28 Commercial Street, London E1 6LS
Tel: 020 7247 3590 Fax: 020 7426 0335
Email: [email protected] www.biduk.org
Winner of the JUSTICE Human Rights Award 2010
Transforming Rehabilitation: a revolution in the way we manage offenders
Response from Bail for Immigration Detainees, February 2013
About Bail for Immigration Detainees
Bail for Immigration Detainees (BID) is a national charity established in 1999 to improve access to
bail for those held under Immigration powers in immigration removal centres and prisons. BID
exists to challenge immigration detention in the UK through the provision of legal advice,
information and representation, alongside research, policy and advocacy work and strategic
litigation. BID is accredited by the Office of the Immigration Services Commissioner (OISC).
BID is represented on a number of Home Office convened stakeholder groups, and won the
JUSTICE Human Rights Award 2010. We also routinely work with NOMS on policy issues related to
foreign nationals in the criminal justice system (both prison and probation work).
In the last year we assisted 2510 detainees to make their own bail applications and in 246 cases
we prepared the bail application and briefed pro bono counsel. The courts have granted BID
permission to intervene in a number of cases raising important issues on immigration detention,
including: Mustafa Abdi v United Kingdom (European Court of Human Rights, Application 2770/08,
on-going)1; Razai & Others v SSHD [2010] EWHC 3151 (Admin)2; SK (Zimbabwe) v SSHD UKSC
2009/00223; and Walumba Lumba (Congo) and Kadian Delroy Mighty (Jamaica) [2011] UKSC 124.
BID’s client group includes foreign national ex-offenders facing deportation action who are held in
removal centres, and a smaller number of time-served foreign national prisoners who for various
reasons remain in prison subject to immigration act powers at the end of their sentence. Foreign
national offenders exhibit extreme diversity in terms of country of origin, immigration status,
length of stay in the UK, reason for entering and remaining in the UK, nature and strength of
family and community ties in the UK, and caring responsibilities. This is in addition to the range of
1
The sequel to the Court of Appeal’s decision in R(A) v SSHD [2007] EWCA Civ 804
In which the court considered evidence indicating systemic difficulties with the Secretary of State’s policy of providing
accommodation for immigration detainees who are considered to be high risk.
3
Where the court considered whether a breach of public law duty involves non-adherence to a published policy (and
delegated legislation) requiring periodic detention reviews.
4
Established a breach of a public law duty involving non-adherence to a published policy identifying substantive
detention criteria.
2
offences for which they have been charged or convicted that have resulted in their custodial
sentence. Many foreign national prisoners have been UK taxpayers; many have UK citizen
partners, children, and naturalised UK citizen siblings or parents.
Below are the outlines of two typical trajectories through the criminal justice and immigration
enforcement system for foreign national offenders.

Mr A enters the UK legally. He is a long term UK resident with leave to remain (ILR),
and has been studying and working for all the years he has spent in the UK. Mr A
commits an offence with a sentence of over 12 months and is therefore subject to
automatic deportation action under the UK Borders Act 2007. After prison, and still
under Licence, he is transferred to an immigration removal centre while deportation
action is pursued by the Home Office. Mr A is eventually bailed to his mother’s
address, which must be approved by the receiving Probation Trust. He is successful in
his appeal against deportation.

Mr A enters the UK illegally in a lorry. He claims asylum when he is apprehended. His
application is refused as is his appeal. He commits a serious sexual offence while in the
community, goes to prison and subsequently to an immigration removal centre. UKBA
are unable to obtain travel documents and as he is not removable he is eventually
released on immigration bail to UKBA Section 4 bail accommodation in Hastings. While
in the community he reoffends, returns to prison, and then is transferred to an IRC
post-sentence, but is still not removable as he has no travel document. Eventually he is
bailed again to UKBA accommodation, this time in Leeds.
A recent survey by BID and ICAR (2011) across the UK immigration detention estate found that
59% of our clients surveyed were subject to deportation action as a result of their criminal
sentence, and had been transferred to a removal centre straight from prison5.
