![Borders, Citizenship and Immigration Bill [HL]](http://data.docslib.org/img/b914ac6c9c62504ee6916fc9b6d9a27e-1.webp)
House of Commons Home Affairs Committee
Borders, Citizenship and Immigration Bill [HL]
Fifth Report of Session 2008–09
Report, together with formal minutes, oral and written evidence
Ordered by the House of Commons to be printed 21 April 2009
HC 425 [Incorporating HC 1130-i and HC 1130-ii, Session 2007-08] Published on 29 April 2009 by authority of the House of Commons London: The Stationery Office Limited £0.00
The Home Affairs Committee
The Home Affairs Committee is appointed by the House of Commons to examine the expenditure, administration, and policy of the Home Office and its associated public bodies.
Current membership Rt Hon Keith Vaz MP (Labour, Leicester East) (Chairman) Tom Brake MP (Liberal Democrat, Carshalton and Wallington) Ms Karen Buck MP (Labour, Regent’s Park and Kensington North) Mr James Clappison MP (Conservative, Hertsmere) Mrs Ann Cryer MP (Labour, Keighley) David TC Davies MP (Conservative, Monmouth) Mrs Janet Dean MP (Labour, Burton) Patrick Mercer MP (Conservative, Newark) Margaret Moran MP (Labour, Luton South) Gwyn Prosser MP (Labour, Dover) Bob Russell MP (Liberal Democrat, Colchester) Martin Salter MP (Labour, Reading West) Mr Gary Streeter MP (Conservative, South West Devon) Mr David Winnick MP (Labour, Walsall North)
Powers The Committee is one of the departmental select committees, the powers of which are set out in House of Commons Standing Orders, principally in SO No 152. These are available on the Internet via www.parliament.uk
Publication The Reports and evidence of the Committee are published by The Stationery Office by Order of the House. All publications of the Committee (including press notices) are on the Internet at www.parliament.uk/homeaffairscom. A list of Reports of the Committee since Session 2005–06 is at the back of this volume.
Committee staff The current staff of the Committee are Elizabeth Flood (Clerk), Eliot Barrass (Second Clerk), Elisabeth Bates (Committee Specialist), Sarah Harrison (Committee Specialist), Darren Hackett (Senior Committee Assistant), Ameet Chudasama (Committee Assistant), Sheryl Dinsdale (Committee Assistant) and Jessica Bridges-Palmer (Select Committee Media Officer).
Contacts All correspondence should be addressed to the Clerk of the Home Affairs Committee, House of Commons, 7 Millbank, London SW1P 3JA. The telephone number for general enquiries is 020 7219 3276; the Committee’s email address is [email protected].
Borders, Citizenship and Immigration Bill [HL] 1
Contents
Report Page
Introduction 3 The Committee’s inquiry 3
1 The Bill’s provisions 5
2 Citizenship 6 New category of ‘probationary citizenship’ 6 Incentivising citizenship and promoting integration 6 Restricting access to services and benefits 8 Qualifying period 11 Activity condition 13 Vulnerable groups 15 Refugees 15 Retrospectivity 18
3 Immigration-related judicial review 20 Transfer into the tribunal system 20 Poor initial decision-making 21 Complex cases 21 Tribunals are untested 23
4 Other matters 24 Chief Inspector of the UK Border Agency 24
Conclusions and recommendations 25 New category of ‘probationary citizenship’ 25 Activity condition 25 Vulnerable groups 26 Immigration-related judicial review 27 Other matters 27
Formal Minutes 28
Witnesses 29
List of written evidence 30
List of Reports from the Committee during the current Parliament 31
Borders, Citizenship and Immigration Bill [HL] 3
Introduction
The Committee’s inquiry
1. The Government asked the Committee to conduct pre-legislative scrutiny of a Draft (Partial) Immigration and Citizenship Bill, published by the Home Office on 14 July 2008. The Government’s stated intention was that this legislation would constitute a “fundamental overhaul of the law”,1 to include an overhaul of immigration permission, a streamlined power of expulsion, wide detention and tagging powers for illegal immigrants, new powers for UK Border Agency (UKBA) officers, and the restriction of full access to services and benefits to British citizens only. The Draft (Partial) Bill contained about two thirds of the provisions the Government intended to introduce in the full Bill.
2. On 22 July 2008 we therefore announced our intention to inquire into the following aspects of the Draft (Partial) Bill:2
• “Strong borders” (including modernising border powers and carriers’ liability and powers to cancel visas abroad)
• “Selective migration” (including the introduction of ‘permission’ for migrants, replacing notions of leave to enter, leave to remain and entry clearance, and a single power of expulsion)
• “Earning the right to stay” (including new requirements for citizenship and an automatic ban on returns with new powers to exclude criminals and immigration offenders)
• “Playing by the rules” (including the introduction of ‘bail bonds’ for those awaiting detention or expulsion, ‘immigration bail’ as an alternative to detention, revised sanctions for breaches of immigration law, and a simplified appeals system)
• “Managing any local impacts” (including simplification of legislation on access to benefits and services)
3. We received thirty-five written submissions and took oral evidence from ten witnesses on two occasions in October and November 2008. In addition we questioned the Minister of State for Borders and Immigration on 20 November 2008.
4. In November 2008 the Government announced that it intended to delay introduction of a full Bill along the lines set out in the Draft (Partial) Bill. Instead, it would introduce a short Bill with a narrower scope early in 2009, followed later in the parliamentary session by a more comprehensive Bill containing the provisions to consolidate and simplify
1 UK Border Agency, Making Change Stick: An introduction to the Immigration and Citizenship Bill, p.1 2 Terms of Reference announced in Press Notice 56 of Session 2007-08: http://www.parliament.uk/parliamentary_committees/home_affairs_committee/hacpn080722no56.cfm
4 Borders, Citizenship and Immigration Bill [HL]
immigration legislation. The Government stated that this later Bill would “replace all the current layers of primary immigration law with a single new Act”.3
5. Accordingly, the Government introduced the Borders, Citizenship and Immigration Bill [HL] in the House of Lords on 14 January 2009. The scope of this Bill was indeed far narrower than the Draft (Partial) Bill initially considered by this Committee. We did not take fresh oral evidence, but we did ask those who had already submitted written evidence to submit any further comments if they so wished. We received eleven further written submissions.
6. In this Report we comment principally on the Borders, Citizenship and Immigration Bill’s provisions on ‘earned citizenship’ and the transfer of immigration-related judicial review, since these provisions remain relevant to our evidence. We publish all of the evidence we took on the Draft (Partial) Bill with this Report—although some of it is not directly relevant to the provisions in the Bill as introduced—in order to put it in the public domain and inform future debate.4 In addition to the areas we comment on in this Report, the evidence covers: immigration permission; powers of examination; expulsion and exclusion; immigration detention; immigration bail and bail bonds; and appeals. We take this opportunity to thank everyone who has helped us by providing oral and written evidence.
7. We hope this Report and the accompanying evidence will be of some use to Members in considering the Borders, Citizenship and Immigration Bill [HL] once it reaches the House of Commons. We also note that the Joint Committee on Human Rights (JCHR) published a Report on the Bill on 25 March 2009.5 That Report comments on similar issues, although of course principally from a human rights perspective, and provides useful reading.
8. We may make comments on proposed changes to immigration permission based on the evidence we took on the Draft (Partial) Bill, if and when the Government introduces an immigration simplification Bill.
3 The Parliamentary Under-Secretary of State, Home Office (Lord West of Spithead), Second Reading debate, Borders, Citizenship and Immigration Bill [HL], HL Deb 11 February 2009, col1128 4 Note: In referring to the Bill, our witnesses cite the clause and section numbers in the Bill as introduced in the House of Lords (text of 14 January 2009). Some of the clause and section numbering has been amended during the passage of the Bill through the Lords. Where this has happened, the updated numbering is given in footnotes and refers to the text as amended on Report in the Lords (text of 2 April 2009). 5 Joint Committee on Human Rights Report, Ninth Report of Session 2008-09, Legislative Scrutiny: Borders, Citizenship and Immigration Bill, HL Paper 62, HC 375. Hereafter referred to as ‘JCHR Report’.
Borders, Citizenship and Immigration Bill [HL] 5
1 The Bill’s provisions
9. The Borders, Citizenship and Immigration Bill [HL] was introduced in the House of Lords on 14 January 2009. It had its Second Reading on 11 February 2009 and completed its Committee stage on 10 March 2009. Report stage was held on 25 March and 1 April 2009 and Third Reading on 22 April 2009.
10. The key provisions in the Bill can be summarised as follows. The Bill: a) Allows for certain functions to be transferred from HM Revenue and Customs to officials of the recently created UK Border Agency. The customs role of the UK Border Agency will focus on border-related matters, while HM Revenue and Customs will retain responsibility for revenue and customs functions inland. b) Implements the Government’s proposals for a new ‘path to citizenship’ by amending provisions of the British Nationality Act 1981 relating to naturalisation as a British citizen. Other amendments relate to the children of foreign and Commonwealth members of the armed forces and to the registration as British citizens of children born abroad to British mothers before 7 February 1961. c) Introduces powers to control all those arriving in the UK from another part of the Common Travel Area [the currently passport-free zone that comprises the Republic of Ireland, the UK, the Isle of Man, Jersey and Guernsey]. Other changes relate to restrictions on studying in the UK, powers to take fingerprints, and detention at ports in Scotland. d) Allows judicial review applications in immigration and nationality cases to be heard by the new Upper Tribunal instead of the High Court. e) Introduces a new duty on the UK Border Agency to safeguard the welfare of children.6
In this Report we comment on (b) and (d), since we took evidence on these matters. In addition, we make a number of brief observations about other measures.
6 Taken from parliamentary Bill gateway, Borders, Citizenship and Immigration Bill [HL] 2008–09: http://services.parliament.uk/bills/2008–09/borderscitizenshipandimmigration.html
6 Borders, Citizenship and Immigration Bill [HL]
2 Citizenship
11. The citizenship provisions in the Bill implement proposals made by the Government in its Green Paper, The Path to Citizenship: Next Steps in Reforming the Immigration System, published by the Home Office in February 2008. The Government is seeking to introduce a principle of ‘earned citizenship’, by tightening the requirements to be met for the acquisition of British citizenship by naturalisation.7 We considered two main provisions: the introduction of a new category of ‘probationary citizenship’ between initial temporary leave and citizenship, and the introduction of an ‘activity condition’ to speed up the citizenship process. New category of ‘probationary citizenship’
12. The Bill introduces a new category of immigration leave which migrants must hold to be eligible to apply for British citizenship. This so-called ‘probationary citizenship leave’ replaces indefinite leave to remain in the current system. The Immigration Law Practitioners Association (ILPA) described the current and proposed systems in its briefing paper for Second Reading in the Lords:
Currently naturalisation involves three stages:
• A period of temporary (or limited) leave.8 During this period a migrant’s access to services and benefits may be restricted.
• A period of indefinite leave to remain, during which a migrant’s access to services and benefits is no longer restricted.
• Finally, British citizenship.
The new three stages are to be:
• A period of temporary (or limited) leave. As now, a migrant’s access to services and benefits may be restricted; and this period will be of the same duration as now.
• Another period of temporary leave. This is, however, given a new name— probationary citizenship.
• Finally, British citizenship or permanent residence.9 Incentivising citizenship and promoting integration
13. The Immigration Law Practitioners Association (ILPA) argued to us that the introduction of probationary citizenship unnecessarily complicates the naturalisation
7 Clauses 39–50 (Bill as amended on Report in the House of Lords). 8 For those joining British or settled family members, this period is currently 2 years. For those on economic migration routes or refugees, this period is currently 5 years. 9 Immigration Law Practitioners Association General Briefing Second Reading (Lords), February 2009, p.3
Borders, Citizenship and Immigration Bill [HL] 7
process by adding a further stage of temporary leave for migrants, thereby contradicting the Government’s aim of simplifying the process:
The proposed new “probationary citizenship” stage is unnecessary and adds complication since it is nothing more than a new name for “temporary leave” which is also a stage on the route to citizenship.10
Other witnesses—the Immigration Advisory Service11, Liberty12 and the Refugee Council,13 for instance—agreed.
14. One of the Government’s stated intentions in introducing the earned citizenship provisions, including probationary citizenship, was to incentivise the take up of British citizenship: “we believe there are insufficient incentives for migrants to complete their journey to citizenship, which we believe can significantly aid integration into British society”.14 However, the evidence we took from migrants and migrants’ groups demonstrated little support for this rationale. Sylvie Aboa-Bradwell, a Cameroonian migrant and officer for the Centre for Democracy and Development, told us:
I would definitely not be encouraged by the probationary citizenship because it will in effect amount to an extension of my period as a non-British citizen. What I think will be a satisfactory compromise will be to reduce the amount of time one has to wait in order to be able to apply for British citizenship, and use this remaining time as a probationary period.15
15. Other witnesses agreed that probationary citizenship would not help integration, as the Government hopes, but could in fact damage it. The Immigration Law Practitioners Association (ILPA) stated that “the extension of periods during which migrants whose long-term future is accepted to be in the UK may be excluded from services promotes marginalisation rather than integration”.16 The Institute for Community Cohesion stated that “a lack of right to remain and the feeling that an individual is not truly settled is likely to act as a disincentive towards integration. Rather than encourage greater civic involvement, we fear that people may feel like second-class citizens and therefore be less inclined to get involved in their local community”.17
16. We heard from migrants and migrants’ rights groups that the proposals on probationary citizenship in this Bill would be unlikely to encourage greater take-up of British citizenship, which is one of the Government’s stated aims. The Government should ensure that policy is based on consultation with the specific groups it seeks to incentivise—in this case migrants—rather than on its own assumptions.
10 Ev 169 11 Ev 96 12 Ev 128 13 Ev 101 14 UK Border Agency, Impact Assessment of Earned Citizenship Proposals: Borders, Citizenship and Immigration Bill, 15 January 2009, p.4 15 Q 120 16 Ev 57 17 Ev 38
8 Borders, Citizenship and Immigration Bill [HL]
Restricting access to services and benefits
17. Although not set out on the face of the Bill,18 the accompanying explanatory notes set out the Government’s intention to restrict access to some services and benefits for migrants on probationary citizenship leave. Under the current system, migrants with indefinite leave to remain are not restricted in their access. However, under this Bill the Government intends to apply the principle that, “subject to limited exceptions such as where we are meeting our international obligations, full access to benefits is delayed until citizenship”.19
18. The explanatory notes state:
Under the proposals, full access to benefits and public services will be delayed until migrants become British citizens or permanent residents. This will entail a delay in access to these benefits of between one and five years for those who would in the current system qualify for indefinite leave to remain but will in future need to become probationary citizens before being able to progress to citizenship or permanent residence.20
19. The Joint Committee on Human Rights (JCHR) sought clarification from the Government on the detail of these restrictions. In its recent Report that Committee concluded that the Bill “makes no change to the underlying legislation on access to benefits to migrants. Persons subject to immigration control are already subject to restrictions on the benefits to which they are entitled”.21 However, they concluded, the effect of the switch to probationary citizenship was to:
Extend the time that it takes to get to applying for actual citizenship by a year and in the meantime restrictions on access to benefits and services apply that did not previously apply to those with indefinite leave to remain who were on the path to citizenship. A person who is given probationary citizenship leave will therefore be ineligible for 15 different types of benefit that are available to those with indefinite leave to remain.22
20. During consideration of the Draft (Partial) Bill we took extensive evidence from medical professionals and organisations who were worried about the impact of proposals indicated in the Draft Bill to restrict access to health services for some groups of migrants. The Borders, Citizenship and Immigration Bill (HL) does not restrict access to health services, 23 and our witnesses have confirmed that they do not have concerns about this Bill as introduced. However, we thought it useful nevertheless to rehearse the arguments in relation to restricting access to health services for some groups, since medical professionals made persuasive arguments on the damaging effects of such
18 They are to be implemented by regulation instead 19 Explanatory Notes to Borders, Citizenship and Immigration Bill [HL], p.4 20 Explanatory Notes to Borders, Citizenship and Immigration Bill [HL], Cost/Benefit Analysis, p.4 (paragraph 32) 21 JCHR Report, para. 1.41 22 Ibid., para 1.43 23 Since health services are based on national insurance contributions, migrants who pay tax and national insurance will continue to be entitled to them, once they have built up sufficient contributions. The restrictions envisaged in this Bill will be to non–contributory benefits, such as homelessness assistance, disability living allowance, child benefit, housing benefit or income support.
Borders, Citizenship and Immigration Bill [HL] 9
restrictions. Moreover, our evidence clearly showed that existing restrictions on access to health services have led to confusion and, in some cases, to civil disobedience by medical professionals.
21. Susan Wright of Medicins du Monde registered concern about any ‘two tier’ system of access, noting that under current arrangements there was already widespread confusion amongst both medics and migrants about who was entitled to which health services.24 Lisa Power of the Terrence Higgins Trust agreed, telling us that they “regularly see people who are migrant who are entitled to NHS services being refused them because of confusion about what the rules are”.25
22. The British Medical Association, Medicins du Monde, the Terrence Higgins Trust, the National Aids Trust and others argued that denying access to such services as primary healthcare to some migrants was counterproductive in a number of ways. First, restricting access for groups such as failed asylum seekers had already increased the costs to emergency services such as Accident and Emergency departments, because migrants tended to wait until their condition was critical rather than seeking early treatment. Medicins du Monde stated:
If people are barred access to GPs, they will be left with no other choice than to seek care at A&E centres. As research has already shown, this places unnecessary pressure on A&E centres, many of which are already short staffed and inadequately equipped to handle the cases that require emergency attention.26
23. Second, existing restrictions on certain groups of migrants accessing health services had not made much difference to the overall numbers accessing health services. Professor Nathanson of the British Medical Association told us:
The evidence is that [asylum seekers, undocumented individuals] do not access health services very often. The evidence is that they access services late, that they believe they have no right of access.27
Susan Wright of Medicins du Monde agreed:
Although there is the public perception that this particular client group has made a real negative impact on the NHS, the fact is we have seen the opposite, that this is a client group that is not accessing the services they need. To be quite concrete, over two years we saw less than 1,000 people.28
24. Third, restricting access was leading doctors to engage in acts of civil disobedience rather than refusing to treat migrants in need. Lisa Power of the Terrence Higgins Trust told us:
24 Q 140ff 25 Q 150 26 Ev 119 27 Q 136 28 Q 142
10 Borders, Citizenship and Immigration Bill [HL]
We see an awful lot of what I would call clinical disobedience from clinicians who are extremely clear that it is in the interests of the health of this nation and not just the health of the individuals that we treat anybody who is resident in this country with HIV.29
25. More than 900 doctors registered to practice in the UK signed a petition against a proposed Government policy to restrict access to health services to asylum seekers. Medicins du Monde cited the substance of the petition, which appeared in The Lancet on 19 January 2008:
This would impose serious health risks on [undocumented migrants] and on the general public. It would also interfere with our ability to carry out our duties as doctors. It is not in keeping with the ethics of our profession to refuse to see any person who may be ill, particularly pregnant women with complications, sick children or men crippled by torture. No one would want such a doctor for their GP.
We pledge that, in the event this regulation comes into effect, we will: (a) continue to see and examine asylum seekers and to advise them about their health needs, whatever their immigration status; (b) document their diagnoses and required clinical care; (c) with suitable anonymisation and consent, copy this documentation to the responsible ministers, [members of parliament] and the press; (d) inform the public of the human costs, to harness popular disgust at what is being ordered by the government in their name; (e) campaign to speedily reverse these ill-advised policies.30
26. We also heard evidence that increasing the time period during which migrants’ access to services and benefits are restricted—as this Bill would do—would have a financial cost for local authorities supporting those migrants in need who have ‘no recourse to public funds’ (NRPF). Research by the No Recourse to Public Funds Network, a coalition of local authorities focussing on the statutory response to destitute people from abroad who have no recourse to public funds, found that “in 2007-08 the NRPF policy cost local authorities at least £33.4 million, an increase of 8% on the costs incurred in 2006-07”.31 The Network noted that extension of the time during which migrants have limited access to services, as under probationary citizenship in this Bill, would increase these costs to local authorities and the voluntary sector.
27. The evidence we received during consideration of the Draft (Partial) Immigration and Citizenship Bill cautioned against any future restrictions on access to primary health services for those subject to immigration control. Medical professionals gave persuasive evidence that the risks—to public as well as individual health—outweighed the benefits of any such restriction.
29 Q 150 30 Ev 119 [Medicins du Monde] 31 Ev 111
Borders, Citizenship and Immigration Bill [HL] 11
Qualifying period
28. Clause 37(2) of this Bill as introduced32 sets out six requirements relating to the applicant’s presence in the UK during the qualifying period for citizenship. These are that the applicant: a) must have been in the UK at the beginning of the qualifying period; b) must not have been absent from the UK for more than 90 days in each year of the qualifying period; c) must have had a qualifying immigration status for the whole of the qualifying period; d) on the date of the application for naturalisation, must have either probationary citizenship leave, permanent residence leave, a qualifying CTA [Common Travel Area] entitlement, a Commonwealth right of abode, or a permanent EEA entitlement; e) on the date of the application for naturalisation, where the applicant has probationary citizenship leave granted for the purpose of taking employment in the UK, must have been in continuous employment since the date of the grant of that leave; f) must not, at any time in the qualifying period, have been in the UK in breach of immigration laws.
29. Our witnesses were exercised over the requirement to have been in ‘continuous employment’ for the entire period of probationary citizenship (Clause 37(2)(e), above) in order to qualify to apply for citizenship. The Immigration Law Practitioners Association (ILPA) has noted that different requirements already exist for groups of migrants with regard to employment: for example, Tier 2 applicants under the new points-based system are granted 60 days in which to find another job if their employer loses their sponsor licence, whereas EEA nationals are considered to be in continuous employment if they are in employment with breaks of not more than 30 days.33 ILPA has argued that “the Government has failed to explain what ‘continuous employment’ means”, and that “the requirement that a migrant continues to be lawfully present (i.e. continues to have temporary leave and to abide by the conditions of that leave) is sufficient”.34
30. The Migrants’ Rights Network made a similar case in written evidence:
This will put intense pressure on all economic migrants and refugees, particularly within the context of ongoing recession and increasingly competitive UK job markets. We are extremely concerned that migrant workers who are made redundant or have a short break between jobs would fall foul of the rules and be required to begin their journey to citizenship again – a possible further eight years.35
32 Clause 40(3) of the Bill as amended on Report in the House of Lords. 33 ILPA Briefing on the Borders, Citizenship and Immigration Bill, Clause 37 (Continuous Employment), February 2009, pp.1–2: http://www.ilpa.org.uk/briefings/09%2002%2024%20ILPA%20HL%20Comm.%20Cl%2037%20Continuous%20Empl oy.pdf 34 Ibid., pp.1–2 35 Ev 181
12 Borders, Citizenship and Immigration Bill [HL]
The Joint Council for the Welfare of Immigrants concurred that the requirement:
may lead to indirect discrimination on grounds of race or gender…given its propensity for disproportionate impacts on women who most obviously may need to take time out of the labour market due to pregnancy and child-care responsibilities, or certain ethnic groups (and women), given their greater tendency to be located in insecure employment.36
31. During Committee stage in the Lords, Lord Brett, speaking for the Government, noted that Clause 37(7) of the Bill as introduced37 contained a discretionary power to waive the ‘continuous employment’ requirement in “compelling circumstances”.38 He set out some of the factors that the Government would consider when assessing whether to apply this discretion, including the person’s overall employment record while in the UK, the length of time they had been out of work, and the explanation or evidence offered by the individual.39
32. However, other peers expressed dissatisfaction, arguing that both the requirement and the discretion remained ill-defined. For example, Lord Avebury argued that:
With 2 million people out of work, it is getting increasingly difficult for somebody who is thrown out of a job through redundancy or the employer going bankrupt to find a new job. The compelling circumstances may not be of that short a duration and victims of the recession are entitled to know how this discretion will be exercised.40
33. We support the principle that those granted probationary citizenship leave for the purposes of employment should be required to prove that they were working during that probationary period. However, we consider that for those migrants who abide by the conditions of their leave, short periods of joblessness, particularly in the current economic climate, should not automatically restart the clock on their qualifying period to citizenship. Whilst we welcome the discretionary power in the Bill to, in ‘compelling circumstances’, waive the requirement for an individual to have been in continuous employment, the conditions in which the exercise of that discretion is envisaged remain ill-defined. The Government must be more transparent by setting out a specific time period within which individuals can be between jobs without breaking the continuous employment requirement for citizenship. We suggest that this period should be in line with existing conditions, such as the 60 days granted to migrants under tier 2 of the points-based system.
36 Ev 193 37 Clause 40(7) of the Bill as amended on Report in the House of Lords. 38 HL Deb 2 March 2009, col 526 39 HL Deb 2 March 2009, col 734 40 HL Deb 25 March 2009, col 733
Borders, Citizenship and Immigration Bill [HL] 13
Activity condition
34. Clause 39 of this Bill as introduced41 introduces a mechanism whereby migrants can speed up the time taken to acquire British citizenship by engaging in some form of community volunteering. The Government states that its intention is to speed up the journey to British citizenship and permanent residence for migrants for those who demonstrate ‘active citizenship’. 42
35. Under these provisions the minimum time periods to qualify as British will be three years for those with a relevant family association and six years for others (both time periods currently apply). However, only those who participate in ‘prescribed activities’ will benefit from those minimum time frames once the Bill is enacted. If a person does not participate in ‘prescribed activities’, an additional two years is added to the qualifying period, making it five years for those with a relevant family association and eight for other applicants.
36. The ‘prescribed activities’ are to be defined in regulations, so they are not yet available for scrutiny. Liberty describes some of the likely forms volunteering could take:
The Green Paper suggested that activities such as volunteering with a recognised organisation, serving on community bodies and fundraising for schools and charities would be considered. This type of volunteering will necessarily ignore the ways in which many migrants already volunteer their services to the community, for example with informal childcare arrangements, or teaching English.43
37. In its impact assessment, the Government pledges to “establish a working group with the voluntary sector and local government to advise on the most effective way to operate this in practice”.44 Once drafted, the regulations defining the ‘prescribed activities’ will be subject to affirmative resolution: they will need to be approved by both Houses of Parliament.
38. The Bill also introduces a discretionary power which allows the Secretary of State to treat a person as though they have participated in ‘prescribed activities’. It is unclear how this will work in practice, although it perhaps provides an opportunity to make exemptions for vulnerable groups—such as those we discuss below, in paragraphs 47 to 58.
39. We took evidence on the proposed activity condition during scrutiny of the Draft (Partial) Bill. Some witnesses welcomed the principle of community volunteering. Sylvie Aboa-Bradwell, a Cameroonian migrant and officer for the Centre for Democracy and Development, told us:
41 Clause 42 of the Bill as amended on Report in the House of Lords. 42 UK Border Agency, Impact assessment of earned citizenship proposals Borders, Citizenship and Immigration Bill, 15 January 2009, p.6 43 Ev 186 44 UK Border Agency, Impact assessment of earned citizenship proposals Borders, Citizenship and Immigration Bill, 15 January 2009, p.6
14 Borders, Citizenship and Immigration Bill [HL]
I think it is a good idea, in the sense that many migrants like myself come from countries where volunteering is really an unknown concept, whereas it is quite a British way of doing things.45
40. Others were more sceptical. The Immigration Law Practitioners Association (ILPA) considered the activity condition to be “a license for discrimination, exploitation and confusion...encouraging active participation in society could be done perfectly well by making opportunities available, including by providing rather than by taking away State support”.46
41. The Government itself has acknowledged this potential for discrimination. Its equality impact assessment (EIA) of the Bill states that:
Concerns raised that the ‘active citizenship’ proposal by which migrants who actively contribute to the local community can progress to citizenship and English language requirements could represent barriers to people from particular social groups.47
The EIA also states that “concerns were also raised that ‘active citizenship’ could be discriminatory on grounds of age and disability. Further consultation will be undertaken with voluntary organisations, local government and migrant groups to ensure the proposals are non-discriminatory”.48
42. Liberty noted a potential problem of capacity in the voluntary sector:
Liberty has serious reservations about the impact on the voluntary sector who, as far as we are aware, have not asked for the creation of large numbers of potential “volunteers”. It is unclear how the Government intends to regulate volunteering on this scale. By creating unprecedented levels of supply, there is inevitably a danger that those seeking to volunteer may be exploited as an industry of “volunteering opportunities” is created.49
43. The basic principle that those who wish to become British citizens should contribute to British society is uncontroversial, and we therefore consider that the concept of ‘active citizenship’ is essentially a fair one. However, the principle must be applied in a fair and proportionate manner, and in a way which does not discriminate against vulnerable groups.
44. It concerns us that the Government intends to use an unamendable form of legislation to define the prescribed activities by which migrants will be able to reduce their qualifying time for citizenship by two years. The question of which activities will count is of key importance in the fair operation of the new architecture, and the way in which individuals qualify for citizenship touches on important constitutional principles. We therefore recommend that Parliament amends the Bill to stipulate that
45 Q 122 46 Ev 64 47 UK Border Agency, Equality Impact Assessment of Borders, Citizenship and Immigration Bill, p.5 48 Ibid. 49 Ev 186
Borders, Citizenship and Immigration Bill [HL] 15
the detailed nature of these prescribed activities be laid under super-affirmative resolution procedure,50 thereby ensuring a greater level of parliamentary scrutiny.
45. We further recommend that the prescribed activities should recognise the range of forms of volunteering already undertaken in communities, and should count existing informal volunteering arrangements towards the requirement, rather than imposing additional burdens.
46. There is a danger that the activity condition, if implemented without proper consideration, could cause a glut of poorly regulated ‘volunteers’. This could place undue and unwanted pressure on the voluntary sector and mean that migrants struggle to fulfil the condition, let alone engage in meaningful activity. The Government must ensure not only that it fully engages with the voluntary sector, but that it also acts upon its advice in implementing the condition. Vulnerable groups
47. Several witnesses noted that both the introduction of probationary citizenship and the activity condition could have a damaging effect on certain vulnerable groups, in particular refugees, or victims of other abuse such as domestic violence or human trafficking. Refugees
48. The Joint Committee on Human Rights (JCHR) concluded in its recent Report that these provisions would have a disproportionate impact on refugees:
We are concerned that the effect of certain of the earned citizenship requirements in the Bill make it more difficult for refugees and those with humanitarian protection to qualify for naturalisation as a British citizen, contrary to Article 34 of the Refugee Convention.51
49. Some witnesses argued that trauma and instability already suffered by many refugees should exempt them from having to jump through further hurdles or undertake additional activities in order to be granted settled status, or full access to services and benefits. Daniel Furner of the Refugee Legal Centre told us that:
These tend to be people who are very traumatised and who have a very, very high prevalence of mental health problems, and to put additional requirements on them when certainty and security is often a main factor driving these people’s recovery and rehabilitation from persecution they have suffered in the past is an unreasonable thing to do.52
50. The UN High Commission for Refugees (UNHCR) agreed that there was “a real risk that the complexity of the process and the fees involved will make the integration process
50 The ”super–affirmative” procedure requires the proposed instrument to be laid before Parliament for a prescribed period, to allow for scrutiny and the suggestion of amendments, before a draft instrument (incorporating any amendments of which the Government approves) is laid for approval. 51 JCHR Report, para 1.55 52 Q 45
16 Borders, Citizenship and Immigration Bill [HL]
longer and more expensive for refugees, contrary to Article 34 of the 1951 Refugee Convention”,53 and urged the Home Office to:
Consider making exceptions for refugees who are unable to participate, or are limited in the manner in which they are able to participate in community activities. In this regard it should be borne in mind that refugees may have faced specific forms of persecution in the past and the association with community activities may have had unintended impacts on their emotional and physical well being.54
51. Witnesses also highlighted the fact that refugees and asylum seekers are often granted periods of temporary leave whilst their claims are determined, and were concerned that, under the provisions in this Bill, such periods of temporary leave would not count as a qualifying immigration status for the qualifying period for probationary citizenship.55 The Refugee Council stated:
Given the time it takes for some asylum applications to eventually be resolved, in many cases several years, many refugees will, in practice, wait considerably longer than the minimum of six years before being able to settle permanently.56
Liberty argued that “it is therefore essential that any period spent by a refugee awaiting determination of his or her status count towards the qualifying period.57
52. The backlog of asylum cases still awaiting determination by the Home Office is well- documented—the last report to this Committee by the Chief Executive of the UK Border Agency in December 2008 showed that the Home Office did not expect to clear this backlog until 2011.58
53. At Report stage in the Lords, Lord Hylton tabled an amendment to “ensure that time spent by refugees in Britain, prior to a determination of their claims, counts as part of the qualifying period for citizenship”.59 However, the Government stated that it was opposed to providing an exemption to the qualifying period specifically for refugees on the face of the Bill. Lord Brett explained:
This would have counterproductive results. First, if a person applied for asylum on arrival in the UK and subsequently absconded and then some months or years later came to light and was recognised as a refugee, we would have to count the time during which he had absconded towards the qualifying period for naturalisation. It would go against our aim to increase compliance with the system.60
53 Ev 157–8 54 Ev 158 55 Under Clause 37(2)(c) of the Bill as introduced: Clause 40(2)(c) of the Bill as amended on Report in the House of Lords. See, for example, Ev 185 [Liberty] 56 Ev 173 57 Ev 185 58 Letter to Home Affairs Committee dated 8 December 2008 59 Amendment 31. HL Deb 25 March 2009, col 712 60 HL Deb, 25 March 2009, col 717
Borders, Citizenship and Immigration Bill [HL] 17
54. Instead, the Government tabled amendments to provide for a discretion to waive the requirement to have had a qualifying immigration status for the whole of the qualifying period. Lord Brett stated that, “in the case of refugees, we would usually expect to exercise [this discretion] where undue delay has occurred in determining an asylum application or where the delay was not attributable to the applicant”.61 However, several peers queried whether introduction of a discretionary power would be effective.62 The Government amendments were agreed.63
55. In addition to refugees, the impact of probationary citizenship and the activity condition on other vulnerable groups was highlighted. Refugee Action noted that “those that may be penalized by such restrictions will be vulnerable groups such as victims of domestic violence on short term spouses’ visas”.64 In our 2008 Report, Domestic Violence, Forced Marriage and “Honour”-Based Violence, we drew attention to the plight of such victims of domestic violence with insecure immigration status.65
56. The Refugee Council stated that it was “concerned that making volunteering such a core component of the naturalisation process may be discriminatory, as people with illnesses and disabilities, women with children and single parents may find it difficult to find suitable volunteering activities”.66 The Joint Council for the Welfare of Immigrants (JCWI) added to this list individuals on low incomes, those with personality disorders and the elderly.67
57. As currently drafted, the discretionary power of the Secretary of State to exempt individuals from the activity condition is vague and broad, and could be open to application in an ad hoc or arbitrary way. Evidence taken in previous inquiries suggests to us that the impact of restricted access to services or benefits, and of the activity condition requirements, on victims of human trafficking, domestic violence or forced marriage with insecure immigration status may be especially grave. The Government should make public its intentions for the operation of the discretionary power, and in addition should make an explicit exemption for certain abused groups, including refugees, victims of domestic violence and human trafficking.
58. It is unacceptable that administrative failures within the Home Office which have led to a serious backlog in determining asylum cases should penalise legitimate refugees by prolonging the time they spend on temporary leave and consequently the time taken to qualify for probationary citizenship. We welcome the Government’s amendments at Report stage in the Lords which introduce a discretionary power to waive the requirement to have had a qualifying immigration status for whole of the qualifying
61 Ibid. 62 For instance Lord Lester of Herne Hill asked “how will having a broad system of discretion make the system work better, rather than lead to yet more arguments and perhaps more litigation…I do not understand how this is going to encourage officials to get on with it and how it will make the whole thing work better?”. HL Deb, 25 March 2009, col 718 63 HL Deb, 25 March 2009, col 743 64 Ev 87 65 Home Affairs Committee, Sixth Report of Session 2007–08, Domestic violence, forced marriage and “honour”–based violence, paras 228–234 66 Ev 103 67 Ev 193
18 Borders, Citizenship and Immigration Bill [HL]
period, introduced in response to concerns about refugees. However, we recommend that the Government should set out on the face of the Bill that this discretion will apply to refugees, unless there are exceptional circumstances why it should not. Retrospectivity
59. Transitional arrangements for those migrants already in the qualifying period for British citizenship are not set out on the face of the Bill, and it is unclear whether the new provisions will apply retrospectively. The Migrants Rights Network stated that:
In the case of any changes to the naturalisation process, concessions must be made for those migrants currently living and working in the UK, who have already begun their journey towards citizenship under the understanding of the current rules.68
60. The Joint Committee on Human Rights expressed similar dismay in its recent Report:
We urge the Government not to repeat the unedifying spectacle of riding roughshod over migrants’ legitimate expectations of settlement, which undermined many migrants’ faith in the UK’s commitment to basic fairness. We recommend that clear transitional provisions are made which meet the legitimate expectations of those already in the system.69
61. Retrospective application of the provisions was discussed during Committee and Report stages in the Lords. Baroness Hanham moved an amendment to ensure that the citizenship provisions would not affect (a) an application for limited leave to remain submitted at any time in the twelve months before the commencement of the Bill, and (b) an application for indefinite leave to remain or for British citizenship made at any time before commencement of the Bill.70 Baroness Hanham explained the rationale behind the amendment:
We are seeking to prevent retrospectivity. In his letter to us, Lord Brett suggested that those who are currently on indefinite leave to remain and those moving into citizenship within the next year or so will not have anything to do under the new citizenship arrangements, but those who are on limited leave to remain will be affected by transitional arrangements. We are seeking to ensure that those who are in the closing stages of limited leave to remain do not get caught up in the transitional arrangements. Many of them have been on the path for three, four or five years and are ready to move on. It seems completely unfair that they should have to go back and start again or even take into account the earned citizenship provisions in this Bill.71
62. Lord Brett, on behalf of the Government, explained that “migrants with a pending application for ILR [indefinite leave to remain] that is submitted but not decided before the Immigration Rules are changed will have their applications considered under existing
68 Ev 182 69 JCHR Report, paragraph 1.52 70 Amendment 23A, inserting a new clause before Clause 39, HL Deb, 25 March 2009, col 705 71 HL Deb, 25 March 2009, col 706
Borders, Citizenship and Immigration Bill [HL] 19
rules”. However, those with only limited leave to remain would be affected by the new provisions: “when the provisions of the Bill come into force, all migrants with limited leave will have to progress through the earned citizenship architecture to obtain British citizenship or permanent residence”.72 The amendment introduced by Baroness Hanham was agreed following a vote.73
72 HL Deb, 25 March 2009, col 708 73 HL Deb, 25 March 2009, col 710
20 Borders, Citizenship and Immigration Bill [HL]
3 Immigration-related judicial review
Transfer into the tribunal system
63. Judicial review is the procedure whereby an administrative decision can be reviewed by a judge to determine whether it is lawful or not. Sections 19 and 20 of the Tribunals, Courts and Enforcement Act 2007 (TCE Act 2007) provided for the transfer of judicial review applications to the Upper Tribunal of the unified tribunal system established under that Act. Under the Act a judicial review application might not be transferred if it called into question a decision under the Immigration Acts, the British Nationality Act 1981, an instrument having effect under those enactments or any other provision of law determining British citizenship.
64. Clause 50 of the Borders, Citizenship and Immigration Bill [HL] as introduced74 removes this restriction with the effect that, subject to the other specified restrictions, judicial review applications relating to immigration or nationality decisions can be transferred to the Upper Tribunal. The Government describes the effect of these provisions in the Bill’s impact assessment:
In the event that the Asylum and Immigration Tribunal [AIT] is transferred into the unified tribunal structure this proposal will improve the current process by reducing the volume of asylum and immigration cases before the higher courts resulting in resource savings and time becoming available for other types of case.75
It states that “these provisions will only have an impact if the AIT transfer takes place”.76
65. Parliament expressed concern at these provisions when they were included in the Tribunals, Courts and Enforcement Act 2007.77 Parliament wanted to be able to review the performance and capacity of the new tribunal regime before approving the transfer of such a contentious jurisdiction. As a result of this concern, immigration decisions were excluded from those provisions. This Bill reverses that exclusion.
66. These provisions have been brought forward in large part in response to concern from senior judiciary that the courts system is overburdened with judicial review cases. For example, Sir Anthony Clarke, Master of the Rolls, has said that, since 2005, the Court of Appeal has had a 77 per cent rise in applications to appeal in asylum and immigration cases. In 2007, the Administrative Court received 6,694 claims for judicial review, of which asylum and immigration cases made up two thirds.78
74 Clause 55 of the Bill as amended on Report in the House of Lords. 75 UK Border Agency, Impact Assessment of Earned Citizenship Proposals Borders, Citizenship and Immigration Bill, 15 January 2009, version 1.0, p.5 76 UK Border Agency, Impact Assessment of Earned Citizenship Proposals Borders, Citizenship and Immigration Bill, 15 January 2009, version 1.0, p.13 77 For example, see the Lords debate: HL Deb, Grand Committee, 13 December 2006, col GC68–69 78 Extra judges drafted in to hear immigration appeals, Times Online, 15 December 2008: http://www.timesonline.co.uk/tol/news/politics/article5342733.ece
Borders, Citizenship and Immigration Bill [HL] 21
67. Our witnesses objected to transferring immigration-related judicial review to the Upper Tribunal on three main grounds. First, they suggested that the quality of initial decision- making by Home Office staff is especially poor in immigration cases; second, that appeals in immigration cases often involve complex human rights or humanitarian issues; and third that the new tribunals system remains untested. Poor initial decision-making
68. JUSTICE argued that initial decisions in immigration cases are often very poor, citing the fact that the Home Secretary lost four out of the five appeal cases that reached the House of Lords in 2007.79
69. Several organisations also expressed concern that the Home Office had led the consultation on transferring immigration-related cases to the Upper Tribunal on behalf of the Government, given that the Home Office is very often itself the subject of immigration judicial review proceedings. For instance, the Immigration Law Practitioners Association (ILPA) stated:
A principled objection is that the Home Office, whose decisions are at stake and who is a party to litigation in this area, should have the lead for proposing and legislating for change in the way it and its decisions are subject to judicial scrutiny, as opposed to the Ministry of Justice, which has responsibility for the Tribunals Service.80
Witnesses also criticised the Government for having not yet published its response to the August 2008 consultation on transferring immigration-related cases to the Upper Tribunal, especially since it has brought the measures forward in this Bill.81 Complex cases
70. JUSTICE and the Joint Council for the Welfare of Immigrants both told us that immigration appeals often engage human rights issues such as claims of torture. For example, JUSTICE stated that “unlike many other areas of administrative law, immigration judicial review frequently engages fundamental rights such as freedom from torture, inhuman and degrading treatment and the right to liberty”.82
71. The Refugee Legal Council noted that, in debate about the Tribunal system during the passage of the TCE Act 2007, the Government had accepted that immigration-related judicial review cases were too complex and sensitive to be transferred to the Upper Tribunal:
The Government agreed that there should be a statutory bar on transferring immigration and nationality judicial reviews to the Upper Tribunal. It was accepted
79 Ev 164–5 80 Immigration Law Practitioners Association, Briefing on the Borders, Citizenship and Immigration Bill, January 2009, p.5. Also see Ev 187 [Liberty] 81 For instance, Ev 189 [Refugee Legal Centre] 82 Ev 164; see also Ev 194 [Joint Council for the Welfare of Immigrants]
22 Borders, Citizenship and Immigration Bill [HL]
that these cases were simply too complex and sensitive, and that they should remain within the sole jurisdiction of the higher courts.83
72. The Immigration Law Practitioners Association agreed, giving an example:
The very recent case of R(Abdi & Ors) v SSHD [2008] EWHC 3116 (Admin) is of particular relevance since, at the commencement of litigation in the case of each of the claimants, the conduct on the part of the Home Office in introducing an unlawful policy and keeping it secret for over 2 years, despite recognising there to be profound concerns as to the lawfulness of the policy and its being kept secret, could not have been known to the claimants or the Administrative Court. Had the claimants’ judicial review applications been transferred to a Tribunal, where it might have fallen to be dealt with by a specialist immigration judiciary without the public law experience and expertise or seniority and standing of a High Court judge it must be questioned whether the Tribunal would have had the capacity to reveal this conduct.84
73. Witnesses argued that, if the transfer to the Upper Tribunal were to go ahead, there should at least be provision made to ensure that immigration cases were heard by a High Court judge. For instance, the Refugee Legal Council stated:
Clause 50, read with the 2007 Act, would appear to potentially allow any immigration judge to hear an immigration judicial review, with a right of appeal directly to the Court of Appeal against his or her decision. While we see the potential benefits of involving the senior immigration judiciary in some judicial reviews, we consider that a judge of the High Court must always preside given the fundamental constitutional role of judicial review.85
The Joint Council for the Welfare of Immigrants agreed that only High Court judges possess the necessary expert knowledge of constitutional or administrative law and civil liberties.86
74. The Joint Committee on Human Rights reached a similar conclusion in its recent Report:
We recommend that a means be devised for ensuring that judicial reviews which are of sufficient significance and complexity, including those in which important human rights issues are at stake, are heard by a High Court judge, by, for example, developing a sifting mechanism and ensuring that the more significant and complex cases either remain in the High Court or are heard by a High Court judge in the Upper Tribunal.87
83 Ev 189 84 Immigration Law Practitioners Association, Briefing on the Borders, Citizenship and Immigration Bill, January 2009, p.6 85 Ev 189 86 Ev 194–5 87 JCHR Report, para1.29
Borders, Citizenship and Immigration Bill [HL] 23
Tribunals are untested
75. At Report stage in the Lords, Lord Kingsland criticised the Government’s proposal, saying:
[The Government] stated, during the passage of the 2007 Act, that, before introducing further primary legislation to allow transfer of judicial review applications in respect of asylum and immigration cases, the Government wanted to see how the new regime would work. The Government are in plain breach of that undertaking. This Bill was introduced, containing Clause 50, almost simultaneously with the opening of the Upper Tribunal for business. The Government have had no time at all to consider the appropriateness of allowing the transfer of judicial review cases from the administrative court to the Upper Tribunal.88
Several of our witnesses agreed, arguing that there has not yet been any independent evaluation of how the new integrated Tribunals system is working.89
76. We consider it inappropriate for the Home Office to have led the consultation on transfer of immigration-related judicial review to the unified tribunals system, when it is itself the subject of immigration-related judicial review proceedings. It is unclear what safeguards were enacted to ensure that consultation and decision-making within the Home Office in this regard did not involve a conflict of interest.
77. We recognise that there is a very real problem of overburdening in the higher courts as a result of large numbers of immigration-related judicial review applications. We do, however, believe that this overburdening is due in no small part to historically poor initial decision-making by the Home Office, and the significant backlog of decisions in asylum cases. These failings on the part of the Home Office must not be compensated for by a lessening of appeal rights in those complex cases which do engage human rights issues or constitutional principles.
78. We do not object in principle to cases which are not highly significant or complex being considered in the Upper Tribunal. However, for the smaller number of cases which are significant and complex, we agree with those who have argued that these should be heard by a High Court judge, either in the Upper Tribunal or in the High Court.
88 HL Deb, 1 April 2009, col 1125 89 For instance, Ev 176 [Bail for Immigration Detainees]; Ev 171 [Immigration Law Practitioners Association]; Ev 164–5 [JUSTICE]
24 Borders, Citizenship and Immigration Bill [HL]
4 Other matters
Chief Inspector of the UK Border Agency
79. Clause 26 of the Bill as introduced90 extends the remit of the Chief Inspector of the UK Border Agency (UKBA). Currently the Chief Inspector is responsible for reporting on the efficiency and effectiveness of the UKBA, including consistency of approach, treatment of claimants, compliance with the law regarding discrimination in the exercise of functions, enforcement powers, complaints handling, and content of information about outside countries for asylum and immigration use.91
80. This Bill increases the reporting responsibilities of the Chief Inspector to include the functions of the list of persons responsible for customs and immigration functions—i.e. it expands the role to cover the Secretary of State and Director of Border Revenue, anyone acting on their behalf and any designated persons with customs or immigration functions.92 It also expands the reporting subjects to include functions in connection with the prevention, detection and investigation of offences and the conduct of criminal proceedings.93
81. The Immigration Law Practitioners Association (ILPA) states that “the provisions relating to inspection and oversight of the UK Border Agency pass substantial new responsibilities to the newly established Chief Inspector of the UK Border Agency. This needs to be matched by the provision of additional resources”.94
82. We have some concern that the additional responsibilities in this Bill will impose a significant extra burden on the Chief Inspector of the UK Border Agency, which is already a new post, and one whose capacity to oversee the whole of the UK Border Agency we have previously questioned.95 We agree with the Immigration Law Practitioners Association that the Chief Inspector’s office may require a corresponding increase in resources to meet the additional burdens imposed by this Bill if his role is to be effective.
90 Clause 28 of the Bill as amended on Report in the House of Lords. 91 Section 48, UK Borders Act 2007 92 Clause 26(2) of the Bill as introduced: Clause 28(2) of the Bill as amended on Report in the House of Lords. 93 Clause 26(4) of the Bill as introduced: Clause 28(4) of the Bill as amended on Report in the House of Lords. 94 Immigration Law Practitioners Association, Briefing on the Borders, Citizenship and Immigration Bill, January 2009, p.8 95 Home Affairs Committee, First Report of Session 2008–09, Monitoring of the UK Border Agency, HC 77, paragraph 21
Borders, Citizenship and Immigration Bill [HL] 25
Conclusions and recommendations
Citizenship
New category of ‘probationary citizenship’
1. We heard from migrants and migrants’ rights groups that the proposals on probationary citizenship in this Bill would be unlikely to encourage greater take-up of British citizenship, which is one of the Government’s stated aims. The Government should ensure that policy is based on consultation with the specific groups it seeks to incentivise—in this case migrants—rather than on its own assumptions. (Paragraph 16)
2. The Borders, Citizenship and Immigration Bill (HL) does not restrict access to health services, and our witnesses have confirmed that they do not have concerns about this Bill as introduced. However, we thought it useful nevertheless to rehearse the arguments in relation to restricting access to health services for some groups, since medical professionals made persuasive arguments on the damaging effects of such restrictions. Moreover, our evidence clearly showed that existing restrictions on access to health services have led to confusion and, in some cases, to civil disobedience by medical professionals. (Paragraph 20)
3. The evidence we received during consideration of the Draft (Partial) Immigration and Citizenship Bill cautioned against any future restrictions on access to primary health services for those subject to immigration control. Medical professionals gave persuasive evidence that the risks—to public as well as individual health— outweighed the benefits of any such restriction. (Paragraph 27)
4. We support the principle that those granted probationary citizenship leave for the purposes of employment should be required to prove that they were working during that probationary period. However, we consider that for those migrants who abide by the conditions of their leave, short periods of joblessness, particularly in the current economic climate, should not automatically restart the clock on their qualifying period to citizenship. Whilst we welcome the discretionary power in the Bill to, in ‘compelling circumstances’, waive the requirement for an individual to have been in continuous employment, the conditions in which the exercise of that discretion is envisaged remain ill-defined. The Government must be more transparent by setting out a specific time period within which individuals can be between jobs without breaking the continuous employment requirement for citizenship. We suggest that this period should be in line with existing conditions, such as the 60 days granted to migrants under tier 2 of the points-based system. (Paragraph 33)
Activity condition
5. The basic principle that those who wish to become British citizens should contribute to British society is uncontroversial, and we therefore consider that the concept of ‘active citizenship’ is essentially a fair one. However, the principle must be applied in
26 Borders, Citizenship and Immigration Bill [HL]
a fair and proportionate manner, and in a way which does not discriminate against vulnerable groups. (Paragraph 43)
6. It concerns us that the Government intends to use an unamendable form of legislation to define the prescribed activities by which migrants will be able to reduce their qualifying time for citizenship by two years. The question of which activities will count is of key importance in the fair operation of the new architecture, and the way in which individuals qualify for citizenship touches on important constitutional principles. We therefore recommend that Parliament amends the Bill to stipulate that the detailed nature of these prescribed activities be laid under super-affirmative resolution procedure, thereby ensuring a greater level of parliamentary scrutiny. (Paragraph 44)
7. We further recommend that the prescribed activities should recognise the range of forms of volunteering already undertaken in communities, and should count existing informal volunteering arrangements towards the requirement, rather than imposing additional burdens. (Paragraph 45)
8. There is a danger that the activity condition, if implemented without proper consideration, could cause a glut of poorly regulated ‘volunteers’. This could place undue and unwanted pressure on the voluntary sector and mean that migrants struggle to fulfil the condition, let alone engage in meaningful activity. The Government must ensure not only that it fully engages with the voluntary sector, but that it also acts upon its advice in implementing the condition. (Paragraph 46)
Vulnerable groups
9. As currently drafted, the discretionary power of the Secretary of State to exempt individuals from the activity condition is vague and broad, and could be open to application in an ad hoc or arbitrary way. Evidence taken in previous inquiries suggests to us that the impact of restricted access to services or benefits, and of the activity condition requirements, on victims of human trafficking, domestic violence or forced marriage with insecure immigration status may be especially grave. The Government should make public its intentions for the operation of the discretionary power, and in addition should make an explicit exemption for certain abused groups, including refugees, victims of domestic violence and human trafficking. (Paragraph 57)
10. It is unacceptable that administrative failures within the Home Office which have led to a serious backlog in determining asylum cases should penalise legitimate refugees by prolonging the time they spend on temporary leave and consequently the time taken to qualify for probationary citizenship. We welcome the Government’s amendments at Report stage in the Lords which introduce a discretionary power to waive the requirement to have had a qualifying immigration status for whole of the qualifying period, introduced in response to concerns about refugees. However, we recommend that the Government should set out on the face of the Bill that this discretion will apply to refugees, unless there are exceptional circumstances why it should not. (Paragraph 58)
Borders, Citizenship and Immigration Bill [HL] 27
Immigration-related judicial review
11. We consider it inappropriate for the Home Office to have led the consultation on transfer of immigration-related judicial review to the unified tribunals system, when it is itself the subject of immigration-related judicial review proceedings. It is unclear what safeguards were enacted to ensure that consultation and decision-making within the Home Office in this regard did not involve a conflict of interest. (Paragraph 76)
12. We recognise that there is a very real problem of overburdening in the higher courts as a result of large numbers of immigration-related judicial review applications. We do, however, believe that this overburdening is due in no small part to historically poor initial decision-making by the Home Office, and the significant backlog of decisions in asylum cases. These failings on the part of the Home Office must not be compensated for by a lessening of appeal rights in those complex cases which do engage human rights issues or constitutional principles. (Paragraph 77)
13. We do not object in principle to cases which are not highly significant or complex being considered in the Upper Tribunal. However, for the smaller number of cases which are significant and complex, we agree with those who have argued that these should be heard by a High Court judge, either in the Upper Tribunal or in the High Court. (Paragraph 78) Other matters
14. We have some concern that the additional responsibilities in this Bill will impose a significant extra burden on the Chief Inspector of the UK Border Agency, which is already a new post, and one whose capacity to oversee the whole of the UK Border Agency we have previously questioned. We agree with the Immigration Law Practitioners Association that the Chief Inspector’s office may require a corresponding increase in resources to meet the additional burdens imposed by this Bill if his role is to be effective. (Paragraph 82)
28 Borders, Citizenship and Immigration Bill [HL]
Formal Minutes
Tuesday 21 April 2009
Members present:
Mr Keith Vaz, in the Chair
Tom Brake Patrick Mercer Ms Karen Buck Mr Gwyn Prosser Mr James Clappison Mr Bob Russell David T C Davies Martin Salter Mrs Janet Dean Mr David Winnick Margaret Moran
Draft Report (Borders, Citizenship and Immigration Bill [HL]), proposed by the Chairman, brought up and read.
Ordered, That the Chairman’s draft Report be read a second time, paragraph by paragraph.
Paragraphs 1 to 82 read and agreed to.
Resolved, That the Report be the Fifth Report of the Committee to the House.
Ordered, That the Chairman make the Report to the House.
Written evidence was ordered to be reported to the House for placing in the Library and Parliamentary Archives.
[Adjourned till Tuesday 28 April at 10.15 am
Borders, Citizenship and Immigration Bill [HL] 29
Witnesses
Tuesday 28 October2008 Page
Kathryn Lewis, Associate Solicitor, Immigration Advisory Service, and Daniel Furner, Legal Officer, Refugee Legal Centre Ev 1
Dr Eric Metcalfe, Director of Human Rights Policy, JUSTICE, and Isabella Sankey, Policy Officer, Liberty Ev 7
Tuesday 11 November 2008
Don Flynn, Director, Migrants’ Rights Network, Sylvie Aboa-Bradwell, Cameroonian migrant and officer for the Centre for Democracy and Development, and Donna Covey, Chief Executive, Refugee Council Ev 15
Susan Wright, Director, Médecins du Monde UK, Professor Vivienne Nathanson, Director of Professional Activities, British Medical Association, and Lisa Power, Head of Policy and Public Affairs, Terrence Higgins Trust Ev 23
30 Borders, Citizenship and Immigration Bill [HL]
List of written evidence
1 Migration Watch UK Ev 30, 141 2 BritishHongKong Ev 32, 166 3 Institute of Community Cohesion Ev 38 4 Ahmad Shad Ev 40, 165 5 Terrence Higgins Trust Ev 40 6 Bail for Immigration Detainees Ev 42, 174 7 Asylum Support Appeals Project Ev 45 8 National AIDS Trust Ev 48 9 British Medical Association Ev 52 10 Immigration Law Practitioners Association Ev 53, 168 11 Asylum Aid Ev 83 12 Refugee Action Ev 85 13 Global Health Advocacy Project Ev 88 14 London Detainee Support Group Ev 92 15 Immigration Advisory Service Ev 94 16 Refugee Legal Centre Ev 97, 188 17 Refugee Council Ev 100, 172 18 Migrants’ Rights Network (MRN) Ev 104, 180 19 No Recourse to Public Funds Network Ev 107 20 Medact Ev 111 21 Joint Council for the Welfare of Immigrants Ev 113, 190 22 Médecins du Monde UK Ev 116 23 Public and Commercial Services Union Ev 121 24 Local Government Association Ev 123 25 Road Haulage Association Ev 127 26 Liberty Ev 128, 183 27 Still Human Still Here Campaign Ev 134 28 Yorkshire and Humber Strategic Migration Group Ev 139 29 Sean Chan Ev 141 30 Dr Charmain Goldwyn Ev 142 31 JUSTICE Ev 143, 162 32 Runnymede Trust Ev 148 33 Refugee Children’s Consortium Ev 151 34 United Nations High Commissioner for Refugees Ev 155, 177
Borders, Citizenship and Immigration Bill [HL] 31
List of Reports from the Committee during the current Parliament
The reference number of the Government’s response to each Report is printed in brackets after the HC printing number.
Session 2008–09 First Report Monitoring of the UK Border Agency HC 77 (HC 381) Second Report The Police and the Media HC 75 Third Report The Work of the Committee 2007–08 HC 76 Fourth Report Policing Process of Home Office Leaks Inquiry HC 157
Session 2007–08 First Report The Government’s Counter-Terrorism Proposals HC 43 Second Report Bulgarian and Romanian Accession to the EU: Twelve months HC 59 on Third Report Security Industry Authority HC 144 Fourth Report Work of the Committee in 2007 HC 226 Fifth Report A Surveillance Society? HC 58 (Cm 7449) Sixth Report Domestic Violence, Forced Marriage and “Honour”-Based HC 263 Violence (Cm 7450) Seventh Report Policing in the 21st Century HC 364
Session 2006–07 First Report Work of the Committee in 2005–06 HC 296 Second Report Young Black People and the Criminal Justice System HC 181 (Cm 7217) Third Report Justice and Home Affairs Issues at European Union Level HC 76 (HC 1021) Fourth Report Police Funding HC 553 (HC 1092)
Session 2005–06 First Report Draft Corporate Manslaughter Bill (First Joint Report with HC 540 Work and Pensions Committee) (Cm 6755) Second Report Draft Sentencing Guideline: Robbery HC 947 Third Report Draft Sentencing Guidelines—Overarching Principles: HC 1231 Domestic Violence and Breach of a Protective Order Fourth Report Terrorism Detention Powers HC 910 (Cm 6906) Fifth Report Immigration Control HC 947 (Cm 6910) Sixth Report Draft Sentencing Guideline: Sexual Offences Act 2003 HC 1582
Processed: 23-04-2009 22:38:30 Page Layout: COENEW [SO] PPSysB Job: 423079 Unit: PAG1
Home Affairs Committee: Evidence Ev 1 Oral evidence
Taken before the Home Affairs Committee
on Tuesday 28 October 2008
Members present
Keith Vaz, in the Chair
Ms Karen Buck Margaret Moran Mr James Clappison Gwyn Prosser Mrs Ann Cryer Bob Russell Mrs Janet Dean Mr Gary Streeter Patrick Mercer Mr David Winnick
Witnesses: Ms Kathryn Lewis, Associate Solicitor, Immigration Advisory Service; and Mr Daniel Furner, Legal OYcer, Refugee Legal Centre, gave evidence.
Chairman: Could I begin the proceedings this which can often be very complex. Obviously it is morning and refer everybody to the Register of diYcult to quantify a problem with decision quality Members’ Interests as well as the fact that every one but we can look at national appeal rates and we can of the members of this Committee has immigration look at the fact that in 2007, 23% of initial decisions cases as part of their workload. Can I declare my were overturned on appeal in asylum cases. That is interest, my wife is an immigration solicitor and a an increase over 2006. That also tells only half the part-time judge. Are there any more interests to story. The Refugee Legal Centre has a success rate of declare? 50% in these cases and, if anything, that is trending Mr Clappison: Yes, a past involvement with IAS upwards. when it was UKIAS.
