MS LIN HOMER AND MS EMILY MILES

15 JANUARY 2008

  Q40  Mr Streeter: Just give me your top three.

  Ms Homer: I will mention the countries I have already mentioned, because I think we are making really good progress, but we do get a significant number of criminals from countries like Jamaica, Nigeria, China, Vietnam, and it is very pleasing to be making more progress with those countries because we are sending a very strong message that if you come here and commit a crime you will not be allowed to stay.

  Q41  Mr Streeter: Do you forward that information to our visa control people to help them make assessments as to who should or should not be deported?

  Ms Homer: Absolutely. There is a very close link and, more than that, we talk directly to the countries involved about the need to make their own processes robust so that we can rely on their own documentation, and, indeed, we think part of what we should do is help those countries get better themselves at the issuing of documents so that we and they can ensure that their legitimate travellers do not get tarred with the same brush. I think that is a very important point to make.

  Q42  Mr Streeter: Of the 4,000 that we deported last year, how many of them got a resettlement fee of £2,500 to help sweeten the pill?

  Ms Homer: Very few, and, I am sorry, I do not have that figure right at the top of my head. I will write to the Committee. I should say that not very many prisoners gained financial resettlement packages, because for many they have already, in a sense, resisted return. We have introduced the option of a small reintegration package in cases where countries are documenting their people so they can return but where the individuals, in a sense, might still prefer to be in one of my detention centres than home; but I would have to say it is not the majority of cases and we would be very careful about making sure that we use that only where, as I say, somebody is making a judgment to be one of those I referred to where it has taken us a very long time.

  Q43  Mr Streeter: It is well under 50% of the 4,000. Do you have any problem justifying to yourself the fact that someone comes to this country, commits a criminal offence and we pay them to go home? What do you think about that?

  Ms Homer: No, I do not. I think it is a policy we developed in failed asylum seekers first, and we have spent quite a lot of time thinking about this. If you look at the asylum area, where a greater number are returned with an integration package, by far and away the biggest recipients of that were Iraqis and Afghans where their asylum claim has failed. Those countries are in improving circumstances, but by tipping the balance of giving them some job training and some help in resettlement, I think we are helping people make the choice to go home. In the case of prisoners, what we are doing, I think, is helping tip the balance to them making a decision go home at the earliest opportunity, which is at the point at which a British prisoner would be released. So, they are not not serving their sentence, they are serving the same level of sentence they would if they were British; they are not then, however, potentially sitting first in prison and then in my estate for what might be months and even years before being deported from this country, and I think a sensible use of a negotiated consent with those people is in the interests of this country and making the best use of our scarce resources.

  Q44  Gwyn Prosser: Ms Homer, the 2007 UK Borders Act sought to provide for automatic deportation and removal of foreign prisoners, but taking into account all of the exceptions regarding asylum, European law, the Human Rights Act, et cetera, and some other exceptions we have discussed here this afternoon, it is more a presumption of deportation. Do you think the Act is making much of a difference to what was there before?

  Ms Homer: Yes, I think the Act will make a significant difference. I would have to say I think the intention to deliver the powers in itself made a significant difference, and, if I refer back to the courts, I think the fact that courts are now already recommending deportation in a number of short sentences indicates that the judiciary and the Government are sending a joint message to criminals that if you commit an offence you will be deported. The fact our numbers have gone up 60% from 2006 to 2007 illustrates that, but the Act will take it another two steps, it will change our procedures so that we automatically consider deportation and people have to appeal against that, and in many cases those appeals will be from outside the country; and it introduces as a second stage to that, a wider range of offences still that will be caught by the provisions, and so I think it will further extend, and I would expect next year that we will send more criminals home than we did this year.

  Q45  Gwyn Prosser: Can I briefly revert back to the discussion you had with the Chairman at the beginning of the session about cases of individuals being removed who are sick or receiving treatment?

  Ms Homer: Yes.

  Q46  Gwyn Prosser: I picked up the view from you that the law provided (and it has been tested in the courts) that even in the circumstance where someone by their removal home would have less of a standard of care, even to the extent of that person dying, that still would not be an exceptional circumstance. Is that right?