Our foreign national clients’ contact with probation services and offender managers comes as a
result of time spent in prison serving a sentence, and subsequent release from immigration
removal centres on immigration bail while they are still under Licence. Where a foreign national
held in administrative detention is still under Licence, they must seek approval of the proposed
immigration bail address from the receiving Probation Trust before they can make an application
for release.
5
Bail for Immigration Detainees, (2012), ‘Immigration detainees’ experiences of getting legal advice across the UK
detention estate: Summary results for surveys 1 – 4’.
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We welcome the opportunity to comment on these proposals, and broadly agree with the focus of
these proposed reforms, namely to:


Address high reoffending rates through reform of offenders, extend the scope of
rehabilitation to those serving short sentences.
Increase efficiency and deliver better value for the taxpayer
We do not however support the means by which it is proposed that these reforms to offender
management are delivered – a Payment by Results (PbR) model that will radically and rapidly
change the way that probation services are commissioned and delivered in England and Wales.
We have responded to specific consultation questions where possible, in relation to foreign
national offenders. Many of the specific questions are beyond the scope of our expertise, but we
have offered some general observations on the nature of the foreign national population in
prisons, and on the typical trajectories of foreign natianals from the criminal justice system
through immigration enforcement (including detention) and back again while under Licence. The
intention is to demonstrate that foreign national offenders are often a highly mobile poulation
once they are moved on from prison: they may move in and out of detention, and from one end
of the country to another during their Licence period.
Our concerns focus on the likely exclusion of foreign nationals from rehabilitative work under PbR
as a deliberate result of commissioning and contractual planning, despite the fact that foreign
nationals form around 15% of the prison population at any one time. It is clear from the proposal
document that women and other groups (young people, people with disabilities, and Black and
Minority Ethnic Groups) are not likely to be well served by PbR providers from the point of
introduction of PbR rehabiltiative services. There appears to be an expectation that learning will
need to take place along the way once PbR delivery has begun, not before.
However, foreign nationals are not even mentioned in the proposal document, nor are they
mentioned in the ‘NOMS Commissioning Intentions for 2013-14 Negotiation Document’, of which
the October 2012 version is the most recent. BID therefore urges the Ministry of Justice to
consider the needs of foreign nationals in the future provison of rehabilitative services.
Foreign nationals are not – for the avoidance of doubt – a subset of BAME offenders. It is the
immigration status of foreign national offenders, not their ethnicity or culture, that sets them
apart, and leads them along different trajectories in the criminal justice system to BAME UK
citizens, who are not subject to periods in immigration detention while on Licence.
In BID’s experience of legal casework with this group, foreign national offenders held in
immigration detention are already disadvantaged by their low priority among probation trust staff.
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Offender managers are often of the view that a foreign national offender will be removed or
deported from the UK, when this is not necessarily the case. Licence-related address checks for
immigration detainees seeking release on immigration bail are currently taking up to 8 weeks to
complete, a situation that delays exercise of the right to apply for release from administrative
detention and may be creating grounds for unlawful imprisonment. Just as importantly for the
Ministry of Justice, around 40% of deportation orders are successfully appealed, and even those
foreign national offenders who are eventually removed from the UK may spend signficant periods
in the community during their Licence period if they are released from immigration detention on
on immigration bail pending the securing of travel documents, so this group of offenders cannot
simply be ignored.
OUR RESPONSE
Question C3: What measurements and pricing structures would incentivise providers to work
with all offenders including the most prolific?
How to measure reoffending outcomes under PbR?
To fully capture outcomes, providers have been told they will need to “engage with [offenders]
before their release into the community and maintain continuous support” (MoJ, 13). Indeed, this
lies at the heart of the minister’s stated vision. What are the implications of service delivery under
PbR for foreign national offenders who are transferred into an IRC post-sentence but who are
released into the community at a later stage?