Q1 Chairman: Mr Furner, Ms Lewis, thank you for Q3 Chairman: In terms of the backlog, the backlog coming this morning. This is the first session of a does not seem to be disappearing, does it? When this Y four-part inquiry into the new draft Citizenship and Government came into o ce there was a backlog of Immigration Bill which the Government has several hundred thousand. It is still there, is it not, in published not yet in full, we have two-thirds of it but some form or another? we expect the rest of the Bill to be published before Mr Furner: Yes although of course the Committee the House rises. The sessions will end on 20 will be aware that the Home OYce has a programme November when the new Immigration Minister will to deal with that backlog. That backlog is still there give evidence to this Committee. We are putting on and I understand that the statistics indicate that the hold our inquiry into the points-based system, which problem is getting worse, or at least got worse last we have just started, until after the scrutiny of this year in relation to asylum claimants1. That is clearly Bill. Can I start with you Mr Furner, in your a problem with the speed of decision-making but evidence you talk about the very poor decision- you do not remedy that problem by restricting making by the Government or government oYcers. procedural safeguards. You are talking about in-country decision-making, are you? Mr Furner: Yes, sir. Firstly, thank you for inviting Q4 Chairman: Absolutely, but when this Committee me to give evidence today on a very important Bill. was in Bangladesh we were told that 25 Bangladeshis Yes, that is right, we are talking predominantly per month were being returned to Bangladesh yet 33 about in-country decision-making because that is people of Bangladeshi origin were claiming asylum the decision-making that predominantly aVects our in Britain every month so that there was a net inflow clients, who as asylum seekers are by definition in of people. How do you account for this? the UK. Mr Furner: I am not sure I am the right person to answer that question, sir. Clearly there is an issue Y Q2 Chairman: And what is wrong with this with the speed with which the Home O ce are decision-making? processing these applications. I would say that in Mr Furner: This is a matter that has been raised terms of removals it is very, very diYcult to remove many times by this Committee, by the Joint people to some of these countries. These are very Committee on Human Rights, by the Independent unstable and often very repressive countries. Asylum Commission and others. There are a number of areas I could go through. The UNHCR 1 In the sense that at the end of 2007 there were more outstanding asylum applications than at the end of 2006. in the Quality Initiative project has spoken about The RLC is not aware of the rate of progress in resolving the serious problems with understanding the complex “legacy” backlog of older cases announced by the Home legal principles involved, particularly the case law Secretary in July 2006. Processed: 23-04-2009 22:38:30 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG1
Ev 2 Home Affairs Committee: Evidence
28 October 2008 Ms Kathryn Lewis and Mr Daniel Furner
Q5 Chairman: Thank you. Ms Lewis, the changes to Q8 Mr Winnick: You do not deny that there have the appeals system are issues that excite and concern been abuses? you as an organisation. How will your clients be Ms Lewis: There are abuses in every system, I think aVected by the proposals to limit appeals? we would say. Ms Lewis: We certainly see that the appeals as they Mr Furner: I agree of course there are occasions are set down in Part X of the Act will reduce the when people claim asylum who do not have any rights of appeal for certain of our clients. For basis for doing so. I would associate myself with example, there will no longer be an out-of-country what Ms Lewis has said but also make the point that right of appeal for those asylum seekers who claim actually the appeals provisions in this Bill encourage asylum in the United Kingdom or protection on the making of asylum claims because when you strip human rights grounds and whose claims are away appeal rights for people who may not certified. I do not have figures of how many of the otherwise have claimed asylum but you say that for out-of-country appeals subsequently succeed but asylum seekers we will give you an appeal right, there are certainly cases of out-of-country appeals of which we must do because these people are facing a those clients who are certified succeeding abroad and fear of persecution, you encourage people to make them being granted status. The appeals provision these applications. seeks to deny that class of people appeal rights. Therefore we would say that our clients may be more Q9 Margaret Moran: You say that the draft Bill likely to take judicial review action. represents a substantial strengthening of the Home Secretary’s power and a reduction of the power of the Asylum and Immigration Tribunal to hold her to Q6 Chairman: This is asylum though, it is not account. What would be the practical eVects of those immigration. measures for those who are seeking to settle here? Ms Lewis: This is asylum. We deal with asylum and Mr Furner: Are you talking about people who are immigration. In terms of the immigration making applications for naturalisation? provisions, certainly on appeals against expulsion orders, for example, under the current provisions someone may be subject to a deportation order and Q10 Patrick Mercer: Yes. when the Secretary of State notifies them of that Mr Furner: That is not really an area we deal with on intention they will have a right of appeal in-country a day-to-day basis, sir, because we represent most of at that point. The new provisions seek to grant that our clients at the point of claiming asylum. Certainly right of appeal only when the expulsion order is for our clients, when I talk about the strengthening made. The eVect on some of our clients may be that of the Home Secretary’s powers, we are talking once the expulsion order is made under the about in the area of bail, in the area of detention proposals of the Bill any leave that that person has generally, and the making of exclusion orders in will be cancelled. Therefore our clients will be unable particular. to work, unable to access any benefits, possibly Patrick Mercer: I think I am probably going to be unable to access health care and so on, even if the stealing questions if I pursue that, Chairman. expulsion order has been erroneously or poorly Chairman: Please go on. made and they subsequently win an appeal, so we would see that our clients would be aVected in that Q11 Patrick Mercer: Could you please expand then? way. Certainly those foreign criminals would no Mr Furner: Yes certainly, talking about bail, the longer have a right of appeal where an expulsion Secretary of State is going to be given the power order is granted. under these proposals to vary conditions of bail Chairman: That is very helpful. Mr Winnick has a imposed by the Tribunal. quick supplementary. Q12 Chairman: We will be going on to bail later. Q7 Mr Winnick: What would either of you say to the Mr Furner: I can take a diVerent example. view that what the Government is doing—if I were Chairman: Thank you very much, Mr Mercer. Mr to be devil’s advocate for a moment—is trying to Clappison? rectify the abuses that too many people have claimed asylum when they have no basis in fact to do so? Q13 Mr Clappison: Listening to you discuss this I There has been a great deal of abuse and what the think you would agree that it is a fairly complex area Government is doing, it could be argued, is of the law already and when we talk about appeal responding to very strong public feelings. What rights and so forth you have to look at it all very,very would be your response to that? carefully to see what may be at stake, which may be Ms Lewis: To respond simply to public feelings is not something of some significance, particularly for the necessarily in the interests of justice is one of the individuals concerned, but it is all pretty technical things we would say. The figures that Mr Furner stuV. Would you agree with me that this whole gave earlier on of appeals that succeed in respect of subject matter was covered by the Immigration and asylum claims are put at over 50%, and sometimes Asylum Bill of 1999 and we went into all of these far larger, and would show that the abuse in the issues on that occasion? I remember going into them system is perhaps smaller than the press would like in great detail and we are going back over the same to report. ground again. Processed: 23-04-2009 22:38:30 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG1
Home Affairs Committee: Evidence Ev 3
28 October 2008 Ms Kathryn Lewis and Mr Daniel Furner
Ms Lewis: One of the problems with this Bill is that feeling they should register as British. In addition, whilst it was seeking to simplify the whole area it clause 8 gives the Secretary of State the power to give does seem to be going over everything that has been a special order for certain other people with the right legislated since the 1971 Act and yet perhaps adding of abode, namely children born of a British-born extra hurdles and simply putting diVerent parent before 1 January 1983, who might now have terminology on systems that are already in place. the right of abode but choose not to take citizenship, to be denied entry or denied the rights that they now Q14 Mr Clappison: In particular this whole subject have. Our concern is that the rights of this particular matter was covered by the 1999 Act, was it not? group as Commonwealth citizens will be taken away. Ms Lewis: Yes. Q19 Mr Clappison: Thank you. Can I move on to Q15 Mr Clappison: I notice what you say about the ask you about the power of examination which is new concept of permissions which is in the Bill. In provided for in the draft Bill. How do you see this your very helpful submission to us you give an changing things? V analysis of the di erent types of permission as Ms Lewis: On its appearance, it opens up anybody compared with the present system of leave to remain, in the United Kingdom to stop-and-search powers. and in fact on your analysis in the new system there The UK Border Agency currently has the power on V are seven di erent types of permission compared entry to the UK to examine anyone to ensure that with four types of leave under the old system. Is this they have permission to be in the UK or are a British again creating more complication? citizen and so on. These powers mean that someone Ms Lewis: Absolutely, I agree. It is a claim to can be stopped as long as they have entered the simplification but the only simpler thing there is the United Kingdom. We would say that this opens the word “permission” as far as I can see. system (i) up to abuse but (ii) there are no provisions within the Bill that appear either to make sure that Q16 Mr Clappison: Each time we create a new legal UK Border Agency oYcials are trained in the way concept we create a new need for case law going into that police are trained, and therefore subject to the that concept, and more litigation perhaps. powers and the provisions on the police, and that it Ms Lewis: Absolutely, I think the opportunities for is not an arbitrary situation where there is no need litigation in this Bill are huge. Just to go back to the for a reasonable ground for suspecting that someone concept of permission, we have had 30-odd years to is in the UK unlawfully. It is simply Mr X is walking try and establish what these diVerent things mean, in down the street and a UK Border Agency oYcial can particular for example “temporary admission”. Do stop and search them and then detain them if they we want another 30 years to establish what cannot prove they are British or have permission as “permission by order” or “probationary citizenship and until they can. permission” mean, for example? Mr Clappison: Thank you. Chairman: Thank you, Mr Clappison. Karen Buck? Q17 Mr Clappison: Can I take from your answer that you feel the concept of permission does not achieve the Government’s stated aim of simplifying Q20 Ms Buck: I think we all probably agree that immigration requirements? expulsion has to be a part of maintaining the rules. Ms Lewis: Absolutely. There has to be a bottom line ability to remove people who have broken the rules in some way. The new rules proposed here will have, in your view, what Q18 Mr Clappison: One of the matters which is dealt eVect and how will they operate in terms of those with in the Bill is the right of abode, which is a who are not conducive to the public good and others venerated expression in immigration law, it goes who perhaps have broken a relatively minor back over the years. Can you tell us a little bit about immigration rule? how this will change the right of abode? Ms Lewis: Again there is this issue of terminology. Ms Lewis: Currently there are a number of groups You put the same terminology on a student who has but the two particular groups who would have the inadvertently worked 22 hours a week instead of 20 right of abode now are those that were married to as a foreign criminal who may have been convicted patrials or British citizens prior to 1 January 1983 of a very serious oVence. In our view, that is likely to and are Commonwealth citizens. They do not create unfairness or injustice in the system. necessarily have British citizenship but they have the right of abode which, as members are all aware, gives them the same rights of entry as a British citizen and Q21 Ms Buck: What would be the meaning of that? they are not subject to immigration control. Under Will that generate additional appeals? Will it mean the new provisions, clause 2 sets out that anybody that the Secretary of State has no discretion to be who is not a British citizen or an EEA national will able to discriminate between those two? be subject to control. This will mean that those Ms Lewis: There is a diVerence between the two. Commonwealth citizens with the right of abode will Unless they are subject to certain exceptions, the now be subject to control under the Bill where they Secretary of State will have a duty to make an are not under the 1971 Act, which we would say expulsion order on violent criminals and there will firstly will increase our workload where we might be no right of appeal against that expulsion order, so get, for example, elderly Commonwealth citizens the only recourse would be judicial review, in or out- with the right of abode being refused entry and of-country. If an expulsion order is made against Processed: 23-04-2009 22:38:30 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG1
Ev 4 Home Affairs Committee: Evidence
28 October 2008 Ms Kathryn Lewis and Mr Daniel Furner someone for example who breaches a condition, like is no reason not to draw that distinction. There is no working too many hours, there will be a right of need to remove flexibility in this area. If the appeal in most cases. behaviour is such that the Secretary of State wishes to remove the person by these means she could still Q22 Ms Buck: So what do you think will be the do so. There is no need to reduce flexibility in this consequence of this? Do you think it will lead to area. more appeals? Do you think it will speed up the Chairman: What Mrs Dean is implying is that this is system, slow it down, or have no impact? more of a political message than a legislative Ms Lewis: I think it will lead to more judicial review message. applications and more litigation in the higher courts. Mr Furner: I would agree with that. There is a reason Q24 Mrs Dean: And that people would know why a distinction has historically been drawn perhaps more clearly the resulting action of not between deportation of those who have done sticking to the rules? What do you think, Ms Lewis? something seriously wrong and shown contempt for Ms Lewis: I think people currently when they are the laws of the UK and administrative removal for given conditions on their leave are mostly aware of those who have made some mistake through perhaps those conditions and mostly abide by them. People overstaying or not complying with the formalities. are open to making inadvertent or non-inadvertent There is a reason why that distinction is there, and to mistakes. I am not sure that this would seek in any V elide the two concepts, will have little e ect on those way to either make someone adhere to the who are subject to anything that is currently a conditions any more or be more aware of the deportation matter, but for those who are subject to conditions of leave. It simply appears to me to create what is currently administrative removal it is going an injustice in the system. impose potentially indefinite re-entry bans on these people. If the Home Secretary wants to prevent a person from coming back to the United Kingdom Q25 Mr Winnick: The point about responding, as she is able to say that that person’s presence because the Chairman said, could be a political message. of their conduct is not conducive to the public good Relating it to my previous question which without and to deport them, but to fail to build in any wishing to be misunderstood, you were rather flexibility to deal with those cases that do not deserve dismissive of when I said the Government was that treatment is going to lead to unfairness. When responding to public opinion, will you not accept you tie it to the appeals provisions it becomes that any government has a responsibility to try and irrational because you can look at the situation of reassure the public on an issue which is so sensitive somebody who arrives in the country entirely as immigration of one type or another that the rules unlawfully on the back of a truck, goes to ground, have to be obeyed and where they are not being works illegally for a number of years, is caught and observed then the people concerned will find it more faces an expulsion order. That person could well diYcult or not have a right of appeal at all? Is that have a right of appeal under the appeals provisions2. not a legitimate duty and responsibility of If you look at somebody who complied with all of government, not simply to dismiss public opinion as the formalities, who applied for permission before being of no interest? they came, who arrived lawfully, who did everything Ms Lewis: I certainly would be in agreement that they were supposed to do but has made one minor there is a duty on the Secretary of State to protect the mistake, perhaps by working a few too many hours public and to ensure that there is not wide scale or by missing a reporting event, that person when breaches, for example. However, it is our view that they face an expulsion order will have no right of the messages that are being sent across by some of appeal, and to diVerentiate in that way is this are that migrants are wrong, it is wrong to have profoundly unfair. migrants here unless they are generating lots of Chairman: Very helpful examples. Janet Dean? money, and there is a message that is being sent through legislation— Q23 Mrs Dean: Do you think the new exclusion provisions could simply encourage migrants to take Q26 Mr Winnick: But this Government has never their responsibilities more seriously and stick to the said that that migrants are unwelcome and rules? Could it have that beneficial eVect? undesirable; far from it. Are you saying that the Mr Furner: I am not sure that it will have that eVect. Government are pursuing a policy of simply being I am not sure that for the ordinary migrant they will hostile to visitors and those who want to be migrants appreciate the diVerence, but what it will lead to, as on a permanent basis? I say, is unfairness and to arbitrariness. Again, there Ms Lewis: I am sure Mr Winnick remembers from his time at IAS undertaking appeals as a counsellor 2 In light of clause 171(2)(a)(ii), a person may only have an that the appeal system in place was perhaps more appeal right against an expulsion order if they have immigration permission. Therefore unless an additional flexible at that time and I think that as the situation immigration decision is taken in respect of such a person (for has become more inflexible, it is not that we disagree instance a decision to refuse to grant permission), they will with there being controls but there has to be an not in fact have a right of appeal. However we maintain that element of flexibility for those people who are to exclude appeal rights for those who have simply breached a condition of their permission, but grant an appeal right to genuinely in the United Kingdom, and to take that (for example) a visitor whose presence has been deemed to away must be a breach of their rights and access to be not conducive to the public good, is irrational and unfair. justice. Processed: 23-04-2009 22:38:30 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG1
Home Affairs Committee: Evidence Ev 5
28 October 2008 Ms Kathryn Lewis and Mr Daniel Furner
Mr Winnick: Could I just say, Ms Lewis, that if we expulsion would increase because of the have witnesses, as we are bound to have, who give a presumption in law rather than the individual case very diVerent point of view to yours, there will also studies? be very tough questioning, so do not misunderstand Mr Furner: There is every indication that the the purpose of this session. numbers are going to increase for a number of reasons, not only the presumption in favour of detention, which on its face makes it more diYcult Q27 Gwyn Prosser: Mr Furner, I want to ask about to resist detention in an individual case, but also the detention prior to expulsion. I think quite a lot of provisions about the ability to vary bail conditions people have got concerns about the detention of and the requirement for the Secretary of State’s children and the continuing powers under the Act to consent in certain cases. At every point it makes it do that, and perhaps you would like to make a easier and easier to ratchet up the level of control on comment on that in a moment, but in terms of the an individual and harder and harder to bring that detention of foreign criminals who have been tried level of control down when the circumstances justify and convicted, why are you opposed or critical of the it. Inevitably, in our view, that is going to lead to presumption to detain these people prior to more people detained. expulsion? I think nearly all of my constituents would think it was a very natural and sensible thing Q30 Gwyn Prosser: Returning to the issue of to do. detention of children, do you think as an Mr Furner: First of all, I agree entirely that it is a organisation you have made a strong enough input missed opportunity not to make clear that children to the system objecting to that? should not be detained. In relation to the Mr Furner: We continually challenge the detention presumption of detention in relation to foreign of children through every means we have at our criminals I would say that the presumption in favour disposal, through routine applications for bail— of bail is a long-standing human rights norm that has been recognised for centuries within the Q31 Gwyn Prosser: I do not mean individual case common law and is reflected in a number of studies. I mean in terms of this Bill which continues international instruments. The reason for that is that these powers? the presumption of liberty goes to the heart of Mr Furner: All I can say is that we very strongly human integrity and human dignity. To lock disagree with the detention of children. We really somebody away potentially indefinitely is one of the cannot see circumstances in which that is ever going most serious infractions of human rights. To say that to be justified and we cannot see why there cannot be there is a presumption that they are to be detained suitable alternatives to detention. and therefore it is for them to show that presumption is rebutted is the wrong way round. Q32 Gwyn Prosser: Ms Lewis, do you have a view? Ms Lewis: I agree with my colleague. It is not Q28 Chairman: I think what Mr Prosser is saying is something that I consider would ever be justified. that to his constituents it seems only right that if someone is a foreign criminal that they should be Q33 Mr Streeter: I want to ask a specific question detained before they are removed from the country. about immigration bail and the Bill in a moment, but Mr Furner: And perhaps they should be, however, to just picking up on some of the things we are getting say there is a presumption that they will be is a from you, you obviously do not think this Bill is diVerent thing. The Secretary of State already could going to add much to improving the system for look at the seriousness of the oVence, the risk of migration and asylum seekers in this country. I am reoVending in the future and a range of other factors sure you accept that most of my constituents do and say detention is justified in a particular case. You want the law to be tightened. If you were trying to do have to remember that these are people who have help them achieve that objective how should the law been sentenced by a court for a criminal oVence, they be improved? If this Bill is not going to do it how can have served their time, and if they were a British we make the system more eVective and process national they would have been released, so these are people more quickly? What is the missed people who are being kept potentially indefinitely on opportunity here? the basis essentially that they are immigrants. I Mr Furner: I would say that simplification is a good would also make the point that this undermines the thing. It is well-recognised that immigration law is role of the Tribunal. The Tribunal is there to be an very convoluted and very complex and I think a impartial, independent reviewer of Home OYce simplification of that is a good thing. However, I decision-making. Why is it that the Tribunal cannot, think to simplify for simplification’s sake and not as it does now, look at the facts as a whole and make look at the reasons why these distinctions have the careful judgment it does about whether or not existed in the past is not going to lead to a detention is justified in any given case. satisfactory outcome. I can agree that your constituents would want to see a simpler, clearer system but I would say that one area that may be Q29 Gwyn Prosser: You might not be able to answer lacking and one area that perhaps the Government this, it is probably a guess rather than an estimate, should be focusing on is the enforcement issue. If but to what extent would you estimate that the you are looking at the amount of time somebody is number of foreign prisoners detained now prior to in the United Kingdom, a relatively small part of Processed: 23-04-2009 22:38:30 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG1
Ev 6 Home Affairs Committee: Evidence
28 October 2008 Ms Kathryn Lewis and Mr Daniel Furner that time is spent waiting for an initial decision or and a pass in the Life in the UK Test (whatever that through the appeals system and then, in our may actually mean). Are you in favour of the experience at least, there is a fairly long period of existing requirements or not? time, particularly for some nationalities, where they Ms Lewis: I cannot answer that question, I am wait (often destitute) for the Secretary of State to afraid. take some action to remove them. I would say that where there are problems the problems tend to be in Q38 Mr Winnick: The question I am putting to you that area rather than in there being too many is about the existing requirements of the need to procedural safeguards. show good character, English language skills and what is referred to as a pass in the Life in the UK Q34 Mr Streeter: Ms Lewis, do you agree? Test. Actually it is your words in your Ms Lewis: I agree with Mr Furner. I would like to memorandum. add the two areas which need improvement are Ms Lewis: I am not aware of what IAS’s view was in firstly the quality of decision-making that comes terms of whether or not they were opposed to that from the Home OYce and secondly the quality of the when that was being discussed in Parliament. decisions on appeal from the AIT. If you can improve both of those it will improve the system Q39 Mr Winnick: You are speaking on behalf of the dramatically. organisation so I do not think I am being unfair. Would it be right to say that you are in favour of the Q35 Mr Streeter: Thank you very much. On existing requirements? immigration bail, Mr Furner, in your evidence you Ms Lewis: I do not think we could say we were in take issue with the list of factors now to be taken into favour but certainly I can put in a further written account when considering a decision to grant bail. view on that. What do you think should be included in the list based on your experience? Q40 Mr Winnick: What is wrong with the need to Mr Furner: Certainly I think that age has to be show good character and a knowledge of the English included, the presence of children, mental and language? physical illness or disability, a history of torture, Ms Lewis: I do not think in principle there was an traYcking or sexual violence. These are all things objection. The objection on that lay mostly for that I believe are currently reflected in the Home example vulnerable groups and there was a OYce’s policy on detention so for them to be discretion for those vulnerable groups, such as the omitted in the Bill is certainly a worrying move. elderly or those with mental health problems, to not take the citizenship and language in the UK test, but Q36 Mr Streeter: You also said that your this active citizenship does go one step further in that caseworkers are “all too familiar” with assertions of someone who has already shown a commitment to “imminent removal” in bail cases where the facts the UK by the citizenship test and by having English point in the opposite direction. I did not really language, good character and so on then has to go understand that. Can you expand on that? that one step further with active citizenship, which Mr Furner: Certainly I can give you the example of we note is not detailed in the Bill about what that a case I was in court with a couple of weeks ago precisely means. where the Secretary of State through the presenting oYcer argued that a person’s removal was imminent although they had an outstanding appeal which they Q41 Mr Winnick: So you are saying, as your might have won and although they came from a memorandum does in paragraph 15, that this extra country where there had not been removals since the requirement of active citizenship is not necessary? beginning of 2007 because of the attitude of the Ms Lewis: Absolutely. receiving state. To say that a person in that situation is facing imminent removal is ludicrous and yet these Q42 Mr Winnick: What eVect would that have for are the types of assertions that are regularly made. It people who have dual nationality? might be that imminence assumes a greater Ms Lewis: That is a very good point. It could take importance in the statutory scheme and that they someone who is a dual national between eight and 10 will be more careful when they are talking about years to acquire permanent citizenship. these factors but certainly saying that someone’s removal is imminent is commonplace. Q43 Mr Winnick: What I was asking was what Mr Streeter: Thank you. would be the eVect on applicants from countries that do not allow dual nationality? Q37 Mr Winnick: Ms Lewis, your organisation is Ms Lewis: For those who come from countries rather critical of the requirements over earned which do not allow dual nationality, and therefore citizenship which, in your words, simply add an cannot naturalise as British, the timescales are far extra hurdle with a bias against certain groups of greater. It will take a minimum of eight years to migrants. Can I first of all ask you whether your acquire permanent citizenship under the new organisation was in favour of the requirements provisions whereas now it is five. If someone is brought in, I am almost certain, by the present unable to comply with the active citizenship Government that a nationality requirement includes requirements it could take 10 years plus as opposed the need to show good character, English language to five. Processed: 23-04-2009 22:38:30 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG1
Home Affairs Committee: Evidence Ev 7
28 October 2008 Ms Kathryn Lewis and Mr Daniel Furner
Q44 Mr Winnick: So in eVect you would want the visa could be issued so that once they arrive in this Government to drop this extra hurdle and you will country they already have that health insurance, be lobbying along those lines? which all of us would do if we were going to the Ms Lewis: And certainly if the Government is United States? unwilling to drop that, which would be our position, Ms Lewis: The current system for health of course is there should be safeguards in place to (i) make sure that if you are ordinarily resident in the United that people cannot be exploited, (ii) make sure that Kingdom for 12 months or more, ie you have lawful there are precise provisions about the meaning and leave in the UK for 12 months or more, you are (iii) make sure that certain groups may not suVer by entitled to access to the Health Service anyway. virtue of the fact that they cannot comply with that requirement. It seems like it will be a complicated Q47 Mrs Cryer: I am thinking more of people on process to implement. visitor visas who may only be here for six months. Ms Lewis: Visitors at present are currently unable to Q45 Mr Winnick: Mr Furner, what eVect will the access all health care. Certainly they cannot access draft Bill have on the system in terms of the secondary health care. In terms of primary health naturalisation and integration of immigrants? What care it is at the discretion of the doctor, so certainly the Government is suggesting is encouraging people in terms of visitors we would have no objections to who want to be permanently settled in the United visitors having health insurance. The problem lies Kingdom and to have UK nationality to be active in where for example you have failed asylum seekers the community prior to making any such who cannot be removed to Iraq or Somalia. application. Is there any reason why that should not be the case? Q48 Mrs Cryer: I was not thinking of asylum Mr Furner: Well, sir, I can only really speak about seekers. the clients that we represent. I am not an expert on Ms Lewis: In terms of visitors on visas of months or nationality law for immigrants per se but in relation less there would be no specific objection to that. to our clients these tend to be people who are very Q49 Chairman: Can I just ask a final question about traumatised and who have a very, very high the comparison between EU countries and what we prevalence of mental health problems, and to put do here. Are there any other EU countries that do it additional requirements on them when certainty and better? All the evidence seems to be that we are more security is often a main factor driving these people’s liberal in the way in which we approach these recovery and rehabilitation from persecution they V matters. If you do not know the answer do not have su ered in the past is an unreasonable thing to worry. do. Without seeking to comment on the proposals Mr Furner: I am not aware of any specific examples, generally in respect of immigrants we would say in sir. I would say that there is a harmonisation relation to asylum seekers and people who have V programme in relation to asylum and humanitarian su ered persecution in the past it is unreasonable to protection and human rights protection within the prolong their period of uncertainty. European Union, and certainly the intention at the European level is to create essentially a common Q46 Mrs Cryer: Kathryn, apparently there is going system for dealing with these types of issues. That is to be a working group to look at which immigrants well in train and so I would not have thought we should be entitled to services such as health and were substantially more liberal than the others. social security. What is your view about the Chairman: Mr Furner, Ms Lewis, thank you very implications for migrants of the Government’s plans much for giving evidence today. If there is any aspect to limit access to local services? Do you think it that you would like to cover further, please do not might be a good idea if this working group were to hesitate to drop us a line. We intend to complete this come up with an idea about having a requirement for inquiry by the beginning of December. Thank you applicants to have health insurance before an entry very much.
Witnesses: Dr Eric Metcalfe, Director of Human Rights Policy, JUSTICE and Ms Isabella Sankey, Policy OYcer, Liberty, gave evidence.
Q50 Chairman: Isabella Sankey, a Policy OYcer at matter of concern. We do not feel discretion should Liberty, and Dr Eric Metcalfe, Director of Human be removed, it is there for a reason. In particular, it Rights Policy at JUSTICE, thank you for giving should not be fettered by what seems to us are evidence to this inquiry. Can I start with you, Dr overtly political considerations, which is fear of Metcalfe. How significant is the removal of elements increasing numbers of asylum seekers. of discretion from the appeals process? Dr Metcalfe: We feel this is a very unwelcome development. It is a continuation of a long-standing Q51 Chairman: Ms Sankey,the draft Bill restricts the trend in immigration legislation, which is the erosion rights of appeal to those whose permission is of appeal rights in general. In particular in relation cancelled on rather than after entry into the United to removal, the removal of discretion from an Kingdom. You say this will “undoubtedly lead to independent and impartial tribunal is always a unfairness”, why should it lead to unfairness? Processed: 23-04-2009 22:38:30 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG1
Ev 8 Home Affairs Committee: Evidence
28 October 2008 Dr Eric Metcalfe and Ms Isabella Sankey
Ms Sankey: The first thing we would like to say, as legislation introduced has been introduced with the my colleague has just outlined, is this is not promise of tightening immigration control. One has happening in a vacuum, this Bill has been brought to wonder how much more tightening the system can forward and in terms of appeal rights, it is replicating take. It may probably assist the Committee to know a trend we have seen over the past several years. In that before I joined JUSTICE I was a lawyer in the other areas of law, for example in the criminal justice Immigration and Judicial Review Team of the area, appeal rights are not being tampered with in Treasury Solicitor’s Department, which is to say that this way. As far as we are concerned, access to justice I represented the Home Secretary in a number of is something which needs to apply across the board, judicial reviews. In particular, I became the lead whether it is somebody with immigration status or a lawyer for the National Asylum Support Service. I British citizen. To create these categories where have experience from the side of the Government in appeal rights are not being granted, or at least heard defending judicial review claims. in country, for example if the Home Secretary asserts that deception has taken place or if an expulsion order is put on somebody—bearing in mind that Q55 Chairman: Are you going to spill the beans expulsion orders can be placed on somebody under today! this Bill for a minor or inadvertent breach of Dr Metcalfe: The Committee will, of course, immigration condition is manifestly unfair. understand that I cannot discuss details of individual cases, but I can speak from at least the perspective of both a former government lawyer and Q52 Chairman: You say it is happening in a vacuum, also a lawyer for a human rights organisation. but the context for the public is that they obviously feel immigration is out of control. A poll in this morning’s newspaper shows that it is the number Q56 Bob Russell: Which side do you think is the best one issue of concern for people who live in London. side from your career perspective? It was cited as 34% of the people in London felt this Dr Metcalfe: I do not think my own career is the was their main issue. Is it not surprising that the issue here, however I would say in terms of public Government is seeking to restrict certain aspects of perception, the public would probably be surprised immigration policy? to know that the Treasury Solicitor’s Department, Ms Sankey: I think there is a vicious cycle which can for instance, wins the majority of its cases, in fact I take place here, which is that public concern is would say an overwhelming majority of its cases. obviously exacerbated by the comments and The idea that somehow immigrants and asylum statements made by not only the Government but seekers are running roughshod over the legal system the main Opposition party. We have seen certainly is fanciful. It is simply the case that most judicial over the last eight years at least a ratcheting up of reviews are won by the Government in this area. rhetoric around migration and immigration. Q57 Mr Winnick: Having seen the light, as you Q53 Chairman: You think the statement made by Mr would put it, Mr Metcalfe, on immigration control, Woolas that there should be a cap on immigration would it be right to say that JUSTICE has never at was unhelpful? any stage put forward arguments for further Ms Sankey: I think emotive statements around restrictions on immigration control? immigration which are unrealistic, for example Dr Metcalfe: In general I would believe the answer suggestions of caps when we know that most is no, but immigration policy per se is not the focus migrants coming to this country are coming here of our organisation. Our fundamental concern is under EU arrangements, so unless someone is that fundamental rights are protected and proposing that we withdraw from the EU, there is no immigration and asylum law deals with some very question of a cap, those statements are unhelpful. important rights, one of which is the fundamental They contribute to public perceptions which are right of access to the courts. What we are often quite unrealistic about the numbers of people particularly concerned about in the trend of coming. immigration legislation, of which this is a part, is the idea that for a certain class of person your right of Q54 Chairman: Why should you all worry about access to the court should be diminished simply these bills because we have had so many because of your immigration status. We do not do immigration bills over the last 10, 11, 15 years and it that in other areas of administrative law. We do not does not seem to have made a huge amount of do that in housing or planning or any other area of V di erence to the public, has it, the public still think administrative law that I am familiar with. Yet in that immigration is out of control? relation to asylum and immigration, we seem to Dr Metcalfe: Yes. I think to some extent there is a believe it is okay to diminish the right of access to a significant problem of perception and rather than court and that is profoundly disturbing. seek to pander to the mistaken perception that immigration is out of control, we would perhaps hope for more leadership from the Government in Q58 Mr Winnick: While preserving human rights seeking to correct the public’s misunderstandings. and trying to ensure justice as such, as a government As the Committee will be aware, this is the eighth certain has a duty, would you not accept, piece of immigration legislation to be brought nevertheless, that the government of the day, forward since 1999. Each piece of immigration whichever government that is, has a responsibility to Processed: 23-04-2009 22:38:30 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG1
Home Affairs Committee: Evidence Ev 9
28 October 2008 Dr Eric Metcalfe and Ms Isabella Sankey bring in legislation where they feel there have been Q63 Chairman: Your colleagues in Migration Watch abuses and in response to genuine public feelings UK argue that appeals hearings should be which have just been mentioned by the Chair? inquisitorial rather than adversarial. What eVects do Dr Metcalfe: I do appreciate the strength of public you think those changes would have on the system feeling and I do, of course, understand that as of appeal? Do you agree with them first of all? democratically elected representatives you will bear Ms Sankey: It is not something we have looked at in the brunt of the expression of that feeling. I am enormous detail, but I do not think we would agree extremely sceptical, both as a former government on principle. We have an adversarial system in this lawyer and as a human rights lawyer, that there is a country for a very good reason in that we think that need to further restrict immigration control. It seems is the best way to achieve justice. It has worked for to me that such abuses as do exist are, as I believe my us over centuries and to start taking certain sections colleague from the Immigration Advisory Service of the law and applying a completely diVerent mode said before, abuses which are inherent in any system of justice would be unsuitable. I know this was of administrative law. looked at in the counter-terrorism context and there was a very broad consensus that it would be Q59 Mr Clappison: Moving away from the wider unworkable in our system. politics of this, if I can draw upon your experience as Dr Metcalfe: An additional point if I may, not only an immigration lawyer in this field. You will be the point about our background and experience as familiar with the Immigration and Asylum Act 1999 an adversarial legal system but also a point about in which when that was debated, a great deal of time resources. If you shift to an inquisitorial system, you was spent on dealing with the rights of appeal and have to have some means whereby the tribunal itself the appeal process. From memory, I think it was said is able to gather available evidence, which means at the time that was creating a one-stop-shop for appointing to the tribunal investigative counsel and appeals which would be the final word on appeals so forth. It would mean a massive shift in resources and yet here we are again going into some pretty and the Asylum and Immigration Tribunal is already complicated areas. Does it strike you that the one- struggling as it is. I do not think anyone would stop-shop has not been successful after all and here welcome the idea of the tribunal becoming a Rolls- we are back again? Royce establishment having its own team of Dr Metcalfe: It was not only the 1999 Act, it was also investigators, which in our view would be what the Nationality, Immigration and Asylum Act 2002, would be required by an inquisitorial system. the Asylum and Immigration (Treatment of Claimants etc) Act 2004, the 2006 Immigration and Q64 Mr Streeter: Quickly on the point about Asylum Act, the UK Borders Act 2007. transferring the burden to higher courts and judicial reviews and so on, would that attract Legal Aid? Dr Metcalfe: Yes. Q60 Mr Clappison: There were a lot of them. Dr Metcalfe: There have been a number of acts which have aVected appeal rights. Q65 Mr Streeter: That could have resourcing implications also in terms of more cases, more Legal Aid. Q61 Mr Clappison: Do you think it is becoming Dr Metcalfe: Absolutely, it would have significant more or less complicated? implications and immigration Legal Aid is already Dr Metcalfe: One of the major features of this Bill under strain as it is. There is an additional point which we welcome is the proposed consolidation about the impact, there was a study last week given because we feel the current framework is a mess. It is by US academics talking about what happened to a welcome development to consolidate the law into the US asylum appeal system when they removed the a single Act. However, we do not feel the proper requirement to give reasons and the number of approach should be to further reduce appeal rights. applications to the higher courts shot up dramatically. Whenever you seek to erode appeal Q62 Chairman: Ms Sankey, your written evidence rights at the lower end, all you really do is says that, “the changes to the appeal system will overburden the higher courts with predictable transfer the administrative burden to the higher results. courts”. What implications does this have for immigrants and asylum seekers? Q66 Margaret Moran: Dr Metcalfe, in your written Ms Sankey: Yes, indeed, it definitely will do that. If evidence you suggested that the draft Bill will aVect one of the things the Government is really worried the right to return and enter your own country. You about here is resources and clogging up the system, have also raised some concerns about the removing appeal rights in this way will mean that for designation of control areas which are not treated as those who are subject to an expulsion order or have UK soil. Could you elaborate on both of those their permission cancelled, when they go and consult points? their lawyer about their options, obviously judicial Dr Metcalfe: To take the second part first, the review will be what is suggested to them and I should designation of control areas is in Clause 22. We do think that many of them will take that up. This will not object to the provision of a control area per se, evidently mean that the administrative courts are we recognise that if you are going to have borders, it further burdened with more and more cases which is sensible to regulate the points at which people has its own resource and time implications. come through. There is a particular presumption Processed: 23-04-2009 22:38:30 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG1
Ev 10 Home Affairs Committee: Evidence
28 October 2008 Dr Eric Metcalfe and Ms Isabella Sankey that people are not deemed to enter the United Q69 Gwyn Prosser: Is either of you aware of any Kingdom until they have exited the control area. other country where these rights of examination are While that may be all well and good for immigration given to the state? Are there any other legal systems control in general, we caution that people are which allow this to happen? entitled to claim asylum as soon as they arrive in the Dr Metcalfe: I am certainly not aware of any other United Kingdom, which is a concept distinct from EU or common law system which would allow such entering the United Kingdom. In particular, the a practice to go unchecked. There is currently a United Kingdom’s own international obligations power of immigration oYcers when a person enters under the Refugee Convention are triggered when a the United Kingdom to examine their immigration person arrives in the United Kingdom. We are documents; of course that is a sensible measure. This simply highlighting a concern that when control is a far broader measure which allows people to be areas are established, the ability of people to claim examined and, if they refuse, to be detained pending asylum on their arrival is not inhibited or interfered their examination without any kind of geographical with, you need to ensure people are able to claim or time restriction whatsoever. I am not aware of any asylum even if they have not yet entered the United comparable power in any other Western country. Kingdom in legal terms. Mr Streeter: I think North Korea has a similar system, if that helps.
Q67 Margaret Moran: The first point? Q70 Gwyn Prosser: You just touched on it, what Dr Metcalfe: In relation to the right of return to about the powers to demand access to your identity documents? Do you have concerns about that as one’s own country, we were making the point, which such? I think was elaborated on very well by the previous Dr Metcalfe: I would simply repeat what my witnesses, which is that immigration permission, V colleague from Liberty has said, in practice this temporary and permanent, has the e ect of eroding would become a de facto requirement on people to the right of abode which people have previously carry identification documents, either your passport enjoyed under the 1971 Act. Instead of people with or I am sure the Government would encourage us all right of abode and people without, you now have a to carry a voluntary identity card. It will become a scheme of citizens and non-citizens. We are lot less voluntary once you know that you are liable concerned that limits or restricts the ability of people to be detained if you are not carrying proper previously with right of abode, they are now subject identification. to much more regulation. Ms Sankey: I think it is also worth bearing in mind the powers which currently exist, which are that the police can stop somebody if they have reasonable Q68 Gwyn Prosser: Dr Metcalfe, could you tell us suspicion of criminality and ask for identification. Y how the new powers of examination conflict or Similarly, immigration o cials now have the power to stop people if they feel that there may be an otherwise with Article 8 of the Human Rights Act? V Dr Metcalfe: Not merely with Article 8 but also with immigration o ence. What is being proposed requires no suspicion of any wrongdoing Article 5, the right to liberty, but in relation to the whatsoever, so it really is an enormously broad right to respect for private life and family life we power. expect the new powers will have quite a striking impact if immigration oYcials are allowed to wander the streets unchecked and simply seek to examine Q71 Gwyn Prosser: Those agencies, those anyone’s immigration status who they happen to individuals, would be acting with the powers of the meet. This would obviously have a very unwelcome Secretary of State and they are accountable, so impact on people’s ability to go about their daily would the accountability not give you some relief? business. It is striking that there are no restrictions Ms Sankey: We have concerns about the extension on the power to examine following entry when there of traditional policing powers to non-policing are quite clear geographical restrictions in relation to bodies. We accept that sometimes that may be examining people who are exiting. You can only necessary in a certain context, but in terms of detain a person for examination if they are at that accountability there is no equivalent of, say, the port area and exiting the United Kingdom, but there IPCC for immigration oYcials so there is not that seems to be this unchecked power to examine people independent kind of accountability. Similarly, the at any point throughout the United Kingdom and police are governed by PACE codes of conduct can be used against virtually anyone. which really regulate their behaviour and these do Y Ms Sankey: I want to add to that point that one of not apply to immigration o cials, so there are our main concerns about this provision, given that it concerns there. can be exercised so widely, is that it will be targeted Gwyn Prosser: That is important, thank you. particularly at those who look like non-EEA nationals and will mean basically in practice that Q72 Patrick Mercer: Ms Sankey, you say that “the those people will be forced to carry around with conditions that may be placed on those with them identification in case they should be stopped, temporary permission to stay in the United which as a result may lead to increased community Kingdom”, I am quoting you now, “could become relations tensions and so on. punitive in themselves”. Could you expand on that? Processed: 23-04-2009 22:38:30 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG1
Home Affairs Committee: Evidence Ev 11
28 October 2008 Dr Eric Metcalfe and Ms Isabella Sankey
Ms Sankey: Absolutely. There is no limit currently, Ms Sankey: Consistency and training I think. and as proposed in the Bill, on the types of conditions that can be imposed on people and the purpose for which those conditions can be imposed. Q77 Ms Buck: To pursue that point, are you saying It is our submission that this engages many of the that there is a way of directing resources as to make V articles of the Human Rights Act and that without more e ective decision-making, not necessarily any kind of further safeguards or regulation additional resources in total but, because the immigration conditions could be tantamount to a frontline decision-making is not as good as it could control order. be, it leads to greater expense and complications further up the line, or are you saying that there needs to be an increase in overall resources going into Q73 Patrick Mercer: If I could quote you again, you our system? say that you consistently advise against blanket rules Ms Sankey: I am afraid I am probably not the best and mandatory sanctions in the immigration person to ask, particularly on the issue of resources, context. What are your specific concerns about this, but it is very apparent to us that because of the particularly the rule of cancellation of permission? number of bad decisions made at first instance that Ms Sankey: We advise against mandatory sanctions. does of course raise the overall costs, but I am not Of course there is a distinction between rules and familiar with exactly how the Government budgets sanctions. What we say is that it has always been the in this area. case in this country that cases are considered on their Dr Metcalfe: I think a useful way to elaborate on merits and that sanctions are not wheeled out that is when you consider the eVect of automatic blanket for what could be very diVerent sanctions and blanket rules such as when you circumstances. We would argue that with automatically remove the right to remain for an immigration sanctions you need to be able to individual who has breached their temporary consider on a case-by-case basis, especially when immigration permission, perhaps they failed to you are talking about expulsion orders for such notify a change of address for example, you are in minor breaches of someone’s immigration fact creating an awful lot of work for the Home permission. Proposals for automatic cancellation of OYce itself because that person automatically immigration permission, would mean, that anybody becomes liable to an expulsion order under the draft who is seeking to judicially review an expulsion Bill. Whereas previously you might have had a order, for example, would lose their ability to work situation where the person became subject to a in this country if they have their immigration decision-making process, they are now liable to permission cancelled automatically. That then raises automatic removal and you have to direct practical concerns about whether indeed they would automatically resources to make sure that the people be able to challenge a decision that had been made who are liable to be removed are, in fact, removed wrongly. from the country. Far from making the organisation more eYcient, you are requiring it to undertake a lot Q74 Patrick Mercer: How else do you think the of orders that it is compelled to carry out if it is to Government could simplify immigration law? comply with its legal duties and statutory powers. Ms Sankey: As many witnesses and, indeed, my You are making the organisation less eVective by colleague have said, I do not believe that this Bill having blanket rules rather than being more eYcient does simplify in the way that it sets out to. On a and more targeted. I agree completely with the need practical level increased resources could be to ensure that frontline staV are better aware of their extremely useful in meaning that, for example, bad legal obligations and it is of course of great decisions are not made at first instance so then you assistance if the law is simple and the law is not do not have the number of continuing legal simple at the moment. problems and challenges that take place. I think the main problem we have here is that you have a whole Q78 Mr Streeter: A quick question on immigration, new raft of diVerent categories, for example but before I ask that you do not have much respect, probationary citizenship permission, temporary either of you, it seems, for public opinion on permission and so on, which are going to cause immigration issues and do not agree that the further confusion and more casework as these terms immigration system is currently out of control. get defined further in the courts. Would either of you wish to restrict immigration to the UK in any way and, if so, how would you try and Q75 Patrick Mercer: Would you care to expand on do that? “additional resources”? Dr Metcalfe: I think immigration policy in general is Ms Sankey: Resources in terms of the training of outside the scope of our work as a human rights those making decisions on behalf of the Secretary of organisation. We are not in the position of saying, State, so that the decisions are made in a way which “The desirable number of people in the country does not give rise to further appeals and judicial should be X or Y”. review. Q79 Mr Streeter: You give the impression that you Q76 Patrick Mercer: It is a question of consistency think anyone who wants to come to the UK should really? be able to do so. Processed: 23-04-2009 22:38:30 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG1
Ev 12 Home Affairs Committee: Evidence
28 October 2008 Dr Eric Metcalfe and Ms Isabella Sankey
Ms Sankey: That is not the position at all. As my more people will be detained and not granted bail as colleague said, we deal with human rights and civil a result of potential political ramifications of the liberties. Our position is not to get into the nitty- involvement the Secretary of State ie. It could aVect gritty of when immigration should be available and her negatively if there was a bad media story as a when it should not. result of someone being granted bail. It is also important to remember that the AIT can currently Q80 Mr Streeter: It is how we treat people while they consider whether somebody has got imminent are here, is that what you are saying? removal demarcated, so it is not a question of Ms Sankey: Exactly, and that the system is fair to essentially needing a Secretary of State to come in people once they are here. and say that is a legitimate consideration that the Dr Metcalfe: In particular that the system is not AIT can take into account. The idea that the arbitrary in the way it approaches matters. Secretary of State has the final say is completely unnecessary. Q81 Mr Streeter: Here is a sensible question. The limits of immigration bail you say, Dr Metcalfe, are Q84 Mr Clappison: Could I ask Isabella Sankey incompatible with Article 5 of the Human Rights about the concept of resisting or obstructing Act. somebody without reasonable excuse, a person Dr Metcalfe: The presumption. exercising a function of the Bill’s provisions. You seem to be quite exercised about this because you call Q82 Mr Streeter: The presumption that someone it “grossly disproportionate”, we know you say that, should not get bail? but there are existing provisions, I think, for Dr Metcalfe: Yes. It seems to us that is contrary to obstructing somebody acting in the execution of the the requirements of the right to liberty under Article 1971 Act. Perhaps you could tell us where the change 5. I believe the witness from the Refugee Legal is that you see in this and what is so wrong about it Centre spelt it out very well. There is a very from your point of view? Ms Sankey: We believe the creation of any new longstanding presumption of liberty under the V common law and our administrative law and that is criminal o ences should be governed by the principles of necessity and proportionality. The now a requirement and that was, in fact, what V inspired the European Convention on Human problem we have with this o ence is that it goes well beyond what we think is necessary and Rights rules in these areas. The European Court of V Human Rights has ruled time and again, and indeed proportionate. The o ence does not require any our own courts have ruled time and again, that there amount of intent to be committed and there is is always a presumption in favour that a person nothing on the face of the legislation concerning should be free. That is not to say that where you have whether the person was readily identifiable as a suspected dangerous criminal, for example, they someone carrying out a function under the Act. can be refused bail, but certainly there has to be an assessment, you cannot follow a mandatory Q85 Mr Clappison: To pick you up on that point, presumption that the person should be detained. It under the existing rule there is not any intent, is is simply contrary to one of the fundamental there, under the 1971 OVence Act? That says principles of our legal system and extremely obstructing, it is the same wording but it just goes a unwelcome too. It is very diYcult to understand how bit wider in its ambit. the Home OYce legal advisers could have thought Ms Sankey: That is exactly the point as well, the way that this would pass muster at the parliamentary it goes in the ambit. As the Chair reminded us earlier, level. at the moment the Bill is not complete, so we do not even know what all of the functions under the Act Q83 Bob Russell: Ms Sankey, what are the are going to be and who will be exercising all of those implications of the requirement the Secretary of functions. Wait until we see the detail on that, but it State has to give consent to an asylum and is something we do have concerns about at this stage. immigration tribunal decision to grant bail to those facing removal in practical terms for the immigrants Q86 Mr Clappison: We notice the criminal oVences and—a very important point—in terms of the for breach of requirements is subject to the negative relationship between the executive and the judiciary? parliamentary procedure. You are familiar with the Ms Sankey: If I could take the second point first parliamentary procedure, would you put in a bid for about the relationship between the executive and the it being subject to the aYrmative procedure or the judiciary. This is an extraordinary restriction on the negative procedure in your view? You know the autonomy of the judiciary and it is something that diVerence between the two: aYrmative, we have to we are very concerned about. Elected members of have a debate; negative, we only have a debate if Government should not be making judicial decisions somebody what is called “prays” against it. which cannot be challenged independently and we Ms Sankey: In our view, the creation of any criminal do have grave concerns about the separation of oVence should go through the utmost scrutiny in powers in this context. For the individual concerned Parliament, so the aYrmative, yes. I think it will mean more detention in this area I imagine, as with anything, the buck stopping with a Q87 Mrs Cryer: Ms Sankey, apparently Liberty government minister, as it were, they are going to err disagrees with the “activity condition” of earned on the side of caution. I imagine that it will mean citizenship. Why should we not encourage would-be Processed: 23-04-2009 22:38:30 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG1
Home Affairs Committee: Evidence Ev 13
28 October 2008 Dr Eric Metcalfe and Ms Isabella Sankey
British citizens to contribute to community life? do not need to show themselves to be of good How could the draft Bill better recognise the ways in character and they do not even need to show a which migrants contribute as they become language test. naturalised? Ms Sankey: On the first point you made, that is Q91 Mrs Cryer: You mean according to this exactly it, encouragement through policy is very someone born here may need to demonstrate their V di erent to enforcement through legislating so as to need for citizenship or their position of having require someone to do something or make it that citizenship? much easier for them to progress through the Mr Metcalfe: I was not born here and I am a British citizenship process if they do something. We think citizen. In fact, I did not enter this country until my this would be tantamount to coming close to putting mid-20s and I am a British Citizen and, yet, it strikes a burden on someone to do something if they want me that someone who is resident in this country for to receive— 20 years may not be a British citizen, they may be subject to far more stringent requirements to prove Q88 Mrs Cryer: Do you recognise that there are their Britishness than someone like me who enters some families who put great pressure on their women the country at the age of 23. not to be involved in anything outside the home and, Mrs Cryer: You are not addressing the problems therefore, this would perhaps redress this and give which exist in constituencies like mine where I have some sort of balance? many, many women who have lived in Keighley for Ms Sankey: I do not think that would necessarily be 30 years, do not have a word of English and many the case because, of course, they could still continue women ask other people, such as myself, “What’s to put such pressure on. I do not think this is the kind Keighley like?” and Keighley is a mile away from of Bill in which to address those kinds of concerns where they live. That is the sort of problem I am you are speaking of. Many migrants, and especially dealing with on a day-to-day basis and I think if we women, already undertake an enormous amount of can address this, well and good. voluntary work which may be more informal than what this Bill is envisaging. Q92 Mr Winnick: Dr Metcalfe, is there any reason why those who want to come and live in the United Q89 Mrs Cryer: But some do not. Kingdom on a permanent basis should not show, by Ms Sankey: Our concerns here would very much be the way they conduct themselves, that they are fit to that not only would you be taking away voluntary be UK citizens? Is this any diVerent from other work from other sectors of the migrant community, countries, including the United States? but you are also tantamount to putting a Dr Metcalfe: I am not suggesting that the requirement on people in saying that they might be requirement to be of good character is an able to speed up their citizenship process by up to unnecessary requirement, I am simply pointing out two years. that the significant hurdles which exist to become a British citizen for those who are not born British Q90 Chairman: Does it say that? If you get enough citizens. It strikes me that United Kingdom points, will you be able to speed up your application? citizenship has never been easy to earn. The easiest That is the idea of it. way to acquire British citizenship is either to be born Ms Sankey: That is the idea envisaged under this one or to marry one. If you are not going through draft Bill, but I believe they are going to implement either of those routes, then, in fact, it has always Y it much through regulations, including a provision, been very di cult to acquire and never been easy. I I believe, whereby if the Secretary of State decides to certainly appreciate the value of promoting good remove that speeding up, she will be able to do so community relations. I wonder whether the activity regardless of whether someone has already fulfilled requirements for probationary citizens are the most V their activity. e ective way of doing this. It seems to me legislation, Dr Metcalfe: It strikes me that part three of the draft particularly potentially punitive legislation, has V Bill is one of the most complex pieces of legislation never been a particularly e ective means of I have seen as a lawyer. The formulas and the idea encouraging good relations. that this is a simplification are astonishing because it greatly increases the complexity of the existing law. Q93 Margaret Moran: Ms Sankey, you raised what On the point about the activity requirements, we are you called “grave concerns” about the impact of a concerned about the general trend of the carriers’ liability scheme. Can you tell us what you Government to speak in terms of rights being tied to are angry about on that score? British citizenship, which was something that Ms Sankey: The carriers’ liability scheme represents appeared quite prominently in the Governance of a wholesale extension of immigration control to Britain Green Paper last year. Whatever the private individuals and private companies, which we desirability of encouraging people to integrate into do not think is appropriate. The Government the United Kingdom and society, we have to point piloted a scheme similar to this, I think it was in 2004 out that 99% of British citizens did not earn their at Prague Airport, where essentially they were trying citizenship, 99% of British citizens acquired their to do the same thing of before people coming into citizenship simply by virtue of breathing, by virtue of the country, having stops and checks put on there. being born. Most people in this country do not need That policy was found to be discriminatory and the to show an activity requirement to be a citizen, they current policy they are proposing whereby based on Processed: 23-04-2009 22:38:30 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG1
Ev 14 Home Affairs Committee: Evidence
28 October 2008 Dr Eric Metcalfe and Ms Isabella Sankey the description of the person entering, carriers will particularly airlines, have the correct documentation have to require authorisation from the Secretary of for entering the United Kingdom, so it is a regime State, I do not see how that is going to avoid the which is already there, is it not? possibility of being discriminatory also. I think it Ms Sankey: That is documentation, I believe the would definitely be subject to a legal challenge policy being proposed here is that regardless of depending on how they bring forward the policy. documentation, the carriers would require authorisation for certain categories of people. As in the case when it was piloted in Prague, although that Y Q94 Margaret Moran: Could you expand on what was immigration o cials, it was people of Roma that legal challenge might look like? origin who were subsequently denied the ability to Ms Sankey: That necessarily if you are requiring enter the UK. authorisation for bringing certain categories of Q96 Mr Clappison: It is already discriminatory in people into the UK, by its very nature, setting that that it is applied to some countries but not others, is around a description of a person discriminates it not, or to some people with some types of potentially on the grounds of race or nationality. documentation or who do not have some types of documentation and not to others? Ms Sankey: Documentation is essentially an Q95 Mr Clappison: I want to establish, in fact, how immigration issue. If you are now extending it to much diVerence this is going to make in practice certain categories based on race and nationality, that because carriers’ liability is not a new concept, it was would be under the Human Rights Act, Article 14: introduced 15 or 20 years ago under a previous Discrimination. government of a previous political colour. It requires Chairman: Thank you very much, Isabella Sankey carriers to ensure that those who they are carrying, and Dr Metcalfe. That concludes this first session. Processed: 23-04-2009 22:38:30 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG1
Home Affairs Committee: Evidence Ev 15
Tuesday 11 November 2008
Members present:
Keith Vaz, in the Chair
Tom Brake Gwyn Prosser Mrs Janet Dean Martin Salter Patrick Mercer Mr David Winnick Margaret Moran
Witnesses: Mr Don Flynn, Director, Migrants’ Rights Network, Ms Sylvie Aboa-Bradwell, Cameroonian migrant and oYcer for the Centre for Democracy and Development, and Ms Donna Covey, Chief Executive, Refugee Council, gave evidence.
Q97 Chairman: Good morning. Can I refer Ms Aboa-Bradwell: They should have power, but I everyone present to the Register of Members’ believe it is necessary to have judicial scrutiny and Interests. Can I declare interest: my wife is an room for appeal; but in this case I think there will immigration solicitor. All the other interests are be too much power on frontline immigration declared in the Register. This is a further session in oYcers to make arbitrary decisions. the Committee’s inquiry into the Draft Immigration and Citizenship Bill. As this is a Q99 Chairman: Mr Flynn, the Government seems partial and incomplete bill we have not received all to be moving in the direction of restricting further the information from the Government; and some rights of appeal. Does this cause you problems? Do of the questions that we ask of course you cannot you think this is a good thing, or a bad thing? answer because you have not seen the full version Mr Flynn: It certainly gives rise to serious concerns of what the Government is proposing to do. Could on our part. As we understand the eVect of clause I start with you, Ms Aboa-Bradwell and ask you: 174 it is particularly going to aVect rights of appeal based on your own experience as a migrant in the at the moment, which are conducted on the basis United Kingdom, and on the experience of other of the way in which discretion has been exercised migrants at the Centre for Democracy and in respect of the decision. It is going to reduce the Development, do you have any concerns about the grounds of appeal to matters of law or matters of proposals that the Government has concerning interpretation of the regulations. Our concern this Bill? about this is that, in our view, it is very diYcult to Ms Aboa-Bradwell: Yes, I have two main concerns: imagine an immigration management system in the first one is in relation to the proposal to give which it does not fall upon the oYcials concerned new powers to UK immigration agents, because in to exercise their discretion on how a particular rule my view this could give a way to arbitrary and or regulation ought to be properly determined, to unfair decisions; for example, the power to cancel consider the validity of aspects of evidence which visas. To illustrate my point, I currently have an are oVered in support of an application for leave Indefinite Leave to Remain in the UK; I have had to enter; and it ought to remain the possibility for it since 2004. Whenever I come back from a trip being able to argue such points, whether or not the Y abroad some immigration oYcers usually let me in o cers concerned correctly exercise their discretion as soon as they see this Leave to Remain; but within the provisions of the law. This is a matter of others spend a long time asking me all sorts of concern for us, that the form of immigration questions about the fact that I was denied a tourist appeals are going to become much more legalistic visa some 10 years ago. I believe if they had the in their content and less able to deal with the power to cancel my leave some of the latter oYcers practical and realistic issues which do arise in the would already have done it for one reason or context of applications. another. My second worry is in relation to the proposal to ask migrants to contribute a little extra Q100 Chairman: There is nothing in principle that to the cost of local services. I have paid for my you object to in restricting rights of appeal if you Leave to Remain to the UK; that is a fee which no are satisfied that the way in which casework is British citizen will ever pay. I believe it would be conducted is dealt with in a robust way. What if grossly unfair to ask me or other migrants who are there is an administrative review rather than a already paying their taxes like everybody to formal right of appeal, would that satisfy you? contribute a little extra just for being migrants. Mr Flynn: I think we would insist upon a proper right of appeal. One of the issues we want to put squarely in this discussion is recognition of the fact that migrants make very heavy investments in the Q98 Chairman: Is not right that the Government business of being a migrant. Ms Aboa-Bradwell has should have powers if it feels that people are already indicated the considerable expense that abusing their Leave to Remain or their citizenship; arises in the context of making applications for visa they should have powers to deal with the situation? fees of one sort or another. Very often the business Processed: 23-04-2009 22:38:30 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG1
Ev 16 Home Affairs Committee: Evidence
11 November 2008 Mr Don Flynn, Ms Sylvie Aboa-Bradwell and Ms Donna Covey of preparing for a period of being a migrant is a risk worth running. I would also say that at the something which begins many years in advance of moment the Government has what is referred to as the actual journey itself; and it can include a safe list of countries, which are countries where decisions about what courses people are going to people can be removed without an appeal. study at college and university, the acquisition of Sometimes countries get taken oV that list—and foreign languages and so on, in addition to the Bangladesh is an example. Our concern, for expenses of travel and visa fees. In these example, with that is there will have been a whole circumstances we do feel where people find tranche of people who were sent back without themselves being ruled to be not eligible under the appeal, and then consequently the Government will immigration laws or regulations then that ought to go “Actually, it’s not safe”. The way in which be regarded as a very serious aVair and merit decisions work, the way in which things like proper judicial consideration as to whether the country information work, means you will always rules and the regulations were properly applied in get a period of time where knowledge here is that instance. catching up with what is happening on the ground; and, in the meantime, people could be sent back to Q101 Gwyn Prosser: Could I ask you about the death, torture and persecution. I think we would changes in the Bill which seem to take away the say for asylum seekers and refugees one of the requirement of the Secretary of State to give notice issues is that you have to err on the side of caution, of expulsion and, consequently, the possibility that because it is a matter of life and death if you get no appeal will be made because no notice was it wrong. given. Is that something which concerns you? Mr Flynn: It certainly is. Of concern about the way Q103 Chairman: Are you saying that Bangladesh is in which immigration law has developed in recent not a safe country? years is that a considerable expansion of powers Ms Covey: I am not saying it is not safe. I am have been exercised right throughout the system in saying it was taken oV the safe list. It is an example order to cancel, to annul, to challenge people’s of a country that was placed on the safe list and immigration status. Where basically the immigrant then taken oV by the Government under advice. requires legal advice and exactly what their position is, it is nowadays quite diYcult to obtain this. The number of lawyers who are prepared to give advice Q104 Chairman: Your view is that this is wrong and on matters of this nature on the Legal Aid system it should still be on the safe list? has been seriously reduced. To narrow and reduce Ms Covey: I would not take a view about whether the time limits in which people are able to respond or not any individual country is safe, because it to decisions of this nature is going to give rise to depends in large part on the individual’s injustices in our opinion in at least some cases. circumstances. What I am saying is that it is an example of a country where the Government said it was safe to return without appeal; they then got Q102 Patrick Mercer: Some have said that asylum further advice and changed their mind. This was a seekers should have “a right of appeal from within few years ago, and that does happen with countries the United Kingdom”. Is that important? Why from time to time. What that tells us is situations should it apply to asylum seekers rather than any in countries can change quite quickly, and there will other category of migrant? always be a period of time where the information Ms Covey: I think the point about asylum seekers that decision makers have and the reality on the is that the issue about appeal can quite literally be ground will be diVerent. That time-lag will a matter of life and death. As the Committee know, particularly exist if a country is in a huge state of asylum seekers and refugees are people who have turmoil. Bangladesh is an example where the come to the UK because they are quite specifically Government did change their position. It is not fleeing persecution, and they have come here for necessarily the only country to which that applies. safety. Past experience we have is that it is quite often the ability to appeal—and appeal in- country—that saves people’s lives. For example, at Q105 Chairman: Is there another organisation that the moment in terms of initial decision-making should be doing this? I cannot understand your (and I would like to say upfront I think the Home criticism of this particular issue. Should somebody OYce are improving their case owner system and else be making up the list then, or should we have the initial decision-making is getting better, but it no list at all? is still far from perfect) 20% of cases are won on Ms Covey: No, I think we would say it is better appeal. For some nationalities, like Eritreans and that everybody has the right of appeal in country; Somalians, that is as high as 50%. Those are people because one of the issues is a) there is always an for whom, when they have appealed, the ruling has information time-lag; things can change very been that their lives are in danger if they are sent quickly as well in diVerent countries, particularly in back to their home country. What that means is— war zones and countries that have a lot of civil if you send someone back to their home country unrest. If, for example, you take somewhere like the without an appeal here—there is a real danger they Democratic Republic of Congo where, at the either disappear, they become tortured, they moment, we are seeing an awful lot of stuV on our become imprisoned, they become killed, and that is telly, an awful lot of stuV about what is going on a huge risk to run. I think we would say that is not there, it was only a few months ago that the Processed: 23-04-2009 22:38:30 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG1
Home Affairs Committee: Evidence Ev 17
11 November 2008 Mr Don Flynn, Ms Sylvie Aboa-Bradwell and Ms Donna Covey
Government was going to the courts to get Government to take a view about their borders and permission to deport people to the Congo on the take a view about who they choose to have in the grounds that it was safe. country from choice, we have to make sure that within those borders—whether they are the borders Q106 Margaret Moran: Going back to the point of of the UK or the exported borders—we have safety Bangladesh which you used as your example, at doors for people who are seeking and fleeing what point would you have said it was safe for persecution, and we are able to make sure we still people to return? do that. Ms Covey: I am not an expert on the particular country issue of Bangladesh, and I think the Q109 Tom Brake: Can I just ask you, what level of Government has to take advice from experts on training do you think would have to be provided those sorts of decisions. to, say, airline carriers for them to be able to make an appropriate judgment about whether someone Q107 Margaret Moran: You used that as your was or was not an asylum seeker? specific example? Ms Covey: Fairly substantial. If you look at what Ms Covey: I am using it as an example of a country has happened in the UK with our own asylum where the Government themselves changed their system, one of the positive things that has position in the light of new evidence. What I am happened recently in response to some of the saying is that the Government themselves have criticism, including from this Committee, of the been in a situation where they have said, “The way in which the UK Borders Agency was circumstances in this country have changed”. managing cases, is they have changed the whole case owner system, and they have gone through a Q108 Tom Brake: Let us move on to a slightly whole process of taking people on at graduate level diVerent subject and that is of asylum seekers who and putting them through fairly hefty, several are abroad. How much of a risk is there that weeks’ training. I think there is recognition now in powers of examination in this Bill could block the UK that these situations are really complex. If asylum seekers or refugees from leaving the country someone is going to have the power to say, “No”, they are fleeing? and turn you back then either you have to stop that Ms Covey: I think the Bill has to be taken in the happening, or you have to give people fairly context of the current concerns we have about some detailed training. I think there is increasingly an of the ways in which the UK is changing how it issue about how much power should be given to manages its borders. We have particular concerns people who are not employees of the British anyway at the moment at the extent to which the Government. Government is “exporting their borders”—which is the phrase they use—and increasingly making Q110 Tom Brake: What sort of protection or decisions outside of the UK that stop people safeguards do you think should exist? If you accept getting to the UK. In particular we are concerned the principle that our borders are going to be at the current trend which would be made stronger exported and other people are going to be involved in the Bill, as we understand it, whereby the people in that process, what sort of safeguards would you who are intervening quite often are not Y be comfortable with and would be satisfied that immigration o cials; there are more and more they were going to be doing their job properly? powers and more and more responsibility to people Ms Covey: I think the first thing to say is, when the like airline carriers to actually be clearing Government talks about “risk” and “risk someone’s immigration status before they are assessments around carrying individual”, at the allowed to leave a country. We have just finished a V moment the whole emphasis is on the possible risk year-long project where our sta went out to some to the country. Obviously it is absolutely right if of the transit countries, like Turkey, and actually there is genuine reason to believe that somebody is spoke to people making these decisions. Our a risk to the United Kingdom that the Government concern is that once you give the power to decide acts appropriately, and the Government’s agents whether or not somebody can come into the UK act appropriately. I think our concern is that we to somebody who is not trained-up, in terms of the would also like to see the Government look at the protection needs of people, then that again runs the risk to the individual. If there is a risk to the real risk that people cannot actually get to the UK individual in not being able to leave their home in the first place in order to claim asylum. That has country or the transit country they should be to be a real concern, given the situation of some allowed to come to the UK where their case can asylum seekers and also the nature of some of the then be appropriately processed by people who are transit countries. I know, for example, the UNHCR properly trained, and properly under the (who I hope will have the chance to give evidence at jurisdiction of the UK. some point during this process) are very concerned about some countries where people can be intercepted, and there are very few safeguards. Q111 Mrs Dean: Mr Flynn, from your experience, These are quite often transit countries between very how would “examination” work? In particular, can dangerous countries and safe countries, like the you see how a designated oYcer would know UK, that people are trying to get to. Our concern whether a person had ever left the UK and was is that, whilst we respect the right absolutely of therefore liable to examination? Processed: 23-04-2009 22:38:30 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG1
Ev 18 Home Affairs Committee: Evidence
11 November 2008 Mr Don Flynn, Ms Sylvie Aboa-Bradwell and Ms Donna Covey
Mr Flynn: The question of examination is one of experience is that this is an extremely distressing our major concerns, I think, as far as the Bill is experience for people who are involved in it, and it concerned. Under the provisions of Clause 25 the leads to real loss on their part. circumstances in which examinations will be permissible has been extended to almost infinite Q112 Martin Salter: Can I ask Ms Aboa-Bradwell, levels. Literally anybody at any time in any place what eVect do you think the new powers of in the world could potentially find themselves being expulsion in the draft Bill will have on migrants and liable to an examination under the terms of the asylum seekers in particular? Immigration Act. This is going to give rise to a Ms Aboa-Bradwell: Because the new powers of huge variety of circumstances and trigger points. expulsion will replace the existing procedures for Presumably not everybody is going to be subjected deportation and removal, I believe there is a risk of to those inquiries. The circumstances in which asylum seekers and other migrants being unfairly inquiries and examination does take place is going treated—in the sense that in my view there should to be triggered more or less on a discretionary basis, be room, as I said earlier, for judicial scrutiny and on the levels of practice and customs et cetera that also right of appeal. I am not arguing that anybody are developed by the Border Agency. This is who claims to be an asylum seeker or would like something which has to be kept under the very to come to the UK should be given that right; but closest scrutiny—the circumstances in which I do believe there should be some sort of flexibility people, for instance, going about their ordinary to take into consideration individual circumstances business do find themselves being subjected to in relation, for example, to permission to be in the immigration inquiries. I have to say today the UK. People like asylum seekers or people on Migrants’ Rights Network is launching a report on temporary admission strictly speaking do not have the increase in passport checks in the workplace in the right or the permission to be in the UK, so I the UK, which has increased very considerably wonder what will happen to these types of people. since February. The report that is set out there gives risk to very considerable concerns about levels of Q113 Martin Salter: Do you not accept that there discrimination: the way in which both employers have been plenty of well documented cases—and single out particular individuals in order to be able those of us with a big immigration caseload can to subject them to immigration scrutiny, to bear witness to this—where the judicial appeal determine whether or not they can be regarded as process has been used purely to extend somebody’s being safe to be employed; but also the way in stay in the country, usually with the compliance of immigration inspections are carried out by the lawyers of questionable standard? Border Agency where the information (the reports Ms Aboa-Bradwell: I understand your point, but which are published by the Border Agency itself) what I would like to insist on is to have the seems to indicate that the trigger-point for making procedure in place, so if the system is in misuse it inquiries and investigations seems to be narrowed is not because of the migrants or the asylum seekers onto a very small sector of economic activity— it is because the system is not working. If there is overwhelmingly ethnic minority businesses, and already in place the right of appeal and judicial within that category the catering restaurant scrutiny, it is up to everybody who is involved in business. I believe something in the region of 60% the system to make sure that it is working. In my of inspections, where fines have been levied, have view, as far as I am aware, there is not the right of taken place within those premises. It also raises the appeal right now in the Bill. spectre (for those of us who have watched the television programme UK Border Force) where we Q114 Martin Salter: Could I ask a second question have been given some very powerful illustrations of to Donna Covey. You argue in your submission to the circumstances in which people find themselves us that the Bill should contain safeguards against being examined. In my view they are extremely removing refugees and refused asylum seekers to intimidatory experiences for people involved. The countries which are “unsafe or experiencing rapidly requirement to produce documents can lead to deteriorating conditions”. What specific provisions them being detained for lengthy periods of time, would you like to see in the Bill to address that sometimes amounting to days, before satisfactory point? evidence is produced. On your specific question Ms Covey: The first thing we would like to see is about how it is going to be possible to determine the Government actually monitoring what happens the circumstances in which people might have left when they do return people. At the moment the the country, the answer is, “It is not”. The answer Government does not monitor what happens when is that, at the point of making a decision whether people are returned to countries. There is not or not inquiries are going to proceed against a automatic independent monitoring either. We as an particular individual, there is going to be no organisation hear a lot of anecdotal evidence about obvious factor of their circumstances which people who are removed and their families never suggests that they are within that position. That is hear from them again; but that is just anecdotal precisely the issue that has to be proven, and it will evidence because we are not able to monitor it. The result in people being detained, being prevented first thing we would like to see is monitoring so that from going about their lawful business and for part of what is being looked at is not just some members of their family being required to leave vague concept of safety, but it is also what actually their workplaces to search for documents. Our happens to people in the specific circumstance of Processed: 23-04-2009 22:38:30 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG1
Home Affairs Committee: Evidence Ev 19
11 November 2008 Mr Don Flynn, Ms Sylvie Aboa-Bradwell and Ms Donna Covey being returned asylum seekers to that country. We come back and claim asylum because they have also want to see the Government making sure that come here, for example, with false documents. I they much more explicitly, for example, take the have to say, Article 31 of the Refugee Convention UNHCR advice. An example of that at the is very clear about the fact that asylum seekers do moment is central and southern Somalia, where the quite often need to use false documentation and UNHCR are advising states not to remove people; should not be penalised. This feels like it runs the UK Government policy is that they should. Again danger, as it is currently drafted, of penalising I think we feel quite strongly that where there are people in that circumstance. We are also quite those independent recognised international bodies concerned about the way, as written, that the their advice should have real weight with our expulsion rules would sit with voluntary return, Government. We want to see that as well. We also because it introduces a distinction between people have some concerns in the current Bill around some who depart voluntarily at their own expense, and of the language. For example, there are several people who return under the Assisted Voluntary points around removals where the draft partial Bill Return programme where you get given support talks about when the secretary of state “thinks”, and a small amount of money to return to your and uses the word “thinks” rather than referring to home country. At the moment the proposal is that “has”, “has reason to believe”, or “has evidence”. there would be an additional restriction on coming Again, we feel if there is any doubt at all there back to the UK if you left under an AVR needs to be proper evidence that it is safe to return programme. We think that does not actually make people and again err on the side of caution. Finally, sense for the Government because the Home OYce I think our other concern on some of the issues at the moment is rightly keen that more people take around removals in the Bill is that the Bill takes up the Voluntary Return programme. If people two diVerent types of removal—it takes think by taking it up it will be harder for them to deportation, where you are asked to leave the UK leave again a volatile country in which the situation because you have done something wrong; and could change then they are less likely to take it up. administrative removal, which is when you are I also think a situation that says, “Your protection asked to leave the UK because you have made an rights in the future are lessened because you asylum claim in good faith and it has failed—and couldn’t aVord to leave the country with your own it merges them together, and from there on it is the money”, again that is a trade-oV between same track all the way through. That is a concern somebody’s personal income and protection, and in for us, partly because it inappropriately our view that would be wrong. That is clearly not criminalises asylum seekers. in the spirit of British law for many, many years, or indeed international law. Those are our main Q115 Chairman: You can still have voluntary concerns around the proposals in the Bill. departure? Ms Covey: Yes, but as we understand the current Q117 Patrick Mercer: Mr Flynn, how do the proposals, in terms of the re-entry proposals they proposed powers of expulsion change the current could count against people who voluntarily return situation for those who currently have rights of under the AVR programme. By merging it together abode in the United Kingdom, particularly the Government will create a lot of confusion, and Commonwealth citizens and those from the indeed will also create some perverse incentives for Republic of Ireland? people to leave under the Assisted Voluntary Return scheme. Mr Flynn: There is a simple answer to this question and that is, that it will make them subject to There followed two minutes’ silence immigration law; whereas at the moment they are currently exempt from it. A person who currently holds the status of the right of abode without Q116 Patrick Mercer: Ms Covey, under the citizenship, who would enter the country under streamlined expulsion procedure envisaged in the immigration control conditions, if at some point Bill, do you think that refugees and failed asylum they found themselves in breach of those conditions seekers will face bans on reapplying for entry to the they would be liable to expulsion, whereas currently United Kingdom? they are not. The whole meaning of the “right of Ms Covey: We are very concerned about the impact abode” is that you are exempt from immigration that re-entry bands, as proposed under the draft control measures. As far as Ireland is concerned, Bill, might have on asylum seekers for a number of the terms of expulsion have to be consistent with reasons. The first one is around the circumstances European Community law, which the courts have and the ways in which people enter the UK. People tended to interpret restrictively in terms of the claiming asylum entering the UK quite often have scope for state action in expelling European to enter the country using illegitimate documents Union citizens. because it is the only way they can flee a country of persecution. People trying to get out of a country quite often have very little control over that whole Q118 Tom Brake: Could we move on to the subject process. We are very concerned, first of all, that of bail bonds, Ms Covey. In your experience of people in that circumstance could have their claim refugees and asylum seekers if bail bonds are turned down legitimately. If the situation changes introduced how many of them will have the money in their country it then becomes harder for them to to put up bail bonds? Processed: 23-04-2009 22:38:30 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG1
Ev 20 Home Affairs Committee: Evidence
11 November 2008 Mr Don Flynn, Ms Sylvie Aboa-Bradwell and Ms Donna Covey
Ms Covey: I think remarkably few. The reality is that friends and colleagues, does that new stage and the most asylum seekers who come to this country have new system encourage you to seek citizenship, or fled; they have quite often been in hiding before they discourage you? have come; they have certainly not been in a Ms Aboa-Bradwell: I would definitely not be situation where they can spend six months pulling encouraged by the probationary citizenship because, money out of their bank. When they get to the UK as it stands now, it will in eVect amount to an they are not able to work; they are not allowed to extension of my period as a non-British citizen. work under our law so they cannot raise money; and What I think will be a satisfactory compromise will most of them will not know people in the UK who be to reduce the amount of time one has to wait in can lend them money. A small number of them will order to be able to apply for British citizenship, and have family here but most asylum seekers do not use this remaining time as a probationary period. An know anyone in the UK; and if they do know people example is that most migrants, as far as I am aware, those people will tend to be refugees themselves who have to wait five years to be able to apply for British have very limited access to funds. We did a bit of citizenship. Rather than having to wait five years, it work before this hearing ringing round, and even should be reduced to three or four and then take the under the current system you can be talking about remaining one or two years as a probationary several thousands of pounds and asylum seekers just period. That, in my view, will be a satisfactory cannot put their hands on that sort of money in most compromise. cases. We also have real concerns about how this system would work as well in reality. Q121 Gwyn Prosser: The Bill also introduces a new category called “active citizenship”. How easy do you think it would be to prove active citizenship? Q119 Tom Brake: Do you think that introducing Ms Aboa-Bradwell: Some people, like myself, would bail bonds would have any impact on the number of be able to qualify in the sense that: while I still people coming to the UK who are not genuine struggle, I speak English; I have been working for asylum seekers? many years and paying my taxes; I have never Ms Covey: No, there is no evidence of that at all. The committed any crime; and definitely I will be able to Y Home O ce have done their own research into why volunteer. people end up in the UK seeking asylum and we have done our own work too. I think it is always worth bearing in mind that even the most refused asylum Q122 Gwyn Prosser: What about the requirement to encourage people to volunteer to take part in local seekers have come here in good faith; their claims V just have not met the particular requirements of UK community a airs et cetera? law. What that research actually shows is that most Ms Aboa-Bradwell: I think it is a good idea, in the sense that many migrants like myself come from asylum seekers who come here do not choose to countries where volunteering is really an unknown come here, they come here is because here is where concept, whereas it is quite a British way of doing they can get to in terms of getting themselves out of things. Also I believe it will be a way to help some the country and finding someone who can help them migrants to be in contact with British people who get out of the country. Some asylum seekers who otherwise do not belong to their communities. come here did not even know they were coming here; However, what I do not think is a good idea is, to put they thought they were going to Canada, and then it crudely, that it is in order to encourage migrants to V when they get o the plane they find they are in the show their commitment to the UK. It could be UK. In those relatively small number of cases where rephrased as “fostering social cohesion” or “helping people have had some choice over where they come, migrants integrate within their British community”. both our research and the Home OYce’s research shows that decisions are based on things like: previous links with the country; whether you speak Q123 Chairman: Why is it a good idea? Why should you language; whether or not you have friends or we put on migrants a requirement that other people relatives here. The minutia of our process—once you born in this country do not have to fulfil? Ms Aboa-Bradwell: I think volunteering will be a arrive, issues around bail, issues around detention— good way; because in my experience many migrants there is no evidence at all that actually most people tend to stick together with people who belong to coming here know anything about that stuV; and their community. Whereas I do think for social there is certainly no evidence that that in any way V cohesion it will be good to have experiences where a ects people’s decisions to come to the UK and migrants could be in contract with people from other seek asylum. There is plenty of evidence to the communities. contrary that in fact other factors are at play.
