Transforming Rehabilitation: a revolution in the way we manage offenders. Response from Bail for Immigration Detainees, February 2013

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1 28 Commercial Street, London E1 6LS Tel: Fax: 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 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/ ; and Walumba Lumba (Congo) and Kadian Delroy Mighty (Jamaica) [2011] UKSC 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 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 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 prison 5. 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

3 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 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. 3

4 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 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. 4

5 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 7 A measure of the reduction in the proportion of offenders reconvicted. 5

6 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. 6

7 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 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: 7

8 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 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. 8

9 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 : 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 : 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 : Discussion Document (October 2012) states that before commissioning offender services for , 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 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 9

10 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 biduk.adeline@googl .com 10