal and reviews.
The conditions in which refugees are held have been damned, as has the Home Office’s ability to hold asylum seekers humanely. The government has also been found to have acted unlawfully on many occasions, the most recent case being last week. In establishing camps for refugees, the Home Office has persistently acted unlawfully, and in spite of repeated court warnings.
Poor practice is at the root of the current long wait for an asylum decision – up to eight years for more recent arrivals – and the huge cost of this for the public purse. The home affairs committee concluded that the asylum system was broken and that the government was entirely responsible for this. This report, indicting the government for its failure to deal with the court backlog and consequent inability to deport FNOs, is further evidence of government failure.