The proposals, and the ‘NOMS Commissioning Intentions for 2013-14 Negotiation Document’
(2012), offer no clue to thinking about how to measure desistance among foreign nationals, who
may be in and out of the community and immigration detention during their licence period for
reasons relating to their immigration case rather than any offending behaviour.
Policy Exchange has outlined the likely timescales involved, under PbR or any other delivery
scheme, for the production of data on reoffending on release:
“A 12 month period in which to build up a full cohort of offenders; a 12 month period in
which those offenders might reoffend; a 6 month period in which an offender could be
reconvicted of crimes committed in the previous year; and a 4 month period in which to
verify conviction data on the Police National Computer”6.
6
Policy Exchange, 2013, ‘Expanding Payment-by-Results: strategic choices and recommendations’. Page 13.
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At the very minimum, stripping out the time taken to set up new programmes under PbR reforms,
there is a period of almost two years after the Earliest Release Date during which an individual will
need to be at large in the community in order for data on any reoffending and reconviction to be
captured by the PbR service provider and evaluated.
Where a foreign national offender is transferred to an immigration removal centre after their
Earliest Release Date (ERD) it is not clear how PbR providers will identify foreign nationals going
straight to an IRC in such a way as to be considered as working with them ‘through the prison gate’
as required under these proposals?
How will services that are to be competed under the majority spend in the community, including
the responsibility of contracted providers for rehabilitating offenders and delivering community
order and licence requirements, be delivered for foreign nationals held in immigration detention
in a removal centre? For foreign national offenders under Licence the ‘prison gate’ may in fact be
the ‘Immigration Removal Centre’ gate. Or will providers be allowed to exclude foreign national
offenders from their tender plans?
It is clear that foreign national offenders subject to immigration control are not necessarily
continuously present in the community under licence because they may be re-detained, recalled,
or removed from the UK altogether. During periods in immigration detention (either in prison or
removal centre), the opportunity to reoffend is very much reduced though not completely
eliminated.
Changes in police practice towards foreign nationals will have an effect on conviction rates and the
frequency of reconvictions. The recent introduction under the Legal Aid, Sentencing and
Punishment of Offenders Act 2012 of a new type of conditional cautions for use with foreign
nationals, and pilot initiatives such as Operation Nexus in London police station custody suites (a
joint UKBA and Metropolitan Police Service project), have the potential to directly affect
reoffending rates among foreign nationals, and have the potential to influence PbR outcomes and
payments. Anecdotally, treatment of foreign nationals in police station custody suites, including
access to immigration legal advice and translation services, and disposal of their offences, is highly
dependent on the skill and experience of custody officers.
We agree that a binary measure 7 of reoffending, often characterised as a ‘cliff-edge’
measurement in the context of payment, is likely to be too blunt an instrument to be attractive to
providers. If a largely or wholly binary measure is relied on, we believe that perverse incentives
will likely lead to providers gaming the PbR system, cherry-picking those offenders who are easier
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A measure of the reduction in the proportion of offenders reconvicted.
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to help or easier to keep track of until the end of their licence period, or ‘parking’ of those
individuals likely to be harder to monitor, such as foreign national offenders moving in and out of
removal centres.
BID’s concern is that there are significant disincentives under PbR for providers to deliver
rehabilitative services to foreign national offenders. We believe that the risk of exclusion lies
primarily in the commissioning and payment planning stages, as potential providers negotiate for
the exclusion of those groups of offenders likely to drive success rates downwards. The risk would
appear to be greatest where a binary measure of success (or one heavily dependent on such) is
deployed. We are not in a position to suggest how to incentivise providers to work with foreign
national offenders.
Under a PbR approach, where the outcomes of service delivery interventions are not measured or
cannot be measured, those specific interventions are not likely to happen as there is simply no
incentive for providers to deliver unmeasured and unrewarded services. The Ministry of Justice
must therefore ensure that measurements of offending outcomes for the purpose of PbR
commissioning and commercial models sufficiently capture foreign national offenders’
trajectories. A proportion of foreign national offenders that remain in the UK, whether
temporarily or permanently, who are in the community during their Licence period, will need
rehabilitative and Licence –related services, so the Ministry of Justice will need to ensure that
these services are both provided and paid for under PbR, in order both to ensure the protection of
the public and discharge its equality duty.
