A thematic inspection of how the UK Border Agency manages foreign national prisoners

Executive Summary
1.The UK Border Agency is responsible for deciding, in accordance with the law, whether foreign national prisoners should be deported from the UK. Where deportation is being considered, it also decides whether a person should be detained at the end of their prison sentence or released into the community with a requirement to report to the Agency if deportation has not occurred prior to the end of the prison sentence. This inspection assessed the effectiveness and efficiency of the Agency in managing foreign national prisoners.

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

3. There was evidence of some good practice in decision-making with case owners proactively obtaining information from other public service agencies to ensure that decisions reflected all available evidence. However, the Agency had also made decisions to deport before foreign national prisoners had sufficient chance to make representations and, in five cases of our file sample, decisions to deport had been taken without the reasons being provided to the foreign national prisoner.

4. We found a significant disparity between the Agency‚Äôs and the courts‚Äô interpretation of whether a foreign national prisoner should be entitled to remain in the UK on human rights grounds. Between March and December 2010, the Agency‚Äôs decisions to deport had been overturned in 425 cases by the First-Tier Tribunal ‚Äď the overwhelming majority on human rights grounds. This contrasted with figures showing 151 foreign national prisoners being granted permission to remain on initial consideration by the Agency. In the 12 months to February 2011, 32 per cent of appeals lodged by foreign national prisoners against deportation had been successful.

5. There were a growing number of people whom the Agency had decided to deport, but had not done so, primarily because of difficulties in enforcing returns to particular countries, including the availability of travel documents. In 52 cases of our file sample (39%) the foreign national prisoner had yet to be deported. In May 2011 there were 3,775 foreign national prisoners in the community who had not been removed at the end of their custodial sentence. There was consistent awareness by staff and managers of the difficulties in obtaining travel documents, but no evidence that the issues and timescales were factored systematically into the handling of each case.

6. The Agency continues to rely on accurate referral of foreign national prisoners from prisons and the courts. Work had taken place to reduce the risks of incorrect referrals although the Agency was still seeking to locate 12 people who had been released directly from court or who had not been referred correctly.

7. By January 2011, over 1,600 foreign national prisoners were detained under immigration powers at the end of their custodial sentence, pending deportation. The average length of detention had increased from 143 days in February 2010 to 190 days in January 2011, and 27 per cent of all foreign national prisoners who were detained after their custodial sentence had been detained for longer than 12 months.

8. The Agency’s policy presumes the release of foreign national prisoners at the end of their sentence subject to an assessment of the risk they pose to the public and the risk of absconding. However, foreign national prisoners had remained in detention in 94 out of 97 cases sampled (97 per cent), where they had completed their sentence and where deportation was being pursued. Release needed to be authorised at senior Board level, in contrast to a decision to detain, which could be taken by lower management.

9. There was genuine fear and reluctance to release, given the potential implications of a foreign national prisoner committing a further offence, but no evidence that a detailed assessment of the risk of reoffending had taken place in each case. There was also a disparity between the number of people released from detention by the Agency and the number released on bail by the courts. Between February 2010 and January 2011, the Agency released 109 foreign national prisoners from detention compared with 1,102 released on bail by the courts.

10. The Agency had increased the amount of contact with foreign national prisoners who were serving their custodial sentence. However, there were no minimum standards for the level of contact that case owners should have, and consequently there were variations in practice. The Agency had not carried out an assessment to determine whether greater contact would be beneficial in terms of timeliness or accuracy of decision-making.

11. The standard of file management varied, with some containing documents arranged in a logical order, while others lacked information explaining actions that had been taken. In 11 of the cases sampled (8 per cent), information relating to people other than the foreign national prisoner was held on file with no explanation as to why this had happened. In addition, there was a risk that data obtained for foreign nationals who had been acquitted of an offence would be retained unlawfully in the absence of a clear retention or destruction policy.

12. The Agency received 144 complaints from foreign national prisoners between February 2010 and January 2011; the overwhelming majority relating to the standard of service provided by the Agency, and 31 of these had been substantiated. There was an inconsistent understanding amongst staff of what constituted a complaint, with the risk that some complaints were not being identified. Senior managers received feedback on the nature of complaints, although we found no evidence of specific operational changes that had occurred as a result.

13. The Agency routinely monitored the number of foreign national prisoners deported, the number detained following completion of their sentence and the length of detention. It had assessed the likely numbers and costs of foreign national prisoners remaining in detention or living in the community, and monitored risks at senior Board level.

14. Staff changes arising from measures to reduce costs were being introduced with a likely short-term drop in the number of deportations as new staff received training.

We recommend that the UK Border Agency:
1. Reduces the number of decisions to deport that are overturned on appeal.
2. Ensures that foreign national prisoners are provided with the reasons why they are being deported at the time the decision is made.
3. Develops clear timescales for obtaining travel documentation in individual cases to ensure that deportation action can be taken more quickly where appropriate.
4. Actively manages all cases where foreign national prisoners have yet to be deported, and considers regularly whether deportation can be enforced or whether a person is entitled to remain in the UK.
5. Ensures that each individual decision to detain or release a foreign national prisoner at the end of their sentence takes full account of the risk of reoffending, in line with published policy and any assessments produced by the National Offender Management Service.
6. Changes the level of authorisation required to release foreign national prisoners at the end of their sentence in line with its policy that presumes release.
7. Analyses whether the frequency and nature of contact between case owners and foreign national prisoners can improve the quality and timeliness of decisions.
8. Ensures that files contain data relevant only to the subject of that file; and ensures the timely destruction of data where a person has been acquitted of an offence.

Feb – May 2011