Q124 Chairman: You just complained about the Q120 Gwyn Prosser: Ms Aboa-Bradwell, the new length of time it takes to apply—you say five years; Bill introduces a number of new changes with and now you are saying there ought to be some kind regards to a buy-in for citizenship. There are three of activity undertaken in order to become a citizen. routes and three stages and it is quite a complex Who would monitor this? Would you have a little arrangement. A new status which has been card like a Starbucks card where they could stamp introduced is probationary citizenship. From your how well you had done? How would it be point of view, and from the point of view of your monitored? Processed: 23-04-2009 22:38:30 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG1
Home Affairs Committee: Evidence Ev 21
11 November 2008 Mr Don Flynn, Ms Sylvie Aboa-Bradwell and Ms Donna Covey
Ms Aboa-Bradwell: The suggestion is that we are Q129 Chairman: Are they able to put that work “in talking about migrants, that is why I am restricting the bank” so to speak, so that when they do get their myself to the experience of migrants; but if you are permission to stay they can use all that time asking me I will say this should be a standard to all productively towards citizenship? people—to be encouraged. I can only speak from my Ms Covey: I think it is a diYcult one but I think the experience as somebody who works with black challenge is to find a way that, on the one hand, people who are African and non-African. What recognises people who make a contribution to our usually really impresses me with black people of UK society, but does not penalise when it comes to origin, Caribbean, is their tendency to see the UK as citizenship people who are unable to make that something external. There should be a way of contribution. I think we would have real concerns making them see that they own the UK; it is their about the idea that if you volunteer you get country as well; and volunteering and participating citizenship quicker; because in some of our client in activities where they can give their time, to group that is just not practical. We have some clients participate in social cohesion, would in my view be who have been tortured, have seen their family a good step. murdered; they are so traumatised when they come Chairman: It may be now that President Obama is to the UK they cannot leave their home and it takes elected things will change! them years to get well enough to volunteer. Many of our clients are caring for their own children and Q125 Tom Brake: I was just wondering whether you other children in the community so they cannot think that the concept of active citizenship should be volunteer; but that is also a really important extended to long-term UK residents as well? contribution. I think you have to make it easy for Ms Aboa-Bradwell: That is the point I have been them to volunteer; but, on the other hand, to have a making, that it should be a standard to everybody. trade-oV between volunteering and citizenship, particularly for vulnerable people who have had so Q126 Tom Brake: On the question of volunteering, much upheaval in their lives, I think that would be a I just wonder if you can think of any reasons with big mistake for the Government. I think it would people whose status is uncertain whether they give out all the wrong messages about what it means should not be allowed to volunteer? to be in the UK and contribute to our society. Ms Aboa-Bradwell: I think everybody should be allowed to volunteer, and that should count as a Q130 Martin Salter: My question is to Mr Flynn. positive experience. The Migrants’ Rights Network objected to the proposal that probationary citizens would not be Q127 Chairman: Mr Flynn can help us on this. It is entitled to access a certain range of benefits. What is a very good point that Mr Brake makes because I, wrong with prohibiting those who have not obtained and no doubt other members here, have constituents British citizenship from accessing benefits that are who are waiting in the very long queue for available to British citizens? What is your case? consideration of their case; they are not allowed to Mr Flynn: The answer to that question is that work, either paid or unpaid; but presumably while migrants contribute towards the provision of you are waiting for your asylum case to be services and welfare provisions, social security and a considered you should be allowed to volunteer. I whole range of diVerent services well in advance of think that is the point Mr Brake is making. You them becoming British citizens. One of the facts advise us on this—you must know more about this which is well within the public province at the than anyone else? moment and is seldom disputed is that migrants Mr Flynn: I actually think Donna Covey can make a greater contribution to the provision of these specifically on the asylum point. services than normal citizens do. They are in credit Ms Covey: I have to say,I have a vested in this as well as far as the provisions of these services are because at the Refugee Council we have as many concerned. In terms of simple justice there, the volunteers as we have staV, and I could not run my presumption that they are to be excluded because as organisation without the amazing contribution of citizens they have not contributed is something that our volunteers, many of whom are asylum seekers. ought to be challenged. I think another issue is that the existence of these services and these benefits does Q128 Chairman: But can they volunteer? You can do contribute towards social cohesion; towards unpaid work, can you? strengthening the bonds and the solidarity that exists Ms Covey: The situation at the moment for asylum within society. It really has to be understood that seekers is that they can volunteer but there are these bonds exist, not just because of the political restrictions on when they can volunteer. Not to do situation of being a citizen; these bonds are created with the Bill, but there are some draft proposals because people are active within the social and the kicking around the system at the moment that would economic sphere well in advance of becoming tighten the conditions under which asylum seekers citizens—in some cases lasting their entire lifetime can volunteer, and they are already quite tight. Part because for one reason or another they choose not of what we would like to see is a recognition that to, or they are not able to become British citizens but actually asylum seekers do want to contribute to this still they are working, still they are contributing and country and we should make that as easy as possible. still they are participating. A simple issue of social At the moment that is quite often quite diYcult for justice, it seems to me, is that those who contribute people to do. ought to benefit, and that ought to be the principle. Processed: 23-04-2009 22:38:30 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG1
Ev 22 Home Affairs Committee: Evidence
11 November 2008 Mr Don Flynn, Ms Sylvie Aboa-Bradwell and Ms Donna Covey
The final point I would make is that we know this is Q132 Chairman: We are concerned about the lack of the case because there is a whole group of people information from the Government as far as the rest who will not become British citizens whom we are of the Bill is concerned; that is why we are in eVect bound to accept will have access to benefits and suspending our inquiry into this scrutiny until we get services, and that is migrants who come from the further information. Do you share that concern? Is Member States of the European Union, where there this usual for the way in which the Government is no question whatsoever that their legal entitlement addresses these very important issues? to benefit, on the same basis as British citizens, is Mr Flynn: As far as I am aware it is completely going to be interfered with these provisions. All you unique. I have never found myself trying to review are doing is creating two classes of migrants. the provisions in a Bill up until now which has described itself as being “partial” in this way. Perhaps it does happen in other legislative contexts, Q131 Martin Salter: Thank you very much for that. but I am not aware of it. Could I just have a follow-up question to Donna Covey. Would you like to expand on your concerns Q133 Chairman: With your numerous contacts with about this new category of probationary citizenship? the Home OYce—of course you have informal Ms Covey: Our primary concern about this is that contacts with them—what do you think the Home the people we deal with (and I am talking about Secretary has up her sleeve as far as this is people who get refugee status) have been forced to concerned? Why is she coming clean and telling us leave their home against their will because their lives what is in this Bill? and those of their families are in danger; they come Mr Flynn: I wished I knew, Chairman, I honestly to the UK; it can take them years to have a decision did. My feeling is, observing all the Immigration on their claim and during all that time they are in Bills going through Parliament in the past is that the limbo; and now under the current system you only capacity to chop and change and to adapt them very get permission to stay for five years in the first considerably during the course of their committee instance and then you have a review; and then to be states and various readings is something which told after all of that you have to have a probationary ministers value. It seems to be taking us yet another citizenship period—our concern, first of all, is the step beyond that where, instead of adding particular impact that has on people’s ability to settle and provisions and particular clauses, we have actually rebuild their lives and start to feel like they belong got the scope for a significant new component to a here, because it is becomes, “Oh, yeah, there’s Bill itself being produced at some future stage, and it another hurdle, and another hurdle”. We think for does cause us concern. people who have had those awful upheavals in their lives, as soon as they can just settle down once they Q134 Chairman: Ms Covey,very briefly,what do you have got permission to stay, get on with their lives, think they are keeping from us? rebuild their lives; settle their families and make a Ms Covey: My concerns are the issues we know are contribution the better, and dragging this out does under discussion but we have not yet seen anything not help. I think we are also concerned about the use on. In particular we are very concerned about what of the term “probationary” citizenship because, might be happening about asylum support provisions, where we understand there is likely to be again, right through the Bill you are seeing in a separate consultation leading into the Bill, phrases that are normally associated with crime obviously for our client that is hugely important. I sneaking into a broad immigration debate. In a think we are also still very concerned that we do not country where the public debate is quite unhelpful know what is going to be in the Bill and what is going about migration it really does not help to have that to be in regulation. We understand they want to do language used. It sounds like a small thing but as little as possible in the actual Bill; and again our V actually the e ect language can have on how people concern at that point is that the ability to scrutinise see things is really important. Also if we are not gets lost. We are particularly concerned that we cling careful, the way it is currently worded in the Bill, it by a thread sometimes to protect communities in this could almost have the eVect of creating an additional country, and we are just concerned when we see period of temporary leave for people. We believe particularly the final regulations that are not that protection is absolute. We think the spirit of the scrutinised and not in the primary legislation that we Convention as a protection is absolute; and that are going to see yet more chipping away at our once you have got protection you should have international responsibilities on protection. protection and have the space to get on with your Chairman: Ms Covey, Ms Aboa-Bradwell and Mr life; rather than being in this limbo where you cannot Flynn, thank you very much for coming to give settle and you do not really feel this is your home evidence to us. We are always grateful for the because you have all these other hurdles to jump support of your organisations in providing us with through. It is not in anybody’s interest. written and oral evidence. Thank you. Processed: 23-04-2009 22:38:30 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG1
Home Affairs Committee: Evidence Ev 23
Witnesses: Ms Susan Wright, Director, Me´decins du Monde, Professor Vivienne Nathanson, Director of Professional Activities, British Medical Association, and Ms Lisa Power, Head of Policy and Public AVairs, Terrence Higgins Trust, gave evidence.
Q135 Chairman: Thank you very much for giving Q138 Gwyn Prosser: Ms Wright, I would like to evidence. I will not introduce the session again as continue on the same theme. Do you deny there is you were sitting in the audience and heard what I such a thing as health tourism in the UK? said. Professor Nathanson, Britain is an island; it is Ms Wright: I would speak only from the experience only right that the Government should restrict that Me´decins du Monde has had. We run a free services to migrants. What do you consider to be the clinic licensed by the Health Care Commission just main issues in the Government’s proposals to like any other clinic, except that it is free, here in restrict access to services from migrants? London but it draws from throughout the country. Professor Nathanson: The British Medical We have seen, in our clinic in two and a half years of Association is obviously only really interested here operation, no evidence of health tourism. The in the health of migrants, and the health of our average person we have seen in the clinic has been population generally. The key issues for us are to here in the UK for three years before they access ensure that in making reasonable restrictions to services. We are primarily primary care-givers. We migration into the UK that we do not intentionally do not have any provisions for giving secondary care or unintentionally damage the health of or specialist consulting care; but we have had a tiny populations, of groups and of individuals. It is handful of referrals to secondary care. I would also absolutely key that we continue to have a view of the say that those secondary care referrals also had to do health of the individual who is in the centre of the with conditions that were not known to the case, as well as of the community that they are a part individuals until after they came here to the UK. of—whether that is temporarily or permanently. Certainly part of the argument about health tourism There are public health issues and there are is that people are aware of their health condition, individual health issues. Those are very important then they come to the UK because of that health issues to balance. Within all of that, we also know condition and the access they believe they will have that if we are dealing with health it is extremely here. We have seen absolutely no evidence of that, important that we do not undermine the trust either on a primary care level or, as I say, in the relationship between an individual patient and smaller numbers on the secondary care level. healthcare providers—doctors, nurses and others. Recognising that many of those migrants will come Q139 Gwyn Prosser: Is that second category not from countries where they may well see healthcare almost a diVerent market of health tourism? Is that providers as agents of the state, as agents of not the person whose primary intention for coming oppression—because we know, for example, that in here is to have access to very expensive, very situations where torture is common very often there complex surgical interventions rather than, shall I are people wearing white coats and saying they are say, the genuine asylum seeker or migrant who is doctors even when they are not and sometimes, living here and would come to you probably rather sadly, they are—that that trust has already been than register with a GP or at a hospital? Is that not undermined; and if we are going to protect the public the case? health we do need to re-establish that. It is important Ms Wright: I would only limit myself to the people that wherever possible health is protected and set we have seen in our clinics and would not speculate aside from too much interference by the state. other than to say that we have seen absolutely no evidence of anyone who came here with a health condition they were aware of ahead of time and then were expecting, hoping, wishing that they would get Q136 Chairman: In your experience and that of the access to care once they arrived. BMA, how often do migrants access free health services? Professor Nathanson: The evidence is that they do Q140 Gwyn Prosser: In your written evidence you not access health services very often, particularly the criticised the current situation whereby some asylum seekers, the failed asylum seekers, the immigrants are given access to healthcare and others undocumented individuals. The evidence is that they are not and that causes almost a two-tier situation access services late; that they believe they have no and lots of confusion. On that basis, would you not right of access; but very often they are frightened to say that the Bill does simplify it? Is simplification a access; and even more often of course they do not good thing and not a bad thing? know how to access. Ms Wright: I will back up for a second just to clarify what we see as the source of confusion. As you know, in 2004 the law changed relative to secondary care, that is this group of migrants was cut oV from Q137 Chairman: The popular view that health secondary care with certain exceptions. At the same services are being overwhelmed by vast numbers of time there was a proposal to do a similar limitation migrants who do not pay their National Insurance to primary care. Timing was the source of a lot of stamps to get the benefit of free health services is confusion. People, admin staV and the frontline, wrong, you are telling this Committee? because things changed in secondary care and there Professor Nathanson: As far as we are aware it is was this proposal for primary care, seemed to wrong. We have never seen any evidence that that is conflate the two, in other words to act as if the the case. primary care access had already been limited. What Processed: 23-04-2009 22:38:30 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG1
Ev 24 Home Affairs Committee: Evidence
11 November 2008 Ms Susan Wright, Professor Vivienne Nathanson and Ms Lisa Power we have seen, as I have mentioned in the evidence, is would flow from this kind of change and as our an extraordinary number of people who are evidence has tried to lay out, not just our findings absolutely automatically entitled, and Mr Flynn but, more importantly, other government findings, made reference to EEA and other citizens whose other NGO findings, have said the opposite, that entitlement is absolutely certain, who still are having there will be a cost impact that is negative rather diYculty in accessing services. It needs to be clear than positive. that from our view, from the evidence that we have seen, it is not a question of the law not being clear, it is a question of there being confusion in the minds of Q142 Patrick Mercer: Ms Wright, you argue that cutting oV access to primary care will not save practitioners. There will always be three parameters, V to answer your real question about whether or not money and will not take pressure o the NHS. What just having a simple clear limitation is the answer. is the evidence for this, please? There will be three parameters if that is indeed the Ms Wright: I will walk you through three levels committee’s will. The first will be the legal essentially. The first is conventional wisdom that obligations undertaken by the Government both on prevention is better than cure; an ounce of a national basis and in terms of your international prevention is worth a pound of cure, if you will. I will obligations where the UK has signed certain just walk you through a couple of examples of that. conventions, et cetera. The second obvious The Project London report, which I have copies of limitation will be ethical obligations, and the BMA here, is also in PDF form on our website which has will speak to this in more detail, that flow from a hyperlinks to each of the studies that we refer to. practitioner’s responsibility and relationship with Other than what I will talk to you about in terms of their patient. The third set of parameters that I our clinic, everything else that I refer to is either a would say will put a limitation on what the government study or another NGO study. Again, committee can do is what is easy, what is capable of relative to prevention versus cure, one of the biggest being implemented. Clearly we have an NHS system is heart disease where early prevention can actually V that was never built up to exclude some people and stave o heart disease which ends up being quite a let people of diVerent categories in, so in that sense costly disease here in the UK. High blood pressure, I do not think we should be surprised that the NHS cancer, child immunisation, another issue that has is struggling to do this. It is clear before making a been a problem especially in London relative to decision to, as you say, clarify and make sure that a outbreaks in schools. Also, access to primary care group of people is clearly entitled, you have to make ends up being the first port of call for victims of sure you know that the NHS can implement that domestic violence, for example, who may not have practically and administratively. From our point of access to police but that would be the logical first view, even before that I would say take a step back place they would go. As has been referred to, in and see whether it really gives you the cost savings terms of social cohesion that is a cost that is maybe Y that you want that would drive a decision like that. more di cult to put in financial terms. In that sense I am talking about preventing problems of a slightly diVerent realm. The second has to do with early Q141 Gwyn Prosser: So would it be right to say that detection. Again, if you have any of the diseases that you see the biggest flaws in the current system rather I have talked about, and a number more, the earlier than the new proposals as being a failure to get the you are able to intervene generally the more cost message across and to communicate the various savings you get as a result of that, both because the categories? condition does not worsen over time and because the Ms Wright: From our perspective there are two person does not lose time in terms of who they can failures, if you will. It is not a word I would choose to care for, in terms of the work they can do. As you pass judgment on the work of the Government, but know, the Government has estimated that on an there are two diYculties that we have seen. One has annual basis the sick workforce costs the country been the confusion about exactly what entitlement about £100 million. Although it is complicated with is. The second thing is the more important one, as I this population, many of whom do not have access have already alluded to, which is it is quite a logical to the right to work, it still aVects their work, their argument to say that if the common belief is this study, their caring for families. It is also important to population is putting pressure on the NHS, an talk about infectious diseases and that is the public institution that is already taking on quite a great health concern here, in that if you do not get people deal, the belief is that this population is adding to into primary care, again on an early basis, then the that pressure, then it seems a simple thing to say, diseases that they have which are infectious, “Take them out of the equation and you will save communicable, that the rest of us can get, are not money”. That is something that on the surface looks controlled and, therefore, can spread to others. quite logical but it is inherently the responsibility of Obviously it is trite to say but very true that the government to further investigate that and see infectious diseases do not take account of citizenship whether, in fact, that is true. Reference has already or any other kind of classifications. Again, my been made relative to the Home Secretary’s view on colleague from Terence Higgins Trust will talk about this particular Bill and lack of forthcoming data the HIV and in particular that being the one exception Government has relative to the proposed changes to the rule that anyone can get treatment for that I referred to about secondary care back in 2004. infectious disease for just this reason. Although The Government has already acknowledged that there is the public perception that this particular there is absolutely no evidence of what cost savings client group has made a real negative impact on the Processed: 23-04-2009 22:38:30 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG1
Home Affairs Committee: Evidence Ev 25
11 November 2008 Ms Susan Wright, Professor Vivienne Nathanson and Ms Lisa Power
NHS and is costing lots of money, the fact is we have our organisation is quite familiar with, has a system seen the opposite, as has been alluded to by the whereby it is insurance-based, it is quite diVerent BMA, that this is a client group that is not accessing from the NHS, but people in the category that we are the services they need. To be quite concrete, over two talking about today would be eligible after a three years we saw less than 1,000 people. month period. Sometimes Me´dicins du Monde gets involved in their care for that three month period but Q143 Patrick Mercer: Really. after that their eligibility is clear and they are covered Ms Wright: It is not a staggering number. We are under the national scheme. Spain, Portugal and Italy quite literally the only people in the country that all give exactly the same access to healthcare that its provide these kinds of services for anyone, failed citizens have with no changes, no limitations. The asylum seekers, undocumented people who have Netherlands and Belgium have a safety net V absolutely no papers whatsoever. It is not a crushing essentially that hovers o to the side, if you will, and number by any means. is available for migrants who need funding in order Patrick Mercer: Thank you very much. to access care. In both of those cases, more strongly in Holland than in Belgium, it is over-funded, in fact, by the government and not accessed anywhere near Q144 Margaret Moran: In your evidence you the levels that they anticipated. Greece and Cyprus obviously refer to pressure being placed, therefore, are interesting examples. In terms of what is on the on A&E. There is an issue about whether people legislation itself, they are more restrictive in terms of choose to register with a GP as opposed to being access, but in that case, Greece especially, it is refused. I am conscious that you are saying the important to note that medical practitioners refuse evidential base for cost or cost savings and what the to implement that because of what they see as their health implications are is not proven. Who do you ethical obligation to care for their patients. In the think should be evidencing that? What mechanisms Greek example it has not been a success story, should there be for ensuring that those things are although I would point out on paper the access is cut happening? oV. It is also important from a European standpoint, Ms Wright: There are two things. There has been a and again I will defer to my colleague who is much series of studies that have looked at these parts of more familiar with HIV, because this Government this equation, if you will, none of them initiated by has made the decision to exempt HIV from the the Government in terms of preparing for this set of exception that otherwise applies for communicable proposed amendments, but that is not to say there is diseases. Other than Germany, we are literally the no research out there that can be drawn upon. I only country in Europe that does that. This idea that would say this, but our report lays out almost somehow the UK is providing much more and it everything that is out there along these lines. You ends up being a pull factor is something that is quite have alluded to access to A&E and there was a study persuasive except that the facts do not bear it out. done on this particular issue looking at whether or not this population, for the reasons that have already been referred to, are going to be quite Q146 Tom Brake: Professor Nathanson, can you reticent to make contact with a doctor at all and they explain to us what the terms “ordinarily resident” will put it oV as long as they possibly can, meaning and “habitually resident” mean in terms of access to until it is the point that it becomes an A&E matter. health services in the NHS? The other thing that you referred to was in terms of Professor Nathanson: Thank you. This is a complex the lack of information and lack of knowledge about question because, of course, “habitually resident” access to a GP and whether some within this gives you rights of access and “ordinarily resident” is population group choose A&E over a GP, but that now being set by Justice Mitting’s ruling to give you has not been our experience. There is a very small certain rights of access. The problem for both of study that looks at the question of why the them is who makes the definition and I think this is phenomenon exists that people go to A&E rather where we get into the complexity. If a patient comes than a GP, but that was not the finding of that study in to see a doctor, and it does not matter whether it either. It is more that people do not realise they can is in a GP’s surgery or accident and emergency room, access a GP or, indeed, as our two years of data have the one thing that they cannot do is try to establish shown, they cannot get access to a GP despite their whether this person is ordinarily resident or entitlement, their absolute entitlement in some cases. habitually resident or anything else. That is not what they are trained to do, nor is it what doctors see their Q145 Mrs Dean: Ms Wright, your organisation job to do, and nor do they actually understand what asserts that most European countries provide the phrases mean. If you are in a hospital setting then migrants with better access to healthcare than the there probably are people on the hospital staV, and UK does. Could you give us some examples of the certainly if you are in an area where there is a lot of European countries that you are referring to and migrant activity, whose job that is. The doctor’s job some examples of how they provide better access to is to say, “Does this person need care? How urgent is healthcare and whether that healthcare is free to the that care? Is it something I can give? Do they need to individual? see somebody else?” It seems to us that is the role of Ms Wright: I will take the biggest, and that is not doctors and other healthcare providers. To get because the others are not as important but also drawn into trying to assess whether somebody fits those for whom there has been research done. into one category or another and is eligible is not France, a country that you can imagine by the name appropriate. The second issue is knowing that Processed: 23-04-2009 22:38:31 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG1
Ev 26 Home Affairs Committee: Evidence
11 November 2008 Ms Susan Wright, Professor Vivienne Nathanson and Ms Lisa Power people present late with their illness very often, there be very concerned if policing the use of the is often less time to waste in making those decisions. definitions became a burden for clinical healthcare We believe very strongly, and we advise doctors, that staV because that would be a serious distraction doctors should, if in doubt, treat and work out later from what their business is and ought to be, which is what the issues are. I would just go back to this issue oVering care where it is needed. of health tourism and say when we have talked to doctors all around the UK, both GPs and hospital Q148 Tom Brake: Could I ask whether with the doctors, the concerns are predominantly around current terms of “ordinarily resident” and hospital medicine because it is more expensive, but “habitually resident” there is already a level of civil the majority of the people who get access to disobedience in the way that Greek doctors are expensive care are people who become accidentally expressing civil disobedience by refusing to follow ill when here for business, tourism or other things. the guidance? There is very little evidence of people coming here Professor Nathanson: Yes, there is, because many deliberately. If you work in a hospital which has a lot GPs say, “We don’t understand the definitions. If we of people visiting, hospitals around the City of have an individual who presents to us who needs London, a lot of people coming in and out of care, we oVer the care” and they do it on the basis of London, they have a big department which reclaims clinical need, which is what they are trained to money from the governments or from the understand. Others do not register people because individuals and their insurance companies. If you they say, “We are told we are not allowed to”. The are in a very small hospital, or a hospital that might health authorities, the trusts and so on will say, “You be big but where there is relatively little business cannot do this, you must not do this. It is criminal or tourism and formal tourism, you often do not try to otherwise somehow wrong. You will be fined or reclaim the money because it is one case a year and stopped from providing care”. They are confused. you try to absorb that. Those are actually quite key. We have just published on our website further advice For GPs, because they look now at all these Y to help people try to find their way through the maze definitions, the di culty is they say, “I don’t know of current definitions and trying to reinforce to whether I am allowed to register this patient and people that where you think the patient needs care treat them”, so they treat them when they come in you give care, it is not about understanding those acutely ill but they are not sure whether they can definitions in those circumstances. treat them, and that is very diYcult, particularly as they are dealing very often with children, young adults with children, and they want to be able to put Q149 Tom Brake: Can I move on to a final question them into their vaccination programmes, to make and that is infectious diseases. If failed asylum sure the woman gets antenatal care if she is pregnant seekers who have an infectious disease are not able and so on, because that is good public health and to access primary healthcare services, what do you also the right thing to do and it is economically think the impact is going to be on them and on the sensible as well. wider population? Professor Nathanson: The impact is significant for truly infectious diseases, things like flu, measles, Q147 Tom Brake: You have explained that these mumps and so on, because we are failing people in terms are hard to define as it is and GPs do not two ways. The first is that children are not getting particularly want to be in the business of trying to vaccinated, so for the preventable diseases they understand them necessarily. The Government is become a potential reservoir. In some areas that can intending to redefine these terms. What are your be very significant because you might be getting to concerns about the redefinition process? the stage of vaccination where you can prevent an Professor Nathanson: There are two things about the epidemic but you will not be able to if you have a redefinition process. We cannot really say whether it large reservoir of children, and children do play with will be helpful to people until we actually see what one another, they do not ask their vaccination status. those definitions are and are they something that That is important. The second is once you actually people can work with readily. Are they definitions have people who are infected and ill you rely on which are so sensible, so easy to apply, that it sometimes getting access to formal services and if becomes immediately clear that this patient qualifies you are accessing those late, post-flu pneumonia, for under one of these definitions? Below that is the example, kills young adults and children as well as secondary issue that if somebody does not qualify the elderly. We do need people to be able to prevent you then face, as doctors, the issue that this is a quickly, to be able to treat it early because that patient who needs care and you still need to have makes a significant diVerence. The same with things that ability to treat because the other part of the like measles. Measles does not kill that often but it definition is the bit that says you are eligible in the kills often enough to be very concerned about the emergency situation when it is immediately impact on those individuals. Again, it is back to the necessary. Provided that those definitions are very reservoir of infection. The whole of public health clear to people and provided that the definition of medicine has grown up to open up access, to free up the need for care is for the doctor or other healthcare access, to make sure that people get advice early, giver to make the decision that it is needed then we including where that advice is, “This is a contagious can live with those kinds of definitions and will, of disease, don’t go and talk to other people for the next course, look at them very carefully to make sure they few days because that’s a problem”. I would just add do not put a burden on those using them. We would that we also know from work that we did, which was Processed: 23-04-2009 22:38:31 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG1
Home Affairs Committee: Evidence Ev 27
11 November 2008 Ms Susan Wright, Professor Vivienne Nathanson and Ms Lisa Power published in 2002 but which we understand to be still alluded to by my colleagues, an awful lot of what I accurate, the physical health of new migrants, and would call clinical disobedience from clinicians who particularly of asylum seekers and people at what are extremely clear that it is in the interests of the you might call the bottom end of that scale, the health of this nation and not just the health of the undocumented, the least financially able, tends to individuals that we treat anybody who is resident in deteriorate once they arrive in Britain because of this country, whether or not they are legally resident, poor living conditions, lack of money, lack of access with HIV because there is very clear data which to a diet that they are used to and so on, and that shows that if you diagnose somebody with HIV and becomes more of a breeding ground for some of the treat them correctly,as we do in this country,you will very highly contagious diseases, particularly the reduce their infectivity to practically zero. There is a childhood ones. We also have to recognise that many huge issue for public health here in that by refusing of the people who come here as migrants may not to treat people who we know to be living in this have had access to vaccination at home, so you may country we are eVectively cutting oV our nose to also have an adult population that has never been spite our face and causing costs in terms of onward vaccinated to things that we vaccinate everyone to in transmission. childhood. Chairman: Ms Power, just in case you thought we Q151 Tom Brake: Can I just ask Lisa Power and also were having you here not to ask you any questions Professor Nathanson what the penalty is for a at all, Mr Mercer has some searching questions for doctor who acts in a clinically disobedient way and you. provides medication? Ms Power: It is very diYcult to say. There would Q150 Patrick Mercer: We will see how searching certainly be disciplinary activity within the hospital they are. Ms Power, how many migrants in the UK were the hospital to seek that. There are a large do we believe are HIV Positive, please? number of clinicians who are so concerned that this Ms Power: I would love to be able to tell you but, as is not the correct way to behave and so concerned for my colleagues have said about some of the other public health that they are prepared to do whatever areas, this is close to an evidence-free zone. I can tell it takes. In a simple email exercise last week I emailed you that according to the Health Protection Agency 10 clinicians from around England. I would there are around 77,500 people with HIV in the UK, emphasise this is not done in Scotland and Wales, it 28% of them are undiagnosed, which we know from is quite clear that people can access free treatment as anonymised data, and we know that within that 28% long as they are living there and there is no issue. I there is likely to be a greater weight towards people emailed 10 clinicians across England who are not of who are of migrant category because we know that a particular view of mind but are people who know people in migrant categories tend to be diagnosed me well enough to know that I will keep their names late. However, of those 55,000 seen for treatment, all and addresses confidential. Six of the 10 responded we know is that 18% of the gay men amongst them to me with stories of how they go about managing to and 77% of the heterosexuals acquired their treat people in their clinics, by a wide variety of V infection or are likely to have acquired their di erent means it has to be said. I will quote to you. infection abroad, but we do not know of those Somebody said to me: “The current regulations are a people who are citizens who acquired it abroad and recipe for a public health disaster” and they said they have come back and who are migrant. Within have managed to chase the Revenue retrieval teams migrant categories, we do not know who are away using a combination of a better understanding migrants who are entitled to receive NHS services of the law than they have and a commonsense and what proportion are people who are not approach to the pointlessness of retrieving money supposed to be entitled to receive NHS services. It is from the destitute. a very complicated picture. We believe that the Patrick Mercer: Ms Power and Mr Brake have shot Department of Health should have centrally my fox. collected data of who is being charged, but we know Chairman: Goodness, a dreadful situation. Or a from previous Health Select Committee hearings good situation. that the Department of Health fails to collect any Patrick Mercer: A good situation. centralised data whatsoever on charging and the Chairman: Exactly. Mr Prosser. impact of charging upon use of health services in this country which makes it very diYcult to do planning Q152 Gwyn Prosser: Ms Power, on a personal basis around this. We feel there are a lot of assertions made I would guess anyone around this table would take depending upon what people’s political beliefs are the attitude of the doctors you have just described. rather than based on hard fact. What I can tell you, They are becoming human beings and just do what though, is at Terrence Higgins Trust and at our they believe to be right. Putting that aside for a fellow agencies we do regularly see both people who moment, about six or seven years ago some are migrant who are entitled to NHS services who newspapers were running stories about the new HIV are being refused them because of confusion about time bomb and were looking at the number of what the rules are, and we also see a number of immigrants coming into the country from all parts of migrants who are being refused the services or who the world and making up their own figures really are being charged who are unable to pay those bills about what was going to happen. Although I try not and an awful lot of tangles that people get into with to read those newspapers, from my standpoint as the hospitals as a result of that. We also see, as has been MP for Dover, which at the time was taking the Processed: 23-04-2009 22:38:31 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG1
Ev 28 Home Affairs Committee: Evidence
11 November 2008 Ms Susan Wright, Professor Vivienne Nathanson and Ms Lisa Power brunt of incomers, it was quite alarming. You have because the stories in the media at the time were of explained how complex and diYcult it is to give a TB being brought in by migrants. We talked to a figure as regards how many immigrants have HIV, number of people whose jobs were doing migrant but in terms of those alarming and scaremongering examinations at ports of entry,particularly in Dover, stories, what is your feeling now six or seven years and the doctors we spoke to had never seen in five on? years a case of somebody coming into the country Ms Power: I can tell you that from the data we have with TB. Talking to them now that is still the case. on heterosexuals who acquired their infection Again, it is back to media reports that say we should abroad, which is the category which is most likely to be keeping these people out because they are contain the majority of migrants, the numbers dangerous which are based on absolutely no truth diagnosed each year are actually going down. What and, of course, the consequences of that are that the we feel is likely to have happened is there has been a poor migrants when they do become ill are great push to promote testing amongst migrant frightened of getting care because they have already communities because we really do believe it is vital been demonised. that people are tested and treated. We feel that there have been a lot of people with longstanding HIV who have been diagnosed which has been Q153 Gwyn Prosser: Finally from me, Ms Power, contributing to the relatively high figures. We have and this is your big opportunity, and I can anticipate seen a lot of people diagnosed very late and the your response perhaps, how would you redraft that evidence is clearly there that people who are particular section of the full Bill in terms of access to migrants with HIV are diagnosed later, they are healthcare? more likely to be diagnosed with what is called a low Ms Power: I think our ideal Bill would not have CD4 count which shows they are more ill, and they healthcare provisions in it because we do not believe are also disproportionately more likely to die soon that it is helpful for immigration law to interfere with after diagnosis because they have diagnosed so late. healthcare decisions. You also face a serious We know that the proportion of people diagnosed in problem in that this is a Bill that accounts for all the nations of the UK whereas healthcare is a devolved that heterosexual African category are going down. Y It is the numbers of gay men newly diagnosed with responsibility which makes it extremely di cult to HIV which are continuing to rise in this country, of put anything in this Bill around healthcare. From the point of view of Terrence Higgins Trust, and it may whom there is a much lower proportion who V acquired their infection abroad and many of those be di erent for my colleagues here and they may also will have been tourists. We do not believe that there have other ideas about this Bill, all that we want to is any kind of time bomb. We do believe that what see in terms of our own client group is putting HIV we have is an amount of undiagnosed HIV which into the same category as every other sexually desperately needs to be diagnosed and treated, but transmitted infection in that as a matter of public when you are in a situation where a recent survey health it is treated free for anybody who is living in showed that 51% of African people in the UK this country. We feel that is vital for public health. It believed that simply to get a diagnosis of HIV would is not a subject, however, for this Bill. We are deeply be enough to get them deported you can see that we concerned that there will be provisions in this Bill are facing an uphill struggle to get people diagnosed which will impact upon the health of people with and treated before they become ill. Of course, it is HIV in this country in that they may be required to more complex to treat someone once they do become do a number of things around these extra contributions which will make life even more ill. We see people who have been afraid to be Y diagnosed and the first they know they have got di cult for them. We are also very concerned that it something is when they have spent two weeks in will be easy to do what looks like a simple fix, which intensive care which costs between £20,000 and was talked about earlier by my other colleagues, to £25,000. Anti-retrovirals and good treatment of HIV simply batten down the hatches and say, “Let’s not costs less than £10,000 per annum now. Failure to treat anyone who is an undocumented migrant, an treat people until they become an emergency is not overstayer or someone who has been refused good for the public purse. As people become more asylum”. That would be unfortunate for both the sick with HIV they also become more transmissible, public purse and public health. which is obviously of concern to us. We also see people who have been driven away from antenatal Q154 Margaret Moran: I am very struck by all of services by being told that they are going to receive you who have referred to evidence-free zones in all a large bill and although there is a Government of this. I suspect this is not the only area but it is the directive saying that those women should be treated most obvious area where we have evidence-free and then billed afterwards, merely the knowledge of zones. I am suggesting that we have the Chief that bill induces women to avoid maternity services Scientific OYcer of the Home OYce come to give us and sometimes that will cause children to be born evidence. Who else do you think would be helpful to completely unnecessarily with HIV because it is give us some evidence, or lack of? entirely possible to eradicate mother-to-baby Professor Nathanson: The Chief Medical OYcer at transmission of HIV by courses of treatment which the Department of Health. are really quite inexpensive. Professor Nathanson: Can I just add one very brief thing. One of the reasons why we produced our Q155 Chairman: On stats? We are very interested report seven years ago on asylum seekers’ health was in stats. Processed: 23-04-2009 22:38:31 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG1
Home Affairs Committee: Evidence Ev 29
11 November 2008 Ms Susan Wright, Professor Vivienne Nathanson and Ms Lisa Power
Professor Nathanson: On stats, indeed. One of the It would also mean that we would be able to deal things that interests me is whether if we allowed with the majority of the public health risks and the everybody to register with a GP, and we know the suVering of individuals. It would be a great majority of our population who have no doubts advantage. It would be interesting to see whether about their right to be in the UK are registered with a there was a comment on whether that would give GP,that would be a very good way of collecting stats you the stats that would help in the longer term. over a number of years on the real problems of Chairman: Lisa Power, Professor Nathanson, Susan people who do not eventually get the right to stay in Wright, thank you very much for coming to give the UK and we do not think it would cost very much. evidence to us this afternoon. The next session of the General practice care is extraordinarily inexpensive. Committee is at noon on Thursday when we will be taking evidence from the Home Secretary. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [SE] PPSysB Job: 423079 Unit: PAG2
Ev 30 Home Affairs Committee: Evidence Written evidence
Memorandum submitted by Migration Watch UK
Summary of Recommendations
(i) Need for schedule of derivations and destinations—paragraph 3. (ii) Balanced migration—Bill should include power of Secretary of State to limit numbers in particular categories of permitted immigrants—paragraph 4. (iii) No justification for powers to make orders conferred by Clause 8, which should be deleted— paragraph 5. (iv) Power of criminal courts in Clause 193 to overturn Secretary of State’s refusal of asylum should be deleted—paragraph 6. (v) In Clause 205 “asylum” should be retained and diVerence between “asylum seeker” and “refugee” should be made clear—paragraph 8. (vi) Section 8 of the 2004 Act should be re-enacted—paragraph 10. (vii) The provisions on marriage in sections 24 and 24A of the 1999 Act and sections 19–25 of the 2004 Act should be re-enacted—paragraph 11. (viii) The Bill should provide specifically that asylum and immigration appeals are to be conducted on an inquisitorial rather than adversarial basis—paragraphs 12 and 13.
Detail
1. We welcome a draft Bill which tidies up and brings together in one Act the complex body of law which has been developed in recent years. We do however have some concerns as to the way it will work in practice. It means among other things a complete change in well established terminology. Instead of leave to enter, limited and indefinite leave to remain and entry clearance we will have immigration permission which may be permanent or temporary. Instead of deportation or removal we shall have expulsion orders. Although the rights, remedies and obligations will be substantially unchanged they will be cast in unfamiliar form and language. This means that civil servants, legal practitioners, immigration judges and others concerned in the administration of the law will have to absorb and become accustomed to a whole new vocabulary. It is common when complex new Acts are brought into force that this is done in stages, but in the interests of avoiding the complications which this process entails, the government may well feel that in the interests of the tidiness and updating which is the core objective of the draft Bill, the Act should be brought into force as a whole on the same day. This will be a major challenge to all those responsible for administering the Act. 2. We compliment the draftsman on producing a user-friendly document. However, as the Bill is intended to be a complete restatement of the law on immigration we would be grateful if the Committee could use its influence with the Home OYce to ensure the provision of a further schedule which would be normal in a consolidation bill and a great help to users. This is a schedule of derivations and destinations ie showing (1) where provisions from repealed Acts are repeated in the draft Bill and (2) against each clause in the draft Bill, the provisions in the Acts to be repealed to which its contents correspond. 3. Migration Watch has been critical of the failure of the Points Based System to place any limit on the number of immigrants granted visas for the purpose of employment. Our proposal, therefore, is that the necessary powers to impose limits on the numbers of those granted particular types of visa should be conferred on the Secretary of State after consultation with concerned parties and should be exercisable by statutory instrument, subject to parliamentary approval in accordance with Clause 203(1) of the draft Bill. 4. We have some concerns about Clause 8 of the draft Bill, which provides that the Secretary of State “may by order grant immigration permission to such categories of persons as are specified in the order”. Clause 8(2) gives examples of such categories, eg crews of ships, trains or aircraft, members of diplomatic missions etc, but the list is not exhaustive. Existing legislation does not contain any corresponding power. Hitherto provision for new categories of persons given entry clearance has been made by amendments to the Immigration Rules, which in addition to the major categories of student, spouse etc, also cover less obvious groups such as ministers of religion or airline ground staV. Clause 202 states that orders must be made by statutory instrument and provision is made in Clause 203 for parliamentary scrutiny. However, we do not see any justification for this new power and consider that all cases should continue to be dealt with under the Immigration Rules. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 31
Asylum etc 5. We have concerns also about Clause 193 of the draft Bill. It deals with cases where a person has been charged with one of the oVences listed in Clause 193(1) and relies on the refugee defence aVorded by the Clause. Subclause (6) states that if the Secretary of State has refused to grant refugee permission (asylum) that person is not to be taken as a refugee and therefore will not be able to use that defence “unless suYcient evidence is adduced to raise the issue as to whether [that person] is a refugee and the contrary is not proved beyond a reasonable doubt. The eVect of this is to empower Circuit and District Judges hearing such cases to allow appeals against the refusal. Judges hearing criminal cases and lay members of juries in the Crown Court do not have the expertise or training required to second guess the conclusions of trained case workers in the UK Border Agency as to eligibility of applicants for asylum. If there is any question about the correctness of the Secretary of State’s refusal, that should go to the Asylum and Immigration Tribunal as an appeal in the usual way. We note that the subclause does not extend to an unsuccessful appeal against refusal, nor should it. We suggest that subclause (6) should be deleted. If it is felt that anything else is needed in its place, the subclause should state unequivocally that: (i) if there has been no appeal against the Secretary of State’s refusal, that refusal should be treated as conclusive, and (ii) if there has been an appeal and the appeal has been dismissed, the decision of the Tribunal should be treated as conclusive. 6. Clause 193 gives rise to problems with nomenclature as it defines “refugee” as having the same meaning as in the 1951 Convention. The problem with the Convention is that it uses the word “refugee” as meaning in modern parlance either an asylum seeker or a person who is now recognised as a refugee within the meaning of the Convention after his application for asylum or appeal against refusal of asylum has been successful. From a practical point of view it is important to diVerentiate between the two. In much of the literature on the subject of asylum the two expressions are frequently confused with the result that asylum seekers are assumed to be persons genuinely fleeing persecution in their countries of origin, whereas the truth is that less than 20% of asylum seekers are granted asylum while a further 10% are found not to be fleeing persecution but nevertheless to be in need of humanitarian protection. As an illustration of the confusion we quote a 72 page publication in 2005 by the Church of England entitled “A place of refuge”. This publication was supposed to be a source of guidance on the subject of asylum seekers and refugees and began by carefully distinguishing between them. Unfortunately in the body of the work the distinction was forgotten and statements were made such as “the asylum seeker stands to lose his or her life”. More recently the self-styled Independent Asylum Commission in its published material seems to equate all asylum seekers with refugees fleeing persecution. 7. Further scope for confusion between “refugee” and “asylum seeker” arises in draft Clause 205. This introduces for the first time the expression protection application which includes applications for asylum, or in the parlance introduced by the draft Bill refugee permission. According to subclause (2)(a) any such application is to be made on the basis that the applicant is a refugee, defined by subclause (3) a person “recognised as a refugee for the purposes of the Refugee Convention”. But a person applying for asylum cannot be a refugee as so defined before his application has been considered. The definition is wholly illogical. If the clause is to be retained in its present form, subclause (2)(a) should read “P is an asylum seeker” and subclause (3) should be revised as follows: (1) P is an asylum seeker if P claims protection under the Refugee Convention on the grounds that removing P from, or requiring P to leave, the United Kingdom would contravene the United Kingdom’s obligations under that Convention. 8. We also have concerns about the inclusion of references to humanitarian protection in Clause 205. We are currently seeking to have discussions with the Home OYce on this subject and may well wish to make further submissions to the Committee on this subject before the deadline of 17 September 2008. 9. Credibility is a major problem in dealing with asylum and human rights applications and appeals. In recognition of the problem and the need for comprehensive guidance to decision takers, section 8 of the Asylum and Immigration (Treatment of claims, etc.) Act 2004 sets out a code of whose provisions decision takers must take account in assessing the credibility of claimants’ evidence. In general, any behaviour by the applicant/appellant which is designed to conceal information, to mislead or to obstruct or delay the handling or disposal of a claim or appeal is to be treated as damaging the applicant’s/appellant’s credibility. We note with concern that none of the Clauses in the draft Bill re-enacts section 8. We regard it as most important that it should be re-enacted.
Marriage 10. Another set of provisions which are in existing legislation but not in the draft Bill are the provisions on marriage in sections 24 and 24A of the 1999 Act and sections 19—25 of the 2004 Act. These provisions impose a special regime over prospective marriages in the UK in which one of the parties is subject to immigration control. Any such marriage requires the special permission of the Secretary of State. These provisions were introduced to counter the growing problem of sham marriages contracted for the purpose of obtaining leave to enter the United Kingdom. The problem remains and similar provisions should be Processed: 23-04-2009 22:48:32 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 32 Home Affairs Committee: Evidence
incorporated in the draft Bill. The sections referred to have recently been considered by the House of Lords in the case of Baiai on the issue of their possible incompatibility with Article 12 of the European Convention on Human Rights. In that case their Lordships ruled as a disproportionate interference with the right to marry an instruction from IND (now the UK Border Agency) to immigration oYcers, stating that permission to marry should be denied to (i) all illegal immigrants, (ii) anyone whose grant of leave was no more than six months or (iii) who did not have at least three months leave remaining at the time of making the application for permission. The instruction had been issued without parliamentary sanction. However, their Lordships otherwise expressly confirmed that the sections referred to, subject to one exception, were valid and compatible with Article 12. The exception arose from an earlier case in which it had been held that the exclusion of marriages solemnised by priests of the Church of England as opposed by registrars was unlawful discrimination. The Home Secretary has already given an undertaking that the discriminating provisions will be amended so as to remove the incompatibility thus arising.
Appeals
11. We believe strongly that the procedure in hearing asylum and immigration appeals should in future be inquisitorial rather than adversarial and that this should be clarified by an explicit provision in the draft Bill. Up to now the view taken by the higher courts has always been that immigration judges should act in similar fashion to judges in civil litigation and simply hold the ring between the parties. They should refrain from asking questions themselves other than to the extent necessary for clarifying the evidence. They should not on any account “descend into the arena” and start cross examining appellants or other witnesses. There have often been times when the Home OYce has been short of Presenting OYcers and has not been represented at appeal hearings. The result is that on such occasions there is no one to cross examine the witnesses and in view of the readiness of so many appellants to resort to untruthful evidence, this is a serious deficiency. 12. The object of asylum and immigration appeals is very diVerent from that of civil litigation. In the latter the judge should properly remain aloof and simply pass judgment on the basis of evidence and legal submissions. But these appeals are concerned with the rights and duties of individuals as against the state and the obligations of the United Kingdom towards foreign nationals who wish to visit, settle, claim asylum or whatever and in large measure to enjoy the same state benefits as its citizens. The immigration judge should be concerned to elicit the truth in proceedings before him, having regard to the public interest in every appeal. Migration Watch made a similar statement in proceedings before the House of Commons Constitutional AVairs Committee in 2003 and 2004. (See Second Report of the Session 2003–04, Volume II, page 60.) In our view this Bill is an opportunity to make this significant improvement to the system. 23 August 2008
Memorandum submitted by BritishHongKong BritishHongKong is a registered organisation in Scotland, which advocates the restoration of full British citizenship, European Union citizenship and other basic human rights to British Nationals (Overseas) of all ethnicities.
1) Executive Summary
1. The position of non-citizen British nationals needs to be carefully considered within the new immigration system. 2. While all British nationals previously had the right to enter the UK, this was removed progressively— in ways which many have considered to be racially discriminatory. 3. The right to enter one’s country and not to be expelled is one that is protected under various human rights instruments. Despite this, the UK has failed to protect these rights, and have continued to deny four to five million British nationals the right to enter the UK. 4. This is while 400! EU/EEA nationals enjoy the right to enter the UK under EU laws. In eVect, the UK is treating foreign nationals more favourably than its own nationals—by having removed the basic human rights of its own nationals on one hand, while similar rights are guaranteed to foreign nationals. 5. In order to guarantee the basic human rights of all British nationals, and to equalise the rights of all British nationals, we recommend that all non-citizen British nationals be granted an entitlement to register directly as full British citizens, and an entitlement to permanent/indefinite permission to enter the UK for those who are unable to, or choose not to, register as full British citizens. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 33
2) Selective Migration—Entering the UK and the Power of Expulsion 6. While the new Bill aims to simplify and reform Britain’s immigration system, the government has failed to address how British nationals without full British citizenship will stand under the new system. There are about four million non-citizen British nationals in the world, and this forms a significant group of people who currently do not have the right to enter the UK.
Historical Racial Discrimination 7. Prior to the Commonwealth Immigrants Act 1962, all British nationals were considered to be Citizens of the UK and Colonies (CUKC), and had the right to enter the UK. However, the implementation of that Act and subsequent immigration acts progressively removed this right from certain groups of British nationals. 8. Thereafter, only those who had a connection with the UK mostly through birth in the UK, or UK- born grandparents or parents retained their right to enter the UK. In eVect, this excluded British nationals of the British overseas territories from entering the UK and other Commonwealth citizens, with the explicit aim of stopping primary migration. However, many Commonwealth citizens of the “white” Commonwealth, retained their right to enter the UK, despite not being British nationals. 9. The eVects of these Immigration Acts have had the result of stopping the migration of non-“white” individuals into the UK, including even British nationals. As this is based directly or indirectly on the ancestry and ethnicity of the individual, it has been considered by many to be racially discriminatory, which would be in breach of the UK’s obligations under the International Convention on the Elimination of All Forms of Racial Discrimination and the Articles 20 and 21 of the Charter of the Fundamental Rights of the European Union. 10. While all British nationals would have had a right to enter a British territory or the UK at some time, the independence of several British colonies and the handover of Hong Kong have resulted in groups of British nationals who now have no right of entry into any British territory, despite previously having the right to enter the UK.
Human Rights 11. In addition, it is important to note that the right to enter one’s country of nationality and not to be expelled are fundamental human rights—rights which are guaranteed under various human rights instruments, including Article 12 of the International Covenant of Civil and Political Rights, and Protocol 4 to the European Convention of Human Rights. 12. Despite this, British Nationals (Overseas) and some other British nationals do not currently have the right to enter the UK—their country of nationality, or any other British territory for that matter. This is clearly in breach of the UK’s obligations under the above treaties. 13. While the UK has signed Protocol 4 to the European Convention of Human Rights (ECHR) in 1963, and has ratified the International Convenant on Civil and Political Rights (ICCPR) in 1976, it has currently avoided all responsibility to uphold the human rights guaranteed by these instruments by failing to ratify Protocol 4 to the ECHR—one of only five members of the Council of Europe not to have ratified the Protocol, and issuing reservations with regards to the ICCPR. 14. If the UK is committed to protecting the fundamental human rights of its citizens and to uphold the spirit of these treaties, it would be reasonable to expect that the UK take the appropriate steps towards the full ratification of these treaties. The restoration of the right of entry for these British nationals will be an important step for the UK in working towards this ultimate goal.
Nationals of the European Union/European Economic Area (EU/EEA) 15. Currently, EU/EEA/Swiss nationals have a freedom of movement which is guaranteed under EU laws. This allows more than 400 million foreign nationals the right to freely enter the UK to work, study and reside. As a result, these foreign nationals enjoy significantly greater rights to enter the UK and other civil, political and economic rights within the UK, compared to non-citizen British nationals. The Draft Bill released clearly aYrms the rights of these foreign nationals to enter the UK. However, no similar provisions exist for British nationals. 16. In considering the framework of the new immigration system, it is important to consider all groups of people who should be given the right of entry into the UK. Given that most, if not all, British nationals would have been born on British soil have lived under the British jurisdiction, have an allegiance to the UK and also subject to various UK criminal and anti-terrorism laws, it would only seem reasonable that this group be treated more favourably compared to EU nationals within the UK. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 34 Home Affairs Committee: Evidence
17. Also, the number of non-citizen British nationals who currently do not have a right to enter the UK is small—about four to five million. While the right to enter the UK was removed due to concerns about the primary migration of people from the British colonies to the UK, this can no longer be a legitimate concern, as a much higher number of EU nationals already have a right to move to the UK—and this number can only increase with the further expansion of the EU.
Ancestry Visas 18. The government has proposed that the Ancestry visa route for entry will be maintained in the current immigration reform. The scheme currently allows Commonwealth citizens who have a UK-born grandparent to obtain a visa which allows them to work and live for the UK, based solely on their “ancestry”, leading to permanent residence and the potential for naturalisation. 19. Similar to the situation with EEA nationals, British nationals are treated in a manner which does not seem consistent with their status—while having direct, personal connections with Britain through birth in a British territory etc, and having lived under the British flag, British nationals are currently treated in the same way as foreigners when applying for entry to the UK. This is while second generation descendants of British people born miles away from the UK, with at most a tenuous connection with the UK, can enter based solely on their supposed “ancestral” connections to the country.
Recommendations 20. Given the historical discrimination inherent in the current immigration system, and the incongruous situation whereby foreign nationals are given priority to enter the UK compared to British nationals, we recommend that the right to enter the UK for all British nationals be restored in the new Immigration and Citizenship Bill. This can be done by: — Granting an entitlement to register directly as full British citizens, and — Granting an entitlement to the right of abode or permanent/indefinite permission to enter the UK for those who do not register as full British citizens. In addition, it should be ensured that the new system does not give the power to expel British nationals from their country of nationality, in accordance with international human rights standards.