  Ms Homer: I think the courts have been very clear that it is in very rare and extreme circumstances. As I said, I think the simple point is that the standard of medical care in this country and the access to it is sufficiently higher than so many countries, not just Third World and developing countries. If you vary from that point, there are many, many tens of thousands that would be able to argue that point, and so, yes, we regularly see circumstances where the medical prognosis for the individual will be less good in the returning country, and I think the Strasbourg case and the House of Lords case are very clear about the parameters of that. In my experience since I have been doing the job, all of the extreme cases are tested within that judicial setting, and I think it is interesting and supportive of the consistency of our decision-making that none of the cases have been successful when they have been tested in that way.

  Q47  Gwyn Prosser: I would think that most people would believe that the case outlined by the Chairman is exceptional, and, if it is not exceptional, good God, what is exceptional. Are you in a position to define those extreme and exceptional circumstances or is it something that you need to write to the Committee about?

  Ms Homer: I think that the court has done so very well. The broad position is that medical claims will only reach the threshold for an Article 3 claim in rare and extreme circumstances. The quote I gave you before is direct from the House of Lords, which says explicitly that it does not give a right to remain in the UK to those who receive medical treatment and an improvement in a claimant's medical condition resulting from the interim treatment, together with a prospect of serious or fatal relapse on expulsion, will not render expulsion inhumane treatment. That is a judicial conclusion, and what I am saying, and I think what the Minister is saying as well, is that to substitute a personal decision in a kind of variable and inconsistent way for those very clear judicial parameters does not seem to me as Chief Executive of the Agency a sensible thing to do. It does not mean, as I said earlier, that my caseworkers are other than incredibly careful with these very difficult cases.

  Q48  Mr Streeter: Can I just point out that judges are people too.

  Ms Homer: They are, and I think in the recent case, since the Chairman has mentioned it and has permission to mention it, the judge said something like—. I am sorry, I am not sure I can find the quote.

  Q49  Chairman: I do not think we need quotes.

  Ms Homer: He wishes he had not had to make the decision he did.

  Chairman: Thank you very much for that. Martin Salter is going to bring in Emily Miles to talk about the backlog of cases.

  Q50  Martin Salter: Thank you. A couple of questions really. I want to talk about the historic case build-up at IND, your predecessor agency, and the effectiveness of the Legacy Programme that was announced to try and address what most of us have experienced in our own caseload as a pretty horrendous backlog. On 19 July 2006 the Home Secretary revealed that IND's caseload was something in the order of 450,000 electronic and paper records to be tackled and cleared in five years or less. This is through the Legacy Programme. He described the records as "riddled with duplications and errors and including cases of individuals who have since died or left the country or are now even EU citizens". In your letter to this Committee on 17 December you told us that the Legacy Programme so far has resulted in the closure of 52,000 case files, of which 16,000 have resulted in deportation, 19,000 in the grant of leave to remain, and 17,000 were found to be erroneous or duplicates. What is worrying many of us is how many of these people have been granted leave to remain simply because their case has now been outstanding for so long that to do anything other than grant them leave to remain would be running against their human rights if they were to face deportation. In other words, has the backlog created a set of circumstances where, effectively, the decision was made for them, a decision you might not have otherwise made if you had not had this backlog?

  Ms Homer: I brought Emily along so she did answer the questions. I am very happy to finish off when you finish your questions with her if there are bigger policy issues.

  Q51  Martin Salter: Sort it out amongst yourselves.

  Ms Homer: Go on Emily, try and explain the differentiations in the case and how we are deciding them.

  Ms Miles: I think it is important to say that there are not any special policies that apply to backlog cases. We apply the existing law and policy to those cases as much as any other. The issue of delay is a key issue that we have to consider as a factor and, clearly, when a case has ended up with strong connections to the UK, the courts have told us to weigh that up. So the older the case is the more likely that is to be a factor, and that is the way the courts have told to us consider it.

  Q52  Martin Salter: Have you made any assessment of how many cases have been granted leave to remain which otherwise would not have been, purely because the delay has been such a long period—and how long would that period be, in the opinion of the courts—that an attachment to the UK has been established?

  Ms Homer: Can I say, I think it is quite hard to answer the question in quite the way you have asked it, because the difficulty is that what we are often doing is weighing up a range of circumstance? If I were to give you an example, there are cases (because Emily keeps me briefed on cases) where, for instance, we have taken seven years to decide a case and it has led to removal, but there are other cases where we have taken seven years to decide a case in some other circumstances—one of those might, for instance, be the age of children in the family or other circumstances: a case I looked at recently where we made a fairly significant administrative error early in the case which was part of the reason for delay—and so it is the batch of circumstances rather than simply a question of delay. What I am clear about is that has always been the case and we are applying the same rules to these cases as we do in any other circumstances.

