This has been a sorry business. The background is that in mid 2006 it came to light that foreign prisoners serving sentences for crimes committed in the UK were not being considered for deportation at the end of their prison sentences. Instead, they were being released, as would be a home-grown criminal at the end of his or her sentence.

Foreign criminals experience a double whammy when they get caught and prosecuted. Not only do they serve a prison sentence commensurate for the crime committed, they also get considered for deportation from the United Kingdom. If the crime was serious and the criminal has no strong links in the UK or other compelling reason to be allowed to remain, the criminal would normally be deported.

The problem arose for two key reasons. Firstly, the prison service has no system for establishing who is and is not a foreign national. Believe it or not, one’s identity in prison is essentially self-declared on entry to the prison system, and if a prisoner is transferred from one facility to another then there is no effective system for transfer of these self-declared records. The Department for Constitutional Affairs has been funding a project to develop a computerised system and to cook up a better way of establishing identity in the first place, but there are quite a few problems still to overcome and there’s no implementation date yet as far as I know.

The second problem was that even where the prison service did correctly identify a prisoner as being a foreign national who should be considered for deportation, when this information was passed to the Immigration and Nationality Directorate of the Home Office, nothing happened. No-one did anything. Just like the separate problems that arose over failure to record crimes committed abroad by British nationals – foreign police services were dutifully informing the Home Office about British citizens that had committed serious crimes abroad so that we could keep tabs on them when they were deported back to the UK, but the information simply sat on a desk somewhere in Croydon without being processed or passed onto relevant local police forces.

It’s really quite difficult to communicate how terminally hopeless the Immigration and Nationality Directorate was over the last decade. Suffice it to say, these stories came as no surprise to those who have had the misfortune of attempting to deal with IND. The replacement Border and Immigration Agency can hardly fare any worse.

Anyway, to sum up the story so far, the prison service was informing IND about the imminent release of suspected foreign prisoners in order to enable IND to consider them for deportation. IND did nothing. This came to light, rather belatedly, and Charles Clarke got the sack.

The response by the new Home Secretary, John Reid, and his department was as follows (please forgive the numbering, but I find it useful):

1. Stop anyone vaguely foreign-looking or foreign-sounding from being released from prison at the end of their sentences. This in turn led to:

(i) a number of British citizens being detained in immigration removal centres, from where they were unable to access documents to prove they were British. This was highlighted in Anne Owers’ recent report. Also see IND’s mealy-mouthed, defensive response. Why can’t they admit they are so hopeless? It would be a useful prelude to doing something about it.

(ii) a number of foreign prisoners being detained beyond the legal term of their prison sentence but not being transferred to immigration detention, thereby leading to classic cases of unlawful imprisonment. They weren’t being detained under any law and you can’t get much more unlawful than that. This was a product of a circular that was sent round to prison governors by the Home Office in essence forbidding them from releasing anyone who could be suspected of being foreign. Leading to inevitable breaches of race relations law? Unlawful blanket policy decision? You bet. Several expensive compensation claims being pursued? You bet.

(iii) some really preposterous deportation decisions. The best/worst I came across was to deport a 50+ year old man who had resided in the UK since early childhood. He had never acquired citizenship, and was therefore potentially eligible for deportation. His crime and sentence? Breach of an ASBO based on a geographical curfew followed by two weeks inside. In fact, the Home Office case was thrown out very quickly by an immigration judge who thought he was either British or, in any event, was exempt from deportation because of long residence (see section 7 of Immigration Act 1971 if you are interested, it exempts from deportation Commonwealth and also Irish citizens who were resident in the UK on 1 January 1973 and were ordinarily resident in the UK for five years prioer to the decision to deport).

2. Knee-jerk immediate change to the law on deportation, which is found at paragraph 364 of the Immigration Rules. The old paragraph 364 had proven perfectly adequate since at least 1994 and probably for a lot longer. It allowed a balancing of any compassionate factors against public interest in deportation. This change was a classic modern Home Office response: the law is perfectly adequate, but because of embarrassing failures to operate or make use of the law, the law must be changed and framed as the culprit. The problem is lack of government, not lack of Government, by which I mean lack of getting on and governing, rather than lack of law making. Irritatingly, the new paragraph 364 is meaningless to an immigration official. Unlike the rest of the Immigration Rules, which are aimed at government immigration officials, the new paragraph 364 reads as if it is addressed to the judiciary who decide appeals against deportation decisions. The words ‘liable to deportation’ could either mean anyone who could theoretically be deported, meaning anyone subject to immigration control, or could mean anyone with a court recommendation for deportation. Neither interpretation is useful when it comes to a public interest deportation decision by a Home Office official.

3. Knee-jerk but slightly delayed change to primary legislation through the UK Borders Bill. This includes a loopy change to primary legislation to make it look as if deportation is automatic but which includes a human rights exemption. Why this needs to be in primary legislation but not any other aspect of the Immigration Rules is somewhat open to question. Perhaps because the Prime Minister was forced to say they would legislate (see no. 2 above)? They had the powers to make an equivalent change, there’s no need for it in primary legislation, it is legislation for its own sake.

4. Knee-jerk but perhaps more beneficial creation of the Borders and Immigration Agency out of the battered, tattered Immigration and Nationality Directorate of the Home Office. I suspect the primary purpose here was a ‘never again’ view at Cabinet level that one of their number should never be forced from office again due to civil servant cock-ups within IND, as such cock-ups are basically inevitable. However, some good may come of it and it may allow senior management at IND, who have always been quite impressive at stakeholder meetings, to get a better grip on middle management.

More on the Borders and Immigration Agency in the future.