3) Earning the Right to Stay—British Citizenship 21. While the new Bill proposes to reform the way in which foreign nationals are able to acquire British citizenship through naturalisation, it has again failed to acknowledge the position of British nationals under the new system and whether they will also be subject to the same process of probationary citizenship. 22. Given that British nationals already have allegiance to the UK and the responsibilities of citizens under various laws and have always had full British nationality until this was forcefully removed in the 1980s, it seems highly inappropriate that they should be subject to the same requirements as foreign nationals to “earn” their citizenship.
Human Rights and Discrimination 23. As a continuation of legislation which removed the right of British nationals to enter the UK, the British Nationality Act 1981 categorised British nationals into diVerent nationalities based on whether one has the right to enter the UK. 24. Thus the potential breaches of human rights and the racial discrimination that is evident in the UK’s removal of the right of entry for British nationals (as outlined above) would also apply to the UK’s nationality laws. In particular in relation racial discrimination within British nationality law: “The Government has preferred an over-complicated scheme based on old categories, whose eVect is to give full British citizenship to a group of whom at least 96% are white people, and the other four forms of nationality to groups who are at least 98% non-white.”—Anne Dummett, The New British Nationality Act, British Journal of Law and Society, Vol 8, No 2. “There is no indication at all in our nationality law of ethnic origin being a criterion. But the purpose of the law since 1981, and the manner in which it is implemented, make sure that ethnic origin is in fact and in practice a deciding factor.”—Anne Dummett. “It is undeniable that in the past the diVerent categories [of British Nationality] have created much unhappiness particularly as the concepts of “patriality” were seen as a way of discriminating between white and black members of overseas communities”—Lord Goldsmith’s Citizenship Review (Citizenship: Our Common Bond). Processed: 23-04-2009 22:48:32 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 35
25. While prior to the British Nationality Act 1981, all British nationals were Citizens of the UK and Colonies, the Act has resulted in British nationals who are no longer hold a full form of British nationality, but an inferior form which has less rights and entitlements. For example, the status of British National (Overseas) and British Overseas Citizen cannot be seen as a form of full nationality,as it does not even entitle the individual a right to enter any territory—a right which is fundamental to nationality. This is clearly against the principles of equality and anti-discrimination, and would not be in line with the principles against the arbitrary deprivation of nationality outlined in the European Convention of Nationality.
Lord Goldsmith’s Citizenship Review
26. In Lord Goldsmith’s recent citizenship review, he recommended that individuals with a residual form of British nationality be entitled to register for full British Citizenship, with the exception of British Overseas Territories Citizenship and British Nationals (Overseas) status.1 In relation to British Nationals (Overseas), Lord Goldsmiths states the abolishment of this status and the grant of full British citizenship for these people may breach the Joint Declaration on the Future of Hong Kong, and requires the agreement from the Chinese authorities. Because of this, he recommended that this anomalous category be preserved.2 27. While Lord Goldsmith may have felt that the Joint Declaration on the Future of Hong Kong would be a barrier to remove the status of British Nationals (Overseas) and to replace that with full British Citizenship, this would not in fact be in breach of any terms of the Joint Declaration itself. As pointed out by the Foreign AVairs Committee in 1989, the status of British Nationals (Overseas) was only covered in the British memorandum attached to the Joint Declaration, which is not a part of the Treaty.3 Thus, the Joint Declaration will not form a barrier to allow all British Nationals (Overseas) to register as full British citizens, and no agreement would be required from the Chinese authorities.
Recommendation
28. Given that the UK government owe a moral and legal obligation to uphold and protect the human rights of British individuals and Lord Goldsmith’s recommendations, we recommend that all British Nationals (Overseas), together with other British nationals, be given an entitlement to register as full British citizens. This will bring their rights and responsibilities in line with all British citizens, and rectify the numerous breaches of human rights as outlined earlier.
4) Managing any Local Impacts—Access to Benefits and Services in the UK
29. As outlined in the Government’s response to the consultation on The Pathway to Citizenship: Next Steps in Reforming the Immigration System, there is a proposal to restrict the entitlement of foreign national migrant’s access to benefits and services. Again, the Government has failed to clarify the position of non- citizen British nationals within the UK. While it is important to consider the local impact of any changes to the immigration system, it is also important that the new system upholds basic human rights. 30. Under various human rights treaties, the UK is obliged to provide for several basic human rights, including the right to work, right to social security, right to housing, right to healthcare and right to education etc (International Covenant of Economic, Social and Political Rights, Articles 6, 9, 11, 12 and 13). 31. As the UK is the country of nationality of British nationals, the UK must therefore provide for these rights for British nationals within its territory, as these rights cannot be guaranteed for British nationals in any non-British territory. To not do so may be a great breach of the UK’s human rights obligations. 32. In addition, since the rights of EEA/EU nationals to a range of benefits and services in the UK are already guaranteed under EU law, it would only seem reasonable that the British nationals should enjoy at least the same range of benefits and services in the UK.
1 “The residual categories of citizenship, with the exception of British Overseas Territories Citizenship and British Nationals (Overseas) status, should be abolished allowing people who would qualify for those categories with access to full British citizenship. Though this change will only aVect relatively small numbers of people, it is important to address the history involved in the residual categories as part of renewing our common bond of citizenship”—Page 6, Citizenship: Our Common Bond. 2 “The only option which would be characterized as fair would be to oVer existing BN(O) holders the right to gain full British citizenship. It is likely that many would not take this up as the prospects economic and fiscal of moving to the UK are not favourable to those well-established in Hong Kong. However, I am advised that this would be a breach of the commitments made between China and the UK in the 1984 Joint Declaration on the future of Hong Kong, an international treaty between the two countries; and that to secure Chinese agreement to vary the terms of that treaty would not be possible. On that basis, I see no alternative but to preserve this one anomalous category of citizenship.”—Page 74, Citizenship: Our Common Bond. 3 “To grant full British Citizenship, however, would contradict the British memorandum on nationality attached to the Joint Declaration. This memorandum is not part of the Joint Declaration and to go against it would not constitute a breach of the Treaty”—Page xviii, Foreign AVairs Committee: Hong Kong, Second Report, 1988–89 HC281. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 36 Home Affairs Committee: Evidence
Recommendations 33. While the UK may decide to restrict access to benefits and services for foreign nationals, the new Immigration and Citizenship (and other relevant legislation) should guarantee that all British nationals have access to benefits and services in the UK on the same basis as full British citizens.
5) Appendix—Relevant Human Rights Instruments
The Right to Enter and the Right not to be Expelled
International Covenant on Civil and Political Rights (ICCPR)
Part III, Article 12 1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. 2. Everyone shall be free to leave any country, including his own. 3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant. 4. No one shall be arbitrarily deprived of the right to enter his own country.
Protocol 4 to the European Convention of Human Rights (ECHR)
Article 3. Prohibition of expulsion of nationals 1. No one shall be expelled, by means either of an individual or of a collective measure, from the territory of the State of which he is a national. 2. No one shall be deprived of the right to enter the territory of the state of which he is a national.
Prohibition of Racial Discrimination
International Convention on the Elimination of All Forms of Racial Discrimination (Ratified by the UK in 1969)
Article 5 In compliance with the fundamental obligations laid down in article 2 of this Convention, States Partiesundertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: (d) Other civil rights, in particular: (i) The right to freedom of movement and residence within the border of the State; (ii) The right to leave any country, including one’s own, and to return to one’s country; (iii) The right to nationality;
Charter of the Fundamental Rights of the European Union
CHAPTER III—EQUALITY
Article 20—Equality before the law Everyone is equal before the law.
Article 21—Non-discrimination 1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 37
European Convention on Nationality
Article 5—Non-discrimination 1. The rules of a State Party on nationality shall not contain distinctions or include any practice which amount to discrimination on the grounds of sex, religion, race, colour or national or ethnic origin. 2. Each State Party shall be guided by the principle of non-discrimination between its nationals, whether they are nationals by birth or have acquired its nationality subsequently.
Nationality
European Convention on Nationality
Article 4—Principles The rules on nationality of each State Party shall be based on the following principles: a. everyone has the right to a nationality; b. statelessness shall be avoided; c. no one shall be arbitrarily deprived of his or her nationality; d. neither marriage nor the dissolution of a marriage between a national of a State Party and an alien, nor the change of nationality by one of the spouses during marriage, shall automatically aVect the nationality of the other spouse.
The Right to Work,Education,Social Security,Housing and Health
International Covenant of Economic, Social and Political Rights (Ratified by the UK in 1976)
Article 6 1. The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.
Article 9 The States Parties to the present Covenant recognize the right of everyone to social security, including social insurance.
Article 11 1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this eVect the essential importance of international co-operation based on free consent.
Article 12 1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.
Article 13 1. The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate eVectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 38 Home Affairs Committee: Evidence
Memorandum submitted by the Institute of Community Cohesion
Background 1. The Institute of Community Cohesion (iCoCo) was established in 2005 to provide a new approach to race, diversity and multiculturalism. Our work focuses on building positive and harmonious community relations. 2. iCoCo represents a unique partnership of academic, statutory and non-governmental bodies, combining academic experience and expertise with practitioners from a range of diverse backgrounds and professions. 3. iCoCo works with local and national organisations, advising on the best ways to promote community cohesion. In recent months, it has undertaken much work in the field of migration, mapping population change, assessing impact of new communities upon service delivery and wider issues of cohesion in rapidly changing communities. 4. The Institute of Community Cohesion works to build a more cohesive society. We believe that: — Diversity is good for society—socially, culturally, economically. — But, diverse societies work best when they have a sense of social solidarity and mutual responsibility. — Every individual will benefit from a richer notion of citizenship and fuller involvement in civil society. 5. We work to develop policy solutions that enable us to live together rather than side by side; that promote greater shared identity; that support new migrants to adapt to life in Britain, that define what it means to be citizen and instil a greater sense of civic responsibility amongst all those in our society.
“Selective Migration” and “Earning the Right to Stay” 6. The Institute of Community Cohesion feels that the idea of a “probationary” stage to citizenship is unhelpful, exclusive and potentially damaging to cohesion. A lack of right to remain and the feeling that an individual is not truly settled is likely to act as a disincentive towards integration. Rather than encourage greater civic involvement, we fear that people may feel like second-class citizens and therefore be less inclined to get involved in their local community. We believe that this warrants much deeper research before being implemented. 7. The notion of somebody being on trial as a citizen also does not sit well alongside citizenship by birth. We are clearly demanding far more of newcomers than we do of people born here. Not only in this fundamentally iniquitous, it is also unsustainable. While new migrants can clearly be expected to conform to many norms of society—obey the law, learn the language etc… It cannot be right that they are expected to do more than a “normal” citizen. 8. Rather than have stages towards citizenship, we would recommend the language of a “journey” which implied greater integration the longer a migrant was here and the more involved they got in the life of the country. Stages create artificial barriers to this. 9. We believe that there should be a common path to citizenship for all newcomers and we should not create artificial divisions between communities. 10. We also have grave reservations about the proposals that individuals may be able to “speed up” their path to residency or citizenship. While we would wholeheartedly endorse the encouragement of more active involvement in civil society, we do not believe it should be linked in this way to status. 11. We do not believe it right to demand additional activities or behaviour of newcomers compared to native-born citizens. This is unfair and potentially discriminatory. All citizens or potential citizens should be equally encouraged to become more active citizens. Simply because active citizenship is a worthy concept, does not mean it is suitable for inclusion here. 12. Furthermore, we believe it is hard to assess active citizenship for an individual’s behaviour as opposed to indicators of community well-being. Without hard indicators and a measurement framework, requirements such as these would be largely reliant upon subjective judgement. The path to citizenship is no place for such subjectivity. The question of what might constitute active citizenship needs further development but should not be done in the context of a path to citizenship. It should be part of the wider work being undertaken on citizenship and cohesion across Government. 13. We oppose the proposal to remove the ancestry route to citizenship as we believe this will have a disproportionate eVect on some communities already present in the UK. In turn, this is likely to impact upon their own security and cohesion. 14. We are concerned about the proposals to extend limits upon access to benefits and services. ICoCo believes that as long as benefits in the UK are allocated on the basis of need rather than entitlement, this should apply equally. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 39
15. We believe that English language provision should be an essential part of the path to citizenship and equal opportunities for everyone. A common language is essential as a means of creating and sustaining a public debate, discussing current issues and deciding upon priorities—it is fundamental to democratic principles. We also believe that a common language is fundamental to equal opportunities and that without good English language skills, people will inevitably be limited to low skilled and low paid jobs. We would urge Government to permit the most flexible use of ESOL monies and that additional sources of funding are sought at national, regional and local levels to ensure wider objectives are met. 16. Rather than simply asking migrants to contribute, we would that recommend all public and private sector employers be requested—and if necessary compelled—to provide English language classes for their employees. We believe that they could be incentivised in a small way through the application of ESOL and other funded work-based programmes, but Government may also wish to consider tax breaks and other incentives.
Managing Local Impacts
17. Migration should not be seen outside some of the wider challenges to encourage greater integration and cohesion. The task is multi-faceted and should be seen as a positive programme to promote understanding and respect between diVerent communities, as well providing a response to a wide range of divisions in society—for example, those based upon ethnicity, age, faith, nationality, sexual orientation, within and between minority ethnic communities and in respect of travellers and existing residents. 18. Some of the local impacts of recent waves of migration have exacerbated existing social issues. It is unfair and counter-productive to ascribe this to migration alone. Longer term structural issues need to be addressed. Breaking down segregation in housing, schools and employment is necessary not only to ensure that inequalities are tackled, but also that interaction takes place in the course of everyday life, rather than manufactured through special compensatory schemes and projects. 19. It is clear that rapid and diverse migration has an impact upon the cohesion of a neighbourhood. Natural movement of people and instability within a community can have an impact upon the social networks and the level of social capital in an area. Research from Prof. Robert Putnam, amongst others, demonstrates that this impact can be negative in the short-term. 20. iCoCo, however, does not believe that this negative correlation is intrinsic to the more diverse societies and feels strongly that many of the negative impacts are due to inappropriate policies and procedures for accommodating this change. 21. In particular, we believe that the greatest threats to community cohesion are at least in part caused by an unhelpful and negative national discourse around migration which impacts locally. Many of proposals contained within the Draft Immigration and Citizenship Bill are both the product of this and risk worsening the situation. As long as migrants are presented as being a “problem” and negative assumptions are made, this will inhibit attempts to foster cohesion at a local level. As set out above, the idea of putting newcomers “on probation” is typical of much of the Government’s positioning on these issues. In this sense, it would appear that Government is following opinion polls rather than trying to set the tone of the debate. 22. Given that increased and more rapid migration is both central to Britain’s future economic prosperity and an established social phenomena across the world in the twenty first century, we would expect a more positive lead from the Government. It would be helpful to deflate tensions rather than add to perceptions that migrant communities are here illegally or are a drain upon the state when they are here. 23. Too much of the public and political debate has concentrated upon limiting numbers and securing borders, rather than making the positive case for migration and policies to support the integration of migrant communities and to provide adequate resources to areas which are coping with population change. 24. One of the primary challenges posed to community cohesion from migration is the inequality and high levels of social exclusion faced by many refugee and new migrant communities. This is characterised by educational underachievement, unemployment and labour market segregation. 25. This is also acute inequality in housing provision. Most labour migrants and many refugees are living in temporary, privately rented accommodation. Their transience and mobility may compromise community cohesion. 26. Programmes to help socially excluded migrant communities find work—for example, job clubs oVering long term support rather than short term courses—are therefore needed. 27. Another source of tension locally is caused by the inability of many service providers to accommodate the pace of change, in part caused by their having insuYcient data on population mobility and therefore inappropriate funding mechanisms. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 40 Home Affairs Committee: Evidence
28. The absolute scale of immigration undoubtedly presents challenges to service delivery, as the CLG Select Committee’s recent report made clear. Poorly funded public services have the potential to act as a focus point for racial tensions. Central Government needs to reassess current funding formulas for local authorities to assist those areas experiencing rapid population change. It is essential that local authorities, the police and other local partners have up to date, reliable and accurate data which can assist service planning and tension monitoring.
Memorandum submitted by Mr Ahmad Shad I am Mr. Ahmad Shad, Born in Hong Kong. I am Solely British National, holder of British National (Overseas) Passport without any other nationality or citizenship. I am writing to you regarding solely British nationals, who often regarded “de facto stateless” because they don’t have any other Nationality or Citizenship; these people do not satisfy the requirements of the British Nationality (HK) Act 1997 due to one of the reasons below: 1. On relevant date 4 Feb 1997 they were under 18 / 21 year of age and were dual national through their parents. Their second nationality which they got through their parents has been ceased automatically when they turn 18/21 year of age, and now they are solely British Nationals without any full citizenship. or 2. They was not ordinarily resident in Hong Kong on or before relevant date. I have attached another document with this email which includes Supplementary References to my written evidence. Which include Citizenship Review by Lord Goldsmith, And Lord Avebury speech in House of Lords regarding this small group of solely British Nationals for your information. A summary of my main points: 1. The Relevant Date requirements under BNA (HK) Act 1997 are unreasonable and illogical. The relevant date- creates statelessness and consequently nationality problems and violates human right of British Nationals to be citizen of a territory. 2. In his Citizenship Review Lord Goldsmith clearly recommend that UK should allow British nationals to register for British citizenship in order for the categories of British nationality to be reduced and to equalise the rights among all British nationals. (Document not printed.) 3. Although Lord Goldsmith citing the Joint Declaration with China the main reason for not to extend this recommendations for British National (Overseas), however the Joint Declaration with China is for ethnic Chinese BN(O) nationals. And Non-Chinese ethnics Hong Kong ethnics minority who are Solely British Nationals Overseas is not included in commitments made between China and the UK in the 1984 Joint Declaration. 4. Therefore I suggest UK should allow this small group of solely British Nationals to register as British Citizen, and solve their nationality problem for ever. 5 September 2008
Memorandum submitted by the Terrence Higgins Trust
Executive Summary
Although the current partial Bill does not directly address issues of entitlement to NHS healthcare for migrants to the UK, the accompanying “Making Changes Stick” document, published by UKBA, suggests that the issue of access to public services will be addressed in the full Bill. Terrence Higgins Trust (THT) does not believe that it is appropriate for immigration legislation to address complicated issues of health policy. THT would be extremely concerned were the full Bill to further restrict the access of vulnerable migrants to NHS HIV care or primary care. This would have a detrimental impact on individual and public health, likely also lead to an unnecessary increase in spending on emergency healthcare and may also risk contravening the UK’s obligations under international human rights treaties. THT would welcome the committee’s scrutiny of the “Managing any local impacts” section of the full Bill, with particular regard to safeguarding access to healthcare for vulnerable migrants, including an examination of the evidence base for any planned measures. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 41
1. Introduction 1.1 Terrence Higgins Trust (THT) is the largest HIV charity in the UK, with over 25 centres across England, Scotland and Wales. We oVer a wide range of services to, and campaign on behalf of people living with, aVected by and at risk of HIV or sexual ill health. 1.2 In recent years, a growing number of those using THT’s services have been from migrant communities, often Black African and often recently arrived in the UK. This reflects the changing shape of the UK HIV epidemic, which in turn mirrors the ongoing global situation. 1.3 For vulnerable migrants, including those living with HIV, the inconsistent application of confusing regulations governing access to free NHS care, the discrimination caused by multiple and interlinked prejudices, and the use of negative stereotypes by the media can often result in poor access to health services4.
2. Access to Healthcare 2.1 Terrence Higgins Trust strongly welcomes the committee’s inquiry into the draft Bill. This submission focuses on the provision of HIV care for migrants living in the UK. 2.2 The current draft partial Bill makes no specific reference to limiting entitlement to healthcare for migrants to the UK. However, the accompanying introductory document, “Making change stick”, includes several references to potential changes to regulations governing access to public services which may be included in the full Bill. These include simplification of legislation on access to benefits and services, and the proposal to ensure “migrants contribute a little extra to the cost of local services”. 2.3 Whilst it is diYcult to deduce from these references exactly what new regulations may be proposed, Terrence Higgins Trust is concerned that any such proposals have the potential to seriously aVect the ability of vulnerable migrants to access NHS HIV services. 2.4 The Committee will be aware that after the introduction of new NHS charging regulations in April 2004, failed asylum seekers, those seeking leave to remain under the European Convention on Human Rights (ECHR) and any undocumented migrants became liable to be charged for any NHS services other than those provided in an emergency or those outlined in the 1989 exemptions. 2.5 This meant that although access to an HIV test and associated counselling remained free, the new interpretation of residency meant that failed asylum seekers who were unable to return to their country of origin could not access free HIV treatment, nor could undocumented migrants resident in England. 2.6 A subsequent High Court judgement5, published in May 2008, made it clear that refused asylum seekers could be considered “ordinarily resident” under NHS rules and therefore should not be charged for NHS care. However, the Department of Health intends to appeal this judgement, making clear its intention to continue implementation of a charging regime for vulnerable migrants using the NHS. 2.7 THT is concerned that the full Immigration and Citizenship Bill may be used as a vehicle to strengthen provisions for charging vulnerable migrants for healthcare. THT believes that charging migrants for access to HIV treatment or primary care is not in the public interest for the reasons set out below. 2.8 The Government has argued that enforcing charging for access to the NHS does not deny access to healthcare. The rules do allow hospitals to first provide the care and then issue a bill, which they may decide to write oV if it is obvious that the patient is destitute. However, this is often not clear to patients and often does not happen, as illustrated by many examples reported to THT and other organisations6. 2.9 In addition, the inconsistent and often incorrect interpretation of the regulations may be contributing to growing fears and misconceptions amongst migrant communities about entitlement to care. These may in some cases lead to patients choosing not to come for care, because they are afraid they will receive a bill they cannot pay. 2.10 The Health Protection Agency’s annual report in 2007 showed that “A substantial percentage of late (HIV) diagnoses among (heterosexual men and women) were due to persons having acquired their infection abroad many years prior to their arrival and subsequent diagnosis in the UK”7 Introducing further charging or restrictions on access to NHS HIV care or primary care for migrants will not encourage those from high-risk migrant communities to come forward for HIV testing and treatment before they become seriously ill. 2.11 Managed HIV care is not only less expensive and much more eVective than emergency care, it also reduces the infectivity of the patient, thereby reducing the likelihood of onward transmission of the virus. HIV treatment also enhances the eYcacy of treatments for other conditions such as TB. Were migrants’
4 Project London: Report and Recommendations 2007 Improving Access to Healthcare for the Community’s Most Vulnerable (Medicins du Monde; 2007) 5 Mr Justice Mitting’s High Court judgment in “R (A) -v- Secretary of State for Health (Defendant) and West Middlesex University Hospital NHS Trust (Interested Party)—CO/8095/2006” 6 Project London: Report and Recommendations 2007Improving Access to Healthcare for the Community’s Most Vulnerable (Medicins du Monde; 2007) 7 Testing Times: HIV and other Sexually Transmitted Infections in the United Kingdom: 2007 (HPA; 2007); p27 Processed: 23-04-2009 22:48:32 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 42 Home Affairs Committee: Evidence
access to NHS HIV services or primary care to be further restricted, this would be detrimental to individual and public health and would probably lead to an unnecessary increase in spending on emergency care and extra administration. In addition, restriction of access to healthcare may mean that the British Government would to meet its obligation to guarantee “the prevention, treatment and control of epidemic, endemic, occupational and other diseases.8” (Article 12.2 International Covenant on Economic, Social and Cultural Rights) and would also fail to guarantee equal access to health care for all people in the event of sickness. 2.12 Introducing charges to migrants for the use of public services would also be complicated by the diVerent UK countries’ regulations governing health and social care. Although the “Making change stick” document mentions liaison with the Scottish Executive, it is not clear in the current draft Bill how any changes to rules to governing access to public services for migrants could be implemented in a consistent and equitable way across the UK.
3.0 Conclusion 3.1 THT does not believe it would be appropriate to address a complex issue of public health policy such as access to health services within the context of immigration legislation. We would welcome further information from UKBA on the proposals for the final Immigration and Citizenship Bill on “managing any local impacts” and would also welcome the Committee’s scrutiny of this aspect of the Bill. September 2008
Memorandum submitted by Bail for Immigration Detainees (BID) 1. Bail for Immigration Detainees (BID) works with asylum seekers and migrants detained under Immigration Act powers in removal centres and prisons in the United Kingdom. BID provides free information and support to detainees to help them to exercise their right to liberty. BID also works to influence detention policy and practice to ensure that those deprived of their liberty are able to exercise their legal rights.
Executive Summary 2. There are a number of clauses in the current Bill which give rise to concern for BID. In particular: — This Bill would allow any person whom the Secretary of State (SSHD) thinks an expulsion order may be made against to be detained, whether their removal is imminent or not. This increases the risk of arbitrary and long-term use of immigration detention as a form of punishment. — Clause 62(2)(c) gives the SSHD the power to decide whether or not to agree to the Tribunal’s decision to grant bail where a person’s removal is imminent. This measure would interfere with the independence of the Tribunal. There is no justification for the SSHD retaining the power to detain after the court finds that a person is unlikely to abscond and will surrender themselves when removal is to take place. This clause should therefore be deleted. — Clause 62(6) lists a number of issues that the Secretary of State and the Tribunal “must” have regard to when deciding whether or not to grant bail. This clause should be amended to incorporate considerations of detainee welfare and vulnerability. — Clause 62(11) allows for a financial security to be made available prior to a person’s release. It is BID’s view that this clause should be deleted as it disadvantages bail applicants who may be destitute, and is impractical and unfair. 3. In our opinion, the current draft partial Bill represents a series of missed opportunities. BID believes that the following measures should be included in the Bill: — There should be a presumption of liberty and to be granted bail. — There should be automatic bail hearings to provide immigration detainees with automatic judicial oversight of detention. — The Bill includes “a clause to ensure that immigration and nationality functions are discharged having regard to the need to safeguard and promote the welfare of children” (“Making Change Stick—An Introduction to the Immigration and Citizenship Bill”). Yet detention is harmful to children in all circumstances. Detention can not under any circumstances “promote” the welfare of children. The Bill should therefore forbid the detention of children in any circumstances. Ministerial oversight has not worked and the evidence shows that children suVer real harm arising from their experiences in detention.
8 United Nations (1976) International Covenant on Economic, Social and Cultural Rights Geneva Processed: 23-04-2009 22:48:32 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 43
— There should also be a requirement for the SSHD to take account of the welfare of children where children are separated from parents who are in immigration detention. The harm caused to children in such circumstances should be a primary concern of the SSHD when deciding whether or not to detain or to maintain the detention of a parent. — All the safeguards put into place by Part III of the 1999 Act and subsequently repealed without ever having been brought into force should be brought back under the Immigration and Citizenship Bill.
Specific Concerns 4. Clause 54 allows for a passenger to be prevented from disembarking. We have serious concerns that this will mean that asylum claimants who have arrived in the UK will be unable to approach the UK Border Agency authorities. They will thus be prevented from pursuing a claim for asylum. 5. Clauses 54(2)&(3) require a captain of a ship, aircraft or train to prevent the disembarkation of a passenger when required to do so by the SSHD and to detain them pending a decision of the SSHD. This raises serious concerns. How will the captain detain a passenger and what reasonable force can be used in such circumstances? What training will be provided to meet with such circumstances? Will passengers be placed at any risk? 6. Clause 55(1) uses the word “thinks”, implying that there is no need for the SSHD to have any reasonable grounds for belief. This seems to suggest that a person with an overwhelming claim for asylum is liable to detention, as long as there is a subjective belief on the part of the SSHD that an expulsion order may be made. The word “thinks” should be replaced with a requirement that the SSHD has “reasonable grounds for believing” (see also Clause 49(3)(b) where this phrase is used). 7. Further, and contrary to current Home OYce policy, clause 55(1) does not require a person’s removal to be imminent before deciding that detention is appropriate. This risks the arbitrary use of immigration detention as a form of punishment. 8. Clause 55(2) provides for the power to detain a criminal at the end of sentence while the SSHD decides whether there is a duty to make an expulsion order. The SSHD should be required to consider this duty at the start of a person’s criminal sentence and not at the end of it. The SSHD should treat detention as a last resort and not assume that a person who has completed a criminal sentence should be kept in detention. 9. Clause 55(2)(a) allows the SSHD to detain an individual while spending an unlimited time “considering” whether there is a duty to make an expulsion order. Clause 55(2)(b) then allows the SSHD to continue to maintain detention for as long as she likes before making the order. Clause 55(3) then allows her a further unlimited period to maintain detention while the SSHD arranges to remove a person. 10. Although the European Court of Human Rights and the UK courts have indicated that the SSHD is required to exercise due diligence when considering an expulsion case, our experience is that the absence of time limits means that there is little incentive for the UK Border Agency (UKBA) to expedite a resolution to a case. Time limits should therefore be imposed for the stages during which the SSHD considers a detainee’s case. 11. Clause 60 requires the SSHD to give reasons for detention at the time of detention or as soon as practical thereafter. The SSHD should instead be required to give reasons for detention at the commencement of detention. There should be a requirement for the SSHD to consider alternatives to detention prior to making a decision to detain. The SSHD should be required to issue a person with a notice detailing the detainee’s right to apply for bail in a language they can understand, and have someone explain it to them. 12. Clause 60(3) & (4) only requires the SSHD to review (and give reasons for) detention “at intervals of not more than one month.” This seems to be a watering down of the policy guidance in Chapter 55 of the Enforcement Instructions and Guidance. Detention reviews should as a minimum requirement show that the SSHD has considered all alternatives to detention. 13. Monthly reviews are in any case insuYcient. This limited requirement assumes that a period of one month in immigration detention is not a serious matter. The SSHD is thus left without having to keep a detainee informed about the progress being made to expedite their immigration matters. BID calls for a time limit of seven days to detention and for the automatic right to an independent review at the end of that period. In the absence of such safeguards, weekly reviews of detention would otherwise serve as a minimum requirement. 14. If it is the case that the new Bill will replace UKBA policy guidance (ie Chapters 55 & 57), then the Bill should include reference to other sections of current policy including guidance on reviews relating to children, pregnant women, the mentally ill, the elderly, and those who have suVered torture. 15. Clause 62(2)(c) gives the SSHD the power to decide whether or not to agree to the Tribunal’s decision to grant bail where a person’s removal is imminent. This clause interferes with the decision-making power of an independent Tribunal. It is illogical for the SSHD to retain the power to detain after the court finds that a person is unlikely to abscond and will surrender themselves when removal is to take place. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 44 Home Affairs Committee: Evidence
16. Further, what is the meaning of “imminent”? The Cullen 2 criteria define “imminent” as meaning not more than four weeks. But four weeks is a very long time to spend in detention and to empower the SSHD to obstruct a grant of bail. We have experience of the Home OYce arguing in some cases that removal is “imminent” even where it is not likely to take place for a much longer period than four weeks. 17. Clause 62(6) lists a number of issues that the Secretary of State and the Tribunal “must” have regard to when deciding whether or not to grant bail. The clause ignores essential factors which are raised in Chapter 55 of the EIGs. It should be amended to incorporate considerations of detainee welfare and vulnerability, including age, physical and mental health and histories of torture. 18. Clause 62(6)(e) allows for the detention of a person in their interest or for the protection of others. It is unclear what qualifications and standards will apply when making such an assessment. There are suYcient existing sources of legislation that can more appropriately deal with such issues such as the Children’s Acts or Mental Health Acts. This clause should therefore be deleted. 19. Clause 62(6)(f) requires the Tribunal to consider “such other matters as the Secretary of State or the Tribunal thinks relevant.” This clause raises the issue of why the Tribunal should require such instruction from the SSHD and whether it undermines the independence of the Tribunal’s decision making. 20. Clause 62(7)(b) allows the SSHD and the Tribunal to take into account a person’s past convictions outside the UK. The danger here is that this could include reference to convictions for oVences of a political nature or which relate to an asylum seeker’s reasons for fearing persecution. This clause should therefore be deleted. 21. Clause 62(11) allows for a financial security to be made available prior to a person’s release. This clause contradicts existing government policy. The Home OYce stated in a letter dated 27 September 2004 from Brodie Clark, Senior Director Operations to The Law Society: “We take the view that a condition of bail requiring the lodging of the surety money remains a valid one. [….] Nonetheless, we recognise that to impose such a condition can disadvantage a bail applicant who is unrepresented and can pose problems for solicitors with regard to The Law Society’s own rules. We have taken note of the stance taken by the criminal courts and the Chief Adjudicator, although his guidelines are not considered binding by adjudicators. Our revised instruction to staV will advise that they should no longer impose a condition of bail requiring the lodging of monies and that they should not seek such a condition from an adjudicator.” 22. We object to this clause for the reasons outlined above, and because it disadvantages a bail applicant who may be destitute. The Law currently does not require a bail applicant to have a surety or for such a surety to produce a bail bond prior to release. There is no evidence that this change in the Law is required or needed. Furthermore, it is unclear what the procedures will be for demanding, submitting, and receiving, holding and returning such funds. The Clause should be deleted as it is impractical and unfair. 23. Clause 63(4) should be amended so that when a person’s suspension of their leave is ended their leave is deemed as having been continuous and not interrupted by the period in detention. This will otherwise harm a former detainee’s rights that are derived from periods of continuous residence. 24. Clause 64 (2) refers to a requirement for a financial security where the SSHD or the Tribunal “thinks it appropriate with a view to” granting bail. The use of the word “thinks” is vague and imprecise. BID further believes that there should be no requirement for a financial security as it is unnecessary and unfair to detainees who may be destitute and who may not know any person (much less anyone with suYcient funds) upon whom this clause makes their release dependent. 25. Clause 67 should be amended to require that the SSHD provides travel expenses or vouchers to enable a person to comply with conditions of a grant of bail. Failure to provide such payment will otherwise result in a person breaching their conditions of bail and being unnecessarily at risk of being re-detained in violation of Article 5 of the ECHR. 26. Clause 68(2)(b) provides the SSHD with the power to vary the conditions of bail including where those conditions have been imposed by the Tribunal. This clause should be deleted. Failing that, this clause should instead require the SSHD to refer to the Tribunal in order to apply for the variation of bail conditions. 27. Further, Clause 69(2) requires that persons be brought before the Tribunal “as soon as practicable” where a person has an appeal pending or where they have breached bail conditions. This requirement should be extended to include all those detained under this Act who should be brought before the Tribunal as soon as practicable. 28. Clause 70 allows for persons who are liable to be detained but who cannot be removed to have conditions placed upon their liberty.Reasons why a person cannot be removed include “a legal impediment” which includes human rights obligations. This clause allows for such persons to be kept on such conditions indefinitely. This Clause should be deleted. September 2008 Processed: 23-04-2009 22:48:32 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 45
Memorandum submitted by the Asylum Support Appeals Project (ASAP)
Overview and Recommendations
1. Asylum Support Appeals Project (ASAP) is an advocacy organisation working to end destitution amongst asylum seekers in the UK by defending their legal rights to food and shelter. ASAP provides free legal advice and representation to asylum seekers in their asylum support appeals when their housing and financial support has been refused or terminated. It also provides second-tier legal advice and training on asylum support law for refugee community organisations. ASAP’s policy work and strategic litigation work aims to change inhumane asylum policies which are forcing many asylum seekers into long-term destitution. In 2007–08, ASAP provided free legal representation to 247 asylum seekers at the Asylum Support Tribunal. The vast majority of these asylum seekers were refused asylum seekers who had exhausted appeal rights for their asylum claims and were destitute. 2. This evidence is provided in response to the Committee’s call for written evidence on 22 July 2008 regarding the draft Immigration and Citizenship Bill. The explanatory notes accompanying the draft Bill states that “the law relating to support for asylum seekers was particularly complex. Work is underway to develop more straightforward and eVective arrangements…”9. However, proposals concerning support are yet to be included in the new Bill. 3. The evidence makes two recommendations on how the new Bill should achieve this simplification objective in the asylum support system and asylum support appeals system, based on ASAP’s observation on the failures of the current systems. 4. Firstly, ASAP recommends that the new Bill introduces a single system of asylum support for both asylum seekers and failed asylum seekers who are accepted as being unable to leave the UK for the foreseeable future. The new Bill should also ensure that the level of support is adequate and is provided in an eYcient manner. Currently there are two parallel systems—Section 95 and Section 4. A single system would help simplify the current procedures and do away with need for separate legislation covering both areas of support. It would also be far more cost eVective than operating two distinct systems as it would reduce the administrative complexity of the operation. We are aware that reducing costs is also a key priority for UKBA. 5. Secondly, ASAP proposes that the new Bill establishes an improved asylum support appeals system which encourages fair and accurate asylum support decision making and which encourages better access to legal advice for asylum seekers. Currently, asylum support appeals are “rushed” through the system because of a very tight time limit to conclude appeals within 14 days. 6. Currently UKBA oVers two forms of support to asylum seekers in the UK. Section 95 (S95) support is provided to asylum seekers whilst the claim for asylum remains under consideration. Support is terminated 21 days after the person receives a final negative decision on their asylum claim and at this stage the person is expected to return voluntarily to their country of origin. 7. The second type of support, known as Section 4 support, is provided to some groups of failed asylum seekers who can demonstrate that they are temporarily unable to leave the UK. However the criteria governing Section 4 support is extremely narrow which means that the majority of failed asylums seekers will not qualify, despite any impediments they may face around return (see below). At the time of writing just over nine and a half thousand individuals were in receipt of Section 4 support10. If we compare this to the numbers of failed asylum seeker thought to be present in the UK it represents a drop in the ocean. For example, the National Audit OYce’s report in 2005 on Home OYce procedures for returning refused asylum seekers estimated there were between 155,000 and 283,500 refused asylum seekers in the UK11. 8. With no recourse to any form of public funds, most refused asylum seekers who remain in the UK are likely to become destitute. The scale of destitution suggests that this policy of no recourse to public funds and the resulting likelihood of street homelessness is not an eVective deterrent against remaining in the UK. There is a growing body of research outlining the scale of destitution amongst this group and indicating that this destitution policy is not working. 9. Prior to regulations being introduced in 2005, S4 support was provided on a discretionary basis and was known as hard case support. Lack of resources and statutory guidelines meant that very few individuals were successful in obtaining it. The introduction of legislation in 200512 led to a greater take up of the Section 4 support (see statistics below) and set down the criteria under which support was to be provided. However, despite being placed on a statutory footing many of the problems originally associated with Section 4 persist today.
9 Making Change Stick- An Introduction to the Immigration and Citizenship Bill UK Border Agency 10 http://www.homeoYce.gov.uk/rds/pdfs08/coiq208.pdf. 11 National Audit OYce, Returning failed asylum applicants, July 2005 12 The Immigration and Asylum ( Provision of Accommodation to Failed Asylum Seekers) Regulations 2005 Processed: 23-04-2009 22:48:32 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 46 Home Affairs Committee: Evidence
Inadequacy of Support Provided under Section 4 10. ASAP recommends that the Section 4 regime is abolished because it is inadequate to meet the needs of individuals. 11. A single person in receipt of Section 4 support receives £35.00 a week in supermarket vouchers. The situation for pregnant women and those with children has improved slightly with the introduction in January 2008 of extra vouchers for these groups13. Both groups are now entitled to additional vouchers for children under five, and a one oV maternity grant. 12. Unlike S95 support which is set at 70% of income support levels, the amount provided under Section 4 has remained unchanged since it was first introduced. Consequently it had failed to take into account the annual rise in the cost of living. The situation has become increasingly critical with the recent significant rises in the price of staples such as rice, bread, meat and vegetables. According to the Times online “some items, such as basmati rice, pasta sauce and chicken have soared by more than 40%. The price of meat and fish has risen by more than 20% during 2008, according to Verdict, and the price of fresh fruit and vegetables by nearly 15%”.14 13. This has grave implications for the ability of applicants to sustain themselves. It is even more problematic for those on support who have serious health problems such as HIV, diabetes and tuberculosis. In order to remain healthy such applicants will have additional dietary requirements and these are increasingly diYcult to meet on the current levels of support. 14. This problem is further compounded by the fact that the vouchers received under Section 4 are only redeemable in a specific number of supermarkets and can not been used in markets or traditional stores where food is often significantly cheaper. 15. In addition to pushing individuals well below the poverty line, the system as it currently stands is also contravening the EU Reception Directives. Articles 13 of the directives states that member states should make provisions to “ensure a standard of living adequate for the health of applicants and capable of ensuring the subsistence”15. 16. The justification for keeping the level of support so low is that Section 4 support is intended as a limited and temporary form of support for people who are expected to leave the UK16. There are also concerns that providing better levels of support will act as an incentive and prevent individuals from leaving the UK. ASAP believes this approach is deeply flawed. Section 4 by its very nature is diYcult to obtain and only those who meet a very stringent criteria will qualify. During the last three years we have represented a significant number of individuals who have been in receipt of the support for over two years. We therefore fail to see how maintaining such a meagre level of support does anything but cause severe hardship to individuals. It also falls well short of UKBA responsibilities, both under EU Reception Directives and the ECHR. 17. The Section 4 regime has also been inadequate in its administration and many individuals experience substantial delays in all stages of the applications process. Despite UKBA having response time of between two and five days, there is a wealth of evidence showing that individuals are likely to wait up to three times that length of time before they are receive a response17. Research also shows that even when support has been awarded individuals are subjected to further delays before accommodation is allocated. 18. Despite an increase in staV resources and assurances that the delays would be addressed, there is still no sign that UKBA can assess these applications within their target timescales. Many of the individual aVected by these delays are street homeless, pregnant or suVering from a mental or physical health problem. We consider these delays to be unlawful and to be breach of the Home OYces duties under Article 3 of the ECHR. 19. ASAP also recommends that in line with Section 95 applicants, UKBA provides interim accommodation immediately to those accepted on Section 4. We also ask that UKBA puts the necessary resources in place to deal with Section 4 applications within their target timescales. Both actions would avoid unnecessarily prolonging destitution which causes a great deal of hardship amongst an already vulnerable group. 20. ASAP recommends that the draft Bill gives the Secretary of State more discretion to meet the needs of diVerent types of asylum seekers who are currently destitute under Section 4 regime. This allows for regulations governing asylum support provision to be amended to include a more general category under which support could be provided where necessary. The purpose of this discretion would be, for instance, to allow the Secretary of State to provide support to individuals where it was unreasonable to expect them to leave the UK. In line with the current procedures, support would be subject to regular reviews and would be provided only until the situation preventing the individual from leaving had been resolved.
13 The Immigration and Asylum (Provision of Services or Facilities) Regulations 2007 14 http://business.timesonline.co.uk/tol/business/industry sectors/consumer goods/article4692905.ece 15 Council Directive 2003/09/EC of the 27 January 2003—laying down minimum standards for the reception of asylum seekers. 16 http://www.ind.homeoYce.gov.uk/aboutus/workingwithus/workingwithasylum/support/section4/ 17 Citizens Advice Bureau: Shaming destitution NASS section 4 support for failed asylum seekers who are temporarily unable to leave the UK June 2006 and Refugee Action Section 4 delays—briefing June 2008 Processed: 23-04-2009 22:48:32 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 47
21. As outlined earlier, Section 4 is only provided to those failed asylum seeker who can demonstrate that they are temporarily unable to leave the UK. However this is narrowly defined and only applies in a very limited number of circumstances. 22. In general, to obtain Section 4 support the person will need to show that they are either taking “all reasonable steps to leave to UK”, or that there is some other temporary reason/barrier preventing them from doing so. Currently this is limited to those who are too ill to undertake international travel; those who have outstanding representations with the Home OYce, such as a fresh claim; and those who have permission to proceed with a judicial review to the High Court. 23. However it is our contention that current regulations fail to take into account the many other legitimate reasons why individuals at the end of the asylum process fail to leave the UK. The failed asylum seeker community in the UK is not homogenous group. It consists of individuals with diverse needs and case histories. 24. Within this group there are individuals from countries that are experiencing civil wars or acute security problems such as Iraq, Zimbabwe, Afghanistan and the DRC. Although they may not meet the narrow definition as a refugee as defined by 1951 Geneva Convention they nonetheless fear returning to potentially unstable and dangerous situations. 25. There are also individuals who are unable to leave the UK as they do not process the necessary travel documents. This applies to those who are stateless, those who nationalities are in dispute and those who embassies are unwilling or unable to document them. The absence of a document also makes forced removal diYcult if not impossible. With no hope of regularising their stay this group becomes stranded in the UK18. 26. Lastly, there are those individuals who feel that their case for asylum has not been properly assessed and fear there lives will be in danger if they return. Restrictions to the legal aid budget over the past few years had led to a sharp reduction in the numbers of practitioners specialising in asylum law. As a consequence, many asylum seekers report diYculties in finding someone to represent them, particularly at the appeal stage. There is therefore a danger that amongst this group there are those whose removal from the UK could be in breach of the Refugee Convention or the ECHR.
Improving Asylum Support Appeals System 27. Asylum support appeals are expensive and time consuming and those that can be avoided should be. In light of this ASAP recommends that the timeframe for to concluding an appeal to be doubled to 28 days, with a deadline for submitting Notice of Appeal extended to fourteen days. 28. The 1999 Act provides the right of appeal where support is refused or terminated. This right was extended to Section 4 support in 2005. Under the Asylum Support Appeals (Procedure) Rules 2000 an individual has three days in which to appeal a decision to either refuse or discontinue their support. 29. In the absence of public funding for these appeals, ASAP provides free legal representation three days a week at the Asylum Support Tribunal to assist asylum seekers who are otherwise unrepresented during their oral hearings. Between June 2005 and March 2008, ASAP represented 422 individuals in their appeals and provided legal advice to further 115 individuals. 30. Through our legal representation work, ASAP has become aware that there is a significant problem with the quality of decision making by UKBA both in relation to decisions to refuse and discontinue support. In 2007 ASAP carried out research to assess the extent of the problem. We examined 117 Section 4 refusal decision letters issued to failed asylum seekers by UKBA (then NASS) who had applied for support between January and December 2006. From these samples we discovered that over 80% of these decisions contained a misapplication or misinterpretation of the law19. 31. Many of those applying for support are destitute and will find it impossible to meet the three-day deadline because this would not provide suYcient time for individuals to contact advice agencies and prepare for their appeals. There are also language and cultural barriers, including a lack of knowledge on how the appeals system works. All the documents from the AST and UKBA are in English only, making it very diYcult for asylum seekers to fully understand what is happening to them. ASAP’s own statistics show that a high proportion of those we represent are suVering from physical or mental health problems. Crucially, there is no public funding (Legal Aid) available for asylum support representation and very few legal practitioners are willing to assist asylum seekers with this type of appeals. This combination of factors sets them apart from other tribunal users. From our extensive experience of conducting appeals we are aware that this lack of preparation time can prejudice the outcome of the hearing. 32. At the same time, UKBA can be encouraged to take steps to improve their quality of decision making. This can involve making further enquires before terminating or refusing support, in order to avoid triggering unnecessary appeals and regular and up-to-date training on asylum support law, both statute and case law.
18 Unreasonably Destitute: How UKBA is failing to support refused asylum seekers unable to leave the UK through no fault of their own. Asylum Support Appeals Project June 2008 19 Failing the Failed : How NASS Decision Making is Letting Down Destitute Rejected Asylum Seekers Asylum Support Appeals Project 2007 Processed: 23-04-2009 22:48:32 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 48 Home Affairs Committee: Evidence
Conclusion 33. This report has provided an overview of the problems surrounding the current provision of support for asylum seekers, with a particular focus on Section 4 support. The current system of support is overly complex and expensive to maintain. It is also failing to provide support to individuals where it is neither reasonable nor possible for them to leave the UK. Our suggestions for streamlining the support would result in a more eYcient and humane system.
Memorandum submitted by National AIDS Trust
Executive Summary of Recommendations NAT (National AIDS Trust) welcomes the opportunity to provide evidence to the Home AVairs Committee as part of its review of the draft (partial) Immigration and Citizenship Bill as well as of those details outlined by the Government for inclusion in the full Bill. In summary, NAT believes: 1. The Government must consider a regularisation programme for those who have lived in the UK for many years without legal residency status. 2. A stronger case exists for a reduction in time scales to become a citizen rather than an extension, with migrants being brought more rapidly to the point when they can plan their future lives in Britain with more confidence and security. 3. Essential health-related information, including on sexual health and HIV, should still be available, and indeed expanded, in key languages to meet the health rights of newly arrived migrants. 4. If a migrant commits an oVence attracting a custodial sentence, the full circumstances of the oVence and the consequences of deportation should be considered. An automatic process of expulsion cannot fairly address either the possibly fatal consequences of deportation for the individual, or the wider circumstances which might counterbalance the criminal act (eg rehabilitation, wider community contribution). 5. Migrants already contribute their fair share to British society and to levy an additional charge to manage the transitional impact of migration is unreasonable and counterproductive. 6. In accordance with the recommendations of the Joint Committee on Human Rights, the Government should provide HIV treatment for refused asylum seekers for as long as they remain in the UK. NAT urges the Home AVairs Committee to recommend free HIV care for all in the UK irrespective of residency status on humanitarian, public health, human rights and economic grounds. 7. Given the increased focus on detention and compulsory removal, the Home OYce should fully implement the recommendations outlined in NAT and the British HIV Association’s (BHIVA) guidance when finalised to support best practice during detention and the removal process for detainees living with HIV.The Home OYce should fully implement its policy on dispersing asylum applicants with healthcare needs with reference to NAT and BHIVA’s guidance on dispersal. 8. Those with temporary or permanent permission or probationary citizenship should have the same access to the full range of benefits as British citizens. This includes, for example, full access to housing support. 9. Those applying for asylum, with temporary permission or probationary citizenship that have been in the UK for more than six months should have full rights to further and higher education at UK rates. 10. Asylum applicants should have the right to work. The New Asylum Model, through which all asylum applications are now processed, aims to ensure decisions on asylum claims are made within six months. NAT believes that for those individuals where the process takes longer, they should be granted automatically the right to work after six months. 11. The Government should conduct public health and equalities impact assessments as part of this consultation process on the draft (partial) Bill.
Introduction 1. NAT (National AIDS Trust) is the UK’s leading charity dedicated to transforming society’s response to HIV. We provide fresh thinking, expert advice and practical resources. We campaign for change. 2. NAT welcomes the opportunity to provide evidence to the Home AVairs Committee as part of its review of the draft (partial) Immigration and Citizenship Bill as well as of those details outlined by the Government for inclusion in the full Bill. We are concerned that some of the proposals, if enacted, would Processed: 23-04-2009 22:48:32 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 49
negatively impact on the health of migrants living with HIV. NAT believes that UK immigration and citizenship processes should be more supportive of migrants, including asylum applicants, living with or at risk from HIV. 3. Managing HIV eVectively within immigration and citizenship processes is relevant to each of the areas of the draft Bill. However, NAT’s submission will focus on the following areas: — Selective migration. — Earning the right to stay. — Playing by the rules. — Managing any local impacts. These areas will each be discussed in turn following a brief background.
Background 4. For certain infections, the major burden of disease falls upon particular groups of people who were not born in the UK. According to the Health Protection Agency, three-fifths of new HIV diagnoses reported in England, Wales and Northern Ireland in 2006 were cases where the individual had been born outside the UK; more than 90% of heterosexual Black Africans diagnosed probably acquired their infection abroad.20 In addition, there are factors that may put some migrants at risk of HIV infection after their arrival in the UK. Some of these factors include the high risk of poverty and poor access to healthcare and to safer sex education. 5. With more people than ever before living with HIV in the UK and a significant number of migrants coming from high prevalence countries, there is a real and urgent need for migrants living with HIV to experience immigration and citizenship processes that support their access to necessary healthcare and the broader quality of life necessary for them to manage their condition well (eg continuity of care, good quality housing, adequate diet) which also translates into public health benefits.
Selective Migration 6. The Home OYce has ruled out an amnesty for undocumented migrants. However, there are many undocumented migrants who have been resident in the UK for years without legal status who may be destitute and unable to access the healthcare and support they urgently need (ie undocumented migrants living with HIV who are unable to access life saving treatment, which also has wider public health implications). 7. Recommendation: The Government must consider a regularisation programme for those who have lived in the UK for many years without legal residency status.
Earning the Right to Stay 8. The draft (partial) Immigration and Citizenship Bill proposes a period of “probationary citizenship”, an additional one to three years when a migrant must earn their right to British citizenship. NAT is concerned that this will simply extend insecure immigration status and prolong the stress suVered by many migrants. 9. Many migrants may have been living in the UK for several years before being granted “temporary permission” (eg asylum applicants). The majority of asylum claimants make their applications in-country, after having lived in the UK for a number of years (possibly on work or student visas). Then, after lodging an application, claimants move through the complex UK asylum process. It can take up to 18 months for a decision to be reached on their application.21 Those applicants who are successful then face the prospect of another five years of “temporary permission” and an additional year at least of “probationary citizenship”. 10. The period of “temporary permission”, five years (less for family-class migrants), is usually itself seen as a period when migrants can learn about and develop their understanding of British society. This is also the time when migrants make decisions about whether or not they will stay for the long-term, and the form which their commitment to their new society will take (eg citizenship). 11. Migration and the asylum process can be both frightening and stressful, particularly for a person unfamiliar with the UK and its regulations. NAT believes that progress towards a secure immigration or citizenship status should be reasonably rapid, and certainly drawn out no longer than the current two years for family dependants and five years for economic migrants and refugees.
20 Health Protection Agency (2007) Testing Times, www.hpa.org.uk/infections/topics az/hiv sti/publications/ AnnualReport/ 2007/HIVSTIs AR2007.pdf. 21 Although this process may take even longer if a refused asylum applicant appeals an unsuccessful claim. The appeal process itself can take an additional several months or years. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 50 Home Affairs Committee: Evidence
12. Recommendation: NAT believes a stronger case exists for a reduction in time scales to become a citizen rather than an extension, with migrants being brought more rapidly to the point when they can plan their future lives in Britain with more confidence and security. 13. The draft (partial) Bill proposes that migrants must learn English to demonstrate their integration. NAT accepts that speaking English is an important aspect of integration and cohesion. We are broadly in favour of assisting migrants to learn English, along with the development of services to do so. 14. Recommendation: NAT believes that essential health-related information, including on sexual health and HIV, should still be available, and indeed expanded, in key languages to meet the health rights of newly arrived migrants. 15. The draft (partial) Bill proposes that those who have committed an oVence attracting a custodial sentence should automatically slow down or stop progression to citizenship. NAT disagrees. A person who poses no further threat of serious criminal conduct should not have their progression towards British citizenship delayed or stopped; the latter implying that the person would be required to leave the UK. There is a clear danger in deporting someone living with HIV automatically to a country without available and accessible HIV treatment. 16. Recommendation: If a migrant committed an oVence that attracts a custodial sentence, NAT believes the full circumstances of the oVence and the consequences of deportation should be considered. An automatic process of expulsion cannot fairly address either the possibly fatal consequences of deportation for the individual, or the wider circumstances which might counterbalance the criminal act (eg rehabilitation, wider community contribution). 17. The Home OYce has proposed that it will establish a fund to manage the transitional impact of migration by levying extra money from migrants for local public services. However, there is increasing evidence about the positive contribution that migrants already make to British society. The Government has acknowledged that in recent years migrants have, on average, made a more positive contribution to the public finances than native workers, including paying more tax.22 18. Recommendation: NAT believes that migrants already contribute their fair share to British society and to levy an additional charge to manage the transitional impact of migration is unreasonable and counterproductive. 19. It should also be noted that some key parts of the final Bill are absent from the current draft. In particular, the draft contains nothing regarding the provision of healthcare support during the asylum process. NAT is concerned about the growing restrictions in recent years on access to healthcare for some migrants. 20. UK Government regulations, from 2004, mean that some vulnerable individuals, including undocumented migrants, may be charged for some forms of care. There is increasing evidence of people living with HIV who have not been provided with HIV treatment because of misunderstandings over entitlement, or who disappear from care for fear of HIV-related bills.23 As these case studies illustrate, it is often the most vulnerable who suVer from delayed, denied, interrupted or withdrawn care because they are unable to pay such HIV-related bills for treatment. Many have been pursued aggressively by debt collectors. The consequences for the health and well-being of those aVected are grave, and could well result in serious illness and sometimes death. 21. The National AIDS Trust believes these charging regulations are not only inhumane, a danger to public health and a breach of human rights, but increase avoidable and unnecessary costs to the NHS. 22. Recommendation: In accordance with the recommendations of the Joint Committee on Human Rights, the Government should provide HIV treatment for refused asylum seekers for as long as they remain in the UK.24,25 NAT urges the Home AVairs Committee to recommend free HIV care for all in the UK irrespective of residency status on humanitarian, public health, human rights and economic grounds.
Playing by the Rules 23. The draft (partial) Immigration and Citizenship Bill continues powers to detain migrants, including asylum applicants, while a decision is reached on their claim or in preparation for removal from the UK. The movement of migrants living with HIV at short notice into detention and during other asylum processes, for example upon dispersal or removal, put them at particular risk. NAT has been made aware of a number of related cases and one recent example is set out below.
22 The Times (16 October 2007) Migrants contribute £6 billion to UK economy, www.timesonline.co.uk/tol/news/uk/ article2672639.ece. 23 NAT has gathered numerous case studies that can be accessed by visiting www.nat.org.uk/document/368. 24 Joint Committee on Human Rights (2007) Treatment of Asylum Seekers, www.publications.parliament.uk/pa/jt200607/ jtselect/jtrights/81/81i.pdf. 25 In April 2008 a High Court judgment ruled that refused asylum seekers who had been given “temporary admission” (a Home OYce IS96 form) should be considered “ordinarily resident” while they remain in the UK and therefore able to access free NHS care including for HIV. The Department of Health is appealing the decision, which will be heard in November 2008 at the Court of Appeals. For further information on entitlement to NHS care for migrants, see NAT and Terrence Higgins Trust’s Will I have to pay? leaflet at www.nat.org.uk/document/438. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 51
24. A woman living with HIV in Berkshire was moved to Plymouth in early 2007. Her clinician had advised the UK Border Agency that the woman should not be moved for medical reasons, and raised concerns that the woman would not be able to access a similar support structure in the new area. The Border Agency was aware of this woman’s HIV-positive status, but NAT was informed that she received a letter giving one day’s notice of her dispersal to Plymouth. This did not allow an appropriate amount of time to prepare adequately for the journey and, being on treatment for HIV, she did not have the opportunity to organise suYcient medication for the move. This had serious consequences for her health and wellbeing. 25. The development of antiretroviral (ARV) therapy has changed, fundamentally, the health prospects of those living with HIV in the UK. As long as diagnosis does not take place too late, ARV therapy usually means that an individual can live a long and healthy life. However, once commenced, ARV therapy cannot be interrupted. For optimum eVectiveness it must be taken for the remainder of the person’s life and strict adherence to the often demanding drug regimen is essential if drug resistance is not to develop. This has particular implications for asylum applicants going through the stressful and increasingly rapid asylum process. 26. Continuity of care at all points during the asylum process, in particular during dispersal, detention and removal, is essential. Moving from one part of the country to another inevitably disrupts day to day life, and is likely to interrupt clinical care and drug adherence. Treating clinicians need to be assured that appropriate arrangements are in place to ensure continuity of care before dispersal can occur. In addition, accommodation providers in dispersal locations must ensure that asylum applicants with serious health conditions, such as HIV, are registered with a GP upon arrival. As recommended in the UK Border Agency policy bulletin on dispersing asylum applicants with healthcare needs, it is imperative that dispersal is done in a way which does not harm a person’s health or endanger their life.26 However, a recent NAT evaluation of the dispersal process found that this policy was not being consistently implemented.27 27. NAT and the British HIV Association (BHIVA)28 developed best practice guidance on the dispersal of asylum applicants living with HIV29 and are currently developing similar guidance on supporting the HIV-related needs of detainees in removal centres in partnership with removal centre healthcare managers and the HIV clinicians and voluntary sector professionals that work with removal centres. The guidance aims to support consistent high-quality care for detained asylum applicants living with HIV during the removal process. 28. Recommendation: Given the increased focus on detention and compulsory removal, the Home OYce should fully implement the recommendations outlined in NAT and BHIVA’s guidance when finalised to support best practice during detention and the removal process for detainees living with HIV. The Home OYce should fully implement its policy on dispersing asylum applicants with healthcare needs with reference to NAT and BHIVA’s guidance on dispersal.
Managing any Local Impacts 29. The Home OYce has proposed that migrants will not have equal access to the full range of benefits available to British citizens during temporary permission or probationary citizenship. NAT is concerned that this will reinforce ill-health and destitution. 30. National Insurance Contribution (NIC) benefits for those with temporary permission or probationary citizenship only include Jobseeker’s Allowance, incapacity benefit, state pension and bereavement payments. This does not include other important benefits for those with temporary permission or probationary citizenship that impact on the health and wellbeing of migrants living with HIV, such as housing support. It is widely acknowledged that poor accommodation has the potential to exacerbate the HIV-related needs of migrants. Damp accommodation and inadequate heating creates an unhealthy and potentially dangerous environment for people with respiratory infections and tuberculosis. Daily antiretroviral treatment regimes for HIV, periods of ill-health and frequent clinical appointments can be diYcult to explain when living in shared accommodation. Migrants are especially vulnerable to inadequate housing. 31. Recommendation: NAT believes that those with temporary or permanent permission or probationary citizenship should have the same access to the full range of benefits as British citizens. This includes, for example, full access to housing support. 32. In reference to integration, the draft (partial) Bill does not address the important need for training, which if left unmet, can make later integration more diYcult. NAT believes that, without this right to education, an individual’s development and integration will be unacceptably delayed, if not permanently harmed.
26 UK Border Agency (2005) Policy Bulletin 85: Dispersing asylum seekers with healthcare needs, www.bia.homeoYce.gov.uk/ sitecontent/documents/policyandlaw/asylumsupportbulletins/medical/pb85.pdf. 27 NAT (2007) Review of Border and Immigration Agency Policy Bulletin on the Dispersal of Asylum Seekers with Healthcare Needs including Pregnancy, www.nat.org.uk/document/356. 28 BHIVA is the leading UK association of professionals in HIV care. Further information is available at www.bhiva.org. 29 NAT and BHIVA(2006) The Dispersal Process for Asylum Seekers Living with HIV: Advice for healthcare and voluntary sector professionals, www.nat.org.uk/document/208. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 52 Home Affairs Committee: Evidence
33. Migrants living with HIV are often amongst the most marginalised in society and it is widely acknowledged that access to further and higher education can help marginalised communities gain the technical qualifications and skills needed to gain full and fair access to employment, and encourage social inclusion. 34. Recommendation: Those applying for asylum, with temporary permission or probationary citizenship that have been in the UK for more than six months should have full rights to further and higher education at UK rates. 35. It is right to expect immigrants, where possible, to make an economic contribution to the society in which they live (though expecting migrants to pay extra charges is unreasonable). However, many asylum applicants are unable to work even though they may want to, because of the Government’s current policy.30 Access to employment is a major factor in maintaining income and living conditions. Employment also helps improve self esteem and mental health. Unemployment means that many asylum applicants are unable to support themselves or their families adequately and unable to contribute financially to society. 36. Recommendation: Asylum applicants should have the right to work.31 The New Asylum Model, through which all asylum applications are now processed, aims to ensure decisions on asylum claims are made within six months. NAT believes that for those individuals where the process takes longer, they should be granted automatically the right to work after six months. 37. NAT acknowledges that the Government has undertaken a financial Impact Assessment following an earlier consultation on the Home OYce Green Paper The Path to Citizenship. The substantive and technical proposals made in the draft (partial) Bill are all of high importance and directly aVect individuals living with HIV. 38. Recommendation: NAT believes the Government should conduct public health and equalities impact assessments as part of this consultation process on the draft (partial) Bill. September 2008
Memorandum submitted by the British Medical Association
Executive Summary 1. The British Medical Association (BMA) is an independent trade union and voluntary professional association which represents doctors from all branches of medicine throughout the UK. It has a membership of over 139,000 doctors. 2. This response highlights our initial concerns in respect of proposals to “manage local impacts”, the details of which will be incorporated into the full Immigration and Citizenship Bill, but which are not included in the draft version. Despite the absence of clauses relating to the management of local impacts particularly in relation to access to local healthcare services in the draft Bill, the BMA wishes to highlight a number of general concerns at this stage in the legislative process.
Managing any Local Impacts 3. The BMA would like to raise formal concerns in advance of the publication of the full Immigration and Citizenship Bill in respect of proposals to simplify the current complex legislation on access to benefits and services to make it as clear and consistent as possible (as outlined in “Making Change Stick: An Introduction to the Immigration and Citizenship Bill”). Although we acknowledge that there are a number of legal terms in use such as “ordinarily resident” and “habitually resident” and that a degree of additional clarity may be needed to ensure they are correctly interpreted within the context of whatever system is in place at a given time, the process of redefining these terms may be used to restrict vulnerable individuals from being able to access healthcare services and this may have a significant public health and/or economic impact. 4. The BMA would point, in particular, to the definition of the term “ordinarily resident”, the interpretation of which formed the crux of the recent ruling by Mr Justice Mitting (Judicial Review Judgment CO/8095/2006). A significant concern is that imposing minimum time periods to have been spent in the UK before an individual can be considered to be ordinarily resident will restrict access to services for individuals who may at some point need medical intervention for conditions that pose a public health risk if left undiagnosed and untreated. The BMA will be following the progress and outcome of the appeal relating to Mr Justice Mitting’s ruling and will be commenting further once the Government releases its response to the appeal ruling.