  Q53  Martin Salter: But you are not applying the same rules, are you, because if there was not a delay you would not have created the attachment, therefore the court ruling would not stand and, therefore, a more objective, fair and impartial decision would have been made had the case been turned round in 12 months rather than in seven or eight years?

  Ms Miles: I would like to say that we do objective, fair and impartial decisions in any case. One statistic to give you, of the removals that we have done so far nearly a quarter of the cases were more than seven years old. It is not that we do not remove all the cases, it is just that in some, particularly where there are children and the courts have asked us to take that into account, the connections to the UK have been built up.

  Martin Salter: Chairman, I do think they could be more helpful and I would ask that we request a further written memorandum on this subject.

  Q54  Chairman: Would you provide us with one.

  Ms Homer: I would be very happy to.

  Q55  Martin Salter: One final question on the other side of the equation: the level of delays can result in perfectly legitimate applicants living on the verge of destitution in a twilight world, unable to work, unable to pay their rent, unable to travel, unable even to buy food. I know you will not comment on individual cases but I trawled my caseload database this morning; I have a Zimbabwean nurse who won her appeal against a refusal for an extension of her student visa, has qualified as a nurse to work in the UK, has been written to by the Home Office on 17 August 2004 requesting further information. She has heard nothing for over three years. She has no money, she cannot be returned to Zimbabwe because of the High Court ruling, she cannot pay rent, she cannot work, she cannot travel, she cannot even marry her partner. That is the consequence of the legacy of delay and bureaucratic foul-ups. How many cases like this are out there? This is just one I happen to know from my own constituency in Reading. You cannot be happy with that situation.

  Ms Homer: The reason we are doing the legacy cases is that a sensible business that is on top of its workload is deciding the cases as they come through the door, and it is why it is such an important part of the work we are doing. One comment on the destitution point: we have provision that is there to stop people being destitute under both section four and section nine of the Act. There is no need for people to be destitute. I know MPs take their caseloads very seriously—I hear a lot from all of you—but if you do find cases of destitution you should direct them back to us for us to ensure that they know and understand the provisions we have got to stop that happening. However, we also do think that now that we have the new asylum model beginning to work, cases now being decided and concluded in six months when there was sometimes not a decision for two years, and we have started the legacy work, we do think that there may well be some real value in us looking again at whether correspondence from MPs or ombudsmen and others should act as a trigger for us to consider whether that case should be case-worked. You will understand better than many that the Budd principles that we put in place when we were gathering a backlog were to prevent unfairnesses. Now that we are both working current cases and old cases, our view is that there will be some circumstances where new information would help us conclude a case, either by way of grant, as you have illustrated, or, indeed, by way of removal, because we would find someone that we planned to remove that had in a sense had gone off the radar, and it is something that Meg Hillier has asked us to look at. It is our intention to conclude the legacy cases in five years.

  Chairman: Can I say to both the members of the Committee and the witnesses, we do have a very important domestic violence seminar starting very shortly. A very quick question, Mr Clappison.

  Q56  Mr Clappison: No, I have a number of questions on this, Chairman; I am sorry. I was absolutely astonished at the response you gave to Mr Streeter, if I may say, about your policy not drawing any distinction between asylum seekers and prisoners, because, whatever else, they may or may not have permission to come to this country, asylum seekers have done absolutely nothing wrong. Your letter to us, which appeared in the press the night before we got it on the Committee, begins by saying, "I have written to you on several occasions to up-date on work relating to foreign national prisoners." You then go on to talk about the 52,000 cases which have just been referred to. Are those old asylum cases or what?

  Ms Homer: The 52,000 cases are legacy cases. I committed two things to the Committee. I committed to updating on FNPs and on legacy cases.

  Q57  Mr Clappison: The legacy cases, are they cases relating to asylum or prisons, because there is an important distinction between them, for the public anyway?

  Ms Homer: They are, in the main, asylum cases. Some asylum applicants have criminal offences too and they involve some non-asylum cases.

  Q58  Mr Clappison: Have criteria been issued to your staff to deal with the legacy cases?

  Ms Homer: Yes.

  Ms Miles: Do you mean policy criteria?

  Q59  Mr Clappison: Yes, policy criteria. For this legacy exercise, looking at these 52,000 cases, have policy criteria been issued to your staff?

  Ms Miles: Yes. It is the same policy criteria that would apply across the Agency, but my staff have—