Home Office circular 2 / 2006
Law enforcement liaison with the Immigration and Nationality Directorate (IND) to support foreign witnesses or covert investigations
Dear Chief Officer
This circular provides guidance on the procedures for dealing with persons who are subject to immigration control and required to give evidence at criminal prosecutions in the UK, or to support the deployment of foreign covert human intelligence sources (CHIS), and all other matters where covert policing assistance is required in respect of foreign nationals. This replaces HOC 12/97.
A consequence of the international nature of organised crime is the number of foreign nationals whose entry to, or deferral of removal from, the United Kingdom is of interest to various UK Law Enforcement Agencies (LEAs). In the main these persons will be witnesses for the Crown in criminal prosecutions, or Covert Human Intelligence Sources (CHIS). This circular sets out revised procedures for dealing with such cases and gives details of the Central Point of Contact within IND where action on witness cases will be co-ordinated.
The main points for LEA’s to consider are:
- the LEA should contact IND in every case involving a person whose entry into the UK they are seeking or whose stay in the UK they wish to extend
- it is essential that the integrity of the United Kingdom immigration control is maintained, that due regard be given to all relevant legislation and consequently that in all cases sponsored by an LEA, all information relevant to the entry, or stay, of a person in the UK is provided to IND
- where an LEA is sponsoring an extension of stay in the UK for a foreign national subject to immigration control, they will be liable for the appropriate application fee, which is incurred by any applicant seeking further leave to remain here
- prior to the consideration of any application for an extension of stay, it will be necessary for the subject’s immigration status to be formally established
- IND must always be provided with the subject’s true identity and other details as indicated in Annex A
- where the person is a witness in a criminal prosecution, a letter from the Crown Prosecution Service confirming the necessity of their presence will be required
- the final decision concerning the grant of leave to enter or remain in the UK, or deferral of removal from the UK, will be made by IND. In appropriate cases Ministers may be consulted
- whilst initial advice may be sought by an officer of any rank within an LEA, any formal written approach must be made at Assistant Chief Constable/Commander/ Band 11 HM Revenue & Customs and Deputy Director Level in the Serious Organised Crime Agency to the IND nominee indicated in Annex B
- the Central Point of Contact (CPC) within IND should be consulted in all witness cases. Further action within IND, including liaison with UKvisas, will be co-ordinated by the CPC. All CHIS referrals and requests for IND support of covert investigations will be co-ordinated by INDIS. Contact details can be found at Annex B.
Persons outside the UK
The use of video conferencing for giving evidence, rather than bringing a witness to the UK, should be considered in the first instance, particularly in those cases where leave to enter is unlikely to be granted because the person has criminal convictions, links with organised crime or war crimes and whose presence in the UK is not considered conducive to the public good. Section 32(1) of the Criminal Justice Act 1988 (as amended) provides for evidence from a person other than the accused to be heard from abroad over a live link in all trials on indictment, appeals to the criminal division of the Court of Appeal and hearings of references under section 17 of the Criminal Appeal Act 1968 (HO Circular 52/2004 refers). This provision applies equally to prosecution and defence witnesses. It is possible to set up the equipment necessary for a live link to the court anywhere, providing there is contact with the police/solicitors or some other legal representative in the source country.
If you require advice on the legal issues of video conferencing contact Pam Bowen (Crown Prosecution Service) on 020 7796 8305. IND’s Central Point of Contact can also be contacted for advice - see Annex B.
Entry to the UK
A person needing to come to the UK and give evidence as a witness will normally be expected to meet the requirements of the Immigration Rules for entry as a visitor. Information on the Rules for visitors can be obtained from the Immigration and Nationality Directorate website:
Leave (permission) to enter the UK may be granted either by entry clearance (visa) issued at a British visa issuing post abroad or by an Immigration Officer at the port of entry. Anyone can apply for entry clearance but nationals of certain countries need to obtain entry clearance before travelling to the UK (visa nationals).
Those who do not require a visa before travelling (non-visa nationals) may be given a short period of leave to enter by an Immigration officer on arrival. However, if there is any doubt about a person qualifying for entry on arrival, it is strongly recommended that entry clearance is obtained before travelling. Advice can be obtained from IND’s Central Point of Contact - see Annex B.