30 For example, see the Guardian Comment is Free (18 June 2008) Let them give something back, www.guardian.co.uk/ commentisfree/2008/jun/18/immigration.immigrationpolicy. 31 For further information on the TUC and Refugee Council campaign to let asylum seekers work visit www.refugeecouncil.org.uk/gettinginvolved/campaign/righttowork. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 53
5. There are considerable public health concerns in restricting access to health services for failed asylum seekers. The BMA would like to highlight that restricting access to health services may lead to diseases with significant public health implications such as infectious diseases going undiagnosed and untreated.
6. The BMA would highlight that any system to manage access to healthcare services should contain the requisite flexibility to ensure that public health risks can be appropriately managed.
7. In addition to the impact on public health, the BMA has concerns over whether restricting access to services is the most practical option economically.In some circumstances restricting access to healthcare may lead to individuals requiring far more intensive and costly treatment as their condition will deteriorate as a result of them being unable to access services at an early stage. This in turn will place an additional burden on health services. One example of this relates to the failure to manage insulin-dependent diabetes. It would make greater economic sense to ensure that the system in place is flexible enough to enable early intervention before health conditions reach the stage where they require expensive emergency treatment or a protracted period of medical intervention.
8. The emphasis on limiting access to services to those who “earn it” has potentially damaging implications for those individuals in the UK who, as a result of their existing immigration status, are unable to contribute actively to the UK’s economy.Many failed asylum seekers are unable to return to their country of origin and remain unable to work in the UK. Any system limiting access to healthcare to those who “earn it” should incorporate enough flexibility to consider cases individually. If individuals have a genuine medical requirement to access healthcare services and have no means of demonstrating that they have earned it through contributing to the UK economy, systems must be in place to allow their needs to be considered.
9. The possibility of a fund being created to manage the transitional impact of migration, to which newcomers will be asked to contribute extra (as outlined in “The Path to Citizenship: Next Steps in Reforming the Immigration System”) again has implications for those individuals who may need to access healthcare but who due to their existing immigration status are unable to contribute financially to the UK economy by being unable to work.
10. The BMA would like to voice concerns in respect of the potential for health policy to be dictated by an immigration control framework particularly in relation to what role health professionals may be required to take in determining immigration status before beginning treatment. The BMA has consistently maintained that doctors and other health professionals should not be required to take on the role of immigration oYcers in the course of their duties. Systems should be designed to ensure that doctors or other health professionals are not required to assess eligibility for services when faced with an individual requiring medical intervention.
11. There are also humanitarian considerations which need to be taken into account when considering restricting access to healthcare. Doctors have a duty to care for patients as documented in the GMC’s Good Medical Practice. Introducing a system whereby immigration status needs to be assessed prior to care being given will place unnecessary challenges on doctors whose overriding duty it is to provide care to those who need it.
12. There are also concerns that there is a lack of evidence relating to the financial impact on the health system of failed asylum seekers accessing healthcare. Although problems with non-payment for treatment by overseas visitors have been well publicised, there is no clear evidence to demonstrate the extent to which failed asylum seekers may have contributed to this predicament. September 2008
Memorandum submitted by Immigration Law Practitioners Association (ILPA)
Introduction
1. ILPA is a professional association with around 1,000 members, who are barristers, solicitors and advocates practising in all aspects of immigration, asylum and nationality law. Academics, non-government organisations and others working in this field are also members. ILPA exists to promote and improve the giving of advice on immigration and asylum, through training, disseminating information and providing evidence-based research and opinion. ILPA is represented on numerous government and other stakeholder and advisory groups.
2. This Memorandum is provided in response to the Committee’s Call for Evidence of 22 July 2008. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 54 Home Affairs Committee: Evidence
General Observations 3. The draft (partial) Immigration and Citizenship Bill confirms concerns consistently expressed by ILPA in response to the initial consultation on simplification of June 200732 and in several briefings and submissions made since that time33. The simplification project, and this draft Bill, is not underpinned by points of real principle; and the objectives of simplification, expressed as “key principles” are now clearly revealed as an inadequate and unsafe foundation for a project that seeks “to replace almost all our current immigration laws”. 4. Particular concerns, which underpin the submissions made below on areas upon which the Committee has invited comment, are set out in the bullet points which follow. These relate to specific objectives that from the start have been said to be at the heart of the simplification project. The later submissions provide example of these concerns34. — the objective of promoting plain English has resulted in widespread use of terms whose common meaning does not correspond to the terms’ usage in the draft Bill; — the objective of minimising gaps in powers is achieved only by providing broad and unconfined powers to the Secretary of State, significantly increasing the prospects of arbitrary exercise of power and of interference with human rights and civil liberties; — the objective of eYciency is only met to the extent of seeking to free the executive from limitation or judicial scrutiny, which does nothing to promote real eYciency on the part of the Secretary of State but rather gives license for ineYciency; — the absence of underlying principle on which to found the simplification project35 has meant that the objectives relating to increased transparency and clarity have essentially lost out in the final reckoning to the foregoing; and — wherever else it may be intended to minimise discretion, the draft Bill significantly extends the discretion of the Secretary of State and her oYcials to exercise considerable powers in relation to the general public (both migrants and British citizens). 5. This project may have profound consequences far beyond the immediate scope of the UK’s immigration system, including consequences for community relations36, the UK’s economic prospects37 and global relations38. If the Government remains determined to introduce a Bill to Parliament that goes significantly beyond the consolidation of our immigration laws, which consolidation is much needed, the provisions in this draft Bill are in urgent need of reconsideration by reference to clear principles as articulated by ILPA in its response to the initial consultation: “Immigration law, which encompasses the control of borders and the consequences of such controls, should meet the UK’s international and human rights obligations, provide for equality and avoid discrimination, be proportionate and avoid arbitrariness, ease the lawful entry and stay of those entitled to be in the UK and provide access to justice and judicial remedy. These are key principles, against which any simplification can and should be assessed.”39 This draft Bill falls short.
32 ILPA response to Consultation on Simplifying Immigration Law, August 2007; available in the “Submissions” section at www.ilpa.org.uk 33 eg ILPA’s responses and submissions to the Home AVairs Committee Enquiry into Managed Migration: the Points Based System, July 2008; Consultation on Path to Citizenship Green Paper, May 2008; Visitors Consultation Paper, March 2008; Changes to the General Grounds for Refusal in the Immigration Rules, February 2008; Equality Impact Assessment: Points Based System Highly Skilled Tier, January 2008; Lord Goldsmith QC Citizenship Review: The DiVerent Categories of British Nationality, December 2007; Points Based System Fees Consultation, November 2007—these and others are available in the ‘Submissions’ section op cit 34 The objectives of simplification referred to in these bullet points were first identified by the UK Border Agency in its consultation paper, Simplifying Immigration Law: an Initial Consultation, June 2007; and again referred to by the Agency in the Path to Citizenship Green Paper, February 2008. The full list of objectives are stated to be maximising transparency, eYciency, clarity and predictability, plain English and public confidence; and minimising further legislation, concessions, exercise of discretion, inconsistencies, duplication and gaps in powers. 35 As ILPA argued in its response to Simplifying Immigration Law (paragraphs 4–9 op cit), the objectives of simplification do not provide any principled foundation on which to assess discrete proposals for change. 36 The Communities and Local Government Committee has recently reported on the impact of migration on local communities. While noting significant public concerns, the Committee’s conclusions also identity the degree to which public health and social care rely upon migrant labour, and how migration has helped to raise educational attainment levels in schools and been necessary for growth of local economies: Community Cohesion and Migration, Tenth Report of Session 2007–08, HC 369–1, 16 July 2008. 37 In his oral evidence before the Home AVairs Committee, Liam Byrne MP, Minister for Borders and Immigration highlighted the substantial contribution towards the UK economy arsing from migration to the UK: Home AVairs—Minutes of Evidence, 27 November 2007, Q34, Q57–58; see also The Economic and Fiscal Impact of Migration: A Cross-Departmental Submission to the House of Lords Select Committee on Economic AVairs, October 2007, Cm 7327. 38 The Home AVairs Committee has recently received evidence from the Acting Romanian Ambassador to the UK, who gave the view of the Romanian Government that the maintenance of restrictions on Romanian migrants to the UK was discriminatory and disappointing in view of “the expectations [the UK] places on its Romanian ally”: Bulgarian and Romanian Accession to the EU: Twelve months on, Second Report of Session 2007–08, HC 59, 17 January 2008, paragraphs 13–14. In its response to the Treasury Committee’s Globalisation: prospects and policy responses Fourteenth Report of Session 2006–07, the Government accepted the economic need for engagement with developing economies, in particular China and India; and in so doing highlighted the strong links between the UK and India on account of matters including “…the large population of Indian expatriates and British nationals of Indian descent”: Treasury Committee’s Fourth Special Report of 2007–08, HC 201, 11 January 2008. 39 ILPA response to Simplifying Immigration Law, paragraph 9 op cit Processed: 23-04-2009 22:48:32 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 55
Areas Highlighted by the Committee 6. Particular provisions are addressed in relation to the areas highlighted by the Committee in its Call for Evidence. However, the Committee’s request concerning the length of submissions precludes full consideration of the draft Bill. Accordingly,so that the Committee may have the benefit of further reflections upon the draft Bill’s full provisions, the Appendix to this Memorandum provides a clause-by-clause analysis of key areas of concern.
“Strong borders” (including modernising border powers and carriers’ liability and powers to cancel visas abroad) 7. The breadth of the powers contained in the draft Bill invite arbitrary and discriminatory practice, impede ease of lawful entry and stay for those entitled to be here and seek to restrict judicial oversight. These results would aVect both migrants and British citizens. Examples are given below. 8. The draft Bill includes wide powers, which are far from limited to border powers. Key powers include those contained at clauses 25 to 28. These include power to examine people40 for purposes, which include to determine whether the person is “a British citizen”41. Those who may be examined include anyone who “has entered the UK”42. No reasonable cause is required before this power may be exercised. It applies anywhere and to anyone (whether British citizen or otherwise) in the UK, unless the person was born here and has never left the country. The diVerence between this power and “Sus” laws is that the latter require some suspicion. The drafting of these provisions provides powers the Government has previously disavowed to require the production of an identity card simply on being stopped on the street43. The person may be stopped howsoever many times it may please the Secretary of State44. Failure to produce the identity card, or otherwise satisfy the Secretary of State, is on pain of detention until such time as she is satisfied45. 9. Clause 26 also applies to migrants and British citizens. It includes power for the Secretary of State to undertake a policing role in conducting criminal investigations46. 10. Powers to detain are extended in unsafe and unregulated ways beyond the control of the Secretary of State and with implications for British citizens and others. Under clauses 54 and 56 captains of ships, aircraft or trains may be required (on pain of prosecution47) to detain a person on board. Clause 58 allows someone to forcibly remove a person from a ship, aircraft or train “under the authority of the Secretary of State”, whether or not that person is an oYcial. The extension of powers by these clauses is unnecessary; and the harm they may cause is compounded by the fact that substantial powers are passed to individuals whose training, resources and circumstances are wholly unsuitable for the exercise of any such powers; whereas the provisions demand that the powers be exercised. This it not safe for captains, crews, the individuals detained or other passengers. 11. Any detention (of migrants and British citizens alike) may be at any place (whether established and equipped for that purpose or not) directed by the Secretary of State and is mandated to be lawful48. This provision oVends civil liberties, health and safety and commonsense. 12. Immigration control continues to be extended far beyond the role of the Secretary of State’s oYcials. The authority-to-carry scheme49 would add to the already significant obstacles which force refugees into the hands of smugglers and traYckers. It would also create substantial potential for disruption and delay to other passengers’ travel arrangements. 13. The power to cancel permission is unconstrained50, despite the breadth of circumstances in which permission will be cancelled automatically51. The circumstances in which a person’s permission may be automatically cancelled by way of clause 42(1) include any breach of a condition of permission or obtaining permission by deception or that a person’s presence is considered not conducive to the public good. Nevertheless, the cancellation power at clause 14 remains at large.
40 clause 25(1) 41 clause 25(2)(a) 42 clause 25(1)(b) 43 Clause 28(3) provides the power. During the passage of the UK Borders Bill, Liam Bryne MP, Minister for Borders and Immigration, expressly acknowledged such powers to be arbitrary in disavowing any intention to stop people on the street to ask them to produce an identity card, or other documentation, so as to prove their nationality: Hansard HC Second Reading, 5 February 2007: Columns 595–596. During the passage of the Identity Cards Bill, Charles Clarke MP, Home Secretary,assured the House that there would be no requirement to carry an identity card. He also stated that the introduction of identity cards would not increase police powers to stop people in the street; albeit he made no mention of the powers of immigration oYcers in this respect: Hansard HC Second Reading, 28 June 2005: Columns 1156–1157. 44 clause 27(1) 45 clause 53 46 clause 26(2)(b)(iv) 47 clause 115 48 clause 59 49 clause 149 50 clause 14 51 Clauses 12(3), 13(1), 13(2), 15(3), 42(1) and 47(2) provide for various circumstances in which permission is automatically cancelled. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 56 Home Affairs Committee: Evidence
“Selective migration” (including the introduction of “permission” for migrants, replacing notions of leave to enter, leave to remain and entry clearance, and a single power of expulsion) 14. The introduction of permission is an example of a plain English term, whose meaning does not correspond to the term’s plain meaning. Many people in the UK who are permitted to be in the UK will not have “permission”. Asylum-seekers and others on immigration bail52 (currently temporary admission) and those subjected to the special immigration status53 (to date ignored in the draft Bill) would be in this position. This problem (misuse or confusing use of plain English) runs through the draft Bill; and is reflected elsewhere in developing immigration law and policy—eg in the Points-Based System, a system not based on points and for which points have for the most part no meaning at all54. 15. Instead of references to entry clearance, leave to enter and leave to remain, the draft Bill provides for immigration permission, transit permission, temporary permission, permanent permission, probationary citizenship permission, protection permission and refugee permission55. Whereas these distinctions in nomenclature do reflect distinctions in substance (with the exception of probationary citizenship—see below), it is clear that complexity remains. 16. Moreover, permission does more than replace entry clearance, leave to enter and leave to remain. Most significantly, it replaces the right of abode as currently enjoyed by certain Commonwealth citizens. Whereas the Explanatory Notes indicate an intention to confer permission on these individuals by way of order56; nevertheless they will become subject to all the general immigration powers from which they are currently exempt, rendering their current freedom to enter or stay insecure and jeopardising their current access to services. 17. The introduction of expulsion57 elides two distinct notions—requiring an individual to leave the UK and re-establish an entitlement to enter (now administrative removal); and banning an individual from the UK as dangerous or undesirable (now deportation). The changes to the Immigration Rules introduced in April 200858 went some way towards this, resulting in widespread criticism and a series of Ministerial concessions59 (something simplification had intended to avoid) to ameliorate some of the injustice and ineYciency the changes would otherwise have caused60. Expulsion in the draft Bill merely extends the risk of injustice and ineYciency. Under the provisions, a person who does not need permission (a non-visa national) to travel to the UK and mistakenly but genuinely believes he or she meets the criteria for entry (eg thinking he or she may enter as a business or student visitor, but the period for which entry is sought requires a Points-Based application) will be subject to an expulsion order. This despite promptly and honestly presenting at the immigration desk on arrival. 18. Further observations upon the arbitrariness of the expulsion regime are provided below.
“Earning the right to stay” (including new requirements for citizenship and an automatic ban on returns with new powers to exclude criminals and immigration oVenders) 19. The citizenship requirements61 in the draft Bill provide a further example of misuse of English. Probationary citizenship is neither a form of citizenship nor probation. It is nothing more than a further period of temporary permission. The inclusion of algebraic equations in the draft Bill62 (complete with functions, fixed and variable integers) does not advance plain English. 20. ILPA’s position on these citizenship proposals is explained in detail in our response to the Green Paper63. The requirements add complexity and increase the potential for arbitrary decision-making. The Government’s acceptance, in response to consultation, that “there are considerable practical issues to resolve”64 constitutes a couched acknowledgement of the risks of discrimination and exploitation inherent in the active citizenship proposal. The relegation of permanent permission (currently indefinite leave to
52 clause 62 53 section 130 et seq, Criminal Justice and Immigration Act 2008 54 Under the Points-Based System, points are awarded for meeting maintenance, language and sponsorship requirements. However, the requirements must be met, so the attributing of a fixed number of points adds nothing. The Statements of Intent onTiers4&5reveal that there are no further requirements, so for these Tiers the points are entirely irrelevant. For certain categories under Tier 2, the position is the same. Even under Tier 1 and the remainder of Tier 2, the significance of points is negligible. 55 These categories of permission can be found in various clauses including clause 2(1)(a), clause 2(1)(b), clause 4(1)(a), clause 4(1)(b), clause 31, clause 164(2)(a) and clause 164(2)(b). 56 Explanatory Notes, paragraphs 47 & 57 57 clause 37 58 Statement of Changes in Immigration Rules HC 321, paragraph 47 introducing new paragraph 320(7B) into the Immigration Rules 59 In March 2008, Lord Bassam of Brighton, Minister of State, announced the first of these concessions: Hansard HL, 17 March 2008: Columns 96–97. Two months later, Liam Byrne MP, Minister for Borders and Immigration, announced further concessions: Hansard HC, 13 May 2008: Columns 1352–1353. Certain of these concessions were later introduced into the Immigration Rules as new paragraph 320(7C) by Statement of Changes in Immigration Rules HC 607, paragraphs 37–38. 60 See the debates referred to in fn. 27; and ILPA’s briefing of May 2008 op cit. 61 Part 3 62 clause 34 63 op cit 64 The Path to Citizenship: Next Steps in Reforming the Imigration System, Government Response to Consultation, July 2008, page 18 Processed: 23-04-2009 22:48:32 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 57
remain) to a residual status is itself discriminatory against migrants whose nationality precludes dual citizenship; and does nothing to promote the value of British citizenship. The general aims of demanding knowledge of English language, requiring an initial period of temporary permission and taking account of criminality are already part of the route to citizenship. The extension of periods during which migrants whose long-term future is accepted to be in the UK may be excluded from services, and the extension of services from which they may be excluded, promotes marginalisation rather than integration. 21. The provisions for exclusion and automatic bans on return go far beyond immigration oVenders and other criminality—see the above discussion on the eliding of administrative review and deportation. The scope for arbitrary use of power without adequate judicial scrutiny and with profoundly unjust results is greatly extended by the expulsion powers. For example, a one-oV failure to report (however inadvertent or unavoidable) provides a power to expel an otherwise lawful migrant, against which any appeal right is excluded and which may result in a lengthy ban65. The potential arbitrariness is compounded in that the expulsion may be ordered immediately or later66, leaving someone under the Damoclean sword for what may be months or years.
“Playing by the rules” (including the introduction of “bail bonds” for those awaiting detention or expulsion, “immigration bail” as an alternative to detention, revised sanctions for breaches of immigration law, and a simplified appeals system) 22. Immigration bail67 is a further example of misuse of plain English. It applies to many individuals who have never been and will never be detained, still less bailed from detention. 23. The introduction of bail bonds68 relates to many more people than those who are pending expulsion or have been detained. It relates to many people whose recognition of entitlement to permission (including refugee or other protection permission) is pending: ie all currently on temporary admission. That bail bonds should be deposited69 is not workable—it requires the holding of many thousands of individual sums, of varying quantity, for many months or possibly years. It raises questions about arrangements for repayment and the payment of interest. It would deter many sureties, who could not be satisfied as to how long substantial sums of their money would in eVect be frozen; and would promote repeat applications to the Asylum and Immigration Tribunal in order to vary conditions of bail by cancelling or reducing the bail bond70. 24. The draft Bill is incomplete in relation to the appeals system71. The provisions on appeal rights in respect of expulsion and cancellation exclude appeals in arbitrary and unjust circumstances while the provisions themselves do not provide for simplification. That could be achieved by reducing the several caveats to the basic provision of an appeal right, which would itself promote eYciency, transparency and good decision-making by subjecting decision-makers to judicial oversight.
“Managing any local impacts” (including simplification of legislation on access to benefits and services) 25. This aspect of the simplification project is missing from the draft Bill72. However, the provisions on citizenship and on cancellation of permission will have profound eVects on migrants if the current intention to further exclude migrants from benefits and services is realised in the full Bill. This may include migrants, whose permission is wrongly cancelled—whether automatically or by executive decision. Excluding individuals from benefits and services is itself likely to have profound local impacts, as can be seen from the current policies in respect of asylum support and the widespread destitution these have caused73. 26. The intention to impose further charges upon migrants is a serious concern, given the recent substantial increases in immigration fees; and the provisions on fees in the draft Bill74 constitute an extraordinary and wholly unreasonable extension of the Secretary of State’s powers to raise revenue by charging migrants—including for providing “services” whether or not these were requested or beneficial75.
65 clause 37(4)(d) & (6), and clause 171(3)(a) 66 clause 37(9) 67 clause 62 68 clause 64 69 clause 64(1) 70 clause 68 71 Clause 188 provides for no onward appeal system. Currently, the UK Border Agency is consulting on this: Immigration Appeals: fair decisions, faster justice, 21 August 2008. 72 See fn. 74. 73 Over the last two years several organisations have reported upon profound and growing levels of destitution among the aslyum-seeking population including: Joseph Rowntree Charitable Trust More Destitution in Leeds, June 2008; The Children’s Society Living on the Edge of Despair, February 2008; Joseph Rowntree Charitable Trust Destitution in Leeds, 2007; Amnesty International Down and out in London, November 2006; Citizen’s Advice Shaming Destitution, June 2006; Refugee Action The Destitution Trap, 2006. The Joint Committee on Human Rights highlighted this issue: The Treatment of Asylum Seekers Tenth Report of Session 2006–07, HC 60–1, HL 81–1, 30 March 2007; and see ILPA’s Memorandum to the Joint Committee on Human Rights following the publication of the Government’s response to the Committee’s Tenth Report, September 2007 available in the “Submissions” section op cit. 74 clause 190 75 The reference in clause 190(4) to providing services and undertaking processes may be contrasted with section 42, Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, which refers to fees for applications; and section 51, Immigration, Asylum and Nationality Act 2006 which refers to requests for services. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 58 Home Affairs Committee: Evidence
Conclusion 27. In general the draft Bill gravely extends the scope for unconstrained and unsupervised exercise of powers, which may be exercised against migrants and British citizens. In these circumstances, it is all the more extraordinary that the Bill contains none of the regulation of powers currently contained in Part 3 of the Immigration Act 1971 and the Making Change Stick document76 is at best opaque as to whether such powers are to be set out in primary legislation. In any event, it may be anticipated that powers of such breadth as are currently contained in this draft Bill will attract judicial review challenges; and may simply necessitate further legislation to provide an adequate legal basis for the powers that are sought here— producing neither simplification nor consolidation. 28. Related to these concerns is the widespread use of phrases such as “if the Secretary of State thinks”77 in the draft Bill. This appears to be another misplaced example of plain English usage. The phrase “if the Secretary of State has reason to believe” is not diYcult to understand, and would be commonly understood to mean something diVerent and safer than the references to “thinks”. Moreover, there are several examples where the phrase should simply be deleted altogether78. 29. This Memorandum provides an overview, with some examples, of several concerns. Further detail is available to the Committee by way of the Appendix. 17 September 2008
Annex
This Annex provides commentary on each Part of the draft Bill and the accompanying Explanatory Notes; highlighting particular clauses and paragraphs of the Explanatory Notes, which are a cause for concern or raise outstanding issues. It is a working document, provided as an Annex here so that the Committee may have a wider benefit in relation to a range of matters in this draft Bill that cannot be addressed in the more restricted Memorandum. However, the draft Bill is partial—ie it is incomplete. There remains potential, therefore, for what is currently missing from the draft Bill to significantly aVect the provisions currently available. Moreover, it is also intended that the Immigration Rules and current guidance and instructions to the UK Border Agency will be overhauled. Without sight of the Rules and guidance/instructions, any comments on the draft Bill must also come with the caveat that these may need to be reconsidered and revised in the light of Rules and guidance/instructions when made available.
Part 1—Regulation of Entry Into and Stay in the UK Part 1 is unnecessarily long and complex. A number of clauses here merely repeat each other—see discussion under clause 9 (below); whereas clause 7 (see below) is superfluous. Part 1 also withdraws substantial benefits currently enjoyed by those non-British citizens who have the right of abode.
Clauses 1 to 3 The key change introduced here is that noted at paragraph 47 of the Explanatory Notes. Section 1(1), Immigration Act 1971 currently provides that anyone with the right of abode “shall be free to live in and come and go into and from” the United Kingdom. Significantly, that Act provides that those with the right of abode include Commonwealth citizens who had that right immediately prior to the commencement of the British Nationality Act 1981—see section 2(1); and provides that these Commonwealth citizens are to be treated in the same way as British citizens for the purpose of immigration control as regulated by that Act—see section 2(2). These Commonwealth citizens would be fundamentally disadvantaged by the provisions here—see further the discussion under clause 8 (below). Although clause 1(3) and (4) eVectively reproduces section 3(8) and (9) of the Immigration Act 1971, it remains questionable why proof of British citizenship for the purposes of entry to the UK should be restricted to producing a UK passport or ID card. For instance, producing a certificate of naturalisation
76 The UK Border Agency Making Change Stick: An introduction to the Immigration and Citizenship Bill provides a table identifying measures that are currently included within the draft Bill and those that are expected to be included in the full Bill, see page 9. 77 eg clause 55(1) 78 For example, clause 39(5) creates an exception to the Secretary of State’s obligations to make an expulsion order in circumstances where she thinks that deportation would breach obligations under the 2005 Council of Europe Convention on Action against TraYcking in Human Beings. Not only is the exception in the wrong clause—it should be included in clause 38, as if deportation is not lawful any deportation ought to be excluded—the words “the Secretary of State thinks” should be deleted. Deportation should be excluded if to do so would in fact be contrary to the Convention, whatever the view or thoughts of the Secretary of State or her oYcials. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 59
(see section 42(5), British Nationality Act 1981) or establishing that a person’s name is on the register (see R v SSHD ex parte Ejaz [1994] QBD 496) ought to be satisfactory to establish the citizenship of those who have naturalised or registered as British. Clause 2(2) highlights a problem with the renaming of leave to enter, leave to remain and entry clearance. “Permission” has been chosen because the Government believe that the name constitutes a simplification— ie it is what it says it is. The problem, as highlighted by clause 2(2), is that there will be groups of individuals who on the face of the legislation need permission to be in the UK (ie they do not fall within clause 1 or clause 3), who do not have permission and yet are, in ordinary language, permitted to be here. In the case of asylum-seekers, this situation may last for several months or even years. Another such group will be those subjected to the special immigration status established by sections 130 et seq of the Criminal Justice and Immigration Act 2008. However, the draft Bill is particularly deficient in failing to address this group at all. On the face of clause 2, this group would be in the UK illegally—albeit, on this point clause 2 is in direct conflict with section 132(2)(c) of that Act.
Clause 4
This clause and those following establish the new (or renamed) status of “permission”. As indicated in the discussion (above) concerning clauses 1 to 3, this title has been chosen on the basis that it is in itself a simplification because it easy to understand. However, this is a fallacy. The permission status will not be granted to all those who are permitted to be in the UK. Rather than making the situation or status of immigrants to the UK clear, this sows the seeds for confusion. There may be further potential for confusion arising from the range of types of permission referred to in the draft Bill. This refers to “temporary permission” (eg clause 4(1)(a)), “permanent permission” (eg clause 4(1)(b)), “immigration permission” (eg clause 2(1)(a)), “transit permission” (eg clause 2(1)(b)), “probationary citizenship permission” (eg clause 31), “protection permission” (eg clause 164(2)(a)) and “refugee permission” (eg clause 164(2)(a)). These various types of permission do not relate to each other in the same way—eg some are distinct from each other, some are subsets of others. Further distinctions are between permission “granted by an individual grant” (eg clause 13(2)) and “permission by order” (clause 8); and “old permission” and “new permission” (clause 13(2)).
Clause 5(3)
This subclause allows for permission to be granted before a person has arrived in or entered the UK. There may be good reason for granting permission at such a time: indeed, with the abandonment of a formal status of possessing entry clearance (see discussion on clause 1 to 3, above), this will be necessary in many cases. However, it raises questions for how routes to settlement or citizenship will work in future. If grants of permission are made for periods, equivalent to current periods of leave to enter or remain, there may be problems. For example, the provisions for naturalisation continue to require that a person was in the UK “at the beginning of the qualifying period” (see clause 32). If (as is currently the practice) grants of permission are made for a period to match the relevant qualifying period, this will cause a problem if the permission period starts before the person has or could have arrived in the UK. Permission grants could be made for longer periods so as to allow for some leeway (eg grants now made in marriage cases)—but for how long? By requiring the person to be in the UK at the start of the relevant qualifying period, the proposal to grant permission before a person arrives may cause complication and/or require applications to extend permission for short periods of time for no better reason than the change in regime. This would add to administrative complexity. It would also, in several cases, add significantly to the fees individuals would be required to pay (see further discussion on clauses 190 to 191, below). The Explanatory Notes simply ignore this problem— see paragraph 53. An alternative would be to change the requirement that a person be in the UK at the beginning of the qualifying period.
Clause 7
As explained at paragraph 56 of the Explanatory Notes, the duty contained in clause 7 is new. The Explanatory Notes give no explanation for the creation of this duty. It appears to be wholly superfluous, since the requirements of clause 2 and the oVences contained in Part 7 (eg clauses 97 and 98) make clear the need to have permission; and the consequences of not having permission. Clause 7 on its face has no consequences for any failure to meet the duty; and were any consequences introduced this would create a double jeopardy or double punishment in respect of a person who was liable for the oVences in clause 97 and 98. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 60 Home Affairs Committee: Evidence
Clause 8 The Explanatory Notes (paragraphs 47 and 57) indicate that this power may be used to grant permission by order to those Commonwealth citizens who currently have the right of abode—see clause 8(2)(a). As highlighted in the discussion on clauses 1 to 3 (above), under the Immigration Act 1971 these citizens currently are free to enter and stay in the UK just as British citizens. By relegating their status to requiring permission, the Secretary of State proposes to take powers to grant or cancel permission for these individuals to come to or stay in the UK—whether doing so in respect of the whole group or particular individuals within the group. This would introduce insecurity into the situation of these citizens, whose entitlement to come and stay in the UK could be taken away by the Secretary of State at any time. She could do this in respect of the group by declining to exercise her powers under clause 8(2)(a) or exercising her powers under clause 8(5)(b); and in respect of an individual within the group by exercising her powers under clause 8(5)(c) and clause 14. Whether or not the Secretary of State exercised powers to cancel permission, it might be cancelled by the person remaining outside of the UK for two years (clause 13(1)); or the making of an expulsion order (clause 42(1)) or a travel ban (clause 47(2)). See also clause 203(1)(a).
Clause 9 This clause provides good example of over complication through over drafting. It is questionable whether any of this clause is needed. Clause 9(1) merely restates clause 2; whereas clause 9(2)(a) restates clause 10. Clause 9(2)(b) restates in advance what may be added by future legislation. Generally, this Part of the draft Bill appears overly complex by virtue of over drafting; for example, see clauses 5, 16 and 17.
Clauses 10 and 11 Clause 10(1)(a) includes a change, which is not highlighted in the Explanatory Notes. Currently, section 3(1)(c)(i) of the Immigration Act 1971 allows for restrictions on “employment or occupation” whereas the clause allows for restrictions on “work, occupation or studies”. Clause 10(1)(d) and (e) eVectively reproduce section 3(1)(c)(iv) and (v) of the Immigration Act 1971, as amended by section 16 of the UK Borders Act 2007. However, there have been significant changes in law since these conditions (of reporting and residence) were introduced by the 2007 Act; changes which were not highlighted in debate during the passage of the Bill. This draft Bill envisages further changes, which were not highlighted in those debates. The implications, therefore, of subjecting those permitted to be in the UK to residence and reporting conditions have become even more serious than when ILPA first opposed what became section 16 of the 2007 Act. A one-oV failure to report or immediately update the Home OYce with a change of address, however, inadvertent, minor or explicable would, under the provisions in the draft Bill, provide a ground for the person’s expulsion with no right of appeal; and future exclusion from the UK for a period of time (as yet unspecified)—see clause 37(2)(a) and (4)(d) and clause 171(3)(a); may require that person to eVectively restart his or her progress along the route (or five or eight years) to citizenship from the beginning—see clause 36; and may constitute a criminal oVence—see clause 99. Clause 11 empowers the Secretary of State to vary the conditions of a person’s permission by amending, cancelling or imposing any of the conditions specified in clause 10(1). This power is at large. This is not appropriate given that the power may be exercised at the motion of the Secretary of State (with or without forewarning to or the opportunity for representations from the individual) and the potential for intrusion on a person’s day-to-day life—eg by imposing a condition that he or she report weekly to the Secretary of State, a failure to comply with which could result in prosecution (clause 99), expulsion and the denial of any appeal right and a re-entry ban (see discussion on clause 37, below).
Clause 12 This clause essentially reproduces current provisions, but with consequences that have become more serious following recent developments in immigration law. Clause 12(4) precludes any further application for permission during time in which an earlier application to extend permission (and any subsequent appeal) remains pending. Clause 12(5)(a) allows the application to extend to be amended. The power to amend the application allows a person to submit further evidence that may strengthen or correct the application to extend. However compelling or significant that evidence, and however necessary or explicable its ‘late’ submission may be, the fact that it was not submitted immediately coupled with the exclusion of its founding a new application have serious and detrimental consequences for any appeal against a refusal of the application by precluding the Asylum and Immigration Tribunal (AIT) from considering the evidence—see discussion on clause 182 (below). Although the Explanatory Notes (paragraph 62) state that the purpose of clause 12(5) is to prevent misuse of the appeals system, there is no recognition (whether in paragraph 62 or 344) of the consequent impairment of the appeal right. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 61
Clauses 13 to 15 These clauses, together with clauses 12(3), 42(1) and 47(2), provide for circumstances in which a person’s permission is cancelled. The Secretary of State’s power to cancel permission is expressed in clause 14. The power is at large. The Explanatory Notes (paragraph 64) state that the grounds for cancelling permission will be set out in the Immigration Rules (for which see clause 21)—a draft of which is not currently available. However, the need for the power in clause 14 is not explained. As drafted, permission will be automatically cancelled if: (i) a person has remained outside the UK for a continuous period of two years or more (clause 13(1)); (ii) an expulsion order is made against the person (clause 42(1)); (iii) a person becomes subject to an international travel ban (clause 47(2)); (iv) a person’s permission has been extended pending a decision on an appeal or application for further permission and that person leaves the UK (clauses 12(3) and 15(3)); (v) a person’s permission has been extended pending a decision on an appeal or application for further permission and a final decision is reached (clauses 12 and 15); and (vi) a person is granted permission on a new basis or for a new period (clause 13(2)). Where no extension is applied for or granted, permission will cease when the period of permission ends (clause 4(2)). Given the extent of the circumstances in which an expulsion order may be made (see clause 37(2), (4) and 51—and in particular clause 37(4)(d), (e), (g) and (h)), what further circumstances produce any need for the Secretary of State to cancel permission?; and in any event such a wide power should not be left with the mere possibility of further elucidation by Immigration Rules—the clause does not itself require this. The provisions of automatic cancellation capture all the circumstances in which the leave to enter or remain is curtailed under current provisions. Moreover, permission would be likely to be cancelled in many cases under the provisions in the draft Bill when an expulsion order is made. This includes cases where there has been a breach of the conditions on which permission had been granted (clause 37(4)(d)), it is said that the permission was obtained by means of deception (clause 37(4)(e)) and the Secretary of State decides to act on a sentencing court’s recommendation for expulsion or otherwise concludes that a person’s expulsion will be conducive to the public good (clause 37(4)(g) and (h)). Even where an appeal is provided for (there are significant inadequacies in the provision for appeal rights—see discussion on clause 37, below) or some other remedy is found (eg by judicial review, or by representations to the Secretary of State), the consequences of the automatic cancellation of permission remain because mere reinstatement of permission under the provisions in the draft Bill will not close the break in permission that has been caused and any period during which a person’s presence will have been in breach of immigration laws. Accordingly routes to settlement or citizenship (see Part 3) and other entitlements under the immigration Rules or in other areas of law will be prejudiced. This will be so even where an appeal right is available and exercised because permission cannot be continued during the course of any appeal—clause 15 only provides for continuation where the permission is cancelled under clause 14, not where it is automatically cancelled (see clause 13). Fuller discussion of the problem of breaking the continuity of permission is provided in relation to clause 29 (below).
Clauses 16 to 20 These clauses set out provisions for transit permission; and in several respects mirror the provisions for immigration permission (discussed above). As with those earlier provisions, clause 16 provides powers at large to the Secretary of State to grant, cancel, impose conditions, amend or impose further conditions etc. in respect of transit permission. As with those earlier provisions, the breadth of such power is a matter for concern.
Clause 21 This clause must be read with clause 204. Together clauses 21 and 204 replace what is now section 3(2), Immigration Act 1971—with clause 204 providing the means whereby the Rules may be disapproved by either House of Parliament. The Explanatory Notes (paragraphs 69 and 307) do not identify, still less comment upon, the removal of the words “as appear to him to be required in all the circumstances” in the new provisions which would appear to reduce the link between the disapproval of either House to the particular changes that the Secretary of State must introduce in response.
Clauses 22 to 23 These clauses allow for designated control areas to be established (clause 22), and provide that on arrival by ship, aircraft or train a person shall not enter the UK until disembarking and leaving any designated control area (clause 23). Any regime for designated control areas must not interfere with or preclude a person’s capacity to seek asylum; and the protections against refoulement, including appeal rights that are attendant on this. So far as the legislation and Immigration Rules are concerned, these would need to ensure that entitlements and Processed: 23-04-2009 22:48:32 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 62 Home Affairs Committee: Evidence
protections are consequent upon a person’s arrival and not that person’s entry. As regards the draft Bill (and subject to the comments on disembarkation), this may be satisfactory. However, the need for practical safeguards so that a person is not prevented from making a claim will remain. Failure to comply with certain of the measures here constitutes a criminal oVence—see clause 103. Concerns relating to disembarkation, and requirements and powers in respect of captains of ships or aircraft, are discussed below (viz. clauses 54, 56 and 58).
Clause 24
The Explanatory Notes (paragraphs 74 to 76) provide little by way of elucidation of this clause. Essentially, clause 24 is expressly designed to reduce the oversight by Parliament of choices made by the Secretary of State in respect of whom is suitable and whom may be empowered to carry out the very wide powers set out in the draft Bill. Clause 24 may be contrasted with sections 1 to 4, UK Borders Act 2007. In that Act, new powers (to detain British and non-British citizens in respect of any suspected oVence whether related to immigration or not) were introduced. The section stipulated that only designated immigration oYcers were to carry out these powers, and certain conditions as to their suitability and training were to be met before their designation by the Secretary of State. By contrast, under clause 24 the Secretary of State may or may not choose to designate oYcials in respect of the equivalent powers set out in clause 57.
Part 2—Powers to Examine etc.
Part 2 establishes wide-ranging powers for the Secretary of State and her oYcials to interfere in the lives of British and non-British citizens. The eVect of Part 2 extends to the matters dealt with in Part 5 (detention) and, possibly, to matters dealt with in Part 3 (naturalisation); and other areas beyond the scope of the draft Bill.
Clauses 25 to 28
These clauses give very wide powers to the Secretary of State, and accordingly to oYcials acting on her behalf, to examine individuals to determine whether the person is a British citizen, an EEA entrant (see clause 3) or has permission to enter, stay or transit the UK. Clause 25(1)(b) applies to anyone at anytime after he or she has entered the UK. The Secretary of State is thereby empowered to examine anyone who has entered the UK (including British citizens) in order to establish their citizenship or immigration status; and may do so without the need for any suspicion, reasonable or otherwise, regarding the person’s citizenship or nationality. A person (including a British citizen) may simply be stopped in the street and required to demonstrate his or her nationality; and by virtue of having been stopped may by clause 25(3) be required to submit to medical examination. In the exercise of this power, that same person may be detained for such time as it takes to satisfy the detaining oYcial— see clause 53. Since a British citizen stopped or detained under these powers must prove his or her citizenship (see clause 1(2)), the draft Bill eVectively provides a power to immigration oYcials to stop the citizen on the street (and elsewhere) and demand the production of an identity card (once introduced) on pain of indefinite detention. Although proof could notionally be established by other means, it is entirely speculative that an oYcial exercising these powers would be satisfied with the production of anything less than a passport or identity card. Moreover, clause 28(3) makes explicit that production of “a valid identity document” may be required; and cause 28(2) that any information in a person’s possession must be provided on demand. Whereas clause 25(1)(b) requires that the person has entered the UK (although how the Secretary of State will know which British citizens she is stopping and detaining have remained in the UK throughout their lives, and which have at any time left and returned to the UK, is unclear), clause 26(1) allows her to examine anyone, anywhere in the UK—“at a port, international railway or other place in the United Kingdom” (underlining added). If she is to exercise her powers under clause 26(1), she must hold a reasonable suspicion that the person has gone to the place in order to embark to leave the UK—cf. clause 25 where no suspicions of any sort are required. Any person stopped under the powers in clause 25 may be required to submit to a medical examination— the type of and purpose for which is not specified in the draft Bill (clause 25(3)). Clause 27 means that an examination under clauses 25 or 26 may be repeated any number of times. Compliance with all of these measures is on pain of prosecution—see clauses 101 and 102. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 63
Clause 29
This clause must be read with clauses 53 and 63(3). These provisions are incoherent. Clause 29 empowers the Secretary of State to suspend the permission of anyone who is examined under clause 25 (discussed above). Whereas clause 29(3) provides that at the end of the examination the person reverts to having permission (unless it has expired or been cancelled). However, whereas clause 29 empowers but does not require the Secretary of State to suspend permission, if she exercises her power under clause 53 to detain a person who is examined under clause 25 that person’s permission will necessarily be suspended if he or she is granted bail (clause 63(3)). The suspension of permission may have a number of knock-on eVects—subject to other provisions in immigration legislation, Immigration Rules, policy guidance and instructions, and legislation and regulation in other areas of law. The naturalisation provisions in Part 3 of the draft Bill would not on their face be aVected by a suspension of permission, which was reinstated after an examination under clause 25, provided the period of suspension did not constitute a period during which the person was present “in breach of the immigration laws”. Where the suspension is caused by the grant of bail to a person detained, clause 63(5) will protect the person’s position. However, currently the draft Bill provides no similar protection if the Secretary of State suspends the permission under clause 29 but does not grant immigration bail under clause 63. It is not clear what is the purpose of the power of clause 29. It would seem that circumstances where the Secretary of State may regard suspension to be necessary are all covered by clause 63, in which case clause 29 should be deleted. More generally, the extent to which suspension of permission may adversely aVect an individual will further depend on the Immigration Rules or policy guidance and instructions (all of which are as yet not available, and may be amended from time to time without Parliamentary scrutiny—subject to clause 204 in respect of the Rules). Any element of the Rules or policy guidance and instructions, which is made dependent on continuity of permission, would be aVected by a suspension under clause 29 (or clause 63(3))—whether this relates to naturalisation or any other entitlement (eg to apply to extend permission). Moreover, welfare, housing, educational and employment opportunities etc. may all be adversely aVected by a suspension of permission. These problems are not addressed in the Explanatory Notes (paragraphs 85, 171 and 200). Given that the Secretary of State is empowered to detain a person who is being examined under clause 25, it is not clear why there is a need in clause 29 to suspend permission in any event. That power would enable the Secretary of State to deal with cases where there was any significant and immediate concern regarding the person’s continued presence in the UK with immigration permission. In all other cases, the better and least disruptive approach would be to leave the person’s permission intact pending resolution of the Secretary of State’s examination. Accordingly, clause 29 ought to be deleted.
Clause 30
This clause would empower the Secretary of State to introduce a regime where hoteliers and others with responsibility for premises where lodging or sleeping accommodation is provided (boarding schools and hostels may be included; as to how much further “premises” in these circumstances may stretch, that is not clear) must maintain records of all (British or otherwise) who stay there. The Explanatory Notes (paragraph 86) do not provide any further clarification, and it is not made clear why this power is thought necessary. However, the power is plainly a significant one since any failure to maintain such a record is on pain of prosecution.
Part 3—Citizenship
These provisions adopt proposals set out in the Path to Citizenship Green Paper. ILPA responded to that consultation, and our position remains as set out in that response. These provisions would introduce complexity and injustice. The full impact of what is being proposed is not registered by the provisions in Part 3, since there is an intention to further reduce access to any State provision to migrants on route to citizenship, and at the same time to tax them (for a migration fund). The extension of the time a migrant must spend before reaching citizenship (or its possibility) is recognised by these provisions; but the greater extension of time before a migrant may seek what is here called “permanent permission” is not set out in the provisions. The “probationary citizenship permission” status is identified here. It is no more than “temporary permission” by another name—the antipathy of simplification, the creation of a whole new status, which is no diVerent to a pre-existing and continuing status. The draft Bill also raises a range of potentially complex questions regarding transitional provisions that may be necessary for those already on a route to citizenship. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 64 Home Affairs Committee: Evidence
Clauses 31 to 34
Clause 31 introduces two new categories of person who may qualify to naturalise as British citizens. However, the first of these—those “having an association with a British citizen” (new section 6(5)(b) and (7))—excludes relationships that have broken down for reasons other than the British partner’s death or in circumstances where the British partner has harmed the other. The second new category—“dependant relative” of a British citizen is not defined here. The requirement in clauses 32 and 33 that a person be present in the UK “at the beginning of the qualifying period”, which appears in the amendments to Schedule 1 of the British Nationality Act 1981 (clauses 32 and 33), is not new. However, in the revised permission regime it may cause new problems—see discussion on clause 5(3) (above). Clause 34 may be a first for a simplification project—adding algebra and equations into statute (perhaps clause 32 and 33 should be amended to include suYcient knowledge of mathematics within the fourth and fifth requirements respectively?). The “activity condition” (referred to as “active citizenship” in the earlier Green Paper) remains a license for discrimination, exploitation and confusion. In its response to consultation, the Government stated: “We accept there are considerable practical issues to resolve to ensure the proposal can operate eVectively. But we remain of the view that this is a very positive reward for migrants who integrate into British life. It is not compulsory. It is simply incentivising an outlook and attitude which we think is positive for Britain. Just as we do today encourage our young people to become active citizens, so too we should encourage our migrants.”79 This is disingenuous—particularly in the light of the proposals to prolong and extend the period of time in which migrants are to be excluded from various State provision; and from seeking “permanent permission”. Encouraging active participation in society could be done perfectly well (indeed better) by making opportunities available, including by providing rather than taking away State support, just as it is done for “our young people”. What is proposed here is a penalty for not doing something. The provisions relating to “prescribed oVences” are a further cause for concern. It is left unclear just what impact this may have because the only information given as to Z is that it is a variable. As for when it will take eVect, it is significant to note new paragraph 4A(6) meaning that some people (to be prescribed) will suVer the eVect of Z by reason of their “connection” to an oVender.
Clause 36
Clause 36 on its face excludes any time spent on immigration bail (currently known as temporary admission) from the period of time towards citizenship or permanent permission (new section 50A(2))—for the purposes of naturalisation and registration (of British overseas territories citizens, British Overseas citizen, British subjects or British protected persons—see new section 50A(1)(a)). It also potentially excludes time in which a person is in breach of a condition of immigration permission, however minor or inadvertent that breach may be (see discussion on clause 10, above). Moreover, by new section 50A(1)(b), clause 36 removes all persons on immigration bail (temporary admission) from the meaning of “ordinarily resident in the United Kingdom” for the purposes of the British Nationality Act 1981—this appears to relate to section 50(4) of that Act (concerning a child born to a person currently exempt from immigration control under section 8(3), Immigration Act 1971).
Part 4—Expulsion Orders &Removal etc. from the UK
Part 4 makes two fundamental changes to current provisions. Firstly, it replaces two distinct regimes with one. Currently administrative removal is used for most removals from the UK; whereas deportation is used in cases where the person’s presence is considered to be not conducive to the public good. The importance of the distinction has been the consequences for the individual which flow—with the latter facing exclusion from the UK unless and until the deportation order is revoked. This distinction has been significantly blurred following the introduction without consultation of changes to the Immigration Rules in April 2008. Part 4 abandons the distinction altogether. Secondly, it replaces the regime whereby notice is given of a decision to remove or make a deportation order (prompting the opportunity to make representations or bring an appeal) and the removal directions or deportation order are made later. The new regime would mean that the expulsion order is made without any earlier notice of a decision to make the order. This has important consequences for the individual whose permission may be cancelled unexpectedly and without adequate redress—see discussion on clauses 13 to 15 (above).
79 See The Path to Citizenship: Next Steps in Reforming the Immigration System—Government Response to Consultation, July 2008 at p18. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 65
Further fundamental inadequacies of the provisions of Part 4 are the failure to remedy misapplications of the 1951 Refugee Convention in respect of Art 1F and Article 33.2 currently adopted by section 54, Immigration, Asylum and Nationality Act 2006 and section 72, Nationality, Immigration and Asylum Act 2002 respectively. These failures render the draft Bill’s protections in respect of the non-refoulement of refugees inadequate for the Convention’s purposes; and also contribute to the unlawfulness of the special immigration status provisions (also not addressed in the draft Bill) set out in sections 130 et seq, Criminal Justice and Immigration Act 2008.
Clause 37 Clause 37 introduces the “expulsion order” regime which is to conjoin and replace administrative removal and deportation. It raises several concerns. One of the consequences of the introduction of the expulsion order regime is that a series of administrative applications and decisions will be introduced for a much larger group of people. A person who is made subject to an expulsion order, who wishes to return to the UK, will now need to apply to have the order cancelled [first stage], if that is refused appeal against the refusal [second stage] and if either the application or appeal is granted make an application for permission [third stage]. This introduces a two or three-stage process for what is currently a one-stage process for all those who are simply made subject to administrative removal. Clause 37(1) and (6) mean that anyone required to leave the UK will also receive a ban on his or her return to the UK for an unspecified period of time, but a period which may be unlimited. Clause 37(2) empowers the Secretary of State to make an expulsion order in certain circumstances (clause 37(2)(a) and (c)), and requires her to do so in other circumstances (clause 37(2)(b)). The only express time limit on the power or duty is that provided by clause 41(5). This applies to non-British citizen family members of individuals in respect of which an expulsion order is made. However, even that time limit is defective where the expulsion order made against the individual is made at a time when he or she is outside of the UK (see clause 37(5)). In these circumstances, there is no time limit on when his or her family members may be subject to an expulsion order. As regards expulsion orders made under clause 37(2)(a), certain of the circumstances listed at clause 37(4) for when the power may be exercised may in practice produce a time limit. However, even this is unsatisfactory. For example, clause 37(4)(d) would empower the Secretary of State to make a deportation order at any time during the period of a person’s permission if that person had breached a condition of that permission. Where someone has been granted permission for four years, and breached a condition of that permission during the first few weeks of its duration, the Secretary of State would remain empowered to order the person’s expulsion throughout the remainder of those four years—it would not matter that the Secretary of State was made aware of the breach at the time or immediately after it was made. A wholly explicable failure to report (eg because of illness, hospitalisation or serious transport problems) would leave the individual under a Damoclean sword. This is made all the more serious by virtue of clause 171 (discussed below) which would preclude any appeal right if the order was made, however unreasonably; and clause 15 (discussed above) which would mean that any remedy obtained (whether or not an appeal right is reinstated) would be inadequate even if it was concluded that the expulsion order was wrongly made. The requirement to make an expulsion order under clause 37(2)(b) is similarly without time limit. Quite apart from the inelegance of clause 37(9) (which appears to be a statement of the obvious—an order is made when it is made), this would lead to serious administrative diYculty and injustice. A person whose expulsion is exempted by reasons set out in clause 38 (eg the person’s removal from the UK is contrary to human rights or European Communities law) would nevertheless remain under a “sword of Damocles” for the remaining years or decades of his or her time in the UK (which might be his or her lifetime). The Secretary of State would be required to keep this person’s circumstances under constant review pending a time when the relevant exception in clause 38 no longer applies—this could be many years into the future. A similar problem exists in respect of those within certain of the exceptions in clause 39 (eg the mental health orders— Exception 3). As regards clause 37(2)(b), a mandatory requirement to make an expulsion order is unnecessary and inappropriate—see further the discussion on clause 51 (below). Clause 37(4)(a) would result in an expulsion order being made in respect of a person who is refused permission to enter the UK, albeit having travelled to the UK in good faith in the belief that he or she would be granted entry—eg where the person mistakenly thinks that he or she may be granted entry as a student or business visitor, but on examination it is decided that he or she can only gain entry for the intended study or business under the Points-Based System. As the Explanatory Notes explain (paragraphs 119 and 122) clause 37(1)(b), read with (6) and (7), introduces a scheme of mandatory re-entry bans in respect of any person in respect of whom an expulsion order is made. This will catch any person who is required to leave the UK—including where that person is turned around at port (clause 37(4)(a)), has committed a minor or inadvertent breach of conditions on his or her leave (clause 37(4)(d)) or is refused asylum (clause 37(4)(a)). The Explanatory Notes indicate that the length of the bans will be subject to “guidelines” in the Immigration Rules. The introduction of such bans Processed: 23-04-2009 22:48:32 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 66 Home Affairs Committee: Evidence
was first made by HC 321 Statement of Changes in Immigration Rules in April 2008, in respect of which ILPA set out several objections in briefings; and the Government introduced a series of concessions80. The Home OYce has also previously raised objections to such bans81. Although the details of the proposed regime remain unknown since the guidelines are not available, the regime in principle retains the same flaws identified in previous ILPA briefings and Home OYce objections. In any event, in clause 37(6) the words “or an unlimited period” should be deleted. The aim of clause 37(11) could more simply be achieved by amending clause 37(2) to include the words “Subject to section 38 and section 41,” before “the Secretary of State”.
Clause 38
In clause 38(1), the words “the Secretary of State thinks that” should be deleted (cf. clause 39(3) and (4)). In clause 38(6)(a) the words “or amend existing exceptions” should be deleted. The Explanatory Notes (paragraph 124) provide no reason for this provision. Where the Secretary of State wished to expand any exception, this could be achieved by adding an exception. Hence, the power to amend can only be needed if it is intended to restrict an exception. Given that these exceptions are all expressed as arising only where to fail to apply the exception would result in a breach of the UK’s international law obligations, there is no justification for allowing the Secretary of State to restrict an exception (ie allow for breach of those obligations) by mere order. See also clause 203(1)(b).
Clause 39
In clause 39(2) the words “the Secretary of State thinks that” should be deleted (cf. clause 39(3) and (4)). The words “commission of the oVence” should be substituted for “conviction”. The exception in clause 39(5) should be amended and moved to clause 38, with consequential amendments for clauses 39(6) and 43(3). It should read: “Exception E applies where removal of P from the United Kingdom in pursuance of an expulsion order would contravene the United Kingdom’s obligations under the Council of Europe Convention on TraYcking in Human Beings”. Clause 39(6)(b) is superfluous and should be deleted.
Clause 40
If the power of a sentencing court to make a recommendation for a person’s expulsion is to be retained, the power ought to be given some meaning. Currently, the Secretary of State is free to decline to follow a recommendation and free to order deportation where a recommendation has not been made. If the power to make a recommendation is to be given meaning: where a court chooses not to exercise the power, this ought to be a relevant factor against the making of an expulsion order. In any event, the stipulated age in clause 40(1)(c) should be raised to 18 years or over in recognition of the duty upon the State to seek to rehabilitate and reintegrate juvenile oVenders—see the decision of the Grand Chamber of the European Court of Human Rights in Case of Maslov v Austria (1638/03), 23 June 2008 (paragraph 83); and Article 40 of the 1989 UN Convention on the Rights of the Child. Clause 40(6) should simply be deleted. If the person is not of the requisite age, the sentencing court should have no power to make the recommendation. That it may do so in error as to the person’s age ought to render the recommendation a nullity; and the recommendation ought not to be acted upon.
Clause 41
See the discussion on time limits in relation to clause 37 (above).
80 Concessions were announced during debates in the House of Lords on 17 March 2008 and in the House of Commons on 13 May 2008. These concessions eVectively introduce some limited transitional arrangements, and exempt certain individuals from the eVect of the re-entry bans including those who had come to the UK as victims of traYcking or children, those whose immigration status was regularised after they had breached immigration laws and those who were seeking to return to join family in the UK. 81 In evidence to the House of Lords Select Committee on the European Union (see the Committee’s Thirty Second Report of the Session 2005–06, paragraphs 127–128), the Home OYce indicated that it considered re-entry bans (which had been proposed by the EU) to be arbitrary. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 67
Clauses 42 and 43 Clause 42(1) means that the making of an expulsion order will cancel any permission the individual had. However, the expulsion order may be cancelled—clause 43(1). Where the order is cancelled, provision should be made for the cancellation of permission to be nullified—otherwise an inappropriate or wrong decision to make an expulsion order may prejudice the individual even after the Secretary of State has accepted that the order was inappropriately or unlawfully made. Fuller comment is provided in discussions on clause 15 and clause 29 (above). In clause 43(3)(a), the words “the Secretary of State thinks that” should be deleted (cf. clause 43(3)(b)). Clause 43(4) requires further consideration in relation to clause 52—see below.
Clause 44 Clause 44(4) provides a similar list of potential destinations to that currently given in paragraph 8(1)(c), Schedule 2, Immigration Act 1971. Nevertheless, the list is not satisfactory. The Explanatory Notes (paragraphs 145 to 149), for instance, give no explanation as to why it is considered appropriate to direct a person’s removal to a country where there is reason to believe he or she will not be admitted (or no reasonable grounds to believe he or she will be admitted) simply because the person has obtained some form of identification document in that country or he or she embarked in that country for the UK. In either situation, the provisions here run the risk that an individual is simply bounced between countries. That of itself is objectionable—when coupled with new powers and requirements that raise their own concerns (see discussion on clauses 54, 56 and 58, below) and the concerns raised in respect of clause 45 (below), there is good reason to think that it is unsafe for the individual concerned, any escort, crew and other passengers. Clause 44 appears designed to retain the power to leave open the destination, route and timing of removal at the point the expulsion order is made. It does not provide for service of the removal directions on the individual; and thereby broadens considerably the current practice of removing unaccompanied children to EU countries under Dublin II arrangements and those said by the Secretary of State to pose a suicide risk without informing them or those representing them.
Clause 45 This clause begs the question—by whom may the person be placed on the ship, aircraft or train? This concern is made especially significant given the current controversy over the handling of removals as presented by the joint report of Birnberg Peirce & Partners, Medical Justice and NCADC: Outsourcing Abuse, July 2008.
Clause 46 As drafted, this clause empowers the Secretary of State to make a double recovery of the costs of complying with removal directions—against both a carrier (clause 46(2) and (3)) and the individual (clause 46(4)). As regards the proposal inherent in clause 46(4) that individuals may be required to pay the costs of their removal in order to be able to re-enter the UK, it was less than three years ago that the Government described such a proposal as “outrageous”82.
Clause 47 Clause 47 introduces provisions for automatic cancellation of a person’s permission if he or she is “subject to an international travel ban”. This may emanate from a resolution of the Security Council or instrument of the European Union; and is to take eVect by the Secretary of State amending the Immigration Rules. The general scheme would serve to exclude a Commonwealth citizen who currently has the right of abode—whether or not that person is currently in the UK or seeks to enter the UK. Clause 47(3) provides an exception where to exclude a person from permission to be in the UK would contravene the Human Rights Act 1998. However, the clause does not provide a similar protection for a person whose removal from the UK would be contrary to the 1951 Refugee Convention—despite the fact that it does not follow that, because either Security Council or European Union had imposed or
82 In evidence to the House of Lords Select Committee on the European Union, the then Minister for Immigration, Tony McNulty MP, gave the follow comment upon such a proposal made by the European Union: “…at the risk of sounding intemperate, that was probably one of the most outrageous suggestions in the whole Directive, that somehow if you paid for your return, you would be treated in a diVerent way to if you did not. I just cannot see the public policy call of that at all.” See the Committee’s Thirty Second Report for the Session 2005–06, paragraph 130; and Minutes of Evidence for 1 March 2006, Q428. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 68 Home Affairs Committee: Evidence
recommended a travel ban against the individual, a person would either be excluded from the general protection of that Convention (eg under Article 1F) or against refoulement (eg Article 31.2). As currently drafted, clause 47(3) is not compliant with the UK’s international obligations under that Convention. As regards the propriety of giving eVect to a travel ban by way of Immigration Rules (clause 47(4)), it is noted that clause 204 means that the exclusion of the person would take eVect prior to the possibility of Parliamentary scrutiny. In clause 47(7), both “(however that requirement is expressed)” and “(however that recommendation is expressed)” should be deleted. Neither expression is necessary for the provision. The second, in particular, is an open invitation for misapplication or misinterpretation as to whether a resolution of the Security Council or instrument of the European Union does make any such recommendation.
Clause 48 In clause 48(a) the words “an immigration decision (see section 164)” should be substituted for “the decision (see section 171)”. The current drafting only precludes removal where the person can bring or has pending an appeal against the making of the expulsion order. This must be read with clause 171; and the current drafting is not compliant with either the 1951 Refugee Convention or the Human Rights Act 1998. An in-country appeal can only be brought under clause 171 if the person had permission at the time the order was made. Under the provisions of the draft Bill, the majority of asylum-seekers will likely be on immigration bail or in detention—hence the making of an expulsion order will not provide them with an in- country right of appeal. Although if the asylum-seeker is refused permission, he or she will usually have an in-country right of appeal, this will not of a type provided for by clause 171. Hence clause 48 does not currently provide the protection against refoulement that it ought.
Clauses 49 and 50 In many respects these provisions replicate sections 58 and 59, Nationality, Immigration and Asylum Act 2002. However, there are significant variances; and (with the exception of the inclusion for traYcking victims within the provisions for assisting a voluntary return within the EEA—clause 49(3)) these are not identified in the Explanatory Notes (paragraphs 156 to 159). Section 58(1)(c) of the Act is here replaced by clause 49(1)(c), from which the phrase “that it is in the person’s interests to leave the United Kingdom and” has been deleted following the words “thinks”. That previous phrase may explain why “thinks” was considered suitable to be included; but whatever is the true explanation of that inclusion, “thinks” should be replaced either by an equivalent of reasonable grounds to believe or a requirement for the person to have formally expressed or registered his or her wish. Reference to “country” or “countries” is made in clause 50(1)(c), 2(b) and 3(a). The former of these is a change from section 59(1)(c) of the Act, which refers to “States”. The change significantly extends the Secretary of State’s powers to participate in migration projects with territories which are not recognised as States—examples in recent years might have included Kosovo under the control of UNMIK or the area in northern Iraq under the control of the Kurdish Regional Government and its predecessors (including at times, depending on the particular part, the Kurdish Democratic Party and Patriotic Union of Kurdistan). Clause 208(1) provides the definition of “country”. Whereas that definition has previously been used in the Immigration and Asylum Act 1999, it was not adopted by the Nationality, Immigration and Asylum Act 2002 whether for section 50 of that Act or otherwise. Whereas the reference to “hoping to settle” in clause 50(3)(a) does reproduce what is in section 59(3)(c), “hoping” is not suitable statutory language and “with the intention to settle” should be substituted.
Clause 51 Clause 51, as stated by the Explanatory Notes (paragraph 160), does replicate provisions in the UK Borders Act 2007. As ILPA has previously expressed, the deportation regime introduced by that Act is unnecessary and inappropriate. Moreover, the regime is founded upon a fundamental misinterpretation of the 1951 Refugee Convention—currently set out in section 72, Nationality, Immigration and Asylum Act 2002—in respect of what is under that Convention “a particularly serious crime”.
Clause 52 Unless a definition is to be provided for the meaning of “ceasing to be a member of the family” in clause 43(4)(a), clause 52 requires further consideration. It is readily apparent that a spouse or civil partner can cease to be a family member by way of divorce or annulment of the partnership. An unmarried or same sex partner has no such choice since, according to clause 52(2)(b) and (c) the relationship becomes crystallised for all time if the relationship existed at the time when the other partner was detained. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 69
The words “may be treated as” in clause 52(5) are not appropriate. It is noted that the meaning of “member of the family” provided by this clause will have consequences for the provisions in clause 49 in addition to the provisions for expulsion in clauses 37(2)(c) and 43(4)(a).
Part 5—Powers to Detain &Immigration Bail The imbalance in the draft Bill between the powers granted to the Secretary of State and the protections made available to individuals who may be subject to those powers is particularly marked in Part 5. This Part concerns powers to detain, yet there is no recognition of the presumption of liberty, which in clause 55(4) is expressly reversed and in other provisions is seriously undermined. The provisions here on detention remain deficient for the continued failure to provide for an automatic bail hearing (eg the provisions for routine bail hearings provided by Part 3 of the Immigration and Asylum Act 1999 which were never commenced, and have since been repealed) and the continued power to detain children.
Clause 53 As noted in the discussion of clause 25 to 27 (above), this clause will empower the indefinite detention of a person, including a British citizen, pending production of a valid identity document.
Clauses 54, 56 and 58 Clause 54 empowers the Secretary of State to require the captain of a ship, aircraft or train to prevent a person from disembarking in the UK; and empowers the captain to detain the person on board. The exercise of these powers, however, risks violation of Article 33 of the 1951 Refugee Convention if a person, detained on board, is prevented from making his or her asylum claim. It is unclear (and the Explanatory Notes) provide no explanation as to what steps the captain may take for the purpose of detaining the person “in custody”. As such the provisions appear to abrogate the responsibility of the UK towards a person in its jurisdiction under Article 5, Human Rights Act 1998; and it may be questioned how the unsupervised and unregulated detention by the captain, in these circumstances, will be compatible with the right to liberty under that Act. It appears that the captain will be in an invidious position—he or she will have powers to detain “in custody” on the ship, aircraft or train which, for various reasons, he or she may well feel unsuited to exercise (clause 54(3)); yet will be obliged to prevent disembarkation (clause 54(2)) on pain of prosecution (clause 115). It may be questioned how safe such arrangements may be for the detainee, the crew or other passengers. Clause 56 raises similar concerns. Clause 58 begs the question as to who will exercise such powers; and similar concerns as clauses 54 and 56 as to the suitability of the persons authorised to do so.