Pricing structures under PbR: the commercial model
A proportion of any cohort of foreign national offenders under Licence will be removed or
deported from the UK, but not all of them. In BID’s view it is not possible to distinguish (in law)
which foreign national individuals are removable or will be removed or deported for long periods
of time post-sentence. This is despite the fact that in such cases UKBA will have the intention to
remove or deport from the UK. This will provide a disincentive for providers bidding for PbR
rehabilitative work to include foreign nationals as they may drop out of measurement cohorts
completely on removal, but in a qualitatively different way to someone subject to recall during the
Licence period for whom it could be argued that rehabilitation has failed.
BID is concerned that if new PbR providers successfully argue that they are unable to identify and
engage with foreign nationals in a way that can deliver both meaningful and measureable
rehabilitative services, will these providers then be permitted to exclude foreign national
offenders from their commercial models and subsequent agreed payment structures?
MoJ has been informed via earlier consultations that use of a binary desistance measure in PbR
will incentivise providers to cherry pick those individuals least likely to reoffend or whose level of
desistence is easiest to measure.
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We recommend that payment structures for successful providers provide sufficient incentive for
foreign national offenders – in much the same way as recall cases – to be an attractive target
group. Absent this, the reformed commission strategy will result in failure in the duty to protect
the public, and to consider the impact of the reforms on certain groups of offenders.
Providers are expected to deliver savings as well as a reduction in reoffending under PbR. It is not
clear how savings will be captured in relation to foreign national offenders who may move in and
out of immigration detention during their Licence period? If providers consider that payment for
success should reflect cost savings as well as statistically significant reductions in reoffending, BID
believes that there is a real risk that cost savings will be found via excluding foreign national
offenders.
Question C5: We want to incentivise through the gate provision, but some prisoners will
disperse to a different part of the country following release. How can be we best account for
that in contract design?
In relation to the design of competition and contractual structures, BID believes it will prove
impossible to isolate specific geographical contract areas (e.g. one of the 16 proposed tender
regions) as being those likely to hold larger concentrations of foreign nationals. Analysis of BID’s
client base over the two years 2010-2012 showed a distribution of foreign national clients for our
immigration legal advice in over 80 prisons across England and Wales. Similarly, foreign nationals
being released from immigration detention within a licence period could be released anywhere
within the UK.
Fig 1 (page 15) of the consultation document refers to the allocation of functions for different
offender groups to include:
“Supporting access to accommodation/ employment/ training/ substance misuse
treatment, in addition to delivery of sentence/licence requirements”.
In BID’s view, planning for competition and payment structures would need to address the fact
that foreign national offenders will have varying levels of eligibility for these services, in turn
dependent to some degree on whether they are EEA nationals or non-EEA nationals, and their
current immigration status (note, the latter may be a matter of legal fact not merely the opinion of
UKBA which should not be relied upon by PbR providers).
Fig 1 on page 15 of the proposal document also refers to the requirement for PbR providers to:
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“Notify the public sector probation service or court of breaches of community orders,
suspended sentence requirements and licence conditions”.
Foreign nationals being dealt within under the contract of a particular PbR provider, or in a
particular PbR contract area, may be released on immigration bail to UKBA-provided Section
(4)(1)(c ) bail accommodation and support anywhere in the country, and then subsequently moved
to new accommodation repeatedly during release if convenient for UKBA and/or their
accommodation providers under the new COMPASS contracts. Planning for rehabilitative services
for foreign national offenders under PbR must therefore factor in that providers will need to
ensure they are able to ensure continuity of service for such foreign national offenders. It will not
be acceptable in BID’s view for the extreme mobility of many foreign national offenders to be used
by PbR contractors as a reason to reflect this in payment planning and offer a substandard service.