Witnesses who have difficulty fully meeting the requirements of the Rules for visitors may be granted a short validity entry clearance as a visitor that is valid for entry to the UK on one occasion only. Those who would normally be refused entry on grounds of criminal convictions, criminal associations, or have been implicated in war crimes or crimes against humanity may be granted a visa waiver (after reference to Ministers) if, on balance, their presence in the UK to give evidence is considered to be in the public interest. A visa waiver may also be appropriate where there is insufficient time to issue an entry clearance or there are compelling operational reasons. On arrival, the Immigration Service will assess whether the person qualifies for leave to enter to the United Kingdom or should be admitted on temporary conditions. Further advice should be sought from IND’s Central Point of Contact - see Annex B.
UKvisas can advise on the nearest visa issuing post on +44 (0)20 7008 8363/8342
A visa waiver enables a person who is normally subject to an entry clearance requirement, to travel to the UK without obtaining the requisite UK entry clearance first. The relevant airlines are contacted by IND to facilitate the person’s entry and deal with carrier’s liability issues (the penalty imposed on a carrier for bringing an improperly documented person to the UK). Visa waivers will only be considered in very few, exceptional cases. A visa waiver may be authorised when there are compelling operational/political reasons why it is vital that a person who may not otherwise qualify for entry, be admitted to the UK (often at very short notice) to give evidence at a trial. IND’s Central Point of Contact should be contacted for advice and will consider any such requests.
Persons already in the UK
If a person required to give evidence is already in the UK, IND should be contacted at an early stage of court preparations, so that the person’s immigration status can be established. A person who meets the requirements of the Immigration Rules may be granted a short extension of stay. All applications to IND for an extension of stay will be subject to the appropriate fee and supporting evidence produced from the Crown Prosecution Service. Application Form FLR (O) should be used, a copy of which can be obtained from the Application Forms Unit on 0870 241 0645 or by downloading from IND’s website:
A person already present in the UK but who is subject to removal action (for example as an illegal entrant), may be allowed to remain either in order to assist with investigations of serious crime or to be a witness for the Crown in a criminal prosecution. It is imperative that their immigration status is clarified and resolved at an early stage in order that the possibility of any allegation of inducement or favour regarding their immigration status is addressed. IND’s Central Point of Contact should be contacted for further advice in all cases - see Annex B.
Covert Human Intelligence Sources (CHIS)
There may also be occasions when an LEA wishes to arrange for the entry to the UK, or for the continued stay, of a person who would not normally qualify under the Immigration Rules. For example, a person may have useful intelligence concerning criminal activities either in the UK or elsewhere, or has indicated a willingness to act as a registered CHIS - Covert Human Intelligence Source - or indeed otherwise to assist the LEA. However, in circumstances where the person has a criminal record or criminal associations, or where there may be grounds for believing that they do not intend to leave the UK at the end of their permitted stay, or where they may have no adequate means of support, it is unlikely that such a person would qualify for leave under the Immigration Rules.
The LEA must provide IND with the true identity of the person involved, any known aliases, and the place and date of any proposed entry, where this is known. They will also need to provide full details of the person’s criminal record or associations, as indicated in Annex A and why it would be in the public interest for the person to be in the UK. In cases where a visa is required prior to arrival in the UK, IND will liaise with UKvisas. In exceptional cases IND may consider authorisation of a visa waiver. Where necessary officers from the IND Intelligence Service will act as liaison between the police and IND. See Annex B for INDIS contact point. It is recommended that LEAs make initial enquiries prior to submitting formal applications.
Where it is intended to place a foreign national subject to immigration control in a Witness Protection Scheme, the LEA must contact IND with full details of the person concerned and their current immigration status. Where the person is in the UK in breach of immigration legislation, this must be brought to the attention of IND as soon as possible in order that appropriate enforcement action can be completed and allegations of inducement or favour can be addressed at an early stage. See Annex B for appropriate IND contact point.
Covert law enforcement investigations involving foreign nationals who are subject to immigration control
Any approaches for assistance in respect of other aspects of covert policing and investigative matters must be made to the IND Intelligence Service. This includes the deployment of foreign undercover officers and requests to monitor arrivals of illegal entrants. See Annex B for appropriate IND contact point.
For enquiries regarding entry to, extensions of stay in, or deferral of removal from the UK for witnesses.