Clause 55 In clause 55(1), (2)(b) and (4), “has reasonable grounds to believe” should be substituted for “thinks” (cf. clauses 49(3)(b) and 57(1)). When exercising powers in relation to expulsion and detention it is vital that the Secretary of State should act on the basis of reasonable grounds, and the statutory provisions must reflect that. Clause 55(2)(a) and (b) empowers the Secretary of State to detain a person indefinitely while considering whether there is a duty to make an expulsion order under clause 37(2)(b) and, if she concludes that there is, pending her making that order. Some limitation of time ought to be included—whether by including a fixed time limit or a term such as “…for a reasonable time in order to…”. Clause 55(4) reverses the ordinary presumption in favour of liberty. It is inappropriate; and ought to be deleted. Detention should never be continued unless the Secretary of State has satisfied herself that there are reasonable grounds for it to be continued.
Clause 56 See discussion on clauses 54 (above). Processed: 23-04-2009 22:48:32 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 70 Home Affairs Committee: Evidence
Clause 57 This clause, which reproduces the powers in sections 1 to 4, UK Borders Act 2007, is a policing power. Those who may be detained under the powers in this clause may be British citizens; and the reasons for their detention may have nothing to do with immigration or immigration oVences. The reach of these powers stretches far beyond ports—see clause 57(5); yet there is no explanation as to why immigration oYcials rather than police oYcers should need to be exercising such powers, particularly at places other than ports.
Clause 58 See discussion on clause 54 (above).
Clause 59 Clause 59(2) and (4) should be deleted. Immigration Removal Centres and short term holding facilities have been established as places of detention; and the safety and welfare of detainees is intrinsically connected to the proper establishment of places of detention. That a person should be “detained in such places as the Secretary of State may direct” (clause 59(2)) is merely an unnecessary invitation to detain individuals in unsuitable places leading to risks for the individual, oYcials and staV at the place of detention and members of the public. A person’s detention is either lawful or it is not—the proposition that a person’s detention may be deemed lawful is absurd (clause 59(4)).
Clause 60 In clause 60(2) the words “or as soon as is reasonably practicable after that” should be deleted. The Explanatory Notes give no reason why written reasons should not be provided at the commencement of detention. These additional words merely add to problems elsewhere in these provisions (see discussion above on clause 55) whereby the Secretary of State is encouraged to adopt the position that she may tarry at will while a person is or remains detained. Monthly review of detention under immigration powers (clause 60(3) and (4)) is grossly inadequate.
Clause 62 Clause 62(2)(b) means that a person, including a British citizen, detained on arrival in the UK (see discussion on clauses 25 to 29 above) may not seek immigration bail from the Asylum and Immigration Tribunal (AIT) for at least seven days. Moreover, clause 60(3) and (4) mean that the Secretary of State will be under no obligation to review the detention during that time. Clause 62(2)(c) requires the AIT to obtain the consent of the Secretary of State before granting bail in circumstances which are vague—“the person’s removal from the United Kingdom is imminent”. It is objectionable per se that the AIT should require the Secretary of State’s consent in order to grant bail. In the UK Border Agency’s current consultation on “Immigration appeals: Fairer decisions, faster justice” respect for the AIT is identified as one of three key aims of the proposals there made (see paragraph v of the Foreword). If the AIT is to have respect, it needs to be and be seen to be independent of the Secretary of State; and a provision such as this will undermine that. The meaning given by clause 62(3) to “relevant pending appeal” is inadequate. Firstly, clause 188 (see below) is currently inadequate in failing to deal with onward appeal rights. Secondly, appeals under the British Nationality Act 1981 or under EEA regulations (currently, Immigration (European Economic Area) Regulations 2006) are excluded. Thirdly,provision will need to be made for whatever is to replace the Special Immigration Appeals Commission Act 1997. As stated in the Explanatory Notes (paragraph 192), the provisions in clause 62(4) do largely replicate the conditions which may be imposed on immigration permission—see discussion on clause 10 (above). Clause 62(6) lists factors that the Secretary of State or AIT must have regard to if considering a grant of bail. However, clause 62(6)(f) is a catch all. If this is to remain then (a) to (e) are superfluous. If (a) to (e) are to remain, (f) should be deleted. Moreover, there are plainly other factors that ought to be included in any list—eg age, health, pregnancy, history of torture or traYcking, dependent children, connections to the UK etc.. In any event, (e) should be deleted; and (d) is in need of amendment if it is to be retained. Immigration powers of detention are not suited for such matters as might fall within (e). The examples given in the Explanatory Notes (paragraph 194) do not demonstrate the need or propriety of this provision since there are other non-immigration powers that would be relevant, and which would be exercised by those specialist in making such decisions. It is inappropriate to be speculating on whether a person’s presence is “conducive to the public good” as envisaged by the word “likelihood” in (d). However, if the conducive ground is amended, it is questionable as to why (b) is necessary (and see discussion on clause 62(7)(b), immediately below). Processed: 23-04-2009 22:48:32 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 71
Clause 62(7)(b), when read with clause 62(6), means that convictions outside of the UK must be taken into account. This is regardless of their relevance or safety, regardless of how long ago they were committed and regardless of the fact that these convictions may constitute the past persecution that a refugee has suVered at the hands of the State from which he or she is fleeing. Clause 62(8) and (9) begs the question—when will the notice be given in these circumstances?
Clause 63
As regards the clause 63(3) to (6), this raises concerns addressed in discussion on clause 29 (above). More generally, clause 63 exposes the underlying failure to address the stated aim of plain English in relation to immigration bail. Many individuals currently on temporary admission have never been detained and never will be detained; and moreover the detention of some of these individuals may be unlawful. It is misleading, therefore, to describe these individuals as on immigration bail. Clause 63 also, in terms, provides that a person on immigration bail is not in the UK unlawfully, but is not here with permission and is not authorised to be here. The discussion on clause 1 to 3 (above) relates to this. If terms in the draft Bill are chosen to provide an ordinary English meaning, this ought to be done consistently. If it cannot be done consistently, the use of such terms ought to be reconsidered—in particular, where (as with permission and immigration bail) the scheme created is dependent on the meaning of more than one term and these terms when considered together can be seen not to provide a plain and accurate English meaning (even where on its face, one or other term appears to do so).
Clause 64
This clause requires that any recognisance of an individual on immigration bail, or any recognisance of a surety for that individual, be deposited with the Secretary of State or the Asylum and Immigration Tribunal (AIT). Currently, a recognisance is given by the individual or surety signing the appropriate form and thereby promising that the recognisance may be forfeit if the conditions of bail are not complied with. Since immigration bail is to apply to anyone who would under current arrangements be on temporary admission, this clause would introduce a regime whereby the Secretary of State (and/or the AIT) could be holding indefinitely a variety of sums of money in respect of tens or hundreds of thousands of individuals. This raises several questions. What administrative capacity does either the Secretary of State or the AIT have to manage these transactions and hold these monies? What would happen to interest earned on the money— money that could be held for months or years? When will money be returned? If money is not returned promptly, what compensation may be available from the Secretary of State or AIT in respect of any consequences to the individual of being wrongly deprived of his or her money? If money is not returned, can an individual be expected to leave the UK? If waiting for the return of money, what will be that individual’s status in the UK? What steps will be taken to ensure that such a regime does not lead to individuals returning to certain countries being habitually stopped and demanded to hand over money on their return in the expectation that they will be holding cash? What will happen where someone has given a recognisance immediately prior to the commencement of this provision: will he or she be required to now deposit money? In clause 64(2) “it is necessary to ensure” should be substituted for “the Secretary of State or the Tribunal thinks it appropriate with a view to ensuring”.
Clauses 65 and 66
Clause 65 makes changes to the current provisions contained in section 36, Asylum and Immigration (Treatment of Claimants, etc.) Act 2004; and these changes are neither identified nor explained in the Explanatory Notes (paragraphs 205 to 209). Electronic monitoring is no longer tied to other conditions. It is merely the Asylum and Immigration Tribunal that the Secretary of State is required to notify of the availability of electronic monitoring arrangements in an area (clause 65(7)—and see clause 66(2)). The regulation making power (clause 65(3) to (5)) which is by reference to clause 202(2) empowers the Secretary of State to make “supplementary,… transitory or saving provision” in addition to the “incidental, consequential or transitional provision” she may currently make under section 36(8)(b).
Clause 67
Having regard to those who will be subject to immigration bail, “must” should be substituted for “may” in clause 67. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 72 Home Affairs Committee: Evidence
Clause 68 In contrast to its bland presentation in the Explanatory Notes (paragraphs 211 to 212), clause 68 provides for radical changes to the current arrangements for bail. Clause 68(1) would allow the Secretary of State to amend or add to the conditions of immigration bail granted by the Asylum and Immigration Tribunal (AIT). The only limitation is in clause 68(2)(a) which means that the Secretary of State may not cancel a condition which the AIT has imposed. On the face of the provision, the Secretary of State would be free to impose (by variation) significantly harsher conditions of bail than the AIT had granted. Clause 68(1) and (2)(b) provides a similar power to the AIT in respect of conditions of immigration bail granted by the Secretary of State. However, given the AIT is meant to be the body providing independent judicial oversight, it is both curious that the AIT may not cancel conditions which it considers to be superfluous (the Secretary of State could presumably expect to have the opportunity of being heard by the AIT as to why she considered any condition to be necessary), and that the Secretary of State should have power over the conditions of immigration bail granted by the AIT (again the Secretary of State could presumably expect to have the AIT consider any representations she wished to make in respect of conditions). The discussion on clause 62 (above), which refers to the current consultation, is relevant here.
Clause 70 As the Explanatory Notes (paragraph 214) state, this clause replaces section 67, Nationality, Immigration and Asylum Act 2002. However, on 16 June 2005, the House of Lords unanimously ruled that section 67 was otiose83. No explanation is given as to why, if section 67 is otiose, clause 70 is needed. It is not, and should be deleted.
Part 6—Detained Persons and Removal Centres These provisions largely replicate provisions in the Immigration and Asylum Act 1999, though with some significant omissions and additions. Existing provisions, which are here neither reproduced nor replaced, include (all provisions are from the Immigration and Asylum Act 1999): — Section 158 (oVence of oYcial or private contractor’s employee disclosing confidential information). — Paragraph 3, Schedule 13 (insofar as it relates to delivery of a person to a removal centre—cf. clause 74). — Paragraph 1(2)(d), Schedule 13 (requiring the escorts monitor to investigate individual allegations—cf. clause 72). — Section 149(7)(b) (requiring contract monitors to investigate individual allegations—cf. clause 77). — Paragraph 1, Schedule 12 (measuring and photographing detained persons). — Paragraph 2, Schedule 12 (testing detained persons for drugs or alcohol).
Clauses 71 to 75 “Arrangements” is the language used in the existing legislation. However, it appears a very woolly term. Clause 71 replaces and largely replicates section 156, Immigration and Asylum Act 1999. Clause 71(4) adopts the provision currently in section 154(6) of that Act. In clause 71(5)(b), the words from “who are certified” to “Northern Ireland),” may be deleted in view of the following subclause. Clause 71(6) provides definitions for the purposes of “this Act”—if it is to have such a broad application, it ought not to be tucked away in clause 71 but should be included in clause 208(1). Clause 71 empowers but does not require the Secretary of State to make certain arrangements. Whereas the provision envisages that escort functions under any such arrangements may be carried out by certain authorised persons, there is no requirement for these functions to be carried out by them. Clause 72 replaces paragraph 1, Schedule 13 to the Immigration and Asylum Act 1999, but with the following omission from the list in clause 72(2): “(d) investigate, and report to the Secretary of State, on any allegation made against a detainee custody oYcer or prisoner custody oYcer in respect of any act done, or failure to act, when carrying out functions under the arrangements”. The Explanatory Notes (paragraph 215) neither identify nor explain this omission, but the statement that these provisions provide “a regulatory framework for the movement and escorting of detained persons which is designed to be transparent and to safeguard staV, detainees and members of the public” is significantly devalued by the omission of a power to investigate and report on allegations. It may be (it is not said) that the intention here is that such matters
83 See R v SSHD ex parte Khadir [2005] UKHL 39 Processed: 23-04-2009 22:48:32 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 73
will be dealt with by the Independent Police Complaints Commission, but this would require that the allegation was of a particular severity so may omit investigation of lesser complaints. A similar omission is made in respect of clause 77. Clause 73 replaces paragraph 2, Schedule 13 to that Act. The power to search a detainee or another person is not restricted by the need to have any purpose or reasonable suspicion for the search (clause 73(1)), but is at large. Clause 74 replaces paragraph 3, Schedule 13 to that Act—but only insofar as it applies to persons who are delivered to a prison. Clause 75 allows a transfer of a detainee under mental health arrangements to be carried out by someone other than a person authorised to escort the detainee and otherwise than under “escort arrangements”. This may be done provided “all that is reasonable to secure that the function is exercised” by an authorised person is/has been done. It is a new provision. The Explanatory Notes (paragraph 219) are wholly bland, explaining neither what the clause does nor why it is needed.
Clauses 76 to 78 These clauses largely replace sections 149 to 150, Immigration and Asylum Act 1999. A significant omission is section 149(7)(b), which currently requires a contract monitor to investigate and report upon allegations—see also discussion on clause 72 (above).
Clauses 86 to 90 These clauses essentially adopt provisions in paragraphs 3 to 8, Schedule 12 to the Immigration and Asylum Act 1999. There are some linguistic changes—“assists” is substituted for “aids” and “brings” for “conveys”.
Clauses 93 Clause 93 replaces paragraphs 4 to 6, Schedule 11 to the Immigration and Asylum Act 1999. The word “intentionally” is substituted for “wilfully”—see clause 93(2).
Part 7—Offences It must be noted that neither all provisions which relate to oVences nor all oVences in the draft Bill appear in Part 7. Clauses 90 and 193 to 198 relate to oVences. Clauses 30, 86 to 89, 92, 93, 160 and 185 provide for oVences. The oVences included here in certain respects add complexity and duplication. Section 24, Immigration Act 1971 is replaced by six clauses (clauses 97, 98, 99, 102, 113 and 116). There is significant overlap between clauses 110 and 97 and 98, 117 and 97.
Clause 97 This clause essentially replaces what is now section 24(1)(a), Immigration Act 1971. The need for clause 97(5) and (6) appears to be the location in the draft Bill of clauses 193 and 195 (see discussion on these clauses, below). Clause 97(1)(b) criminalizes a person who seeks to enter the UK if at the time of doing so the person knows he or she does not have permission. However, many lawful migrants to the UK are not required to have permission before arrival. When approaching the immigration desk and requesting permission he or she seeks entry and would commit this oVence. It is questionable why this oVence is needed given clause 117 (below).
Clause 98 This clause essentially replaces what is now section 24(1)(b)(i), Immigration Act 1971. Clause 98(2) is necessary because an expulsion order under clause 42(1) cancels permission with immediate eVect. Thus a person may have no warning of the circumstances in which he or she would otherwise commit a criminal oVence. However, similar provision needs to be made for clause 47. Similarly, while a person whose permission is cancelled by deemed notice (see clause 200(7)) is at that time protected by clause 98(1)(c), immediately that he or she is located (see clause 200(8)) the oVence is committed. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 74 Home Affairs Committee: Evidence
Clause 99 This clause essentially replaces what is now section 24(1)(b)(ii), Immigration Act 1971. The extension of conditions that may be imposed upon a person with permission (see discussion on clause 10, above) significantly extends the seriousness of this clause. The word “knowingly” may protect a person in the case of an inadvertent breach, but will not where a breach is minor or unavoidable—eg failing to report because required to remain at the scene of an accident, or illness or hospitalisation.
Clause 101 Although this is a replacement for much of section 26, Immigration Act 1971, it is significant because of the greatly extended powers of examination to which it relates—see discussion on clauses 25 to 28 (above). Non-compliance with those very wide powers is here made a criminal oVence—eg refusing to produce an ID card.
Clause 102 This clause essentially replaces what is now section 24(1)(d), Immigration Act 1971, but the circumstances in which it may apply are greatly extended—see discussion on clauses 25 to 28 (above).
Clauses 104 and 105 This clause essentially replaces what is now section 2, Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. For the meaning of “travel document” and “current” see clause 208(1) and (3), which also define “identity document” for these purposes. As with section 2 of that Act, the oVence may be committed despite the person providing a document that satisfactorily establishes his or her identity and nationality. The permission interview, for the purposes of these clauses, is one for which the Secretary of State must exercise her powers under clause 24 to designate oYcials—see clause 105(2). Why should not the definition of “child” (clause 105(7)) appear in the general interpretation section— clause 208(1)?
Clauses 106 and 107 These clauses essentially replace what is now sections 25 and 25A, Immigration Act 1971. See also clause 194.
Clauses 108 and 109 Clause 108 eVectively reproduces section 4(1), (2), (3) and (5) and 5(1), Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. Clause 109 eVectively reproduces section 4(4) of that Act. This continues to preclude prosecution under clause 108 for traYcking in babies since a baby cannot be said to be the subject of a request or inducement. Moreover, the juxtaposition of two that’s in clause 109(5) is untidy.
Clause 110 This appears to be duplication. A person entering the UK in breach of an expulsion order will be a person who has committed the oVence under clause 97(1)(a) because he or she will necessarily have entered without permission. A person staying in the UK in breach of an expulsion order will similarly be a person who has committed the oVence under clause 98 because he or she will necessarily have stayed without permission. A person who arrives in the UK in breach of an expulsion order will ordinarily be a person who has committed the oVence under clause 97(1)(b) because he or she will be seeking to enter the UK without permission. Apart from British citizens (who cannot be subject to an expulsion order), only EEA entrants may enter the UK without permission. However, an EEA entrant is defined in clause 3 as someone who is entitled to enter by virtue of EU law—thus an EEA entrant cannot be a person subject to an expulsion order (or, at least, cannot lawfully be subject to such an order). Processed: 23-04-2009 22:48:32 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 75
Clause 115 See discussion on clauses 54, 56 and 58 (above).
Clause 117 This clause eVectively replaces section 24A; but—as is noted by the Explanatory Notes (paragraph 272)— with the addition of the oVence in clause 117(2). It is not explained why it is thought necessary to criminalize someone who may or may not go on to commit the oVence in clause 117(1). Given that the more obvious examples of preparatory acts are likely to be caught by other oVences (eg obtaining false or falsifying travel documents—eg see clause 118), the risk that the oVence is aimed at circumstances where it will be very diYcult to establish the requisite intention (to go on to commit the oVence in clause 117(1)) suggests that clause 117(2) should be deleted.
Clause 119 This clause eVectively replaces section 26A, Immigration Act 1971. See also clause 203(1)(c).
Clause 121 As the Explanatory Notes (paragraph 277) state, this is a new oVence. Although it is similar to the oVences currently in section 3(b) and (c), UK Borders Act 2007 and paragraph 5, Schedule 11 to the Immigration Act 1971, it is considerably broader than these provisions. Clause 121(1) makes it an oVence to resist or obstruct, without reasonable excuse, any person exercising a function conferred by or by virtue of the provisions in the draft Bill. The danger inherent in so broad a provision is starkly revealed by comparison with clause 93. That clause makes it an oVence for a person to “resist or intentionally obstruct[] a detainee custody oYcer…” who is carrying out certain specified functions. However, that clause also provides a defence where the oYcial “is not readily identifiable as such an oYcer”. Thus, there are three significant distinctions between clause 121(1) and clause 93. Firstly, in the latter any obstruction must be intentional, whereas in the former it need not be. Secondly, in the latter there is a defence where the particular oYcer is not readily identifiable, whereas in the former there is no such defence. Thirdly, the latter refers to specific functions by specific oYcials, whereas the former is wholly at large. Despite the inclusion of “without reasonable excuse” in clause 121(1), this oVence remains the wider drawn and easier to commit. Indeed, a person who is not caught by the oVence in clause 93, or is entitled to the defence, nevertheless may be prosecuted and convicted of the oVence in clause 121(1). Clause 121(1) is plainly inappropriate and should be deleted. Clause 121(2) is unnecessary. Assaults can be prosecuted in common law; and inevitably, therefore, clause 121(2) constitutes duplication.
Part 8—Carriers’Liability This part sets out provisions for a scheme of civil penalties for carriers. However, note should also be taken of the oVences in clauses 103, 112 and 115.
Clauses 122 to 128 These clauses relate to penalties for carrying “undocumented passengers”; and eVectively replace sections 40 to 41, Immigration and Asylum Act 1999. Certain matters are left to regulations, including matters relating to notices and the level of the penalty. The only ground that may be pursued on an appeal against the imposition of a penalty is that the person is not liable for the penalty—see clause 126(3) (cf. section 40B).
Clauses 129 to 140 These clauses relate to penalties for carrying “clandestine entrants”; and eVectively replace sections 32 to 35A, Immigration and Asylum Act 1999. Although provisions are re-ordered there is little change of substance other than certain matters relating to notices are left to regulations and on an appeal against a penalty notice a court is empowered to increase the penalty.
Clauses 141 to 148 These clauses relate to the detention of “transporters”; and eVectively replace sections 36 to 37, Immigration and Asylum Act 1999. However, there is power to detain a transporter (see definition in clause 151(2)) pending the giving of a penalty notice under clause 130, a court may not order release of the transporter on the ground that there is no significant risk that the penalty will not be paid (cf. section 37(3)(b) of that Act) and clauses 146 to 148 allow the Secretary of State to sell a transporter which she has detained. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 76 Home Affairs Committee: Evidence
Clause 149 This clause introduces a scheme whereby carriers may be required, on pain of a penalty, to obtain authorisation from the Secretary of State in order to bring a passenger to the UK. Some further explanation of what is envisaged is provided in the Explanatory Notes (paragraph 309). Such a scheme would be likely to significantly increase the hurdles facing refugees seeking to escape persecution by fleeing to the UK; and increase the incidence of and scope for exploitation by smugglers and traYckers. Such a scheme may cause delays or disruption to any passenger to the UK, including the possibility of wrongful exclusion from a flight or missing a connection—including British citizens returning from abroad. Moreover, the wide scope of the fees powers may allow imposition of fees on carriers or travellers for the “service” provided by the Secretary of State in imposing such a scheme (see discussion on clauses 190 and 191, below). See also clause 203(1)(d).
Part 9—Illegal Workers The clauses in Part 9 relate to an oVence and civil penalty regime for those who employ “illegal workers”; and eVectively replace sections 15 to 26, Immigration, Asylum and Nationality Act 2006. There are no changes of substance save as to the provisions for an appeal against a penalty imposed under clause 153. These changes are twofold. On an appeal, the employer may only rely on grounds that he or she is not liable for the penalty or that the penalty is excessive—see clause 157(3) (cf, section 17(3) of that Act); and a court may increase the penalty—see clause 157(4)(c) (cf, section 17(2) of the Act). See also clause 194.
Part 10—Appeals (and Schedules 1 and 2)) On 21 August 2008, the UK Border Agency launched a consultation on immigration appeals— “Consultation: Immigration Appeals—fair decisions; faster justice”. That consultation closes on 16 October. There are currently wider changes underway relating to the administration of justice by tribunals in the UK, for which the Tribunals, Courts and Enforcement Act 2007 has paved the way. The consultation document indicates that the Asylum and Immigration Tribunal may be brought within that structure. In any event, the provisions in the draft Bill so far as appeals are concerned are incomplete; and any commentary upon the provisions available in the draft Bill must come with the caveat that these may need to be reconsidered or revised when what is currently missing is made available.
Clause 164 This clause (with those following) replaces, but also fundamentally changes, the appeals structure currently provided by section 82 et seq, Nationality, Immigration and Asylum Act 2002. The decisions currently addressed by section 82(1)(a) to (c) and in part (d) and (e) of that Act are replaced by clause 164(2)(a) to (d). However, it is not a straight swap. Essentially, these decisions in section 82(1) are reduced to one decision—refusal of permission. However, clause 164(2) breaks down that refusal of permission by categories of application—ie refugee claim, other protection claim, family life claim/application, other application for permission, and provides for a separate appeal right for each. Thus a person making a claim for asylum, may do so on refugee grounds and other human rights grounds, and in doing so may raise a family life ground. Currently, this person could expect a single decision—refusal of leave to enter, against which he or she might appeal (and raise such grounds as are necessary to advance any or all of the grounds of the original application). Under clause 164(2), he or she would receive several (in this example—three) immigration decisions, each bringing an appeal right—see below. This approach may work perfectly well if each of these appeal rights are equally restricted or unrestricted (and the decisions are made at the same time), but if unequal restrictions are imposed the approach may lead to confusion if the appeals are conjoined and ineYciency if they are not or cannot be conjoined. It is noted that clause 182 continues to treat the appeals structure as if there is one appeal, but this appears to be at odds with clause 164 et seq. The decisions currently addressed by section 82(1)(f) and the remainder of (d) and (e) of the Act are replaced by clause 164(2)(e) and (f). Again, it is not a straight swap. Clause 164(2) breaks down permission again by categories of application on which the permission has been granted, but here only distinguishes the refugee and others. This has significant consequences—see discussion on clauses 169 and 170 (below). The decisions currently addressed by section 82(1)(g) to (j) of the Act are replaced by clause 164(2)(g) and (h). Again, this is not a straight swap. In part, the change reflects that the draft Bill makes no distinction between administrative removal and deportation—see discussion on Part 4 (above). However, there is also a fundamental change as to the timing of when a decision is made and an appeal right may arise. Under the current regime, the Secretary of State gives notice of her intention to remove a person (whether an administrative removal or by way of deportation), and the appeal arises against this notice. Clause 164(2)(g) means that no appeal will arise until the Secretary of State makes an expulsion order, which means that under the provisions of the draft Bill a person may find that his or her expulsion is ordered without any forewarning Processed: 23-04-2009 22:48:32 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 77
(consequently no opportunity to make any representations) and with disastrous consequences for him or her which cannot be fully remedied by the appeal—for further consideration, see discussion on clauses 13 to 15 (above). Clause 164(4), which is undoubtedly necessary to the provisions, highlights how far these appeals provisions are removed from the aim of simplification. It states that (for the purposes of clauses 165 to 171) a person who has something (permission) is to be treated as not having it.
Clauses 165 and 166 By clauses 165(2)(b) and 166(2)(b), the current provision for an out-of-country appeal in circumstances where the Secretary of State certifies a refugee or human rights claim to be “clearly unfounded” (see clauses 177 and 178, and Schedule 2) is excluded (unless the human rights ground relates to family life, subject to the meaning that is given to “family life application” in the Immigration Rules—see clause 167). Whereas ILPA considers the clearly unfounded certification regime to be inappropriate (see discussion on clauses 177 and 178, below), if it is to be retained the current out-of-country appeal right should also be retained. ILPA is aware of out-of-country appeals that have been successful under this regime.
Clause 168 This clause preserves the current exclusion of appeal rights for those refused permission to come to the UK (except where the appeal is against refusal of a “family life application”—see clauses 167 and 206, which indicates that the meaning of such an application is ultimately to be left to the Immigration Rules). However, the current provision for a review of an entry clearance oYcer’s decision by an entry clearance manager is an inadequate remedy; and a general appeal right ought to be reinstated.
Clauses 169 and 170 These clauses distinguish between those with permission on the grounds of their refugee status and every other person with permission. In the case of the refugee, clause 170 precludes an appeal right if the refugee’s permission is cancelled when he or she is outside the UK. This is inappropriate. A refugee is entitled to travel. If, for example, the Secretary of State were to cancel the refugee’s permission while he or she was on holiday, he or she would be at risk of refoulement. In any event, the provision is an unreasonable interference with the refugee’s right to travel given the precarious nature of his or her permission if he or she does so. In other cases, an appeal is only provided in-country when the cancellation is on the person’s arrival in the UK. If, therefore, a person’s permission is cancelled after he or she has entered the UK, there would be no appeal right in-country. Given the very wide powers in relation to cancellation of permission (see discussion on clauses 13 to 15, above) this is a cause for considerable concern. In relation to those granted protection permission (other than as refugees), it is not at all clear why they should be excluded from the appeal right to which the refugee would be entitled—albeit, that (unlike the refugee) these would retain an appeal right if permission was cancelled while they were abroad. These provisions need substantial amendment. The Explanatory Notes (paragraphs 330 and 331) are misleading. It is there stated that clause 169 “provides that where temporary permission is cancelled on arrival, an appeal may only be brought in country if… [and where] permanent permission is cancelled on arrival there is an in-country right of appeal against that decision.” The Explanatory Notes imply that the stated restriction to the appeal right only applies where cancellation is on arrival, whereas the clause precludes an in-country appeal against any cancellation other than cancellation on arrival.
Clause 171 Clause 171 precludes any out-of-country right of appeal but provides for an in-country right of appeal when an expulsion order is made (clause 171(2)). However, this right of appeal is excluded if the order is made against someone who does not have permission or has permission but it was obtained by deception (clause 171(2)(a)(ii)), or the order is made against someone who has breached a condition of his or her permission (clause 171(3)(a)) or the order is a mandatory order against a “foreign criminal” (clause 171(3)(b)) or the order is made against a family member of someone who has received an order on the basis of his or her having breached a condition of permission or being a “foreign criminal” (clause 171(3)(c)). This scheme is fundamentally unjust. Also, in excluding appeal rights in these cases, the clause merely encourages greater use of judicial review or asylum and human rights applications. A breach of a condition may be of the most inadvertent or minor type, yet the Secretary of State has a discretion to make an expulsion order. If she exercises that discretion, however unreasonably or in ignorance of the full facts, an appeal is precluded—see further the discussion on clause 37 (above). Processed: 23-04-2009 22:48:32 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 78 Home Affairs Committee: Evidence
A “foreign criminal” here means someone who is subject to what is currently referred to as automatic deportation (see clause 51). There are exceptions to this regime (see clause 38), yet if the Secretary of State wrongly fails to apply an exception an appeal will still be excluded. This risks breaches of international obligations in respect of refugees, human rights, European Union law and victims of traYcking (as anticipated by current Government policy). Even if it were right or rational to exclude the appeal of someone who has breached a condition of permission or is a “foreign criminal”, it is wrong and irrational to exclude the appeal of his or her family member. The circumstances of family members may vary considerably, but it does not follow that because the principal falls to be excluded that the family member falls to be excluded; and the family member may have good grounds for staying in the UK despite the position of the principal. Where there is an appeal right, there is a further problem in view of the limitation on the grounds permitted by clause 174—see discussion (below).
Clause 172
This clause will not provide a remedy for those excluded from the right of appeal against the expulsion order (clause 171) since the appeal right here cannot be exercised in-country. As regards how this provision will work in practice, this is unclear as it is not known how an application to cancel an expulsion order is to be made and dealt with. However, whereas the clause is undoubtedly needed, the regime that has been created by the conjoining of administrative removal and deportation will create increased administrative and judicial work—see discussion on clause 37 (above).
Clause 174
This clause replaces section 84(1), Nationality, Immigration and Asylum Act 2002. The Explanatory Notes (paragraph 335) state that the reduction in the list of grounds reflects that the other grounds listed in section 84(1), with one exception, all fall within the “not in accordance with the law” ground. It seems the same applies to what remains, which appears to be recognised in the draft by the word “otherwise” in clause 174(1)(b)—in which case clause 174(1)(a) is also otiose. The one exception, which is identified in the Explanatory Notes is the removal of what is currently section 84(1)(f): “that the person taking the decision should have exercised diVerently a discretion conferred by immigration rules”. Without sight of the Immigration Rules, it is not possible to assess the full implication of this omission, but it is of immediate concern that the expanded reach, and consequences, of the expulsion order regime may be excluded from adequate or eVective judicial oversight (except by way of judicial review)—see discussion on clause 37 (above). On the face of the expulsion order provisions, the making of an order (unless the condition precedent for the Secretary of State’s discretion is not there, or it would contravene human rights/refugee/discrimination or EU law) is likely to be lawful; but that is far from saying that the expulsion order is appropriately made. The ground in section 84(1)(f) should be retained.
Clause 175
The word “further” in the Explanatory Notes (paragraph 336) is in error. Otherwise the Explanatory Notes are broadly correct in stating that this clause is similar to section 88, Nationality, Immigration and Asylum Act 2002. More accurately, the clause replaces sections 88 and 89 of that Act (section 88A is eVectively replaced by clause 169). The provisions mean that a person whose application for permission is refused, or has that permission cancelled, on any of the grounds listed in clause 175(3) will be precluded from an appeal right. If he or she is refused on the basis that one of these grounds applies, but contends that it does not, the remedy will be by judicial review. Clause 175(1) incorporates an important distinction, but fails to apply the distinction consistently. Thus a person whose application for permission is on refugee grounds, cannot be excluded from appealing against a refusal on the basis of this clause. Consistently with that, a person who is granted permission as a refugee cannot be excluded by this clause from an appeal if that permission is cancelled. By contrast, a person whose application for permission is on human rights or family life grounds, cannot be excluded by this clause from an appeal right against a refusal of the application. However, a person who is granted permission on human rights or family life grounds whose permission is cancelled may be excluded by this clause. This diVerence between the refugee and person granted permission on human rights/family life grounds is irrational. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 79
Clause 176 Clause 176 essentially incorporates the fresh claim rule (cf. Immigration Rules, paragraph 353) into the draft Bill. In clause 176(3) the words “, having considered them, the Secretary of State thinks that” should be deleted. Further, the focus in clause 176(3)(b) on the application needs amending—success may be achieved on the application or on the appeal. The Explanation Notes (paragraphs 337 and 501) would then provide a satisfactory description.
Clauses 177 and 178 (and Schedule 2) Clause 177 incorporates a significant addition to the “clearly unfounded” regime is replaces, which is currently set out in section 94, Nationality, Immigration and Asylum Act 2002. The extent of the addition is not clear, because the meaning of “family life application” is left to the Rules (see clause 206). Generally, ILPA is opposed to the clearly unfounded regime—see also the discussion on clause 165 and 166 (above). Clause 178(3) provides a list (which mirrors that currently provided by section 94(5C) of the Act). However, there is no purpose to a list if a catch-all is to be provided by (h). See also clause 203(1)(e).
Clause 179 Clause 179 eVectively replaces section 96, Nationality, Immigration and Asylum Act 2002 with some relatively minor changes in the drafting. However, the clause could be improved by the deletion of the words “the Secretary of State thinks that” from subclauses (2)(c) and 3(c).
Clauses 180 and 181 In significant part these clauses replace section 97, Nationality, Immigration and Asylum Act 2002.
Clause 182 Clause 182(2) would be improved by the substitution of “is” for “it thinks”. Clause 182(3) and (4) adopt changes made by section 17, UK Borders Act 2007. There are significant problems with the changes made by that Act, and the provisions as they appear in clause 182(4). An application for further permission may be varied, and hence it is anticipated by the provisions in the draft Bill that further evidence may be submitted prior to a decision on that application—see also discussion on clause 12 (above). However, the words “at the time of making” would preclude the Asylum and Immigration Tribunal (AIT) from considering this evidence—despite the fact that it was before the initial decision-maker and he or she did take, or should have taken, it into account. A further inadequacy is that the clause 182(4)(b) is restricted to proving “that a document is genuine or valid”. However, if the document merely includes a typographical, clerical or administrative error, the problem with the document will not require proof relating to whether the document is genuine or valid but rather proof that the error has been made and of a correction. Given that the error may be wholly outside the applicant’s responsibility (it may be a document created by a representative, sponsor or other third party), there is no good reason to exclude a remedy.
Clause 183 Clause 164 sets out the immigration decisions against which an appeal may be brought. Clauses 165 to 173 further explain when and where an appeal may be brought. Clause 174 sets out the grounds on which an appeal may be brought. Clause 182 sets out what the Asylum and Immigration Tribunal (AIT) may consider on the appeal. Clause 183 sets out when the AIT may or must allow an appeal. This clause appears superfluous since the previous clauses have explained the AIT’s jurisdiction in terms of when it may consider an appeal and on what grounds—it would naturally follow that the AIT must allow an appeal if properly before it and the grounds are made out. The one-stop nature of this appeals regime may be firmly achieved by amending clause 182(2) by substituting “must” for “may”; and deleting clause 183. The extent of clause 183(5) is also concerning, in that this may preclude consideration on an appeal of failures by the Secretary of State to follow her own policies. If so, this may require some matters to be brought by way of appeal and other matters to be brought by way of judicial review. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 80 Home Affairs Committee: Evidence
Clauses 184 to 187 Clause 184 replaces section 106, Nationality, Immigration and Asylum Act 2002. However it is significantly diVerent in substance. Whereas section 106(2) of that Act establishes specific powers or duties which must or may be adopted by the Procedure Rules for the Asylum and Immigration Tribunal (AIT), clause 184(3) provides vague powers to adopt Procedure Rules. These include a power to “include provision in the form of presumptions” (clause 184(3)(d)). This would appear to enable the Procedure Rules to interfere with the ordinary burden or standard of proof and the independence of decision-making by the immigration judiciary. It is also unclear why the Procedure Rules should be capable of conferring discretion on anyone but the AIT (clause 184(3)(b)). The Explanatory Notes (paragraph 348) provides no assistance on these points. Clause 185 receives a bland description in the Explanatory Notes (paragraph 349) but is a significant new departure in criminalizing failures to attend the AIT to give evidence or produce a document. Without sight of the Procedure Rules to which it relates it is not possible to assess the impact of this clause; but as drafted it appears uneven as a failure to produce a document by the Secretary of State is unlikely (under current arrangements) to arise by virtue of a failure to attend. Clause 186 provides for Practice Directions, and clause 186(2) appears designed to endorse the current practice on the part of the AIT of issuing reported, starred and country guidance determinations, which are distinguished from all other determinations. There are significant problems with this regime. Clause 187 reproduces section 107, Nationality, Immigration and Asylum Act 2002.
Clause 188 As currently drafted, clause 188 envisages no onward appeal from the decision of the Asylum and Immigration Tribunal—see clause 188(3). It is expected that this merely reflects that the onward appeal provisions are under consideration, and that clause 188 will need amendment when the provisions are ready to be included. As it stands, clause 188 is plainly and seriously defective.
Part 11—General Supplementary Provisions Simplification would be better furthered by avoiding a Part with such a general title and including such variety of provisions. Some of the provisions in Part 11 (eg those relating to oVences) might be better moved to other Parts of the draft Bill. Other provisions might (as appears envisaged by Schedule 3—see discussion, below) be best set out in distinct Parts, even if this is to mean that the draft Bill has Parts with only one or two provisions in them.
Clause 189 The Explanatory Notes (paragraph 361) indicate that this clause will replace what is currently the duty to issue a code of practice in section 21, UK Borders Act 2007. Whereas it constitutes a significant improvement on that section, it is to be noted that it is not the adoption of the section 11, Children Act 2004 duty by the UK Border Agency that had been called for by the House of Lords in amending the Children and Young Persons Bill84. This is significant—especially in view of the important guidance that has been established under section 11 from which guidance and learning the UK Border Agency would continue to be exempted. In clause 189, the words “, and any function in relation to immigration conferred by or by virtue of this Act on a designated oYcial,” are superfluous if, as is expected, a designated oYcial would merely be carrying out functions of the Secretary of State. The words “who are in the United Kingdom” restrict the duty so that children who are subject to UK immigration procedures and powers while overseas (eg at juxtaposed controls and entry clearance posts) are not protected by the safeguarding duty here. These words should be deleted.
Clauses 190 and 191 Section 42, Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, sections 51 to 52, Immigration, Asylum and Nationality Act 2006 and section 20, UK Borders Act 2007 have previously extended the powers of the Secretary of State to raise revenue by charging fees in relation to immigration and nationality matters. Clauses 190 and 191 replace these provisions, but extend them still further in several ways. As the Explanatory Notes state (paragraph 365) “Subsections (3) to (6) replace section 42 of the AI(TC)A 2004, but are wider in application. Unlike section 42 of the AI(TC)A 2004, the power in this Bill to charge more than full cost is not limited to particular types of application, and does not necessarily have to reflect a benefit to the applicant”.
84 Hansard, HL Report 17 Mar 2008 : Column 40 Processed: 23-04-2009 22:48:32 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 81
Clause 190(1) and (4) refer generally to “applications, services or processes” whereas previously section 51(2), Immigration, Asylum and Nationality Act had provided some limitation in respect of provision of services, advice or information in that a fee was only chargeable where these were provided “on request”. Clause 190(3)(b) allows a fee to be set by way of “an hourly rate or other factors specified in the order”. A fee by way of hourly rate would appear to encourage the Secretary to tarry over applications—something for which the UK Border Agency and its predecessors have a reputation. The Explanatory Notes (paragraphs 362 to 368) oVer no statement on this. Clause 190(5)(d) and (6) are especially vague; and in clause 190(5) the inclusion of (d) renders the preceding list otiose. Clause 190(7)(d) constitutes an addition to the power currently contained in section 51(3), Immigration, Asylum and Nationality Act 2006. Clause 190(8) envisages charges being made against people who are removed from the UK (see also the discussion on clause 46, above). Whereas the clause allows (“may”) the Secretary of State to choose only to seek recovery of costs or a fee in respect of removal if the person seeks to return to the UK, there is no requirement for the Secretary of State to choose to be so limited. The Explanatory Notes (paragraph 368) state that clause 190(9) allows the Secretary of State to charge a fee when dealing with an application that is to be decided on behalf of a foreign jurisdiction (eg a Crown Dependency). Clause 190(10) envisages the Secretary of State charging an individual for costs that she has not incurred or will not incur (costs “of any other person”). The Explanatory Notes (paragraphs 362 to 368) oVer no statement on this. On fees, see also clause 203(1)(f) and (g), (3) and (4).
Clause 192
This clause replaces what is currently section 120, Nationality, Immigration and Asylum Act 2002. However, it does not apply when permission is cancelled. The purpose of the clause is its relation to the one-stop nature of appeals. It relates specifically to clause 179; and it would be best relocated with clause 179 in Part 10.
Clause 193
This clause replaces section 31, Immigration and Asylum Act 1999 in providing a defence to certain oVences. The Explanatory Notes (paragraph 375) state that the defence “is modelled on Article 31(1) of the Refugee Convention”. However, the clause remains incompatible with that Convention. Clause 193(4) or its equivalent is not to be found in Article 31(1), and the leading judgment of a UK court on this particular matter expressly found that such a requirement was not compatible with that Article85. Further, as the House of Lords has recently ruled86, the current list of oVences in section 31 of that Act, which is essentially replicated in clause 193(1) and (2), do not cover all oVences for which the Article 31 defence ought to be available. Clause 193 includes some significant changes from section 31 of the Act. In particular clause 193(6) will assist criminal courts where the defence is raised so that the court is not tasked with seeking to determine refugee status or required or invited to await a conclusion on the determination of refugee status by an appeal to the Asylum and Immigration Tribunal (AIT). However, this subclause may be improved by removing the focus on when the Secretary of State has refused to grant refugee permission. If a grant of refugee permission is made, that should be conclusive. If a decision has not been reached, the individual ought to be at least as well placed as another individual whose refugee claim has been refused by the Secretary of State. Clause 193 could also be improved (though there is no international obligation so to do) by extending the protection to non-refugees with protection claims.
See also clause 203(1)(h).
85 see R v Uxbridge Magistrates’ Court, ex parte Adimi [2001] QB 667, 678 86 see R v Asfaw [2008] UKHL 31, paragraph 28 Processed: 23-04-2009 22:48:32 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 82 Home Affairs Committee: Evidence
Clauses 194 to 198
These clauses relate to oVences. Some of these clauses relate exclusively to oVences in Part 7. Others also relate to oVences in Parts 2 (clause 30), 6 (clauses 86–89, 92, 93), 9 (clause 160) and 10 (clause 185). The draft Bill would be improved if these provisions were moved—either to Part 7 or to a new and distinct Part. Clause 194 relates specifically to oVences of employing illegal workers (clause 160) and assisting unlawful immigration to an EU State or other Schengen State (clause 106). It provides for circumstances in which an organisation and its oYcers or members (if these manage the organisation) or a partnership and its partners may be liable for these oVences. Clause 195 provides for extended periods within which certain immigration oVences may be brought. The drafting is extraordinarily complex. Essentially it allows for prosecutions to be brought within six months of the oVence being committed or the oVence coming to the attention of a specified oYcer, but in the latter case the prosecution can only be brought if done so within a period of 42 months of the oVence being committed. It would appear to allow an oYcer to authorise a prosecution despite a colleague knowing of the oVence previously and not having taken action in time. The Explanatory Notes (paragraph 397) merely state that clause 197 will ensure that immigration powers in the draft Bill take precedence over prosecutions for oVences in the draft Bill. This would appear to mean that a foreign traYcker may be removed under immigration powers despite an ongoing police enquiry or prosecution against the traYcker. Moreover, the “proceedings” are not defined, in which case the clause may have a much wider consequence than is articulated in the Explanatory Notes. For example, a victim of traYcking seeking compensation (whether in a civil action against a traYcker; or in a claim brought before the Criminals Injuries Compensation Authority) might be removed despite those proceedings being ongoing.
Clauses 199 to 201
Clause 200 provides for deemed giving of notice by sending the notice to a last known address. Clause 200(7) and (8), however, provides some mitigation of the potential disastrous consequences of this by requiring a notice to be given “as soon as is reasonably practicable” to a person who has no such address or was not using that address at the time, but who is subsequently located. Clause 200(3) could be improved by requiring service on both the representative and individual, where there is a representative on record. In clause 200(6), (c) should be deleted. Where a child is the principal in litigation and is not in the UK with his or her parent(s), or his or her parent(s) are not capable of or suitable for giving instructions, provision should be made for a guardian.
Part 12—Definitions for the Purposes of the Act
Clause 205
Clause 205(3) provides a definition of “a refugee”. The definition given there is incompatible with the 1951 Refugee Convention. A person does not become a refugee at the time of his or her recognition by the Secretary of State (or anybody else); but is a refugee at the time when he or she leaves his or her country of origin in fear of persecution there; or at the time he or she becomes in fear of persecution (if he or she is already outside that country). Clause 205(5) appears problematic insofar as this envisages restriction of the reach of human rights matters by provisions in the Immigration Rules. This may simply not be human rights compatible. Clause 205(6) precludes the making of a “protection application” unless the person is in the UK. It will be necessary to consider the provision to be made in the Immigration Rules in respect of the Human Rights Convention (see clause 205(5)) and “family life applications” (clause 206) to ensure that protection-related and other human rights are properly delineated for these purposes. There is a further concern as to how this provision may interact with the cancellation provisions where a person’s permission (on refugee or other protection-related grounds) is cancelled when he or she is outside of the UK—see also discussion on clauses 169 and 170 (above).
Clause 207
No commentary on the provisions on this draft Bill could be complete without noting the meaning of “ship” given in this clause as “any floating structure”. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 83
Part 13—Final Provisions
Clause 209 If a sum received in connection with a provision of the draft Bill would include a deposit of money under clause 64 (see discussion, above), the requirement for sums to be paid into the Consolidated Fund needs reconsideration.
Schedules 1 and 2 These Schedules relate to the Asylum and Immigration Tribunal and appeals. For discussion of these matters see Part 10 (above).
Schedules 3 and 4 Schedule 3 is helpful, though not entirely clear. It appears to envisage certain provisions in other immigration Acts being retained. Curiously, Schedule 3 appears to envisage that what is Part 11 should be broken down further into separate Parts on Children, Fees, Procedure and Notices and Directions etc., in respect of which there appears to be some sense. Part 11 (see discussion, above) is currently a hotchpotch of various provisions— including provisions relating to oVences which would seem better suited to Part 7; and which do not feature in the scheme envisaged by Schedule 3. Schedule 4 is a very welcome and useful innovation.
Memorandum submitted by Asylum Aid
About Asylum Aid Asylum Aid is an independent, national charity working to secure protection for people seeking refuge in the UK from persecution and human rights abuses abroad. We provide free legal advice and representation to the most vulnerable and excluded asylum seekers, and lobby and campaign for an asylum system based on inviolable human rights principles. The Refugee Women’s Resource Project (RWRP) at Asylum Aid strives to obtain protection, respect and security for women seeking asylum in the UK by providing specialist advice, research and resources on asylum issues for women. Asylum Aid was runner up in the Liberty and Justice Human Rights Awards 2007.
Executive Summary Refugee Women’s Research Project has considered the impact of gender issues with regard to the contents of the partial draft of the Immigration and Citizenship Bill. The main focus has been on the areas of “Playing by the rules” and “Earning the right to stay”.
Introduction This paper has been prepared by the Refugee Women’s Research Project (RWRP) at Asylum Aid, which has as its focus the particular issues concerning refugee women. These issues include the types of gender based persecution specific to women and girls; such as ritualised genital mutilation, forced marriage, domestic violence, sexual assault, restrictions on reproductive rights and sexuality. RWRP notes that women and girls fleeing persecution face particular risks and problems, not only when departing their countries of origin, but in accessing systems designed to process applications for recognition as refugees. RWRP has considered the partial draft of this Bill with these concerns in mind and will therefore confine its remarks to gender aspects only. We also note that legislation and the procedures that follow from it are expected to comply with the Gender Equality Duty brought in by the Equality Act 2006. This Memorandum is prepared in response to the Home AVairs Committee’s request for evidence made on 22 July 2008. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 84 Home Affairs Committee: Evidence
“Playing By The Rules” and “Earning the Right to Stay”
Part 4—Expulsion Orders and Removal etc. from the UK
Clause 37
1. Clause 37(2)(c) permits the inclusion in an expulsion order of family members without British citizenship. As men make up the majority of applicants for protection, it follows that this provision will almost certainly have a greater impact on women and we are concerned about this diVerential impact. 2. In addition, the clause allows for the possibility of the division of families along the lines of nationality, and should not be permitted. The likelihood of the separation of children and parental figures of the same family unit where some have British citizenship and others do not would appear to contradict current European case law as to the correct application of Article 8 of the European Convention on Human Rights (ECHR). This was recently summarised by the House of Lords in their decisions concerning the cases of Chikwamba87, EB (Kosovo)88 and Beoku-Betts89.
Part 5—Powers to Detain &Immigration Bail
Clause 54
3. Clause 54 (2) allows SSHD to require by law that a pilot/captain/train manager must prevent a person from disembarking in the UK. That person may be detained “until the Secretary of State decides whether or not to detain this person under another provision of this Act” (Clause 54(3)). 4. There is no indication as to whether such detention will be managed in accordance with protocols now in place as regards the immigration detention estate.90 For example, such that women will not be detained or searched by men, and so that there will be limits on the power to search and on the treatment of those detained. Women should not be detained in the same place as men—especially women with children. Significant gender issues arise with regard to provision of proper facilities for women who are menstruating or lactating. 5. Concerns about the failures properly to implement the detention protocols within the detention estate have been raised in reports from the Inspector of Prisons.91 As trained professionals may be failing, the question arises as to whether those not trained in the correct detention procedures may fare any better in fulfilling their specific obligations under the protocols.
Clause 67
6. Clause 67 continues to award SSHD discretion as to whether to fund expenses in order to travel to report to Immigration Services. In practical terms this has a disproportionate eVect on women. They are primary carers and will frequently have to take children and babies with them as there is no one to else to care for them. Thus their travelling expenses are greater. 7. Where a woman makes an application for asylum, having previously been a dependent on her husband’s claim, there can be a lacuna in processing her NASS application whilst she is still expected to report to Immigration Services. As it is policy only to grant exceptional funds to travel where a person is in receipt of NASS support, problems arise with these expenses not being met. 8. RWRP has anecdotal evidence that in some cases requests, that forms to apply for exceptional funds be sent, are refused on the grounds that the potential applicant must travel to the reporting centre in order to collect them. 9. In addition, RWRP believes that women who are pregnant or who have babies or young children are at a low risk of absconding and should not be required to report.92
87 Chikwamba [2008] UKHL 40 88 EB (Kosovo) [2008] UKHL 41 89 Beoku-Betts [2008] UKHL 39 90 Detention Services Operating Standards Manual for Immigration Service Removal Centres, UK Border Agency, January 2008 91 Report on a full announced inspection of Tinsley House Immigration Removal Centre, 10–14 March 2008 by HM Chief Inspector of Prisons; Report on an announced inspection of Yarl’s Wood Immigration Removal Centre, 4–8 February 2008 by HM Chief Inspector of Prisons 92 Charter of the rights of women seeking asylum, www.asylumaid.org.uk Processed: 23-04-2009 22:48:32 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 85
Part 7—Offences Relating to Immigration Permission
Clauses 104, 108, 117 and 118 10. Concerns arise with regard to the potential for criminalisation of refugee women and girls, and the inadequate protection from this aVorded them by clauses pertaining to immigration oVences such as travelling with no passport or with a false document (clauses 104,117 and 118). 11. Women are often unable to travel without recourse to false documentation or no documentation at all. This may be because they have been traYcked or because they are victims of domestic violence. Defences should be provided in these situations. 12. In consequence of procession through the criminal justice system and not the immigration system, women criminalised by immigration oVences may fall foul of the mandatory power to expel foreign national criminals, as the trigger is relatively low (being given a sentence of at least 12 months—Clause 51(2). Where this occurs, the woman may have already served a sentence of imprisonment and will be further detained before she may have her immigration matter properly considered in order that Clauses 38 and 39 limiting the right to expel can be brought into play. A recent example of this is the case ofRvOintheCriminal Court of Appeal93. 13. It is also noted that women who have been traYcked may have criminal convictions associated with this, not merely for soliciting, but for drugs and alcohol related issues problems and with regard to problems caused by their circumstances such as mental ill-health. 14. The inclusion of Clause 108, which sets out clear oVences of traYcking in persons has the potential to provide victims of traYcking with some protection and is to be welcomed.
Part 10—Appeals
Clause 178 15. While RWRP retains its reservations with regard to the use of a schedule of “safe” countries, Clause 178 is a welcome addition to the legislation currently in place, including as it does recognition of gender as a pertinent issue in relation to the list.
Part 11—General Supplementary Provisions
Clause 193 16. Clause 193, the “Defence for a refugee” applies with regard to a range of immigration oVences. However, it is noted that not all victims of gender persecution will have recourse to the benefits of Clause 193 as not all will receive surrogate State protection under the 1951 Geneva Convention. 17. Those who receive lawful stay under the ambit of either the ECHR or the EU Protection Directive will remain at risk of the possibility of expulsion where they are sentenced to at least 12 months’ imprisonment and meet the other criteria set out for foreign national criminals in Clause 52. September 2008
Memorandum submitted by Refugee Action
1. Introduction 1.1 Refugee Action is an independent, national charity working to enable refugees to build new lives in the UK. We provide practical emergency support for newly arrived asylum seekers and long-term commitment to their settlement. We give frontline advice and information to asylum seekers and refugees on a wide range of topics including asylum support, voluntary return and complex issues such as domestic violence, racial harassment and traYcking. Last year refugees and asylum seekers contacted us to ask for advice over 43,000 times either in person or by phone at our seven One Stop Services in the South West, South Central, North West and East Midlands. 1.2 We are therefore committed to ensuring that the UK Government upholds the principles of the 1951 Geneva Convention on Refugees and its commitment to the EU Council Directives regarding the treatment of asylum seekers and refugees in any proposal to change immigration rules. 1.3 We commend the Government for undertaking the complex task of consolidating the raft of immigration and asylum law that has over a period of time becoming more diYcult to follow as further revisions and amendments have been introduced. We appreciate the opportunity to respond.
93 R v O [2008] All ER (D) 07 (Sep) Processed: 23-04-2009 22:48:32 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 86 Home Affairs Committee: Evidence
1.4 We would wish to take this opportunity to make clear our views with regard to the published Public Scrutiny Questionnaire. We have specifically chosen not to use the questionnaire to respond, as we believe it does not provide the opportunity to respond fully and appropriately to such serious issues. It appears to be biased towards placing further controls and restrictions on those seeking to come to the UK: questions 1 to 6 in particular are examples of this. It appears to ignore the importance of the treatment and rights of refugees and vulnerable others by asking only one question about vulnerable people. 1.5 Our response looks at the overall themes of the Document “Making Change Stick”. As our area of expertise is in relation to asylum and refugee issues our response will predominately address those areas which we feel will aVect asylum seekers and refugees.
2. Summary of Recommendations 2.1 — “Strong Borders” That the Bill take the opportunity to clearly state that the Government upholds its commitment to the 1951 Convention and ensures that clear provision and opportunities for claiming protection in the UK are still an entitlement within the steps proposed for Strengthening Borders. We are very concerned at the steps this bill contains to further increase the powers of the Government at the apparent expense of clear scrutiny and judicial appeal, which may aVect the. treatment of asylum seekers and refugees. — “Selective Migration” That the Bill should ensure that any system of “selective migration” is entirely.separate, frorrigthe processfof asylum. That consideration be given to ensuring that those seeking protection and those granted refugee status are assisted in their integration. That there are opportunities to contribute to the UK through positive legislation to ensure equal access to services and employment opportunities. That asylum seekers and refugees are not marked out as diVerent by being penalised through restrictive conditions on receiving support, and withdrawal of services. For example, denying asylum seekers the right to work, imposing increasing restrictions and conditions on access to support, continuing voucher only support instead of cash support under Section 4 regulations, and restricting access to English classes and health care all have the eVect of making integration more diYcult for asylum-seekers who are allowed to stay in the UK. — “Earning the Right to Stay” We would request that all those who are recognised as refugees progress directly to permanent residence. This approach would recognise the diVerence between refugees and other migrants in that refugees are unable to return, and’ need the stability of permanent residence in order to feel safe enough to integrate in and contribute to British society. — “Playing by the Rules” That steps be taken to repeal measures which have not worked. In particular we urge the Government to consider removing Section 9 of the 2004 act that allows removal of support from families. We believe this section to be inhumane, in that it endangers children’s welfare and breaches Human Rights Articles 3 and 8. — “Managing Local Impacts.” That the Government should look at funding continuing to support training and employment schemes, which ensure that refugees are assisted positively and encourage integration into the work force and society. That relevant encouragement is given to employers to assist positively in such schemes rather than penalise people by restricting access to services and benefits which makes integration more diYcult rather than easier.
3. Review of the Consultation Themes
“Strong Borders” (including modernizing border powers and carriers’ liability and powers to cancel visas abroad.) 3.1 With an increase in border controls and visa restrictions imposed by the UK, those fleeing persecution find it increasingly diYcult if not impossible to come to the UK through legal means. Therefore it is important that those plans to strengthen powers overseas also recognise the legitimate right of those seeking to apply for protection. We believe that further extension of overseas UKBA oYcial’s powers to stop people travelling to the UK will result in a breach of a person’s right to request protection. 3.2 Additionally, it is important that the Government continues to recognise its responsibility to uphold the right to family life that asylum seekers and refugees have. It is therefore important that any legislation seeking to increase powers to cancel visas should not infringe any further on the rights of those already in the UK who seek permission for their family to join them. We recommend that the Government look very carefully before tightening visa requirements in particular for those countries that are known to produce refugees. Families left behind in those countries remain vulnerable to persecution and taking steps to apply for visas to leave the country can often increase the risk. 3.3 It is stated that there will be powers to caneehyisas at ports. We find the implication that people who- have legitimately applied and paid for visa applications may find that those visas issued by one set of UKBA oYcials are withdrawn by another UKBA oYcial very worrying. We would ask what safeguards will be put Processed: 23-04-2009 22:48:32 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 87
in place to prevent such occurrences happening at great cost and inconvenience to the applicant. It will be important to consider what might happen to a person at risk of persecution from their own authorities if it is discovered that they tried to leave the country but have to return.
“Selective migration” (including the introduction of “permission” for migrants, replacing notions of leave to enter, leave to remain, and entry clearance, and a single power of expulsion) 3.4 We would wish to ensure that “selective migration” as understood to mean the system by which visa applicants are judged to have economic merit to the UK, has no part to play in the determination of applications for protection. 3.5 We would also wish to ensure that the proposals for a single streamlined power of expulsion are not at the expense of a robust and fair appeals system for those that are vulnerable and in need of protection.
Earning the right to stay” (including new requirements for citizenship and an automatic ban on returns with new powers to exclude criminals arid immigration oVenders) 3.6 We do not support this concept of “earning the right to stay” in relation to those granted refugee status. We believe that if people are found to be in need of protection then that should be suYcient for permission to be in the UK. Those that have been granted refugee status but who do not wish to apply for citizenship will still be contributing if in work through tax and national insurance. Those that choose not to become British Citizens should not be penalized by the restriction of services. Refugees may choose not to become UK citizens for example in order to retain their ability to return to their home country when it becomes safe to do so. Those that may be penalized by such restrictions will be vulnerable groups such as victims of domestic violence on short term spouses’ visas. 3.7 The proposed probationary citizenship period, rather than being of benefit to anyone, seems simply to extend the period of uncertainty for a person who had come to the UK seeking protection. It complicates rather than simplifies the process. The uncertain nature of the formulae proposed for qualifying for citizenship (rather than refusal and deportation) will further engender mistrust of the system, as integration is delayed. Eight years is a substantial length of time for an individual who has fled their country in fear of their life to remain uncertain of whether they will get permanent protection. 3.8 We understand that the concept of volunteering for points is being considered as part of the probationary citizenship period. We maintain, as we do for asylum seekers on support, that the concept of Citizenship as reward for volunteering, negates the value of voluntary work, and implies a lack of respect for those indigenous, migrant, asylum seeker and refugee volunteers who already dedicate a good deal of their time to help others in need or assist good causes. Any coercion or penalty for refusing to volunteer whether that be for an asylum seeker applying for support or a refugee applying for citizenship would render the work involuntary. 3.9 In addition the scheme is similar to Section 10 of the Asylum and Immigration Act 2004, which proposed to link voluntary work to the receipt of Section 4 support. That scheme was strongly opposed on ethical grounds of constituting forced labour as well as for the practicalities of organising such a scheme. Following the failure of that scheme, we would strongly urge the government to repeal Section 10 completely in relation to Asylum Support Section 4, and withdraw the proposed concept of volunteering for citizenship in the new Bill.
“Playing by the Rules” (including the introduction of “bail bonds” for those awaiting detention or expulsion, “immigration bail” as an alternative to detention, revised sanctions for breaches of immigration law, and a simplified appeals system) 3.10 We read the draft (partial) Immigration and Citizenship bill with some concern as it appears to be a continuing list of existing and new oVences that further complicate matters rather than simplifying issues. Our concerns in particular relate to the uncertain nature of how some of those oVences may be interpreted in relation to those seeking protection. 3.11 We would argue that the complexity of and increase in the number of oVences and revised sanctions for breaches of. immigration law, run counter to the UNCHR suggestions that the “simplification project should ensure that refugee protection does not become a secondary consideration to immigration control and that there is a clear place for an asylum system in which a refugee protection space is guaranteed.”94 3.12 We believe the term “immigration bail” is inappropriate for use in relation to asylum seekers, creating false impressions of asylum being a criminal act. We believe the term “permission” would be more appropriate.
94 UNHCR, Simplifying Immigration Law, Comments in response to the Initial Simplification Consultation, August 2007 Processed: 23-04-2009 22:48:32 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 88 Home Affairs Committee: Evidence
3.13 Our particular concern is with the definition of a Refugee given at clause 205 which implies a person is a refugee only at the time the Secretary of State recognises them as such. This is contrary to the Refugee Convention definition which states a person is a refugee at the point they leave their country in fear of persecution. 3.14 Refugee Action is very concerned that the increase in oVences and sanctions in relation to restricting routes of entry to the UK will increase the use of illegal arid often dangerous methods of securing entry, by those seeking protection. It is inherent in the Convention that although the action of seeking asylum may result in illegal crossing of borders, such actions by persons fleeing for their lives should not be penalised. We would wish to ensure that the statutory defense for a refugee (Part 11, clause 193) properly protects those who wish to apply, or are in the process of applying, for asylum in the UK until their status is determined. In practice there are currently applicants for asylum, imprisoned for oVences related to their methods of arriving in the UK, before their asylum claim has been assessed we believe this contradicts the spirit of the Convention. 3.15 With regard to “bail bonds” we note that it is proposed that these would be “large”. We are again concerned as to how this would relate to those applicants who are applying for protection but have found themselves detained. It is unlikely that they will have the resources or contacts necessary to guarantee large bail bonds. This causes concerns over the length of time applicants are likely to be detained. 3.16 We would support the use of alternative methods to detention, in particular in relation to those who are seeking protection, and especially in relation to families with young, children. We are disappointed to find no mention of a reduction in administrative detention for those seeking asylum, but rather due to the increase and complexity of the oVences within the act an increased chance that individuals will find themselves unwittingly in breach of immigration laws and therefore subject to detention. We fully support the findings of The Independent Asylum Commission’s report, Deserving Dignity,95 in which the key findings were “that administrative detention is not necessary for most people seeking sanctuary, is hugely costly and should never be used for children or pregnant women.” We are concerned that simply introducing “immigration bail” with large bail bonds is not a suitable alternative; yet find the emphasis on strengthening oVences and sanctions evidence that detention will increase.