EQUALITY IMPLICATIONS
Question C17: How can we use this new commissioning model, including payment by results, to
ensure better outcomes for female offenders and others with complex needs or protected
characteristics?
Foreign nationals are not mentioned anywhere in the consultation document despite the fact that
they constitute some 15% of the current prison population at any one time. It would be incorrect
of the Ministry of Justice to assume, in designing the competition, contractual and commissioning
structures of the ‘rehabilitation revolution’, to assume that any offender, by virtue of his or her
nationality, will be deported after serving all or part of their sentence, notwithstanding the socalled automatic deportation provisions of the UK Borders Act 2007. Over 30% of deportation
orders are successfully overturned.
Similarly, around 40% of those entering detention in Immigration Removal Centres are released
into the community rather than removed from the UK. This data is not broken down by the Home
Office, but it is safe to assume that a proportion of these individuals are still within their Licence
period. Many of BID’s legal advice clients are within their Licence period when they are released
on immigration bail.
A significant number of foreign national offenders will spend time in the community under
Licence. In BID’s view it is not appropriate to ignore both their rehabilitation needs and the need
to protect the public. Adequate attention needs to be paid to a suitable commissioning strategy
for foreign national offenders. The evidence of the consultation document is that this has not
been addressed.
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Section 2 of the proposal document (providers who tackle the causes of offending) sets out that
the government “will pay providers to deliver community orders and license requirements and
also incentivise them through payment by results to reduce offending” (MoJ, page 16).
The ‘NOMS Commissioning Intentions 2013-14: Discussion Document’ (October 2012 version)
notes that “there are some groups of offenders whose risk and offence-related needs are
sufficiently different from the main population that they require separate commissioning
strategies (page 17). The document sets out those groups with protected characteristics under
the Equalities Act 2010m where those characteristics are disability, race, sex, gender
reassignment , age, religion or belief , sexual orientation, pregnancy and maternity, marriage and
civil partnership. The NOMS document also sets out evidence relating to the specific needs of
certain groups of offenders (women, young adult offenders, and short sentence prisoners), but
does not once mention the foreign nationals who currently form 15% of the prison population.
The proposal document highlights the minister’s commitment to making the proposed reform of
offender management in the community to be effective for all offenders, noting in passing that
the specific needs and priorities of female offenders must be recognised and addressed by the PbR
approach. Similarly, the ‘NOMS Commissioning Intentions 2013-14: Discussion Document’ sets
out how Probation Trusts are required to demonstrate how they will ensure adequate provision of
women’s services. Again there is not a single mention of foreign national offenders, leading us to
wonder whether there has been any attention paid to foreign nationals in developing a
commissioning strategy for PbR delivery of rehabilitative services.
It must be stressed that foreign nationals are not the same as Black and Minority Ethnic (BAME)
offenders, although there will naturally be some overlap between the two categories. It is the
non-citizen status, not ethnic group that creates particular and separate needs for foreign national
offenders.
Although race is a protected characteristic under the Equality Act 2010, in effect under these
proposals an offender’s nationality is the characteristic that determines their trajectory through
the rehabilitation system as much as their race. We would stress that race is not an acceptable
proxy for nationality in this instance, and that the question of the nationality of an offender must
be considered in the commissioning of rehabilitative services under PbR.
The ‘NOMS Commissioning Intentions 2013-14: Discussion Document’ (October 2012) states that
before commissioning offender services for 2013-14, NOMS may ask providers to outline their
approach in respect of these equality expectations. Where issues are identified, NOMS may
require these to be addressed through development objectives in Service Level Agreements and
contracts for 2013-14. BID strongly recommends that there is a requirement on the part of
potential providers tendering for PbR rehabilitative contracts to undertake further work to identify
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and address the specific needs of foreign nationals within the offender population in order to
comply with the government’s equality duty.
For further information please contact
Dr Adeline Trude, Research & Policy Manager, Bail for Immigration Detainees
[email protected]
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