Managing any local impacts (including simplification legislation on access to benefits and services) 3.17 It is in keeping with the premise of simplification that the terms used regarding people’s eligibility for benefits are clarified and that one single term is used. 3.18 We would refer to our point at 3.12 with regard to our views on the concepts of further legislation on access to benefits and services. 3.19 Allowing asylum seekers the right to work and investing in schemes which facilitate asylum seekers and refugees into work, would have a more beneficial eVect and provide further contributions to pay for services through tax and national insurance contributions than further restrictions on access to benefits and services. 3.20 The “Making Change Stick” document state that itwants “to do a better job of honoring our international obligations to refugees” and that “we are especially committed to ensuring that UKBA becomes more sensitive in its treatment of children”. We are concerned that so far this obligation and sensitivity seem to remain very much an afterthought for this bill and would wish to see this changed. We hope that those sections of the bill that are still being drafted for consultation provide more evidence of these stated wishes. September 2008
Memorandum submitted by Global Health Advocacy Project We are a group of students and young healthcare professionals aYliated to the student organisation Medsin. Our aim is to challenge health inequalities in the UK and overseas.
Executive Summary 1. A policy of deliberately denying healthcare as a means of forcing people from the country is morally unacceptable. 2. There is no evidence to suggest such a policy would be eVective. 3. Any restrictions on access to healthcare for particular migrant groups would be likely to harm individuals entitled to access healthcare, but with limited understanding of or ability to communicate their rights.
95 Deserving Dignity, How to improve the way we treat people seeking sanctuary, Independent Asylum Commission’s Third Report of Conclusions and Recommendations, July 2008, Executive Summary Key Findings pg1. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 89
4. Restricting access to NHS services for a population of migrants would adversely aVect the health of the individuals concerned. 5. It would also have adverse eVects upon public health, NHS administration and NHS finances. 6. Frontline healthcare workers lack the skills to accurately assess the immigration status of their patients. They feel requiring them to police access decisions would place them in violation of professional codes of conduct. 7. Prior to any policy change in this area, the remainder of the submissions to the 2004 Department of Health consultation Proposals to Exclude Overseas Visitors from Eligibility to Free NHS Primary Medical Services should be made public, the issues they raise should be adequately addressed, and a further consultation on access to NHS services should be undertaken, as the findings of the 2004 consultation are now outdated.96 8. A full and independent health impact assessment and a race impact assessment of both existing and proposed NHS charging regimes should also be commissioned to better inform any decisions on access that are taken. 9. Any changes in the rules governing access to the NHS should be made by people with public health and health management expertise within the Department of Health. 10. It would be inappropriate for the Home OYce to introduce such changes as part of a large piece of immigration legislation. 1. The UK Border Agency document97 introducing the Immigration and Citizenship Bill outlines content that is yet to be published. We are told (page 8) this will include legislation on “access to benefits and services” with the aim of “ensuring that migrants can only access benefits and services where they have ‘earned’ the right to them.” 2. In April 2004, Statutory Instrument 61498 limited access to NHS hospital services for undocumented migrants and refused asylum seekers. Subsequent Government documents have suggested a desire to restrict access to NHS primary care99, 100 as part of a strategy ensure that for undocumented migrant and refused asylum seekers “living illegally becomes ever more uncomfortable and constrained until they leave or are removed.”100 3. This submission will argue that there are widespread consequences of using denial of healthcare as a means of enforcing immigration policy; that it is unlikely such a policy would be eVective; and that it would be inappropriate to make fundamental changes in health policy as a footnote in a Home OYce bill. Before any such changes were made there would need to be an adequate consultation that involved migrant groups, healthcare professionals, experts in public health and groups working with migrant communities.
Limiting Access to Services is unlikely to alter Migration Patterns
4. In 2004, when restrictions on access to NHS hospital services came into force, the discourse focussed upon limiting “health tourism”. However, the Government have since stated there is no evidence of significant levels of health tourism.100, 101 Indeed, there is evidence to suggest that many of the health needs of recent migrants arise after entering the UK. In 2002, the British Medical Association reviewed the evidence about the health of asylum seekers and found that “the average physical health status of asylum seekers on arrival is not especially poor, when compared to the average fitness of UK residents. However, there is evidence to suggest that the health status of new entrants may worsen in the two to three years after entry to the UK.”102 A King’s Fund survey of organisations providing services for asylum seekers concluded that asylum seekers and refugees in the UK “are subjected to a system that leaves them insecure, impoverished and unhealthy”.103
96 Annex submitted previously to the Committee but not printed. The consultation can be found on www.wherestheconsultation.org 97 Home OYce (July 2008). Making Change Stick: An Introduction to the Immigration and Citizenship Bill. Available from http://www.ukba.homeoYce.gov.uk/sitecontent/documents/policyandlaw/immigrationandcitizenshipbill/. 98 Department Health (April 2004). “Statutory Instrument 2004 No614.The National Health Service (Charges to Overseas Visitors) (Amendment) Regulations 2004”. Available at http://www.dh.gov.uk/en/Publicationsandstatistics/Legislation/ Statutoryinstruments/index.htm. 99 Department of Health Proposals to Exclude Overseas Visitors from Eligibility to Free NHS Primary Medical Services (May 2004). Available at http://www.dh.gov.uk/en/Consultations/Closedconsultations/DH 4087618. 100 Home OYce (March 2007). Enforcing the rules. A strategy to ensure and enforce compliance with our immigration laws. Available from http://www.medact.org/content/refugees/EnforcementStrategy.pdf. 101 Johnson M (February 2005). Evidence to Third Report from the Health Committee: patient and public involvement in the NHS. Question 211. Available from http://www.publications.parliament.uk/pa/cm200405/cmselect/cmhealth/252/ 5021008.htm. 102 British Medical Association (October 2002). Asylum seekers: meeting their healthcare needs. Available from http:// www.bma.org.uk/ap.nsf/AttachmentsByTitle/PDFAsylumseekers/$FILE/Asylumseekers.pdf. 103 Woodhead D (December 2000). The Health and Well-Being of Asylum Seekers and Refugees. Available from http:// www.kingsfund.org.uk/applications/site search/search.rm?term%asylum!&searchreferer id%%23URL.id%23. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 90 Home Affairs Committee: Evidence
5. Home OYce research examining the factors influencing the decision-making of asylum seekers and their reasons for choosing the UK in preference to other destinations has demonstrated low levels of knowledge regarding entitlement to services.104 Independent research examining overseas visitors accessing NHS services finds little evidence of health tourism, with most patients having been in the country for many months or years before accessing health services.105, 106, 107 Project London is a small organisation in East London providing healthcare to vulnerable groups including people whose visas have expired, refused asylum seekers and irregular entrants to the UK. Ninety percent of pregnant women accessing Project London services were not registered with a General Practitioner.106
6. More recent proposals to restrict access to NHS services have been predicated on the idea that denying access to services might persuade undocumented migrants and refused asylum seekers to leave the country.108 Such proposals should be rejected on a number of grounds, the principle one being that it is inhumane for a wealthy nation to attempt to reduce the cost of removals by deliberately seeking to damage the health of its most vulnerable residents—those that are both sick and have immigration diYculties.
7. Such proposals should also be rejected on the grounds that the Government have presented no evidence suggesting they would work. Most people awaiting removal are healthy. Indeed, a recent Home OYce report stated that, “Illegal migrants are unlikely to place a great strain on the NHS as most are thought to be young and therefore relatively healthy”.108 However, these proposals may not even encourage the sick to leave. Firstly, sick people may unable to travel. Furthermore, it seems highly unlikely that unwell patients would voluntarily return to a country lacking adequate health services. Accessible healthcare of a reasonable quality remains unavailable in the home countries of many refused asylum seekers.109
8. If one disregards the devastating eVect these proposals would have upon vulnerable migrants, an ineVective immigration policy could be forgiven if there were no unintended consequences. However, restricting access to healthcare for a section of the community has wide-ranging and unwanted eVects which we outline below.
The Consequences of Limiting Access to Healthcare
9. Charging refused asylum seekers and undocumented migrants for NHS care in eVect prevents access, as there are high levels of destitution in both populations110 which means they cannot access private healthcare. Removing access to healthcare from a section of the population, especially one already know to be vulnerable, clearly has massive implications for the individuals concerned. Case studies show that, since the regulations were amended in 2004, both those not entitled to care as well as a population of individuals entitled to care, but with limited understanding or ability to communicate their rights, have already come to harm.111 We see some evidence of the vulnerability of these populations in the latest report from the Confidential Enquiry into Maternal and Child Health.112 Refugee and asylum seeking women accounted for 12% of maternal deaths in 2003–05.112 The barriers to accessing care for these women are already significant.113
10. Charging for NHS care discourages engagement with healthcare services. Research in Sweden suggests there is a risk that policies which link healthcare providers with immigration agencies in the minds of migrants also lead them to disengage with services.114 Whilst it is likely that any restrictions on free access to NHS care would exempt the treatment infectious diseases from charging on public health grounds, this
104 Robinson V,Segrott J (2002). “The decision-making of asylum seekers”, Home OYce Findings No 172. Available from http:// www.homeoYce.gov.uk/rds/pdfs2/r172.pdf. 105 Terrence Higgins Trust and George Health Trust (2003). Recent migrants using HIV services in England. Available from http://www.tht.org.uk/informationresources/publications/policybriefingpapers/recentmigrantsusinghivservices.pdf. 106 Project London (May 2008). Report and Recommendations 2007: Improving Access to Healthcare for the Community’s Most Vulnerable. Available from http://www.medecinsdumonde.org.uk/doclib/104524-report2007light.pdf. 107 Burns FM et al (January 2008). Missed opportunities for earlier HIV diagnosis within primary and secondary healthcare settings in the UK. AIDS; 22(1): 115–22. 108 Home OYce (March 2007). Enforcing the rules. A strategy to ensure and enforce compliance with our immigration laws. Available from http://www.medact.org/content/refugees/EnforcementStrategy.pdf. 109 For example, see African HIV Policy Network. Completing the Picture: An examination of the Home OYce’s country reports on the availability of HIV treatment in Zambia, Malawi, Uganda, South Africa, Nigeria and Zimbabwe. Available from http://www.ahpn.org/downloads/campaigns/Completing the Picture, 2008.pdf. 110 Refugee Action (November 2006). The destitution trap: research into destitution among refused asylum seekers in the UK. Available from: http://www.refugee-action.org.uk/campaigns/documents/RA DestReport Final LR.pdf. 111 Kelley N, Stevenson J. First Do No Harm: denying healthcare to people whose asylum claims have failed. Refugee Council, June 2006. Available from http://www.refugeecouncil.org.uk/policy/position/2006/healthcare.htm. 112 CEMACH (December 2007). Saving Mothers’ Lives 2003–05. Available from http://www.cemach.org.uk/Publications/ CEMACH-Publications/Maternal-and-Perinatal-Health.aspx. 113 Medact (January 2008). Maternal and infant health of vulnerable migrants. Available from http://medact.org/content/reaching out/maternal%20and%20infant%20health%20briefing.doc. 114 La¨kare Utan Gra¨nser (2005). Experiences of Gmda in Sweden: Exclusion from health care for immigrants living without legal status. Available from http://www.lakareutangranser.se/Global/documents/Rapporter/ReportGomdaSwedenEn.pdf. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 91
is irrelevant as patients present with symptoms not diagnoses. If doctors are denied opportunities to engage a population of patients, disease will go undiagnosed and untreated with inevitable public health consequences.115 11. Any alterations in entitlement to NHS care would have implications for NHS finances. This is especially true in primary care. At least 86% of the national disease burden is treated cheaply by NHS primary care services.116 General practitioners eYciently manage chronic conditions in the community, preventing expensive hospital admissions. Restricting entitlement to primary care services would inevitably lead to people presenting to Accident and Emergency Departments in worse health. Primary care is very cheap, with an average consultation with a general practitioner costing £20 and the average prescription £12.117 It costs £110 to attend A&E, £421 if delivered by ambulance.117 There has been no attempt to undertake a large scale cost impact assessment of either the existing regulations in secondary care or the proposed regulations in primary care. 12. Implementing regulations that restrict access to NHS services, particularly in primary care, would be an enormous administrative undertaking. An individual’s asylum status is not constant. Applications are refused, appeals are won, new applications are made, and the situation in the home country may change. To avoid acting in a discriminatory manner, the immigration status of every patient would need to be determined at every visit. Interpreters would be required and disputes in the reception area would be unpleasant for all concerned and risk damaging the doctor-patient relationship. New infrastructure would be needed to bill patients and collect payments. Given the levels of destitution among refused asylum seekers and undocumented migrants, the costs of creating and maintaining this infrastructure are unlikely to be recovered. To date, the only health impact assessment of proposals to charge “overseas visitors” for primary care concluded… “In light of the broad scope of the organisational and procedural changes required for the eVective implementation of the primary care proposals in Newham, and the limited financial burden that Overseas Visitors appear to be are having on primary medical services in the Borough…proposals to streamline charging procedures at primary medical services with those in place at hospitals should be reconsidered.”118
The Role of Healthcare Professionals 13. The General Medical Council document Good Medical Practice119 outlines the professional duties of doctors practicing in the UK. The first rule is to “Make the care of your patient your first concern”. Similar codes of conduct exist for nurses and other healthcare professionals. The British Medical Association has policy stating “it is not appropriate for medical staV to act as proxy immigration oYcers in seeking to determine the immigration status of people presenting for care and treatment” (Annual Representative Meeting, 2005). It is therefore hardly surprising that approximately seventy five percent of the healthcare professionals that made submissions to a 2004 Department of Health consultation on limiting access to primary care for “overseas visitors” raised concerns that the proposed changes would place them in violation of their professional codes of conduct.120 Busy doctors and nurses do not feel that policing access is their role. 14. It is also important to note that healthcare professionals lack the skills needed to accurately determine immigration status. In secondary care, where a charging regime has been in place for more than four years, disturbing case studies are emerging describing situations in which erroneous decisions have resulted in patients coming to harm.121, 122, 123 15. Refugee Action have argued… “This is a specialist area where many diVerent forms of documentation are used (eg ARC cards, IS96s, EU travel documents, passports, vignettes, IND status letters etc). Healthcare staV would have to have a very wide knowledge of the fast-changing documentation used both by IND staV, the EEA and various other countries who may or may not have mutual health agreements with
115 See the Royal Society for Health Promotion submission to the Department of Health Consultation Proposals to Exclude Overseas Visitors from Eligibility to Free NHS Primary Medical Services (August 2004). Available from http://www.rsph.org/ policy/consultations/GP.doc. 116 Royal College of General Practitioners. The Value of General Practice. RCGP Factsheet, November 2006. Available from: http://www.rcgp.org.uk/pdf/ISS INFO 06 ValueGenPrac.pdf. 117 Health Care Commission (October 2006). State Of HealthCare. Available from http://www.wales.nhs.uk/documents/ State of Healthcare 2006.pdf. 118 Hargreaves S, Friedland J S, Holmes A (June 2006). The Identification and charging of Overseas Visitors at the NHS Services in Newham: a Consultation. Available from http://www.newhampct.nhs.uk/docs/publications/IHUEntitlementReport06.pdf. 119 General Medical Council (2006). Good Medical Practice. Available from http://www.gmc-uk.org/guidance/good medical practice/index.asp. 120 Global Health Advocacy Project (August 2008). Where’s the Consultation. Available from http://www.wherestheconsultation.org. 121 Kelley N, Stevenson J. First Do No Harm: denying healthcare to people whose asylum claims have failed. Refugee Council, June 2006. Available from http://www.refugeecouncil.org.uk/policy/position/2006/healthcare.htm. 122 Morris S, Allison E (February 2008). Hospital defends treatment in asylum seeker death. Available from http:// www.guardian.co.uk/society/2008/feb/13/nhs.immigrationandpublicservices. 123 Cassidy J (August 2008). Free for all? BMJ 337: a1111. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 92 Home Affairs Committee: Evidence
the UK. We are concerned that the important decision as to whether someone is entitled to access healthcare will be made inconsistently due to the complexity of the consultation paperwork and by unqualified staV. We anticipate that it will take some time to verify whether an individual is eligible for free primary healthcare and are concerned both by this additional task in an already overstretched, under-resourced profession, and by the ensuing delay in access to healthcare for patients. We believe that this additional series of tasks would also dissuade GPs from registering overseas visitors, whether they are entitled to healthcare or not. We trust that the Government does not wish to restrict access for those who are entitled to healthcare, and believe that the confusion and expense faced by health reception workers in trying to establish a person’s eligibility would result in already vulnerable individuals being wrongly refused treatment.”124
Health Policy should not be made by the Home Office 16. It is clear that limiting access to NHS services could have consequences for the individuals concerned and for public health as well as for NHS administration and finances. To introduce such changes in a Home OYce bill, as part of a large package of changes, would be entirely inappropriate. It would not permit suYcient debate or scrutiny of the changes. Furthermore, health policy should be made by people with expertise in public health and health management. Legislation on access to NHS services should be drafted by the Department of Health. 17. In 2004, the Department of Health consulted on limiting access to NHS primary care services by “overseas visitors”. A response to this consultation was never released. We have been attempting to access submissions to this consultation using the Freedom of Information Act and recently published a document summarising the content of a sample of the submissions to the consultation.125 The document, which we have enclosed with our submission, found widespread opposition to the proposals from frontline healthcare workers, primary care trusts and from organisations working with migrant groups on a daily basis. We plan to send copies of our report to members of the committee when Parliament returns from its summer recess. 18. We believe that prior to any policy change in this area, the remainder of the submissions to the 2004 consultation should be made public, the issues they raise should be adequately addressed, and a further consultation on access to NHS services should be undertaken, as the findings of the 2004 consultation are now outdated. A full and independent health impact assessment and a race impact assessment should also be commissioned to better inform any decisions on access that are taken.
Conclusion 19. A policy of deliberately denying healthcare as a means of forcing people from the country is morally unacceptable and there is no evidence to suggest that it would be eVective. Such a policy would have knock on eVects upon vulnerable people with every right to remain in the UK. There would also be consequences for public health, for NHS finances and administration, and for busy healthcare professionals. Frontline healthcare workers lack the skills to accurately assess the immigration status of their patients. Any changes in the rules governing access to the NHS should be made, following adequate consultation, by people with public health and health management expertise within the Department of Health. It would be a grave error for the Home OYce to introduce such changes as a postscript to a piece of immigration legislation. September 2008
Memorandum submitted by London Detainee Support Group
Introduction 1. London Detainee Support Group (LDSG) is a registered charity organisation, which has been providing emotional support and rights-based advocacy to immigration detainees in the London area since 1993. LDSG maintains a pool of at least 50 volunteer visitors active at any one time visiting individual detainees, primarily at Harmondsworth and Colnbrook Immigration Removal Centres near Heathrow. A team of three full-time staV recruit, train and supervise these volunteers, and conduct advice and casework for detainees, in particular representing detainees in applying for asylum support to enable them to access bail addresses. LDSG also works to improve detention policy and practice, using evidence collected in our visits and casework, through producing submissions and reports highlighting key issues, lobbying policy- makers, and identifying and referring potential test cases for legal challenges.
124 Refugee Action (2004). Department of Health Consultation—Proposals to Exclude Overseas Visitors from Eligibility to Free NHS Primary Medical Services: Refugee Action’s Response. Available from http://www.refugee-action.org.uk/campaigns/ documents/Consultation-OverseasVisitorsExcludedfromFreeNHSPrimaryCare-09-08-04.doc. 125 Global Health Advocacy Project (August 2008). Where’s the Consultation. Available from http://www.wherestheconsultation.org. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 93
Executive Summary 2. The draft bill proposes wide new powers for the Secretary of State and a significant reduction of the ability of the Asylum and Immigration Tribunal to restrain them. As such it goes far beyond the stated objective of simplification and consolidation. The draft proposes extensive changes with regards to detention, including reversing the presumption of liberty for certain groups of people. The Secretary of State would be empowered to veto decisions by the Tribunal to grant release on bail and to demand bail bonds from detainees who may be destitute. As a result, it is likely to exacerbate the problem of unnecessary long- term detention, whereby detainees are routinely held for periods of over a year despite there being no prospect of deportation taking place.
“Earning the Right to Stay” 3. Clauses 37(4)(d) and 171(3)(a) provide a power to expel based on a single failure to report. No appeal rights are provided. This is a disproportionate and unreasonable measure that will discriminate against the most vulnerable. For example, migrants with serious health conditions are more likely to have emergency health appointments, which are in LDSG’s experience a common reason for missing a reporting event. Likewise, migrants with serious mental health conditions such as Post Traumatic Stress Disorder, which can require medication with disorientating side-eVects, find it far more diYcult to report reliably. We also question whether the accuracy of the UK Border Agency’s record-keeping is suYciently reliable to provide the basis for such a swingeing power. Failure to report is already routinely used by UKBA as a reason for opposing bail, yet in many cases our clients have disputed the allegations, and UKBA has been unable to provide any supporting evidence. These clauses should be removed. At a minimum, an automatic right of appeal should be provided to allow appellants to challenge errors of fact or assert reasonable grounds for failing to report.
“Playing by the Rules” 4. Clause 55(4) reverses the presumption of liberty by requiring the Secretary of State to detain anyone subject to an expulsion order unless she believes it to be inappropriate. This is a major change to current policy, which maintains that detention should only be used as a last resort, for the shortest possible time to facilitate removal. The presumption of liberty is an important principle and should be retained. 5. Clause 60(2) removes the obligation on the Secretary of State to provide reasons for a person’s detention immediately on initiating the detention. This is symptomatic of the casualness with which the draft bill approaches the extreme measure of removing a person’s liberty. Reasons for detention should be required to be provided immediately. 6. Clause 62(2)(c) introduces a requirement for the Secretary of State to consent to a grant of bail “where the person’s removal from the United Kingdom is imminent”. This is an extraordinary restriction on the autonomy of the judiciary. The imminence of a removal is already a factor to which the Asylum and Immigration Tribunal give great weight in considering bail. In normal circumstances, bail would simply not be granted if removal is imminent. 7. LDSG is aware of only two instances where bail was granted despite the Secretary of State providing an imminent removal date at bail hearing. In both cases no removal directions had been set, and bail had previously been refused after the Secretary of State had made similar assertions of imminence of removal, which had proved unfounded. In both cases, the Immigration Judges made clear that they did not believe the Secretary of State’s assertions that removal was imminent. They were proved correct, as both applicants reported for deportation on the date specified, yet no deportation took place. The power to veto bail should be removed as it is unnecessary and likely to lead to an increase in arbitrary detention. It is essential that the Tribunal retain unrestricted authority to grant bail from detention. 8. Clause 62(6) requires the Tribunal to have regard to a number of factors. All are factors that would suggest a refusal of bail. There is no reference to the many factors that would weigh in favour of bail, such as length of detention, prospects of removal, age, history of torture, mental or physical ill-health. This clause implies a lack of faith in the Tribunal to consider objectively all relevant factors, seems designed to further weight bail hearings against applicants, and may compromise the independence of the Tribunal. 9. In particular, Clause 62(6)(d) requires the Tribunal to consider the likelihood of the person’s presence in the United Kingdom on bail being not conducive to the public good. No definition of “not conducive to the public good” is provided, nor clarification provided as to how the Tribunal should assess this likelihood. However, the majority of current detainees have deportation orders, based on previous criminal convictions, and as such have been assessed as not conducive to the public good. Since the imposition of a deportation order appears to be the only apparently relevant factor here, the Tribunal would arguably have no choice but to consider all detainees with deportation orders to be not conducive to the public good, and therefore unlikely to be appropriate for bail. This would be the case even where there is considered to be no risk of reoVending, as this is covered separately at 62(6)(c). This could implement a form of permanent detention for detainees with deportation orders who cannot return due to the unavailability of travel documentation. These detainees may become eVectively excluded from the possibility of bail, and would have no alternative Processed: 23-04-2009 22:48:32 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 94 Home Affairs Committee: Evidence
but to challenge their detention through judicial review or habeas corpus. The Tribunal should retain the authority to assess how much weight to grant to factors for and against bail. Clause 62(6) should be deleted as it serves no legitimate purpose and could have highly damaging eVects. 10. Clause 62(11) provides the power to require a detainee to provide a financial security, to be deposited in advance, before being granted bail. In LDSG’s experience, the majority of detainees are destitute. A requirement for any significant “bail bond” would therefore preclude them from applying for bail. Once again, this would force detainees seeking to challenge their detention to make judicial reviews or habeas corpus applications, increasing the pressure on the higher courts. 11. In LDSG’s experience, meaningful access to the bail courts is a crucial safety valve for the detention system. Not only is it a vital means of holding to account the Secretary of State’s powers to detain indefinitely, it provides detainees with at least a limited sense of being able to act on their own behalf. For those who have no pending appeals yet cannot return, applying for bail may be the only proactive step that they can take. These measures threaten to severely restrict the extent to which detainees can apply for bail. This would have serious implications for the management of removal centres, which HM Inspectorate of Prisons reports have repeatedly noted are struggling to manage large numbers of long-term detainees who receive little or no updates from UKBA. 12. The Bill once again fails to provide for automatic bail hearings for all detainees, as provided for by Part 3 of the Immigration and Asylum Act 1999 but never implemented and subsequently repealed. 13. The bill threatens to exacerbate the tendency to use detention not as a means of eVecting removals but as a long-term limbo for people considered to be undesirable. Immigration Removal Centres are not designed for this purpose, and currently neither does the legislative framework recognise it. However, already 53% of LDSG’s clients in Colnbrook have been detained for over a year. A large proportion of these detainees are de facto stateless, as they are from countries such as Iran and Algeria which routinely refuse to allow the return of their nationals. No purpose is achieved by holding these detainees for periods of years. At present the majority are ultimately granted bail, but the draft bill could severely reduce their access to bail and perpetuate unnecessary detention for even longer periods. The bill should consolidate current policy that detention be used only as a last resort to facilitate removal. September 2008
Memorandum submitted by the Immigration Advisory Service (IAS)
Introduction
The Immigration Advisory Service (IAS) is the UK’s largest not-for-profit charity providing services in immigration and asylum law and a leading commentator on these issues. The organization is independent from the Government. IAS was created in 1993 out of the former United Kingdom Immigrants Advisory Service (UKIAS: established in 1970) as an independent organisation publicly funded under the 1971 Immigration Act to provide free legal advice and representation to persons with rights of appeal against refusal of their applications. Together with UKIAS, therefore, IAS has over 37 years’ experience of helping those facing immigration and asylum diYculties. It has 20 oYces and almost 400 staV throughout the UK and overseas providing confidential legal advice and representation in immigration, asylum and nationality law from first advice to appeal in the higher courts. Services are free to eligible persons and are quality assured and regulated by both the Legal Services Commission and the OYce of the Immigration Services Commissioner; caseworkers are accredited. IAS produces the leading publications on immigration law, to which all immigration judges subscribe, and provides training courses, seminars and conferences; its research unit has influenced Government policy on country of origin information. IAS is consulted regularly by Government and Parliament and is the leading commentator on such issues in the media. It is funded by both the Legal Services Commission and Scottish Executive. 1. This memorandum is provided in response to the Committee’s Call for Evidence of 22 July 2008.
General Observations
2. The draft (partial) Immigration and Citizenship Bill confirms concerns expressed by IAS in response to the Green Paper, The Path to Citizenship: Next Steps in Reforming the Immigration System. The simplification project and this draft Bill do not meet their objectives, the main one of which was to simplify the immigration system. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 95
3. Particular concerns which IAS has, based on submissions made below on areas upon which the Committee as invited comment, are: (a) The Bill sets out to simplify the law by use of plain English. However, the terms, do not always reflect their plain English meaning. (b) Probationary Citizenship—despite a widespread disagreement with the proposals by those who responded to the Consultation, the Government has decided to go ahead with probationary citizenship as a stage in the “Journey to Citizenship”. (c) The draft Bill significantly increases the powers of the Secretary of State and her staV in relation to the public (British citizens and migrants alike) thus increasing her discretion in many areas including examining any person within the United Kingdom or otherwise and wider powers of detention, even of British citizens for short periods under certain circumstances. (d) The Government intends to start a Fund to manage the transitional impacts of migration, by taking extra money from immigrants, this despite 76% disagreement amongst those responding to the Green Paper Consultation. (e) The Bill is incomplete in important areas of immigration law such as appeals and managing local impact and it is not clear that the objectives of the project will be met in these and other areas. 4. IAS is of the view that there is potential within this Bill and the simplification project in general to impact on community cohesions and on relations with other countries including Commonwealth countries. The project seeks to simplify immigration law but includes the impact on local services such as housing, benefits and access to education, with proposals in place for the Department of Health to consult on access to healthcare. The Bill falls far short, in its current form, of meeting its objectives and of including such a wide range of diVerent areas within one piece of legislation.
The Areas Highlighted by the Committee
“Strong Borders (including modernising border powers and carriers’ liability and powers to cancel visas abroad)” 5. We are concerned by the wide ranging powers to examine those at the port of entry, exit or at any point in the United Kingdom. We refer in particular to the power given to the Secretary of State under clause 26 to examine those leaving the UK. The clause is far-reaching and open to abuse and arbitrary examination of individuals or groups of individuals. 6. For example, clause 26(1)(a) allows the Secretary of State to examine a person P at “a port, international railway station or any other place in the United Kingdom”, if (26(2)(b)) “the Secretary of State reasonably suspects that P has gone there for the purpose of embarking on a ship, aircraft or train to leave the United Kingdom”. We are concerned that this power could be used arbitrarily in any location close to an international port (or elsewhere). If the Secretary of State maintains that she needs to examine people leaving the United Kingdom (and we assert this is not necessary for those leaving voluntarily) then we suggest that the power extends no further than at a port, international railway station or other place of embarkation from the United Kingdom. 7. The power to examine extends to British citizens, EEA nationals or any other person unless s/he was born in the United Kingdom and has never left the country. This gives rise to potential abuse and discrimination of anyone, anywhere in the United Kingdom. 8. We are concerned with the increase of power to examine, how it will be used and the safeguards and training that will be in place to ensure that the power is not used in an arbitrary and unjust way. There is insuYcient information available at present on how the system will operate. There needs to be in place a stringent set of rules and guidelines available to oYcers of the Secretary of State on when and how they would examine people within the United Kingdom.
“Selective migration (including introduction of ‘permission’ for migrants, replacing notions of leave to enter, leave to remain and entry clearance and a single power of expulsion” 9. The Simplification process and accompanying draft Bill seek to simplify the immigration system and one way it seeks to do so is by changing the terminology in reference to leave granted to “simply” permission. However, the diVerent types of permission include temporary permission, transit permission, immigration permission, permanent permission, probationary citizenship permission, protection permission and refugee permission. Contrast this with the current position of limited leave to enter or remain, indefinite leave to enter or remain, humanitarian protection or discretionary leave and it is clear that the simplification of terminology does not meet its objective. It is a question of whether the Bill is seeking change for change’s sake or to meet a genuine need, that of clarifying the rights and obligations of migrants. 10. Another particular concern is the grant of immigration permission by order to those who currently have the right of abode in the UK (Clause 8(2)(a) rendering this group, currently not subject to any immigration control subject to immigration checks and the power to cancel (clauses 13 and 14) the right of abode. At present certain commonwealth citizens with the right of abode in the UK are not subject to Processed: 23-04-2009 22:48:32 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 96 Home Affairs Committee: Evidence
immigration control in the way that British citizens aren’t. The Bill appears to be seeking to undermine the historic links that the UK has with the Commonwealth countries by reducing the rights of this group of people. 11. The single power of expulsion will replace removal and deportation. The changes in the Immigration Rules in April 2008 went some way towards this. However, these changes resulted in widespread criticism and a number of ministerial concessions were necessary to alleviate some of the iniquities and ineYciency the changes would have otherwise caused. Expulsion in the draft Bill merely extends the risk of injustice.
Earning the Right to Stay (including new requirements for citizenship and an automatic ban on returns with new powers to exclude criminals and immigration oVenders) 12. Probationary citizenship, not popular with the respondents to the Green Paper Consultation, is neither a type of citizenship nor does it meet the objective of simple language. It is simply another type of temporary leave. Its aims, according to the Government’s response to consultation to give newcomers the “opportunity to demonstrate their commitment both to the UK and to integrating fully into British Society” do not sit with the notion of creating an extra hurdle to settlement or citizenship within the UK. 13. By the time a migrant has reached the stage of probationary citizen s/he will already have been in the UK for five years (economic or protection cases) and will have shown a commitment to the UK. 14. The current nationality requirements include the need to show good character, English Language skills and pass a Life in the UK Test. This demonstrates a commitment to the UK. There is no additional need for an extra layer of temporary leave, which only serves to increase time before a migrant can fully integrate within the UK, receive services and feel settled here. 15. The Government propose to add an extra requirement of Active Citizenship for citizenship applications. Being an “active citizen” will reduce the time to naturalise. We have already given our objections to the notion of “forced” voluntary work within our response to the Green Paper but would like to point out, as stated above that there are already suYcient requirements in place to demonstrate that a migrant has made a commitment to the UK. This requirement, of active citizenship simply adds an extra hurdle with a bias against certain groups of migrants. 16. The timescales to qualify for citizenship are set out at Clause 34 of the Bill in the form of equations. This does nothing to promote the aim of simplifying the law and using plain language. 17. We object to and are concerned by the fact that it will take a number of years more to acquire permanent permission (now indefinite leave to enter/remain) than British citizenship. This may result in immigrants deciding to naturalise for their own benefit rather than their own resolve/commitment to the UK. 18. Those applicants from countries that do not allow dual nationality will also be at a distinct disadvantage and the provisions may be seen as discriminatory against such nationals, who will be forced to wait a number of years more before acquiring settled status. 19. The provisions for exclusion and automatic bans on return go far beyond foreign criminals and immigration oVenders. For example a work permit holder who fails to report on one occasion, perhaps due to a business meeting, illness or simple forgetfulness could find him/herself the subject of an expulsion order (clause 37(4)(d)), with a lengthy ban on return.
“Playing by the rules (including introduction of ‘bail bonds’ for those awaiting detention or expulsion, ‘immigration bail’ as an alternative to detention, revised sanctions for breaches of immigration law, and a simplified appeals system)”
20. The powers to detain under Part 5 of the Bill increase the categories of people who can be detained and will include British citizens. IAS is concerned that the increased power to detain pending examination (clause 53) is open to abuse and discriminatory practices as anyone can be stopped and detained pending satisfactory examination. 21. The introduction of bail bonds (clause 64) and provision for deposit of sums of money for indeterminate periods of time is a worrying addition to bail conditions. It is not clear how thousands of individual sums of money will be held on behalf of the person who provided the bail bond, nor details such as payment of interest on return of the bond. 22. The condition to deposit sums of money for indeterminate periods of time is likely to result in less people being willing to act as sureties. 23. The part of the Bill dealing with appeals is incomplete and we cannot therefore comment fully on these provisions. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 97
“Managing any local impacts (including simplification of legislation on access to benefits and services)”
24. This aspect is missing from the draft Bill. However, the exclusion of migrants from benefits and services for longer periods of time than current provisions is likely to impact greatly on local areas and on the individuals and families aVected. The provisions relating to citizenship, permanent settlement and exclusion greatly increase time periods before an immigrant can access all services, including education and non- contributory welfare benefits. This will impact on community cohesion and a migrant’s sense of belonging.
Conclusion
25. The draft Bill extends the power of the Secretary of State, reduces the rights of migrants for longer periods of time and is incomplete in its provisions. It is anticipated that the Bill as it currently stands will attract many judicial review challenges, which is precisely what it is seeking to avoid. 26. This memorandum provides only an overview, with some examples, of several concerns in deference to the length of submission requested by the Committee. IAS can amplify its submissions on the diVerent points if that would be of assistance to the Committee and would hope to be invited to give oral evidence in due course. September 2008
Memorandum submitted by the Refugee Legal Centre
About the Refugee Legal Centre
1. The RLC is an independent, not-for-profit organisation and a registered charity.We provide a free legal service to asylum seekers and refugees in the United Kingdom. The RLC has ten regional oYces in addition to its head oYce in London. Our 180 caseworkers and legal oYcers across the country represent thousands of asylum seekers in initial asylum applications and appeals every year, making us the largest specialist provider of legal advice and representation to asylum seekers in the UK. 2. In addition, the RLC has been responsible for dozens of major precedent-setting cases over the last several years, including the series of Zimbabwean cases challenging the legality of removing anyone to Zimbabwe by force. We are recognised leaders in our field, which is reflected also in our unusually high success rate in appeals before the Asylum and Immigration Tribunal (AIT).
Our Concerns
3. The RLC welcomes the long-overdue simplification of the law relating to asylum and immigration. We believe that the project provides a real opportunity to make the law simpler and more accessible, while preserving the checks and safeguards necessary to ensure the UK continues to comply with its international obligations. 4. Regrettably it is clear from the Draft (Partial) Immigration and Citizenship Bill (“the Bill”) that the government’s intention is not merely to simplify the law, but also to diminish the rights of asylum seekers and refugees and weaken the existing system of safeguards against Home OYce decision making which is widely recognised to be poor. 5. In particular the Bill extends the present harsh regime applicable to asylum seekers and immigrants who have committed a criminal oVence to all, even those who have done nothing wrong. It gives the Home Secretary sweeping new powers while reducing the ability of the AIT to supervise the exercise of those powers. It grants the Home Secretary powers to interfere with and even veto decisions of the supposedly independent AIT, and it fails to provide adequate safeguards for some of the most vulnerable groups in society such as children and victims of traYcking, for example by failing to exclude them from detention. 6. The RLC’s primary areas of concern are as follows: 6.1 The wide new power of “Expulsion”. 6.2 Increased powers of detention and reduced rights to bail. 6.3 Curtailment of rights of appeal. 6.4 Missed opportunities to foster integration of refugees. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 98 Home Affairs Committee: Evidence
The New Power of Expulsion 7. Part 4 of the Bill introduces a new concept of expulsion to replace the current system of deportation (for those whose presence is not conducive to the public good, most often convicted criminals) and administrative removal (for those who have no leave to remain, or who have breached a condition of their leave). The new power of expulsion therefore removes the distinction between those who have done something seriously wrong during their time in the UK, and those who have simply had their applications for permission refused. In so doing, the harshest aspects of the current deportation regime are applied across the board, including to people who have done nothing wrong. 8. Simplification is important, but not at the expense of fairness. We maintain that there is a distinction between those who through their own criminality display contempt for the laws of the UK, and those who simply fail to persuade the Home OYce to grant or continue their immigration permission. To threaten the latter group with lengthy re-entry bans is disproportionate and unfair. 9. In addition to this general concern, we would draw attention to the following specific points: 9.1 Those whose removal would contravene the UK’s obligations under the Council of Europe Convention on TraYcking in Human Beings are only exempted from the Home Secretary’s duty to make an expulsion order in respect of foreign criminals under clause 37(2)(b).126 Victims of traYcking are not exempted from expulsion per se, in the same way as those protected by the Refugee Convention or ECHR are.127 We submit that if a person cannot be removed without violating the anti-traYcking convention, then they cannot be removed at all. Consequently this exemption belongs in clause 38 rather than clause 39. 9.2 A further exemption to the Home Secretary’s duty to make an expulsion order is where the person was a child under the age of 18 at the date of conviction.128 We support an exemption for such people, however we question why it should not apply to those who were under 18 at the date of the oVence. Given that their minority is accepted to be a mitigating factor against their oVending, surely it is their age at the date of that oVending that is relevant rather than at the date of their conviction, which may be months later. 9.3 Finally we are deeply concerned at the substantial change in the law aVected by clause 42 read with clause 15. Previously the subject of a notice of intention to deport, or an automatic deportation order, had any leave to remain continued while they appealed against their deportation. Under the new regime, anyone made subject to an expulsion order loses their permission immediately regardless of whether they appeal. In our submission, this is profoundly unfair. The eVect of this change is that people who may go on to win their appeals will nevertheless have already lost their permission, and with it their right to work amongst other things. This provision will result in people who have done nothing wrong losing their jobs and livelihoods while their appeals are heard, without any corresponding increase in control over those who ultimately lose their appeals. It is unnecessary and unjust, and should be remedied.
Increased powers of detention and reduced rights to bail 10. Part 5 of the Bill grants the Home Secretary wide powers to detain anyone in the UK whose entitlement to be here is being examined, with no limit on the amount of time they can be held. It also considerably reduces the ability of the AIT to exercise oversight of the detention of immigrants through the bail system. 11. Leaving aside the misleading and derogatory terminology in respect of “bail” supposedly being granted to those who have never been detained, we have a number of specific concerns: 11.1 Clause 55(4) creates a presumption in favour of detention in respect of foreign criminals facing expulsion from the UK. Detention may be justified in any given case, but it is a judgment that must be made on the basis of the particular facts of that case. Parliament should never sanction a presumption in favour of detention. In place of clause 55(4) we would recommend the enactment of the presumption of liberty, and the burden on the Home Secretary to show substantial grounds for detention.129 11.2 Clause 62(2)(c) allows the Home Secretary to veto the grant of bail if she considers removal to be “imminent” and no appeal is pending. Aside from our obvious concerns about the executive being eVectively granted a licence to interfere with decisions of the judiciary, the provision is so unclear as to be unworkable. “Imminent” is not a term capable of precise definition, and our caseworkers are all too familiar with assertions of “imminent removal” being made in bail cases where the facts point in the opposite direction. 11.3 Clause 62(6) sets out the factors that must be taken into account when considering any decision to grant bail; it is noteworthy that not one factor weighing against detention is listed here. There is
126 See clause 39(5). 127 See clause 38. 128 See clause 39(2). 129 See chapter 55 of the UKBA Enforcement Instructions and Guidance. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 99
no mention of age, the presence of children, mental or physical illness or disability, a history of torture, traYcking or sexual violence, or any other factors militating against detention. If a list of factors is to be prescribed it must be a balanced list. 11.4 Clause 68 provides for the variation of bail conditions after bail is granted. It provides that irrespective of whether the Home Secretary or the AIT initially granted bail, either can amend the conditions of that bail or impose new conditions. It is entirely inappropriate for the Home Secretary to be given the power to increase the control exercised over an individual bailed by the AIT, without going back to the AIT to approve that extension. The AIT makes a careful judgment in imposing bail conditions, and the Home Secretary should not be given a licence to override this judgment without the AIT’s consent. 11.5 Furthermore, clause 68(2)(b) provides that the AIT may not cancel a condition of bail imposed by the Home Secretary. This provision is deeply objectionable. The AIT’s role is to exercise oversight over detention and bail decisions made by the Home Secretary, and it should be free to cancel conditions imposed by her where it believes those conditions to be unnecessary or unreasonable. Clause 68(2)(b) should be removed. 11.6 Clause 64 empowers the Home Secretary or the AIT to impose a financial security condition on any grant of bail. Contrary to the current system, money would have to be actually deposited with the Home Secretary before the applicant is bailed. Additionally there is no provision for the AIT to supervise the return of the deposit,130 contrary to the current system of forfeiture hearings at which sureties can argue that they should not have to pay any or all of the promised amount. This change will lead to far fewer people being prepared to stand surety, which is an unjust policy goal given there is no evidence that the previous system was not working or being abused.
Curtailment of rights of appeal 12. Part 10 of the Bill significantly reduces the access of immigrants to the AIT to challenge negative immigration decisions, and reduces the AIT’s ability to meaningfully review Home OYce decisions. Part 10 is an example of the government’s willingness to put speed and finality ahead of fairness; it is also very likely to lead to an increased burden on the Administrative Court as disenfranchised applicants pursue Judicial Review claims as their only remedy. 13. We draw specific attention to the following main concerns in what is a deeply flawed set of proposals: 13.1 The Bill makes the right to appeal against certain decisions contingent on the person not having used deception.131 In practice this must mean that it is suYcient for the Home Secretary to assert deception in order to prevent the bringing of an appeal. In fact there are many circumstances in which the presence of deception will be a matter in dispute, for example where the Home Secretary asserts that the failure to mention a previous visa application constitutes deception, but the applicant denies ever having made such an application or that their failure to mention it was deceptive. The presence or absence of deception is a matter that should be left to the AIT to decide in hearing the appeal. 13.2 The Bill provides that where an individual’s refugee permission is cancelled, they are only able to appeal in the UK, and only if they are in the country at the time the decision is made.132 The rationale for this last criterion is unclear, and the likely outcome is deeply unfair. The 1951 Refugee Convention allows refugees to travel abroad. Should a recognised refugee have their permission cancelled while travelling abroad, they would have no right of appeal at all. They would be left stranded in whichever country they found themselves, probably with no right to reside there, and would either have to claim asylum again or return to a country in which they face persecution. 13.3 Clause 169 provides for an individual to appeal the cancellation of permission other than refugee permission; by definition this includes protection permission granted for reasons other than refugee status. It provides that they may appeal out-of-country, but may only appeal in-country if certain conditions are met. Amongst those are the absence of deception (for which see above) and that the leave was cancelled on arrival in the UK. This is plainly intended to provide for those who have the equivalent of entry clearance but are refused entry on arrival, however the failure to anticipate the cancellation of non-refugee protection permission leaves such individuals without any in- country remedy against cancellation. In our view a separate appealable decision for the cancellation of non-refugee protection permission must be added, otherwise these vulnerable individuals face removal to countries where they may be at risk. 13.4 Clause 171 provides for appeals against expulsion orders; in addition to the deception requirement it also prevents any appeal against mandatory expulsion orders for foreign criminals, for those who breach a condition of their permission, and for families of the foregoing. The rationale for excluding these groups is far from clear and is likely to lead to increased Judicial Reviews where,
130 See clause 64(5) and (6), aVording the Home Secretary a wide discretion and requiring only that the depositor has the opportunity to make representations. 131 See clauses 168, 169 and 171. 132 See clause 170. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 100 Home Affairs Committee: Evidence
for example, the exceptions in clauses 38 and 39 have been misapplied. It may also prompt disenfranchised individuals to make asylum claims in order to generate an in-country right of appeal. 13.5 Clause 177 deals with asylum and human rights applications that are certified by the Home Secretary as “clearly unfounded”. Given the historically poor record of initial decision-making, we have consistently opposed the current system whereby the subjects of “clearly unfounded” certificates are only able to appeal once they have left the UK. However at least the present system contains some basic safeguards, and we know of several individuals who have won their supposedly unfounded asylum appeals out-of-country under this system. The proposed regime goes a step further by removing even the possibility of an out-of-country appeal. Under the new regime there would be no means of challenging the Home Secretary’s decision, and asylum seekers removed contrary to the UK’s international obligations would have no redress. 13.6 Finally the proposals remove the current jurisdiction of the AIT to review the Home Secretary’s exercise of discretion. This represents a substantial strengthening of the Home Secretary’s powers, and a reduction of the powers of the AIT to hold her to account for her decisions. By removing the only statutory way to challenge the unreasonable exercise of discretion, these provisions will lead to poorer quality decisions and may also add to the burden on the Administrative Court.
Missed opportunities to foster integration of refugees 14. In addition to making changes to the immigration and asylum framework, the Bill also substantially revises the law in relation to naturalisation. Part 3 sets out the new qualifying periods and other requirements for citizenship. It includes clause 36 which defines what “time spent in breach of immigration laws” means for the purposes of calculating the qualifying period for citizenship. On its face clause 36(2) would appear to include time spent waiting for a decision on an asylum claim without “permission” as time spent in breach of the immigration laws. However it is lawful to apply for asylum, and lawful to stay in the UK while a decision is made; clause 36(2) should be amended to reflect this. 15. Furthermore, appropriate amendments should be made to clauses 32 and 33 so that the qualifying period for those granted refugee status begins on the date they made their asylum claim rather than the date they were granted permission. This would foster the integration of refugees, and reflect the declaratory nature of refugee status.
Conclusion 16. We would welcome the opportunity to give further and more detailed evidence on the draft Bill when this Committee hears oral evidence in the autumn. Thank you for your consideration. September 2008
Memorandum submitted by the Refugee Council
1. Introduction 1.1 The Refugee Council is the largest charity in the UK working with asylum seekers and refugees. We not only give direct help and support, but also work with asylum seekers and refugees to ensure their needs and concerns are addressed. 1.2 The draft (partial) Immigration and Citizenship Bill will overhaul the entire legislative framework of the UK asylum system that has been developed in eight Bills in the past 15 years. We are concerned that this radical review of asylum law will have profound implications for the thousands of refugees who flee to the UK every year. The Bill provides an opportunity to ensure that the protection needs of refugees are adequately safeguarded for the next decade. Yet this opportunity has been missed, and the Refugee Council is concerned by the following issues that will make life more diYcult for refugees and will result in refugees being denied the protection to which they are entitled: 1.2.1 Borders without doors for refugees: The increased interception measures, such as the authority to carry schemes in Part 8 of the Bill, mean that increasing numbers of refugees will be prevented from reaching the UK. There are no safeguards in place to ensure that increased extra-territorial border controls do not result in refugees being forced back to persecution. This goes against the spirit of our international obligations. 1.2.2 Criminalisation of refugees: The wide range of oVences listed in Part 7 of the Bill, in conjunction with the lack of legal entry routes into the UK for refugees seeking asylum, means that refugees will be subject to increasing dangers of criminalisation and the threat of imprisonment or detention. Refugees should not be criminalised for seeking asylum and they should not be detained whilst Processed: 23-04-2009 22:48:32 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 101
their asylum claims are processed. They should be allowed adequate time to present their asylum claim, have access to legal advice and representation throughout the process, and have a right of appeal from within the UK. They should be allowed to work during this time. 1.2.3 Putting refugees on “probationary citizenship”: The proposed introduction of “probationary citizenship” is simply an additional period of temporary leave. Individuals with protection needs who are granted leave will be faced with additional lengthy delays before gaining a permanent right of residence. The Refugee Council believes that refugees should immediately be given permanent rights of settlement once their need for protection is identified by the UKBA. This would enable them to rebuild their lives and recover from the experiences which forced them to flee their homes. The granting of settlement should be on the basis of need, and not be dependent upon the fulfilment of other obligations such as engaging in voluntary work. 1.2.4 Keeping refugees out of the UK regardless of their safety: The combining of previous deportation orders and administrative removal into the single concept of expulsion means that people who leave the UK because they had not been recognised as refugees will be faced with lengthy bans on re-entry. As a result, people who apply for asylum and are refused will not be able to return the UK if they need refugee protection in the future. People should only be removed from the UK to countries that are safe and to which returns are sustainable. In order to ensure that all returns from the UK are safe and sustainable, returns should be monitored.
2. Refugee Council Commentary on Areas Highlighted by the Committee 2.1 We have listed our detailed comments on the Bill according to the Committee’s list of concerns. More detailed commentary on the draft Bill, along with the Refugee Council’s full recommendations, are available in our public briefing on the Bill.133
“Strong borders” (including modernising border powers and carriers’ liability and powers to cancel visas abroad)
Powers to examine etc—Part 2 of the draft Bill 2.2 The Refugee Council is concerned that the proposed new powers are extremely broad and far- reaching, allowing immigration oYcials to make enquiries about anybody, anywhere in the world. Protection safeguards are urgently needed to ensure that people who need to flee persecution are not prevented from doing so by UK extra-territorial border and immigration controls. We are concerned by the lack of transparency and accountability for what happens “out of sight” in border posts abroad. 2.3 The Bill proposes to introduce the power to examine those who seek to enter the UK. This power can be exercised by the UK’s immigration oYcials acting outside of the UK’s territory. It is proposed that this power be combined with immigration oYcials being able to grant or cancel permission to enter or transit the UK. 2.4 The Refugee Council is concerned that in circumstances where immigration oYcials acting extraterritorially (including in refugee’s countries and regions of origin) refuse or cancel permission to enter or transit the UK, this may lead to blocking refugees from leaving their own country. It may also lead to direct or indirect refoulement of refugees transiting through a country on their way to seek protection elsewhere. We are particularly concerned that refugees who are in a transit country and are refused permission to travel to the UK may be at risk of being returned to their own country, or to another country through which they transited that will send them back to their country of origin. These life-threatening processes are known as direct and indirect refoulement and are prohibited by the 1951 Convention and by international human rights law. The UK’s obligation not to refoule refugees, whether directly or indirectly, arises not only on UK territory, but also applies to settings where its oYcials are abroad. 2.5 The Refugee Council believes that the Bill should be used as an opportunity to introduce protection safeguards in order to ensure that the UK fulfils its obligations under international refugee and human rights law. In particular, we call for the Bill to require the Secretary of State to regularly review, through independent monitoring, whether extra-territorial border control is compliant with refugee protection and with the UK’s international legal obligations, in particular the prohibition on refoulement.
Carriers Liability—Part 8 of the draft Bill 2.6 The Refugee Council believes that the UK’s use of carriers, such as airlines, to check that an individual has the required immigration documentation to enter the UK, is not accompanied by adequate safeguards for refugees feeling persecution. The Bill’s proposed “Authority to Carry” scheme further extends the delegation of immigration control functions to private carriers. This new system will allow carriers to check the details of a passenger against Home OYce databases and receive instant confirmation
133 Refugee Council (September 2008) A briefing on the Draft (partial) Immigration and Citizenship Bill 2008. Available at http://www.refugeecouncil.org.uk/policy/briefings/2008/immigrationandcitizenship.htm Processed: 23-04-2009 22:48:32 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 102 Home Affairs Committee: Evidence
that they pose no known security or immigration threat. The Refugee Council reiterates that where border control activities are carried out extra-territorially, the UK remains subject to obligations not to return refugees to persecution. This applies equally to circumstances where border control activities are contracted out to private carriers. 2.7 The Refugee Council recommends that the protection capacity of carriers be built by, for example, providing access to a protection helpline for carriers to raise concerns about individuals with protection needs, as well as by providing carriers with training on the UK’s international refugee and human rights legal obligations, by which they are bound.
“Selective migration” (including the introduction of “permission” for migrants, replacing notions of leave to enter, leave to remain and entry clearance, and a single power of expulsion)
Expulsion orders & removal etc. from the UK—Part 4 of the draft Bill 2.8 The Refugee Council is concerned that the draft Bill combines the previous powers of administrative removal and deportation into a single power of expulsion and imposes re-entry bans on all. Refugees and refused asylum seekers who are removed from the UK should not face the same penalty as that imposed on people who are being removed because of previous criminal behaviour, including those who may present a danger to the community. 2.9 We are additionally concerned that the current draft Bill contains no safeguards against the current UK practise of removing people, or expecting them to depart, to countries that are unsafe or experiencing rapidly deteriorating conditions. The UK regularly removes individuals to countries against the advice of the United Nations High Commissioner for Refugees (UNHCR) to refrain from such forcible removals because they are unsafe or unsustainable. We believe that there is a need to introduce an obligation on the Secretary of State to monitor the post-return outcomes of asylum seekers who are returned where returns are contrary to UNHCR advice or are to countries experiencing significant or widespread human rights violations. We therefore recommend that the Bill be used to introduce powers for an independent monitor to oversee and provide an independent assessment of returns and their outcomes. We additionally recommend that the Bill be used to introduce powers to fund the monitoring of post return outcomes to ensure that returns are safe and sustainable.
“Earning the right to stay” (including new requirements for citizenship and an automatic ban on returns with new powers to exclude criminals and immigration oVenders) 2.10 The Refugee Council believes that individuals who are removed from the UK after having their claim for asylum refused, as well as those who are removed after their period living in the UK as a recognised refugee has ended, should not be prevented from applying for re-entry straight away. It is impossible to guarantee that those to whom re-entry bans apply will not be at risk of persecution in the future, with an urgent need to flee their country of origin. 2.11 We remain concerned that under the proposed legislation, as at present, some refugees will be excluded from protection under the 1951 Refugee Convention and face expulsion to a country where their lives are at risk. For example, previous legislation has incorporated the UK’s very broad definition of terrorism, including acts which encourage criminal damage, into the UK’s interpretation of the Refugee Convention. As a result, political refugees who have opposed repressive regimes in their home countries can fall within this broad definition and be excluded from refugee protection, with severe consequences for their safety.134
Citizenship—Part 3 of the Bill 2.12 The Refugee Council believes that all those recognised as refugees by the UK should receive permanent residence and not endure the uncertainty of an initial period of temporary leave. 2.13 We continue to have strong reservations about the implications for refugees of the routes to citizenship proposals.135 We believe that the language of “earning the right to stay” in the UK and “probationary periods” does not reflect the fact that refugees have international legal rights to protection and that long-term, secure protection should not be something that has to be earned. We further do not believe that the requirement to engage in voluntary work should apply to refugees who have fled persecution and are rebuilding their lives in safety in the UK. Once somebody has been recognised as a refugee they
134 See for example The Refugee Council’s submission to the review by Lord Carlile of Berriew QC of the definition of terrorism in UK law 2006. http://www.refugeecouncil.org.uk/policy/responses/2006/terrorism.htm 135 Our concerns were set out in our May 2008 position The Refugee Council response to Paths to citizenship, available at http://www.refugeecouncil.org.uk/policy/responses/2008/citizenship.htm Processed: 23-04-2009 22:48:32 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 103
should be allowed to permanently settle, as temporary leave can only hinder successful integration. The Refugee Council is aware that a significant proportion of refugees already volunteer and participate actively in society and will continue to do so. We are concerned that making volunteering such a core component of the naturalisation process may be discriminatory, as people with illnesses and disabilities, women with children and single parents may find it diYcult to find suitable volunteering opportunities.
“Playing by the rules” (including the introduction of “bail bonds” for those awaiting detention or expulsion, “immigration bail” as an alternative to detention, revised sanctions for breaches of immigration law, and a simplified appeals system)
Powers to detain and immigration bail—Part 5 of the Bill
2.14 The Refugee Council believes that the term “immigration bail” is used in a misleading way in the Bill and we oppose its use for people who have not been detained or released from detention. An alternative term should be adopted to describe the status of asylum seekers who are here lawfully awaiting a decision on their claim. 2.15 We oppose the proposed requirement for the Secretary of State to consent to an independent Tribunal decision to grant bail in the case of individuals facing “imminent removal”. We believe that this is an inappropriate extension of the Secretary of State’s powers. It is commonplace for people to be held in detention for months, and in some cases for years, and deemed to be facing “imminent removal” when in fact removal is currently impossible due to significant practical diYculties. Currently, the courts may step in and grant bail to individuals falling within this category, but under the new proposals the Secretary of State could prevent this from happening. The Refugee Council believes the independence of the Courts should be maintained and that the Secretary of States should not have the power to overrule or vary Tribunal decisions on bail. Further, in order to avoid lengthy detention of asylum seekers and refugees, some of whom are in detention but unaware of their entitlement to bail, detainees should have a statutory right to a bail hearing after seven days. 2.16 Part five of the draft Bill contains a list of matters that must be considered when deciding whether to grant immigration bail and whether to make bail conditional. The Refugee Council believes that as currently drafted the list is imbalanced and may mean that some individuals are less likely to receive bail than if additional factors were also considered. We believe that additional factors be considered, including the length of time already spent in detention, an individual’s state of health and the impact that detention would have on the individual and their family. 2.17 The Refugee Council is extremely concerned about the impact of the possible requirement for a deposit of a sum of money in order to be granted bail. Refugees and asylum seekers are less likely than many other people in society to have access to the sums of money required, nor to know people who are willing and able to pay these sums on their behalf. They are therefore likely to be adversely aVected if required to deposit money, and as a result of this provision of the Bill there is a real risk that they will be kept in immigration detention inappropriately.
OVences—Part 7 of the Bill
2.18 The Refugee Council is concerned that the cumulative eVect of existing and proposed immigration oVences is that refugees and asylum seekers are increasingly likely to find themselves criminalised and face serious repercussions as a result. The lack of legal routes to the UK for refugees seeking asylum means that oVences relating to facilitating illegal entry are likely to disproportionally aVect refugees and others with international protection needs who assist family members to flee persecution and seek sanctuary in the UK. Documentation oVences are particularly worrying and run contrary to the spirit of the Refugee Convention, whose drafters recognised that many refugees are not able to obtain the required oYcial travel documents to enable them to flee from persecution. Of equal concern are oVences contained within the draft Bill including breach of reporting conditions, or failure to submit to a medical examination, which will be punishable by up to 51 weeks imprisonment. 2.19 Under the Bill, it will continue to be an oVence to fail to produce a valid travel document at the time of an asylum claim. It is of grave concern that there are refugees in British prisons who have been placed there solely for using false documentation in order to flee persecution. In the absence of legal entry routes into the UK for asylum seekers, many will have placed themselves in the hands of agents and may have little actual control over their documentation. Refugees should be fully protected by Article 31 of the Refugee Convention, which says they should not be penalised for using false documents. Currently, refugees facing documentation oVences are commonly unable to obtain appropriate immigration advice and representation as they are represented by solicitors who are not specialists in immigration law. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 104 Home Affairs Committee: Evidence
2.20 We note that the additional proposed oVence of obstructing, resisting or assaulting oYcials is extremely wide ranging and ill defined. The Bill does not contain a definition of the term “obstructing” and we are concerned that it is capable of being open to broad interpretation. The range of people who may be “obstructed” or “resisted” is also very wide and includes all contracted staV involved in the processes of detention and removal. Given that there is recent evidence of staV engaging in inappropriate behaviour towards those whose detention or removal they are involved in, the new oVence is a matter of extreme concern.136
“Managing any local impacts” (including simplification of legislation on access to benefits and services)
2.21 The Refugee Council regrets that the current draft Immigration and Citizenship Bill is incomplete and does not contain the provisions for the support of asylum seekers, nor for those relating to access to health care. These are issues of considerable significance and we fear that there will be insuYcient opportunity to consider and discuss with the Government the likely impact of these provisions. Under current legislation, thousands of asylum seekers have been left destitute in the UK, including many who are unable to return to their country of origin. The Refugee Council is a member of the Still Human Still Here campaign to end the destitution of refused asylum seekers, and we draw the Committee’s attention to the campaign’s submission.
2.22 The Refugee Council is additionally concerned about the minimal level of support provided to asylum seekers at the end of the asylum process who are eligible for support under the Section 4 “hard case” voucher support system. We will shortly publish findings from our recently research examining the impact of the Section 4 support system on asylum seekers at the end of the process and on those organisations that work with them. We believe that vouchers are an inappropriate means of support for asylum seekers, and hope that the Government will use the opportunity of the draft Bill to reintroduce cash support for all asylum seekers.
2.23 Although we have not seen the detail of the Government’s intention in relation to asylum seekers’ access to healthcare, we are concerned that the Bill will be used to restrict access. The Refugee Council works with many asylum seekers who are inappropriately denied, or charged for, essential medical treatment. We would welcome the opportunity to provide additional evidence to the Committee about the devastating impact that the denial of healthcare has on individuals and families. September 2008
Memorandum submitted by the Migrants’ Rights Network (MRN)
1. Introduction
1.1 The Migrants’ Rights Network (MRN) was established in December 2006. We work to support migrant community organisations and organisations working with migrants, on issues related to employment, the community, access to public services, and on other matters which have consequences for migrants’ rights and social justice. Currently there are over 1,500 organisations and individuals which participate in the network’s policy discussion and information exchanges.
1.2 We have monitored the Government’s development of immigration legislation and policy since the formation of MRN, and welcome the opportunity to comment on the draft (partial) Immigration and Citizenship Bill (hereafter “the draft Bill”). In our response to the previous Border and Immigration Agency “Simplifying Immigration Law” consultation, we laid out our broad support for a project which would consolidate existing immigration law into a single Act. However, we judged that, due to the complexity and significance of the “simplification project”, “seeking to do more than simplify current immigration law through consolidation would jeopardise the project’s success”.137 We also expressed our concern “that the [stated simplification] principles lean too heavily towards administrative eYciency. Principles that the simplification process should see as underpinning immigration law must also encompass access to justice, fairness, providing protection and upholding human rights standards”.138
136 Examples of such inappropriate behaviour are documented in Birnberg Peirce & Partners, Medical Justice and the National Coalition of Anti-Deportation Campaigns (July 2008) Outsourcing abuse http://www.medicaljustice.org.uk/images/stories/ reports/outsourcing%20abuse.pdf 137 Response to Simplifying Immigration Law Consultation, Migrants’ Rights Network 29 August 2007. 138 Response to Simplifying Immigration Law Consultation, Migrants’ Rights Network 29 August 2007. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 105
2. Executive Summary 2.1 MRN’s submission outlines our view that the “sweeping changes”139 to the current legislative framework in the draft Bill will seriously impact on the rights of migrants in the UK, as well as the rights of British citizens generally. In pursuit of “simplification”, the Home OYce has produced a piece of legislation which would increase the powers of the state—in particular the Secretary of State—over migrants, at the expense of individual civil liberties. As the Government has acknowledged on numerous occasions, migrants make invaluable economic and cultural contributions to British society. Powers conferred through the draft Bill, however, will risk alienating migrant communities by further stratifying the possibilities for migrants and those of British citizens. 2.2 We object in particular to the way that the draft Bill confers selected immigration responsibilities and powers on individuals—including airline pilots, employers and public service oYcials—who are not trained immigration oYcials. Such individuals may now, in various circumstances, find themselves assessing migrants’ immigration status, detaining migrants and making judgements about migrants’ entitlement to goods and services in the UK—all at the risk of incurring severe penalties for any mistakes. The great danger of this approach is that damage arising from poor quality decisions on matters involving immigration status will escalate into other areas of social life, such as the labour market, access to public services, and the right to be protected from racism and xenophobia. We are concerned that, through the powers outlined in this draft Bill, the Home OYce will jeopardise the long-term cohesion and integration of migrants into British society. 2.3 Our key concerns are: — “Strong Borders”/“Selective Migration”—extended immigration powers to examine individuals, and to cancel “immigration permission” during examination. — “Playing by the Rules”—extended immigration powers to detain migrants, including in unregulated conditions. — “Earning the Right to Stay”—an extended “path to citizenship”, during which migrants would be denied access to mainstream public benefits. — “Managing any Local Impacts”—the prospect of a “migrants’ tax” and “Immigration Crime Partnerships”.
3. “Strong Borders”/“Selective Migration” 3.1 The draft Bill would allow for significant extension of powers of examination both at the border and in-country, with serious implications for migrants’ freedom of movement in the UK. Clause 25 (1) would allow the Secretary of State to “examine” any person in the UK in order to establish their immigration status. She would not be required to justify this examination, or justify any cause for suspicion about a person’s right to be in the UK. This would allow for migrants, as well as British citizens, to be targeted at random during the course of their daily business and “examined”, in order to determine their immigration status in the UK. The potential for discrimination against ethnic minorities in the UK is striking, making migrants and minority ethnic British citizens potentially vulnerable to examination on race-based grounds. 3.2 The draft Bill provides that people under Clause 25 (1) examination may also be detained indefinitely in the course of the examination until “all relevant matters have been determined” (Clause 53 (1)). The individual may be required to submit to one or more medical examinations if the Secretary of State requires (Clause 25 (3)). It is unclear what the purpose of a medical examination could be in determining a person’s immigration status, but this currently appears to be an unnecessary and invasive power. Clause 27 (1) provides that the Secretary of State may submit the individual to limitless future examinations/detentions, including medical examinations, if she requires. These extended powers of detention and physical examination—without due justification—threaten serious infringements of civil liberties, and would extend the State’s power over individuals (both migrants and British citizens) to an unacceptable degree. 3.3 The immigration “permission” granted to a migrant will also extend to other dependent members of his/her household if they are also present in the UK. The power granted to the Secretary of State under Clause 29, to suspend a migrant’s “permission” until completion of a Clause 25 examination could therefore extend to several people, with a huge impact on the life of a migrant family. Employment, family life, access to such benefits/services as he/she is entitled, not to mention the stresses and strains placed on the migrant and any family members could all be severely aVected by such a disruptive and potentially arbitrary measure as cancelling permission to be in the UK. There is currently no provision for such a decision to be appealed or reviewed. 3.4 Although details of new “powers to lock down identity” are currently missing from the draft Bill, the accompanying “Making Change Stick” document outlines the UKBA’s intentions to introduce a “comprehensive power for the Agency to obtain and use biometrics in the situations and from the classes of individuals that it legitimately needs to”—potentially resulting in the infringement of civil liberties.140
139 Pg 2, “Draft (Partial) Immigration and Citizenship Bill: Public Scrutiny Document”. Home OYce July 2008. 140 Pg7“Making Change Stick, An Introduction to the Immigration and Citizenship Bill”, Home OYce July 2008. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 106 Home Affairs Committee: Evidence
4. “Playing by the Rules” 4.1 MRN objects to the wide powers granted through the draft Bill to individuals who are not immigration oYcials, and to the Secretary of State, in relation to the detention of migrants in the UK. The detention of migrants in the UK is already contentious, with recent inspection reports by HM Chief Inspector of Prisons on Yarl’s Wood141 and Tinsley House142 Centres identifying many inadequacies in conditions for detainees, in particular for children. The draft Bill would extend the powers of the State to detain migrants in the UK, potentially in totally unregulated conditions. 4.2 Clause 54 requires a captain of a ship, aircraft or train to, if required by the Secretary of State, prevent any undocumented migrant from disembarking in the UK. It would be a criminal oVence, under Clause 115, where a captain “knowingly allows a person to disembark in the UK when required [by the Secretary of State] . . . to prevent that”, with a maximum 51 week imprisonment as a result. It is not diYcult to imagine circumstances when the requirement of Clause 54 will clash with the responsibility of captains and other air crew to ensure the safety of other passengers and the aircraft as a priority, or to deal with health emergencies that might arise with the individual who has been ordered to be detained. 4.3 Clauses 54 (3) and 56 also allow a captain, at the request of the Secretary of State, to detain on board an aircraft, ship or train, migrants “without immigration or transit permission” and migrants “subject to an expulsion order”, to prevent them from disembarking in the UK. There is no regulation on detention conditions, or on limiting the use of force against migrants under these circumstances. This could potentially lead to the mistreatment of undocumented migrants by individuals who are unqualified in establishing their immigration status, restraining and detaining them in custody. 4.4 Clause 55 would allow for a migrant to be detained “if the Secretary of State thinks that a person is someone in relation to whom an expulsion order may be made”. Expressed in such general terms, this would allow the Secretary of State to order a captain to prevent the disembarkation of a passenger who may be suspected of intending to apply for asylum on contact with the UK authorities. Nothing in the draft legislation requires the Secretary of State to consider the setting aside of the normal provisions of the immigration rules in circumstances when this is required by considerations arising from the Geneva Convention on the Status of Refugees or other humanitarian considerations. It would be unlawful under the Geneva Convention to impede a refugee outside their country of origin from making their application for asylum but, as it is currently stated, the Clause could become a standard mechanism for preventing individuals from lodging claims for asylum. 4.5 Clause 59 (2) would permit migrants to be detained “in such places as the Secretary of State may direct”, without requiring particular circumstances for such a measure. This confers an unnecessary level of discretion to the Secretary of State, and would be likely to lead to infringements of migrants’ rights. Designated Immigration Removal Centres exist in order to ensure that migrants are only detained under certain conditions which ensure basic human needs can be met and their treatment can be monitored and regulated. We are concerned that immigrants detained outside Immigration Removal Centres could not be guaranteed minimum standards.
5. “Earning the Right to Stay” 5.1 As laid out in our response to the “Path to Citizenship” consultation in March 2008, MRN strongly objects to the concept of “probationary citizenship permission”, a category which will make unreasonable demands of migrants in the UK on their journey to British citizenship. The introduction of probationary citizenship would eVectively extend the standard time taken to attain British citizenship, from the current five year minimum residency in the UK to an eight year period (reducible to six years upon fulfilment of an “activity condition”) (Clause 34). For family dependents the qualifying period for naturalisation as a British citizen would be extended from the current two years to a minimum of three years. Calculations for the duration of probationary citizenship in the draft Bill are unclear in the draft Bill as it stands. Although the Home OYce recently defined a maximum duration for migrants’ probationary citizenship (five years for economic migrants and refugees),143 it is not included within the draft Bill. 5.2 The probationary citizenship period will be reduced if migrants fulfil an “activity condition”, ie “participate otherwise than for payment in prescribed activities” (Clause 34 (2a)). We criticised the proposal of coerced voluntary activity at the Green Paper stage for being culturally specific and demanding conformity to a prescribed notion of “community engagement”, with the potential to penalise against migrants unable to meet the necessary criteria.144 Because these issues are unlikely to be satisfactorily addressed, we feel that the inclusion of “activity conditions” in the draft Bill would be inappropriate.
141 Report on a full announced Inspection of Yarl’s Wood Immigration Report Removal Centre by HM Chief Inspector of Prisons, February 2008. 142 Report on a full announced Inspection of Tinsley House Immigration Removal Centre by HM Chief Inspector of Prisons, March 2008. 143 Page 14, “The Path to Citizenship: Next Steps in Reforming the Immigration System: Government Response to Consultation”. Home OYce UK Border Agency July 2008. 144 “The Path to Citizenship: Comments on the Home OYce Green Paper”, Migrants Rights Network, 25 March 2008. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 107
5.3 An extended path to citizenship would have many potential repercussions for migrants’ ability to live and work fruitfully in the UK. With a new regime in place requiring employers to check the immigration status of their workers and identify those with conditions attached to their stay, it can be expected that the longer period would increase job insecurity and expose more to the risk of exploitative employment. We, in fact, believe that a stronger case exists for a reduction in the time required to reach citizenship, rather than an extension; with migrants being brought more rapidly to the point when they can plan their future lives in Britain with more confidence and in more security. 5.4 We are particularly concerned about the Home OYce’s assertion that “probationary citizens will not . . . be entitled to access non-contributory benefits, social assistance, local authority housing or homelessness assistance”.145 Economic migrants who have reached the stage of probationary citizenship have already demonstrated their commitment to the UK through paying taxes and National Insurance contributions during the five year qualifying period, as well as participating in British society. It would be unreasonable to deny these migrants access to social benefits for a further period of probationary citizenship, which could continue for a number of years. As this has not yet been outlined in the draft Bill, we look forward to responding in detail to the proposed legislation in relation to probationary citizenship and public benefits and services.
6. “Managing Any Local Impacts”
6.1 It is at local level where many of the impacts of immigration legislation are most sharply experienced, impacting on migrants’ ability to go about their daily lives and to form and sustain relationships within local communities. Details of how local impacts will be managed—such as the proposed “migrants’ tax”—have not yet been included in the draft Bill. We also look forward to responding fully to proposed legislation on this area when released in the full draft Bill. 6.2 The covering document to the draft Bill “Making Change Stick” states that the Government’s intentions that “migrants contribut[e] a little extra to the cost of local services”.146 As we outlined in our submission to the “Path to Citizenship” Green Paper, we are deeply opposed to the prospect of a migrant- specific tax. Migrants are already net contributors to public funds—a fact argued by the Government on numerous occasions—meaning there can be no justification for a specific tax. Any shortage of funding to support management of local level migration impacts is related to the Government’s failure to distribute revenues proportionately to local regions. The Government should be required to address this issue before it advances policies aimed at either restricting access to services or raising additional revenue from migrant specific taxes or charges. 6.3 We are also aware that UKBA intends to consolidate existing powers, through the full Bill, “which enable other bodies including Government departments, the police, local authorities, employers and financial institutions to provide information to UKBA . . . some of those powers are permissive and others are coercive”.147 The Home OYce strategy document “Enforcing the Deal” (June 2008), outlines plans for “Immigration Crime Partnerships” across the UK, involving information-sharing between police, financial institutions, local authorities and public service providers. We remain concerned that the establishment of local Immigration Crime Partnerships will impede the ability of regional initiatives, such as the Strategic Migration Partnerships, to build consensus around the integration of migrants in pursuit of cohesion and stability at the local level. 17 September 2008
Memorandum submitted by No Recourse to Public Funds Network
Executive Summary
1. This submission focuses on the implications of the draft (partial) Immigration and Citizenship Bill for local authorities supporting people who have no recourse to public funds (NRPF). Approximately 4,000 people subject to immigration control with NRPF are being supported by local authorities at a cost of at least £33.4 million per annum,148 primarily because they are unable or unwilling to leave the country. This situation arises because of the incompatibility of community care and immigration law, which is not addressed by the draft Bill.
145 Page 20, “The Path to Citizenship: Next Steps in Reforming the Immigration System: Government Response to Consultation”, Home OYce UK Border Agency July 2008. 146 Page 4, “Making Change Stick. An Introduction to the Immigration and Citizenship Bill”, Home OYce July 2008/ 147 Page 7, “Making Change Stick. An Introduction to the Immigration and Citizenship Bill”, Home OYce July 2008. 148 No Recourse to Public Funds: Financial Implications for Local Authorities (May 2008) Jonathan Price and Olvia Fellas, NRPF Network. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 108 Home Affairs Committee: Evidence
2. Furthermore, the Bill introduces an additional stage prior to migrants acquiring British citizenship or permanent residence, entitled “probationary citizenship”. This stage will increase the length of time in which some migrants will have no recourse to public funds, and will consequently increase costs to local authorities. We understand that those granted refugee status will be exempt from the NRPF requirement during the “probationary citizenship” stage. 3. The submission welcomes a commitment to remove those without “permission” to be in the UK in a sustainable and sensitive way (ideally through assisted voluntary returns programmes). There needs to be resolution to cases currently being supported by local authorities however, which may involve exploring options to grant some form of “permission” and thereby allowing them to work or access mainstream benefits. 4. Additional concerns highlighted in this submission are as follows. Firstly, the introduction of restrictions for those who voluntarily return seeking to re-enter the UK will act as a disincentive to take up voluntary return and will compromise the work of local authority caseworkers and social workers who use this option to resolve cases. Secondly, charging additional fees for immigration applications for migrants who tend to consume more in public services is unreasonable and may potentially disadvantage vulnerable migrants.
No Recourse to Public Funds (NRPF) Network
5. The NRPF Network is a network of local authorities focusing on the statutory response to destitute people from abroad who have no recourse to public funds. The Network, established in 2006, aims to share information and good practice amongst local authorities, work with government departments to raise practical and policy issues and to develop a strategic response to NRPF. 6. There are over 600 members of the NRPF Network representing local authorities, the voluntary sector, central government, the police and the NHS. Many of our members work with people who have NRPF and are particularly vulnerable on account of having a community care need which entitles them to local authority support under section 21 National Assistance Act 1948 or Section 17 Children Act (more information below). It should be borne in mind that the implications of the Immigration and Citizenship Bill may be particularly acute for this group of people due to their need for “care and attention” (as defined by community care legislation). 7. The NRPF Network is currently working with the Home OYce on mechanisms for reimbursing organisations for providing support to victims of domestic violence applying for Indefinite Leave to Remain (ILR) under the “Domestic Violence Rule”. The Network has also begun preliminary work with the UK Borders Agency (UKBA) to seek resolutions to individual cases being supported by local authorities. Objectives have been set to identify and conclude cases, taking enforcement action where practicable or granting status to cases in accordance with their policies. These objectives have been set out as part of pilot partnerships with local authorities in the UKBA’s Enforcement Strategy. 8. The NRPF Network is funded by the UKBA and Islington Council.
What is NRPF?
9. “No recourse to public funds” applies to a person who is subject to immigration control; does not have the right to work;149 and has no entitlement to welfare benefits, public housing or UKBA asylum support. 10. The NRPF policy aVects a wide range of people who are subject to immigration control, including refused asylum seekers, visa overstayers, post-18 former unaccompanied asylum seeking children, people in the UK on spouse visas and some EEA migrants.150 11. Case law has ruled that those who are destitute and in the country lawfully are entitled to local authority support where they are assessed as being in need of care and attention (National Assistance Act, 1948) or, if they are in the country unlawfully, where it would be a breach of their human rights to withhold or withdraw support (Human Rights Act, 1998). Individuals with mental health problems, physical health problems, older people and those suVering domestic violence may be entitled to local authority services. In addition, support may be provided by a local authority to a family under the Children Act 1989 where a child is found to be a “child in need”. 12. Due to complex and overlapping community care, immigration and human rights legislation, many people are found to be ineligible for local authority assistance. Those who do not qualify may become destitute and/or street homeless. Others will become hidden homeless, staying for example with family or friends, or in mosques or churches.
149 People granted leave as spouses or civil partners are permitted to take up employment. 150 The term “migrant” will be used henceforth to refer to these groups collectively. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 109
Introduction
13. The NRPF Network represents a broad range of stakeholders comprising principally local authority representatives but also those from the voluntary sector, and statutory bodies such as the police and the NHS. This submission will focus on the impact the new legislation is likely to have on statutory bodies and the clients to whom they provide services. 14. The Draft (partial) Immigration and Citizenship Bill, published on 14th July 2008, does not include details of changes to entitlements to public services and benefits, which is the principle concern of the NRPF Network. However, a document accompanying the draft Bill, “Making Change Stick: an Introduction to the Immigration and Citizenship Bill”, provides a rough outline of how the changes will look in the full Bill. Additionally, the “Path to Citizenship” Green paper, published by the UKBA in May 2008, outlined proposals for amendments to access to benefits and other “public funds” for migrants. It appears that the proposals in the Green paper will be fully incorporated into the legislation.151 15. Below, we consider the draft Bill under some of the headings outlined in this call for submissions in areas relating directly to the work of the NRPF Network.
Selective Migration
Those overstaying permission
16. The document accompanying the draft Bill states that “anyone who knowingly enters or stays here without permission after it has expired or been cancelled will be committing an imprisonable oVence”. There are many reasons however why migrants may still be in the country without “permission”. Research undertaken by the NRPF Network in May 2008 found that almost 4,000 people with NRPF were being supported by local authorities across the UK during 2007–08; many of these people are in the country without “permission”.152 Their inability to leave the UK may be on account of a physical or mental illness, the lack of a safe route of return, or a lack of travel documentation, to name but a few. 17. Local authorities have a duty to support migrants with NRPF and have an assessed community care need (most often a mental or physical illness) under the National Assistance Act 1948 or, in certain circumstances if they have children, under the Children Act 1989, or in order to avoid a breach of their human rights under the Human Rights Act 1998. These individuals and families should not be punished for being in the UK without permission through no fault of their own; furthermore, many of these individuals and families, on account of being supported by the local authority, are particularly vulnerable, and their specific needs and circumstances should be taken into consideration if any enforcement action is to take place. 18. In order to avoid the situation in which those without permission are being supported by local authorities, the UKBA should remove refused asylum seekers at the end of the asylum process and resolve cases currently being supported by local authorities. Local authorities collect considerable amounts of information on clients whilst supporting them. The UKBA should use this to inform decision-making and help find sustainable solutions to individual cases. Furthermore, the UKBA should consider adopting a casework approach to address individual cases being supported by local authorities in order to reach these resolutions more eYciently. 19. There are some individuals and families whose removal from the UK is unenforceable on account of a physical or mental health problem, and in such cases the UKBA should consider granting some form of “permission”, and therefore entitling them to work or access mainstream benefits. 20. In cases where travel documents cannot be granted, the UKBA should reimburse the local authority for continuing to provide support to the individual until such time that travel documents can be granted. 21. In cases where return is an option, the UKBA should work with local authorities to seek the best solution for individuals and families. Ideally this would be through assisted voluntary return programmes. 22. In cases where overstayers are families with children, it is of concern that separating families would raise a safeguarding dilemma for local authorities who are under a general duty to safeguard the welfare of children and enable children to be cared for within the family (Children Act 1989). Clause 189 of the draft Bill requires immigration oYcials to have a duty to safeguard and promote the welfare of children. We stress that this duty should extend to children within families as well as unaccompanied children.
151 Please see the UKBA’s response to the “Path to Citizenship . . .” consultation: http://www.ukba.homeoYce.gov.uk/ sitecontent/documents/policyandlaw/immigrationandcitizenshipbill/pathtocitizenshipconsultation/governmentresponse.pdf ?view%Binary 152 No Recourse to Public Funds: Financial Implications for Local Authorities (May 2008) Jonathan Price and Olvia Fellas, NRPF Network. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 110 Home Affairs Committee: Evidence
Removals
23. Part four of the draft Bill outlines the power to make expulsion orders for the removal of people from the UK and to restrict re-entry into the UK. 24. For those who are in a position to leave the UK, the NRPF network welcomes powers to remove those unlawfully in the country in a sustainable yet sensitive way. In cases where return is an option, the UKBA should work with local authorities to seek the best solution for individuals and families. Ideally this would be through assisted voluntary return programmes. 25. It is of concern that the legislation provides for a ban on those who return voluntarily from re-entering the UK for potentially lengthy periods of time (discussed further below). We believe that this acts as a disincentive for take-up of voluntary return. Further, this would appear to restrict the rights of individuals to return to the UK if they experience persecution on returning to their country of origin.
Earning the Right to Stay
26. The introduction of “probationary citizenship” as a step towards permanent permission to reside in the UK aims to inscribe earned citizenship into immigration legislation. 27. This additional stage further complicates migrants’ path to permanent settlement in the UK. For some migrants, the time period during which they have no recourse to public funds will be increased. This has financial implications for local authorities (discussed below) as well as creating additional barriers for migrants wishing to settle permanently in the UK. 28. The requirement to undertake voluntary work in order to demonstrate “active citizenship” may be particularly diYcult for migrants being supported by local authorities on account of their community care needs. There should be some discretion for migrants with community care needs in regards to this requirement. 29. More broadly, we welcome the introduction of incentives to encourage English language learning and skills development amongst migrants. However, this must be supported by a commitment by central government to fund community cohesion and integration projects to support refugees and migrants develop English language skills and develop skills for future employment. Such projects could be administered by local authorities.
Charging migrants “a little extra”
30. It is proposed that migrants pay a “little extra” towards public services through immigration applications. This is justified on the grounds that some migrants tend to consume more in public services. We understand that these additional funds will go towards a fund to manage the transitional impact of migration (discussed further below). 31. The “Path to Citizenship” Green paper acknowledges that migrants are fiscal contributors in regards to public services.153 In light of this, it is diYcult to justify imposing further charges on migrants on account of the greater consumption of public services by some migrants. Further, the NRPF Network is concerned that funds will be raised by charging those most vulnerable, such as dependents (which tend to be women, elderly people and children). It would be preferable for charging additional fees to be means tested.
Automatic ban on returns
32. The legislation introduces a ban on returning to the UK after returning voluntarily and the requirement of foreign nationals to repay cost to taxpayers if they ever want another visa once their exclusion period has been served. This acts as a disincentive for take-up of voluntary return and would seem to contradict current eVorts to increase usage of this option of return. 33. Local authorities frequently use this option to resolve cases either through UKBA section 4 support or in partnership with the International Organisation for Migration (IOM). Such a ban would compromise the work of local authority caseworkers and social workers.
153 http://www.ukba.homeoYce.gov.uk/sitecontent/documents/policyandlaw/immigrationandcitizenshipbill/ pathtocitizenshipconsultation/pathtocitizenship?view%Binary Processed: 23-04-2009 22:48:32 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 111
Managing any Local Impacts 34. The legislation will increase the period during which migrants on the family and economic routes have no recourse to public funds. We understand that this will be for a minimum of one year and for up to five years, pending English language and citizenship tests and the demonstration of “active citizenship”. The extension of these time periods will increase costs to local authorities. Research conducted by the NRPF Network found that in 2007–08 the NRPF policy cost local authorities at least £33.4 million, which is an increase of 8% on the costs incurred in 2006–07.154 35. We understand that additional charges on immigration applications will go towards a fund to manage the transitional pressures of migration at local levels. This is to be available to a range of agencies and statutory bodies. Although the Network question the means through which these funds will be raised, part of this fund should be used to reimburse local authorities for the cost of supporting people with NRPF pending their removal from the country or granting of permission. It is unclear whether such funds would meet the above cost. 36. Ultimately however, there needs to be agreement on how to find case resolution on legacy cases and other complex cases that local authorities are supporting. These cases can be resolved, either by returning people to their countries of origin at the end of the asylum/immigration process if it is safe to do so, or by granting people temporary or indefinite leave to remain, thereby entitling them to work or to claim mainstream benefits. Part of the solution however is to recognise that removal (voluntary or enforced) is not an option in a significant number of cases and that leaving people destitute is not in the interests of broader social protection policy. 37. This would free individuals from a state of limbo, enabling them to continue their lives either in the UK or abroad and have the right to work and live dignified lives. It would also significantly reduce the financial burden on local authorities and council taxpayers.
Summary of Recommendations (a) Central government should reimburse local authorities for the expenditure incurred on supporting individuals and families who have NRPF, pending their removal (if enforceable) from the UK. Reimbursement should form part of a strategic response to NRPF, which should focus principally on finding sustainable solutions to people’s situations. (b) There are some individuals and families whose removal from the UK is unenforceable on account of a physical or mental health problem, and in such cases the UKBA should consider granting some form of “permission”, and therefore entitling them to work or access mainstream benefits. (c) In cases where return is an option, the UKBA should work with local authorities to seek the best solution for individuals and families. Ideally this would be through assisted voluntary return programmes. (d) Restrictions on those who have returned to their country of origin via assisted voluntary return programmes seeking to re-enter the UK should be reconsidered. (e) Central government should increase funding to local authorities through community cohesion and integration projects to support refugees and migrants develop English language skills and develop skills for future employment. 15 September 2008
Memorandum submitted by Medact
Executive Summary As the provisions of the Immigration and Citizenship Bill which relate to entitlement to health care are not yet available, Medact has been able to provide only general comments. Medact would welcome the Committee’s scrutiny of this aspect of the Full Bill. Determining eligibility for NHS services is a complex question of health policy and is not appropriately addressed in the context of immigration legislation. The current regime of restricted entitlement to NHS care is impacting on the health of vulnerable groups, even where exceptions are in place. Further restrictions on entitlement will have impacts on public health and changes to entitlement will impact on patterns of health service usage, with the potential to increase overall health costs. Any moves to restrict access to NHS care require consideration of UK obligations under international human rights law.
154 No Recourse to Public Funds: Financial Implications for Local Authorities (May 2008) Jonathan Price and Olvia Fellas, NRPF Network. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 112 Home Affairs Committee: Evidence
1. About Medact 1.1 Medact is a UK charity of health professionals working to prevent the health consequences of violent conflict, poverty and further environmental damage. 1.2 Medact coordinates the Refugee Health Network which is a national network of more than 300 health professionals and community workers working with refugees and asylum seekers.
2. Access to local services 2.1 The UK Border Agency document, Making change stick: an introduction to the immigration and citizenship bill, states that the Government intends to establish a cross-Government working group to review the various terms used by diVerent Departments to determine whether someone is resident in the UK for the purposes of qualifying to access certain benefits and services. It further states that the review is aimed at meeting the policy objective of limiting access to services to migrants considered to have “earned the right” to them. The details of such changes are to be provided in the Full Bill and are not yet available. 2.2 Medact is concerned that this review of access to local services will result in further restrictions on entitlement to free NHS care for vulnerable migrants. In 2004, Department of Health regulations made a number of groups liable for charging for NHS secondary care, including refused asylum seekers (Statutory Instrument 2004 No 614). In May 2004, the Department of Health released a consultation document on restricting entitlement to primary care (Department of Health 2004). The outcome of this consultation has not been released. The 2007 Home OYce document, Enforcing the rules, announced a review of entitlement to NHS services for foreign nationals. This review has not been released. 2.3 Determining eligibility for NHS services is a complex question of health policy and is not appropriately addressed in the context of immigration legislation. Developing a policy on entitlement to health care requires consideration of health impacts on individuals, public health impacts and international human rights obligations, amongst other factors. Medact notes that the Government has yet to undertake a Health Impact Assessment on the impact of the existing regulations and guidance so data to guide decision making is limited. 2.4 The current regime of restricted entitlement to NHS care is impacting on the health of vulnerable groups, even where exceptions are in place. For example, Department of Health guidance states that maternity care is “immediately necessary” treatment and should not be withheld if the woman is unable to pay in advance. There are numerous examples of vulnerable migrants refused maternity care or deterred from seeking care as a result of charging practices (Project London 2007, Joint Committee on Human Rights 2007, Kelly & Stevenson 2006) which significantly increases risks to the health of mother and baby (Medact 2008). 2.5 Further restrictions on entitlement will have impacts on public health which are yet to be thoroughly investigated. For example, there may be a fall in immunisation rates amongst aVected communities (Medact 2008). 2.6 Changes to entitlement will impact on patterns of health service usage, with the potential to increase overall health costs. In particular, it is likely to increase usage of Accident and Emergency for conditions which could have been more eVectively treated in a primary care setting at a lower cost. The administrative costs of restricting entitlement to NHS care have not been calculated and are likely to be considerable. 2.7 Any moves to restrict access to NHS care require consideration of UK obligations under international human rights law. The International Covenant on Economic, Social and Cultural Rights (ICESR) recognises the right of all to the highest attainable standard of health and puts governments under a specific obligation not to limit equal access to care.
3. Scrutiny of the Full Bill 3.1 As the provisions of the Immigration and Citizenship Bill which relate to entitlement to health care are not yet available, Medact has been able to provide only general comments. Medact would welcome the Committee’s scrutiny of this aspect of the Full Bill.
References Department of Health, 2004, Proposals to exclude overseas visitors from eligibility to free NHS Primary Medical Services, London: Department of Health. Home OYce, 2007, Enforcing the rules: A strategy to ensure and enforce compliance with our immigration laws, London: Home OYce. Joint Committee on Human Rights, 2007, The treatment of asylum seekers: tenth report of session, vol 1, London: The Stationery OYce. Kelly, N, & Stevenson, J, 2006, First do no harm: denying healthcare to people whose asylum claim has failed, London: Refugee Council. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 113
Medact, 2008, Maternal and infant health of vulnerable migrants, London: Medact. Project London, 2007, Project London report and recommendations 2007, London: Project London. September 2008
Memorandum submitted by the Joint Council for the Welfare of Immigrants
1. Introduction 1.1 The Joint Council for the Welfare of Immigrants is an independent, voluntary organisation working in the field of immigration, asylum and nationality law and policy. Established in 1967, we provide legally aided immigration advice to migrants and actively campaign for changes in immigration, asylum and nationality law and practice. Our mission is to promote the welfare of migrants within a human rights framework. 1.2 We welcome this opportunity to contribute to the Home AVairs Committee Enquiry into the Draft (Partial) Immigration and Citizenship Bill. Given the word constraints, and given the extensive nature of the Bill we are not able to oVer the detailed line by line critique of the provisions we would like. What follows is a very brief overview of a selection of concerns in a way that addresses the terms of this enquiry by reference where relevant, to international standards and human rights principles. We would welcome the opportunity to give detailed oral evidence in respect of these matters, and the Bill more generally.
2. “Selective Migration”—Part 1Permission 2.1 Clauses 1–3 of the Bill removes the right to enter (the right of abode) from Commonwealth citizens. The result of this is that British nationals who are not British citizens, as well as some citizens of independent Commonwealth states such as India with the right of abode are to be required to obtain a grant of immigration permission by order.155 The eVect of this that they will be treated in the same way as any other migrant through their dependency on permission to which conditions may be attached. This also means that they will of course be vulnerable to expulsion.156 These measures will have particularly serious implications for those with British Subject status who are otherwise stateless. If they acquire another citizenship they lose their status.157 Consequently they will be required to register as a British citizen, a process under which there remains a residual power of refusal.158 The indignity of depriving nationals of a right to enter the territory of which they are a national is universally recognized, and reflected in a number of European and international human rights instruments which expressly prohibit the practice.159
3.“Earning the Right to Stay”—Part 3Citizenship 3.1 We are extremely concerned about the intentions that lie behind the structure for citizenship set out within Part 3 of the Bill. Specifically as we understand it, whilst not expressly stated within the Bill or its explanatory notes, the intention is to remove, subject to international obligations those migrants from the territory who are unable to demonstrate that they fulfill the necessary criteria to progress from probationary, to British citizenship. This represents a significant departure from existing practice where there is no threat to residential stability in cases where applicants cannot demonstrate that they cannot fulfill the naturalisation criteria.160 This will not only result in the splitting of migrant families in cases where diVerent family members possess diVerent statuses, but in our view will positively hinder migrant integration. Even if it is somehow shown to aid migrant integration, it is wholly disproportionate to the desired aim.161 3.2 Clause 36(2)(c) is also problematic due to its new definition of who is in the UK “in breach of immigration laws” for naturalisation purposes. On its face, it appears to discount time spent prior to recognition as a refugee from being taken into account in naturalization applications.162 Given that there still remain a number of migrants who have waited/been waiting several years before being recognized as refugees as a result not of their own actions, but of administrative delay, this could present particular diYculties, with its eVect being felt more acutely given that the breaches of conditions attached to leave (for example being late for a reporting condition) will now render migrants and therefore refugees “in breach of immigration laws”.163 This provision is arguably inconsistent with Articles 34–6 of the Refugee Convention which imposes an obligation upon states to facilitate the naturalisation of refugees.
155 See below in para 6. 156 Clause 8. 157 British Nationality Act 1981, section 35. 158 British Nationality Act 1981, section 4B. 159 See Protocol 4 ECHR, Articles 15(2) UDHR, Article 12.4 of the ICCPR. 160 Confirmed in a telephone conversation with Alan Boyd of the Earned Citizenship Bill team and JCWI. 161 A detailed critique of these provisions as they were reflected in the Green Paper can be downloaded from our website at www.jcwi.org.uk 162 See Para 8.7–12 of Annex B to Ch.18 which presently allows this to be taken into consideration. 163 We note that there is a provision for the exercise of discretion in clause 32(d) in special circumstances but nothing to suggest that the position of refuges with be so categorized). Processed: 23-04-2009 22:48:32 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 114 Home Affairs Committee: Evidence
3.3 Clause 34 is also problematic. When read in conjunction with clauses 36(2) and 32(1)(c)(i) it appears to lead to a situation whereby the actual residence required from a non EEA national for the purpose of naturalisation can be expected to considerably exceed 10 years. This in our view is positively harmful from the perspective of integration and inconsistent with European consensus and standards. The 1997 European Convention on Nationality which has been signed by 28 European states specifically requires that states do not impose a period of residence in excess of 10 years.164
3.4 Clause 34 also creates a new provision enabling migrants to reduce the qualifying period for naturalisation in cases where they undertake voluntary work.165 The possibility of payment for those activities is expressly excluded.166 Problematically, the Bill does not identify the nature of the activities or the length of time for which they need to be undertaken for. One can envisage that individuals on low incomes, those with disabilities, personality disorders and single parents are just a few categories one might expect to see struggle with this requirement. Viewed from the perspective of human rights based considerations the scheme raises some concerns from the point of view of Article 4(2) ECHR (prohibition of compulsory labour)167 whilst at the same time raising the possibility of discriminatory access to citizenship for particular categories of migrant under Article 14 (no discrimination in enjoyment of Convention rights) in conjunction with Article 8 ECHR (enjoyment of private life).168
3.5 In relation to the generality of the scheme set up by clause 34, we believe that the complex equation based approach to naturalization is highly problematic and will lead to confusion on the part of applicants and unfounded applications. This is problematic from rule of law considerations as it is likely to generate administrative delay and the withholding of rights to citizenship to which migrants are entitled.
3.6 We are further concerned about the position of migrants who are already in the UK with ILR, or otherwise on the pathway to citizenship. Given the implications of the new structure set out above, in order to avoid a potential breach of the legality requirement inherent within the structure of Article 8 ECHR (right to private and family life), it would be necessary for appropriate transitional provisions to be put in place to safeguard their positions.
3.7 Finally, it is highly regrettable that the draft bill as yet fails to: (a) address the position of British nationals who do not possess the right of abode in the UK in the way that Lord Goldsmith recommended in his Citizenship Review;169 (b) deal with the creation of a second class form of citizenship for dual nationals pursuant Section 56 of the Immigration, Asylum and Nationality Act 2006 and (c) create a new, and appropriate structure for adequately checking the exercise of executive discretion within this field.170 (this is particularly important in the light of the new proposed scheme).
4. “Earning the Right to Stay”—Part 4Expulsion Orders
4.1 The elision of the two current two processes for removal envisaged by the Bill through the creation of a new system of expulsion orders has serious consequences for migrants.171 It could result in individuals who might currently face administrative removal on account of minor indiscretions, such as where a student inadvertently works a few extra hours than their leave permits, becoming subject to an indefinite expulsion order. The position is exacerbated by the attendant lack of judicial scrutiny.172 The scheme in our view therefore not only adopts a wholly disproportionate approach to the question of non compliance with immigration law and removal more generally, but also raises concerns as to compatibility with Article 8 ECHR in cases where an expulsion power is made on a discretionary basis against family members and non foreign criminal migrants for the provisions in their present form fail to set out the criteria for regulating the exercise of discretion thus leaving migrants unable to determine the outcome of their actions with suYcient precision in advance.173
164 See Article 6 of the Convention. The Convention has been signed by 28 European states though not the UK. 165 Clause 32(2)(b) makes provision for some categories to be exempt from such a requirement. 166 Clause 42(2)(b). 167 On the definition of forced labor see App. 1468/62 Iversen v Norway, Decision of 17 December 1963 (1963) 6 Yearbook 278. Compulsory labor was defined widely “to include work by a worker against their will and requires the work to be unjust, involve avoidable hardship, or oppressive”. 168 In Sisojeva v Latvia App. No 60654/00 the Grand Chamber confirmed that status engages Article 8 and so would clearly be within the ambit of Article 8. See also Thlimmenos v Greece (2000) 31 EHRR 411 where the European Court of Human Rights considered the ban imposed by a professional regulatory agency on anyone with a criminal record. The applicant had a criminal record because he had objected on religious grounds to performing military service. The blanket ban was held to be unlawful and discriminatory on grounds of religion (Article 9) because it had an adverse eVect on those with his religious belief and was disproportionate and could not be justified. 169 Lord Goldsmith QC Citizenship: Our Common Bond. 170 See for further detail JCWI’s submissions to the Lord Goldsmith Citizenship Review together with Green Paper submissions available to download from www.jcwi.org.uk 171 Deportation for serious criminal oVenders and removal for those breaching immigration laws. 172 See below in section 6. 173 Under clauses 37(2) (a) and (c). Processed: 23-04-2009 22:48:32 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 115
4.2 The scheme also raises particular concerns in relation to the expulsion of those with the right of abode,174 Commonwealth citizens and those from the Republic of Ireland. Specifically we note with regret the loss of protection for migrants with strong historic ties to the UK, in particular the following: 1. Those who currently enjoy the right of abode including British nationals other than British citizens. 2. Commonwealth and Irish citizens who were ordinarily resident on, and prior to 01.01.73 for five years.175 3. Irish nationals.176 4.3 Clause 37(5) creates a new power to make expulsion orders retrospectively against those who have left the country.This would subject the migrant to a decision whose consequences they were unable to predict at the time of departure, excluding them from meaningful determination of their future family life, and leaving them unable to challenge the decision meaningfully from abroad due to their remoteness from any suitably qualified legal advisor. In doing so it potentially raises compatibility issues with Article 8 ECHR.
5. “Playing by the Rules”—Part 5Powers to Detain and Immigration Bail 5.1 Clauses 53–57 create extremely broad powers of detention with few controls on their exercise. Clause 53 in conjunction with clause 2(5) for example permits the detention of persons, including British citizens, who have at some point in the past entered the UK. One eVect of this is that given that British citizens will now be required to prove that they are British citizens177 their detention will be authorized by the bill for as long as such proof is wanting by Home OYce functionaries who are not subject to the same oversight or constraints as police oYcers. Such broad powers of detention not only oVend against the common law presumption of liberty, but also raise serious concerns from the perspective of Article 5 ECHR (the right to liberty and security). The potential for these provisions to be employed in a discriminatory fashion against those from African-Caribbean or South Asian backgrounds not only presents serious issues from the point of view of race relations, and the integration of migrants more generally, but may well also lead to discrimination that is contrary to Article 14 ECHR (prohibition on discrimination). 5.2 Further concerns arise in relation to the apparent reduction in the level of oversight in relation to detention, the Bill seeks to achieve. Clause 62(2) permits, for example, SSHD to veto the grant of bail in certain circumstances. Clause 68 provides a power to the Secretary of State to vary bail conditions imposed by the Asylum and Immigration Tribunal, and a constraint on the power of the Tribunal to cancel conditions of bail imposed by the SSHD.
6. “Playing by the Rules”—Part 10 and Rights of Appeal 6.1 The Bill sets out a right of appeal for persons refused protection under the Qualification Directive (2004/83/EC): however, that right of appeal is less extensive than European law demands. Under Article 18 there is a right to protection where an individual faces a real risk of serious harm against which their home country will not oVer them protection. However Clause 165 only permits a right of appeal where no other immigration permission is aVorded. Those refused Humanitarian Protection should have access to an appeal in which they can contest their status regardless of whether they are facing removal: those refused refugee status are correctly aVorded such a right. 6.2 Many migrants who face expulsion will have established a very significant “private life” in the UK through for example homosexual relationships, the development of outside relationships/ties, or as a result of the implications removal might have for their mental health. These migrants will not however enjoy a right of appeal on the same footing as those who have made an application categorised as family life. This is regrettable and arguably incompatible with the duty not to discriminate on grounds of status under Articles 14 in conjunction with 8 ECHR and Article 8 ECHR alone. 6.3 The Bill achieves a reduction in judicial oversight of executive decision making through the use of three mechanisms: (i) The extension of circumstances in which migrants cannot appeal against removal decisions. Specifically if the Secretary of State alleges that there has been deception in the case, the migrant loses their right of appeal to the Tribunal.178 Migrant family members are also excluded from the right of appeal against expulsion as are those who have expulsion orders made against them on the grounds of the breach of a condition of permission.179
174 See above at Section 2. 175 Section 7(1)(b) of Immigration Act 1971, which also by virtue of Immigration and Asylum Act 1999 Sch 14, para 46 extends the protection to administrative removal). 176 See the ministerial statement of 19.02.07 in which it was confirmed that Irish nationals would only be considered for deportation where a court has pursuant to sentencing powers recommended them for deportation, or SSHD concludes that there are exceptional circumstances of the case and that public interest requires deportation is called into question). 177 Clause 1(3). 178 Clause 171(2)Whilst judicial review may still be available, that forum is unsuitable for the kind of fact finding investigation involved in making judgments on credibility. 179 Clauses 171(3), 171(1)(3). Processed: 23-04-2009 22:48:32 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 116 Home Affairs Committee: Evidence
(ii) The abolition of a right of appeal on grounds that discretion under the Immigration Rules should have been exercised diVerently, and the subsequent contraction of the scope of any appeal.180 (iii) The introduction of the power to authorize Procedure Rules which include provision in the form of “presumptions” and thereby oust the ability of the Tribunal to decide on the factual and legal issues as they appear before them.181 6.4 It is to be recalled that the exercise of decision making in the sphere of immigration often engages fundamental rights and determines individual destinies. Accordingly it is essential that such powers are subject to appropriate checks and restraint through judicial oversight.
7. “Managing Local Impacts”
7.1 There are as yet no new legal provisions within the Bill regulating access to the welfare state for migrants, comment is therefore diYcult. We understand that the intention appears to be (a) to limit full access for British citizens and permanent residents and (b) for migrants to “contribute a little extra to the costs of legal services”.182 It is not clear at this stage whether this requires migrants to contribute to an extra fund as suggested by the Green Paper.183 7.2 Both proposals are potentially problematic. Firstly “integration” of migrants requires their wholesale economic and social participation. Exclusion from the benefits system renders this diYcult. Secondly, however such proposals—depending on their ultimate shape could raise consistency issues with human rights obligations specifically Article 2 of the International Covenant on Economic, Social and Cultural Rights (1966).184 Both proposals could potentially raise consistency issues with Article 14 ECHR in conjunction with Articles 1 of Protocol 1, and 8.185
8. “Strong borders”—Part 8Carriers Liability
8.1 Whilst much of Part 8 replicates to a large extent existing arrangements in relation to carriers liability we are concerned about clause 149. This takes forward provisions currently not in force allowing for the introduction of an “authority to carry scheme”.186 In summary, this extends carriers liability by permitting the Secretary of State to make regulations requiring carriers so seek authority in advance prior to bringing passengers to the UK under pain of penalty. The implications of this scheme for asylum seekers are not hard to discern and raise consistency issues with the Article 12 (2) ICCPR, and potentially Articles 8 and 3 ECHR rights.187 September 2008
Memorandum submitted by Me´decins du Monde UK
1.Me´decins du Monde UK
Me´decins du Monde UK—(MDM UK) is part of Medecins du Monde (MDM), an international medical humanitarian organisation whose volunteers provide healthcare to vulnerable populations in both developed and developing countries.
180 Clause 174. 181 Clause 184 (3). 182 Making Change Stick An Introduction to the Immigration and Citizenship Bill, UK Border Agency, p 1. 183 The Path to Citizenship: Next Steps in Reforming the Immigration System, UK Border Agency, Ch 5, question 3. 184 Article 2 (1) requires each state to “the maximum of its available resources, with a view to achieving progressively the full realisation of rights recognised [within the Covenant]”. Article 2(2) states that the rights within the Convention shall be guaranteed “without discrimination of any kind as to ‘race’, ‘language’ ‘national or social origin’, ‘birth’ or ‘other status’”. 185 See in particular para 53 of the Grand Chamber’s judgment in Stec v UK 20 BHRC 348 and see Sidabras Dzautas v Lithuania Apps. 55480/00 and 59330/00). 186 Section 124 Nationality, Immigration and Asylum Act 2002. 187 The European Court of Human Rights has not yet ruled on the application of carrier sanctions in asylum cases) (Article 12(2) of the Civil and Political Covenant provides that “everyone shall be free to leave any country, including his own”. The only permissible limitations on the right are those necessary to protect national security, public order, public health or morals or the rights and freedoms of others, and such limitations must also be consistent with the other rights recognised within the Convention. The UN Human Rights Committee has indicated that at least in some cases, the operation of carrier sanctions will put a state in breach of the duty to respect the right of persons to leave their own country, and more generally enjoy freedom of movement. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 117
2. Executive Summary
For the last two years we have operated a free clinic in East London, serving a largely migrant population, in order to ensure access to healthcare. The clinic was designed to provide care on a temporary basis, while working to get patients registered with the NHS. In order to address the Committee’s question about “managing any local impacts this evidence recounts our main findings and provides a brief history of the issues surrounding access to care within the NHS”. Against the backdrop of proposals to limit access to primary care, it is particularly notable that we saw no evidence of health tourism. And there is no reason to believe that introducing these limitations would prevent migration to the UK.
3. Recommendation
The research of Medecins du Monde UK confirms other independent research, including that undertaken by the government. Evidence shows that restricting access to primary care would have a detrimental impact in all key respects: economic, public health, and legal. We recommend against the government pursuing any changes which would further restrict access.
4. The Current Regulations,Explained
GPs currently have the discretion to treat anyone as an NHS patient. In 2004 the government consulted on a proposal to change the health regulations to bar some migrants from accessing primary care. The changes would essentially remove this discretion, and as a result people would be turned away from GP care on the basis of residency status. At the same time the government consulted on the proposal, it introduced a change to the regulations which barred the same group of migrants from accessing secondary care.
5. Confusion
The timing has lead to some confusion and we have seen this first hand. Although GPs themselves were usually well informed, the administrative staV responsible for registering patients were often uncertain and confused. In some cases they applied the proposed regulation as if it were already in force. In other cases they even applied the proposed regulation wrongly, extending it to those who it did not apply to—asylum seekers and citizens of EEA countries. This misunderstanding highlights areas of concern in two important ways: — It gives us a picture of the kind of people who would be excluded from care and the potential impact of their exclusion. — It shows that we can expect these restrictions to primary care to be misapplied, by being extended beyond the group they were meant to target. As the Committee considers diVerent options, including exemptions for certain categories of persons or treatment, it is important to bear in mind the diYculties already encountered by the NHS in implementing current exemptions.188 Mr G, a 36 year old suVering from leg pain and depression A friend accompanied Mr G to our clinic after trying to help him register in 15 diVerent GP surgeries. As an asylum seeker his entitlement was clear, yet he continued to be rejected. Mr G came to the clinic complaining of pains in his legs and depression as a result of his imprisonment and maltreatment in his native Georgia. He had been relieving the pain in his legs through medication supplied by a friend. We were able to get him registered with a GP along with a successful referral for counselling services.
6. Access to NHS Services
Over the last two years we saw 893 patients and our medical team provided 1,074 consultations. The majority of our clients came to the clinic only once.
188 We saw cases where individuals who were absolutely entitled to registration were denied. Firstly, it was sometimes “understood” that the proposals had been enacted and that no discretion remained with the GP. Secondly, it was sometimes “understood” that the access exclusion extended to all migrants. We saw numerous asylum seekers and EEA citizens who were denied access to primary care—despite the fact that they are entitled both under the current law and the proposed law. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 118 Home Affairs Committee: Evidence
7. Health Tourism We saw no evidence of health tourism. Two years of data shows that our patients had, on average, been living in the UK for three years before they came to the clinic to see a doctor or to get help accessing healthcare.
8. The “Pull Factor” Many seem to believe that because NHS care is free at the point of need, the NHS provides a pull factor since Britain is the only country where migrants would have access to publicly-funded care. In fact, this is not true. Most European countries provide migrants with better access to healthcare than the UK does.189
9. No Great Burden on the NHS The health problems seen in our patients are reflective of the conditions seen among the general population in general practice. The majority needed help to access primary care or antenatal services rather than expensive specialist treatment. This confirms other independent research with the same results.
10. No Cost Savings It may sound logical to argue that cutting oV access to primary care will save money and take pressure oV the NHS. But an examination of our findings, alongside other independent research, makes it clear that the opposite is true. Providing early and preventive care through primary care is a means of avoiding costly hospital treatment at a later date.
11. Prevention An ounce of prevention is worth a pound of cure. Public health experts estimate that preventable diseases now cause 60% of deaths worldwide. As a consequence, policy makers should seek to shift “health systems towards prevention rather than cure”.190 It is estimated that by doing so 36 million deaths could be prevented by 2015. The benefits of prevention were recently highlighted in the Prime Minister’s proposal to launch a national screening programme aimed at preventing heart attacks, strokes, kidney failure and diabetes.
12. Early Detection and Diagnosis Failing to prevent or detect a condition only means that it continues to get worse. As a consequence: — the individual suVers; — he becomes less able to work, study, and care for family; — his condition becomes more diYcult and more expensive to treat; and — if he/she has an infectious disease, it can spread to others.
13. Diseases which are Easy and Affordable to Control, and Expensive to Ignore People with diabetes occupy one in 10 hospital beds, at a considerable cost to the NHS.191 Recent studies have shown that proactive intervention can facilitate more appropriate care and help save money. One trial, which tested a proactive approach, resulted in a cost savings of more than £110,000. If replicated nationwide, this would result in a savings of nearly £100 million.192
14. Diseases which Spread Easily—a Public Health Concern for us All Infectious diseases do not respect borders, nor do they discriminate on the basis of status. We are all at risk from the spread of diseases and we all have a stake in preventing that spread.
189 Chauvin P, Parizot I, Drouot N, Simonnot N, Tomasino A European Observatory on undocumented migrants’ access to healthcare. Medecins du Monde European Observatory on Access to Healthcare. Paris: Medecins du Monde; 2007. 190 Daar, A et al. Nature (22 November 2007). 191 Diabetes nurses would cut costs, BBC News, 5 March 2008. 192 Diabetes nurses would cut costs, BBC News, 5 March 2008. Processed: 23-04-2009 22:48:32 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 119
15. Pressure on A&E
If people are barred access to GPs, they will be left with no other choice than to seek care at A&E centres. As research has already shown, this places unnecessary pressure on A&E centres, many of which are already short staVed and inadequately equipped to handle the cases that require emergency attention.193
16. Domestic Violence
Early intervention also has an impact relative to wider social issues including domestic violence. A GP surgery is often the first port of call for a victim who is either afraid, or physically unable, to contact the police.
17. Our Legal Obligations
By virtue of being a signatory to the International Covenant on Economic, Social, and Cultural Rights, the UK government has a duty to respect, protect and fulfil the “right of everyone to the enjoyment of the highest attainable standard of physical and mental health”.194 While the realisation of these rights is a process that takes time, the government has committed to the “progressive realisation”. This means that government’s policies should ensure this progression. The proposed regulations would in fact do the very opposite by further limiting this right to access.
18. Ethical Obligation to Refusal to Implement
The proposal to restrict access has been the subject of considerable debate within the medical community. More than 900 doctors registered to practise in the UK signed a petition opposing the policy. The substance of the petition which appeared in the Lancet, is as follows: This would impose serious health risks on [undocumented migrants] and on the general public. It would also interfere with our ability to carry out our duties as doctors. It is not in keeping with the ethics of our profession to refuse to see any person who may be ill, particularly pregnant women with complications, sick children or men crippled by torture. No one would want such a doctor for their GP. “We call on the government to retreat from this foolish proposal, which would prevent doctors from investigating, prescribing for, or referring such patients on the NHS. “We pledge that, in the event this regulation comes into eVect, we will: (a) continue to see and examine asylum seekers and to advise them about their health needs, whatever their immigration status; (b) document their diagnoses and required clinical care; (c) with suitable anonymisation and consent, copy this documentation to the responsible ministers, [members of parliament] and the press; (d) inform the public of the human costs, to harness popular disgust at what is being ordered by the government in their name; (e) campaign to speedily reverse these ill-advised policies”.195 In some cases health care professionals have already had to fight to protect patients wrongly being denied care. In one case a woman who was 36 weeks pregnant had been de-registered from her GP after the GP received a call from the Home OYce. Given that her care was immediately necessary, her midwife refused to stop seeing her. And in the meantime we were able to persuade the GP oYce to re-register her.
19. The Cost of a Workforce in Ill Health
The government has estimated that ill health costs the economy over £100 billion a year.196 While this is a problem that must be approached from a number of angles, it is clear that improving access to medical care is among them. Access to care helps to enable people to use their skills and energy to contribute to the economy while helping to build a stronger and more cohesive community.
193 See, eg Glendinning, L Hospital put on alert as ambulances stack up, Guardian 22 November 2007; Boseley, S Half of trauma patients in A&E receive poor care, say doctors. Guardian 21 November 2007. “Inadequate care in half of A&E trauma cases” Daily Telegraph 22 November 2007. 194 International Covenant on Economic, Social and Cultural Rights. 195 Arnold, F et al. “Medical justice for undocumented migrants” The Lancet, Volume 371, Number 9608. See petition itself at http://www.gopetition.com/petitions/medical-justice-for-asylum-seekers.html 196 “Working for a Healthier Tomorrow” (presented to the Secretary of State for Health and the Secretary of State for Work and Pensions), London: TSO 17 March 2008; “Sick note culture” costing £100 billion every year, Daily Telegraph, 17 March 2008; Doctors should write “fit notes”, report says, Guardian, 17 March 2008. Processed: 23-04-2009 22:48:33 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 120 Home Affairs Committee: Evidence
20. Immigration Status of Our Clinic Patients
We saw a significant number of citizens from EEA countries who, like asylum seekers, were entitled to primary and secondary care but enable to access it.
Immigration Status Visa expired 144 23.0% EEA & Swiss Nationals 87 13.9% Irregular entrant 79 12.6% Refused Asylum Seeker 75 11.9% Status impossible to define 58 9.2% Valid Visa 57 9.1% Asylum Seeker 52 8.3% British citizen 47 7.4% Indefinite Leave to Remain (ILR)/ 29 4.6% Exceptional Leave to Remain (ELR)/ Humanitarian Protection (HP)/ Discretionary Leave (DL) Total 628 100.0% Note: There were 265 non-responses for this question and therefore the total does not reflect the number of patients.
21. Patients’Health
The health problems seen in our patients are reflective of the conditions seen among the general population in general practice. — The most common health problems identified are identical to the 10 most common reasons for consulting a GP in the last national survey of ill-health in primary care, with the exception of psychological problems.197 — Of the patients who had medical consultations, less than one third even required prescriptions. — The majority needed help to access primary care or antenatal services rather than expensive specialist treatment. — Our data is consistent with the 2007 study by the Audit Commission which noted that “most migrant workers are relatively young and healthy” and that had little need for public services.198 — The data likewise accords with a study in the London Borough of Newham, known to have a very diverse population and sizeable migrant population, which found that the impact of “overseas visitors” on primary care was “minimal in terms of absolute numbers” and raised questions about the cost-benefit of expanding the hospital charging scheme into primary care”.199
22. Entitled to Treatment, but Denied
Although the 2004 changes to the health regulations have limited some migrants’ access to secondary care, there are clearly stated exceptions: — Treatment in hospital accident and emergency (A&E) departments and some Walk-in Centres remain free for everyone. — Treatment for a range of infections diseases, such as TB and polio. — Treatment for sexually transmitted infections (except HIV/AIDS). — Compulsory psychiatric treatment for people who are detained under the Mental Health Act. — Any treatment which is “immediately necessary” in the opinion of a clinician. At first glance, this list of exceptions appears extensive. Indeed the problems we have encountered almost all relate to conditions which are on the list. It is the implementation of these exceptions that has consistently proven to be a problem.
197 McCormick A, Fleming D, Charlton J. Morbidity statistics from general practice. Fourth national study 1991–2. OYce for Population Censuses and Surveys, Series MB5 no 3. London, HMSO; 1995. 198 Audit Commission. Crossing borders—Responding to the local challenges of migrant workers. London: Audit Commission; 2007/ 199 Hargreaves S, Friedland JS, Holmes A, Saxena S. The identification and charging over overseas visitors at NHS services in Newham: a consultation. Final Report. London: Newham Primary Care Trust; 2006. Processed: 23-04-2009 22:48:33 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 121
23. The Case of Antenatal Care All women are entitled to access antenatal care because it falls under the exception for treatment which is “immediately necessary.” Despite this absolute entitlement, we have seen an ever growing number of women who have not in fact accessed this care. Of the 118 pregnant women we saw: — Less than 10% were registered with a GP. — Less than one third had received any antenatal care before coming to the clinic. — Nearly 25% were more than 18 weeks into their pregnancies. — Nearly 5% were more than 30 weeks into their pregnancies. Ms S, 38 weeks pregnant Ms S came to us during her 38th week, having had no prior antenatal care. She had been refused maternity access at her local GP surgery and had been informed that she would not be able to deliver at her local hospital. With delivery imminent, it was vital to secure a bed in the maternity ward of another hospital.
24. Access to Antenatal HIV Screening Only one-quarter of pregnant women we saw had had access to antenatal HIV screening. Ensuring access to early treatment and antenatal care is known to be cost-eVective and can prevent the need for more costly treatment at a later date. Every baby born HIV positive in the UK because the mother’s HIV status has not been diagnosed during pregnancy is estimated to cost the NHS between £500,000 and £1 million during its lifetime. September 2008
Memorandum submitted by the Public and Commercial Services Union
Introduction and Summary 1. The Public and Commercial Services Union (PCS) is the largest civil service trade union representing over 300,000 members working in most government departments, non-departmental public bodies, agencies and privatised areas. 2. PCS represents over 14,000 members employed in the new UK Borders Agency (UKBA) that consists of staV from the Border and Immigration Agency, UK Visas and Revenue and Customs. We are therefore in a unique position to submit evidence as part of this inquiry as our members are dealing with immigration issues on a day-to-day basis. 3. PCS welcome the committee’s inquiry as an opportunity to raise our concerns about the draft Immigration and Citizenship Bill. We would also be happy to supplement this written submission with oral evidence or further written evidence. 4. This supplementary submission covers our concerns about: — The power of the Secretary of State to designate oYcials — Citizenship — Immigration bail — Monitoring of escort arrangement — Contracting out of removal centres — What constitutes an oVence; and — Illegal working
Part 1, clause 24—Power of Secretary of State to designate officials 5. This clause appears to widen the definition of who is able to carry out immigration and customs functions. If “oYcials of the Secretary of State” can include people from outside the civil service then contractors could be used to carry out all the functions described in the Bill. In previous legislation powers have been specifically designated to immigration oYcers, customs oYcers or the police. This, therefore, provides the government with the means to privatise all functions to which the designated powers apply and we have grave concerns about this clause. 6. It also gives the government the ability to have temporary contract workers performing immigration functions as 4 (a) states: “may be permanent or for a specified period.” Processed: 23-04-2009 22:48:33 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 122 Home Affairs Committee: Evidence
7. Explanatory note 423 is supposed to “provide appropriate safeguards over the exercise of coercive functions”. However the only stipulations are that the people carrying out these functions are capable of doing so, have received adequate training and are “otherwise suitable”. PCS believe that if low paid contract workers, without the benefits of civil service pay and terms and conditions carry out this work then they will be more open to criminal inducements. This argument was accepted by previous Ministers when used by PCS in defence of members’ jobs in freight searching, which were under threat of privatisation by the previous Immigration and Nationality Act 2006.
Part 3—Citizenship 8. PCS are concerned that the requirement a claimant must speak English to an acceptable level to be accepted as a British citizen will eVectively exclude the most vulnerable sectors of immigrants and migrants (for example, unskilled workers or traYcked women and children). We believe this will act as a barrier rather than an incentive; especially as English language teaching and training is being restricted and curtailed by current government policy. 9. The requirement that spouses of British citizens should have suYcient knowledge of English (or Welsh or Scottish Gaelic) also represents an unwarranted intrusion into relationships, and contradicts their right to a family life. 10. PCS believe that “probationary citizenship” is a concept alien to UK law and will create a set of “second class citizens”. We believe that it is reasonable to ask that migrants granted settlement by the UK are given all legal citizenship rights at the first attempt.
Part 5, clauses 62—69—Immigration bail 11. PCS strongly believes that the idea of “bail bonds” to create better compliance with immigration controls is deeply misguided, as few legitimate employers will be able to routinely aVord these costs, while those involved in the traYcking of people or in organised crime will simply factor them in. 12. We also believe that this does not fit with the government’s policy of destitution. Failed asylum seekers are rendered destitute with no recourse to public funds, so almost by definition those immigrants able to aVord bail bonds will be those exploited by others. This does not make any failed asylum seeker safer or more compliant, but instead leaves them more vulnerable to exploitation and crime. 13. Clause 65 deals with “Electronic monitoring” or “tagging”. On the scale envisaged, this would be expensive, ineVective and inhumane. It is a system with a myriad of problems and would also serve to further criminalise those fleeing persecution.
Part 6, clause 72 (1) and (2)—Monitoring of escort arrangements 14. PCS firmly believes that the government should not be considering any continued use or extension of outsourcing detention functions, and that sections (72 (1) & (2)) should be deleted. Detention should only be carried out by accountable public servants, and not the private sector. A recent report provides more information on this.200
Part 6, clauses 76-78—Contracting out of removal centres 15. We do not believe these clauses in the Bill represent any major changes to current arrangements. However, we think it is worth the committee noting the findings of the report by Lord David Ramsbotham into G4S run centres that found 300 allegations of physical and racial abuse, from asylum seekers in their care. The former chief inspector of prisons sent the report to the government and described the allegations as “disturbing”. In the light of this report we would hope that the government would bring removal centres back under the direct control of civil servants.
Part 7, clauses 97, 102, 104, 106-109, 117-120—Offences 16. OVences relating to immigration permission (97) and to entering the UK without a valid passport (104). This merely extends the powers available to the UKBA at the extent of the ability to genuinely flee persecution. The chances to flee their home nation legally, with immigration permission and with all correct documentation, are remote and these laws would only criminalise those who have to resort to non-legal methods to flee persecution. 17. OVences relating to failure to submit to medical examination (102). This law would have the eVect of treating traYcked and vulnerable immigrants in a way likely to further traumatise them and in a way more in common with criminals than with refugees.
200 http://www.ncadc.org.uk/emmaginnsfolder/emmaginnsfolder/july%2008/Outsourcing%20Abuse.pdf Processed: 23-04-2009 22:48:33 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 123
18. PCS believe the measures against traYcking and assisting illegal entry (106-109) must be considered in conjunction with the protections (or absence of them) for the victims. It will be diYcult to secure convictions against those guilty of traYcking for the purposes of forced labour if there are no enforceable rights for those who are subjected to that forced labour. There does not appear to be any penalty simply for submitting workers to forced labour nor any redress for the workers themselves. This is a serious omission and one we would hope to see addressed when the Bill is published. 19. It is also of concern that there does not appear to be any distinction made in penalties against those convicted of assisting “protection applicants” for gain, and those who do so for forced labour or sexual exploitation. These oVences should not be seen as equivalent. 20. While there are specific provisions oVering special consideration to those seeking to enter with false documents who may be refugees (193), it is of concern to us that failure to demonstrate a well founded case for asylum could also lead to criminal proceedings. This may make genuine applicants reluctant to come forward.
Part 9—Illegal working
21. We believe the eVect of these clauses (152-161) will be to make employers even more responsible than is already the case for examining the documents of those who are, or seem to be “foreign”. Notwithstanding the publication of a code of practice on avoiding the contravention of race relations legislation the outcome is likely to be an increased emphasis on race, ethnicity and nationality in the workplace. This cannot be conducive to good race relations. 22. The apparent exclusion of workers who may be under a “contract for services” (that is to say nominally self-employed) may signal an escape route to would-be exploitative employers (152(5)). While this would best be closed by legislating against the many forms of bogus self-employment (such as labour only sub-contracting in the construction industry), this Bill should not oVer protections to employers choosing to identify their workforce as self employed. 23. Without seeing the code of practice (155) it is not possible to consider the details of the operation of the fine system. However, if the fines were to be introduced, it would be important to ensure that employers are not able to gain exemption by denouncing workers to immigration authorities as a means of disciplining the workforce (for example where migrant workers are organising themselves to secure improved pay and conditions). PCS would be concerned to avoid members charged with enforcement of immigration rules finding themselves coming to the aid of employers wishing to intimidate their workforce into submission to exploitation.
Conclusion
24. As we have argued in both submissions the sensitive control of our borders and migration needs to be carried out by oYcers of the state and not contractors or a privatised workforce. 25. We also have grave concerns that the Bill in its current format obliges employers to examine documents of their staV who are or appear to be “foreign” which will increase the emphasis placed on race, ethnicity and nationality in the workplace. 26. Forced labour, sexual exploitation and traYcking will be best combated if those subject to these oVences are oVered some protections, and are recognised as having rights. PCS believe that the Bill as it stands does not provide these and would call on the government to oVer these protections when the Bill is presented to the House. September 2008
Memorandum submitted by the Local Government Association (LGA)
1. Introduction
1.1 The Local Government Association (LGA works with and for member authorities to realize a shared vision of local government that enables local people to shape a distinctive and better future for their locality and its communities. The LGA aims to put councils at the heart of the drive to improve public services and to work with government to ensure that the policy, legislative and financial context in which they operate, supports that objective. Processed: 23-04-2009 22:48:33 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 124 Home Affairs Committee: Evidence
2. Summary — The LGA believes that central and local government need to continue to have an open dialogue about challenges in relation to migration so that the solutions developed reflect local circumstances. — We are concerned that the Border Controls and Points system should be flexible enough to respond promptly to sustain local economies, for example by employers who may need to respond to local labour market conditions by employing migrants to sustain local businesses. — We believe that in the main councils have successfully risen to the challenge in responding to large flows of in migration and in learning from each other. However, funding has not followed actual numbers and in some areas, services have become stretched. — We welcome further work with government and the Ministerial Board, to address issues around population data. This needs to result in a much improved ability at all levels to understand both the composition of present and future communities, and to indicate population change at an early stage, not least because the dynamics of the world economy mean that population flows both within and between countries can change rapidly. Such ability is crucial for eVective planning and targeting of services and in setting appropriate levels of funding for local service delivery and local work on cohesion.
3. Local Impacts on Local Services 3.1 The LGA is leading a programme of research and consultation on the local impacts of migration. A first report, Estimating the scale and impacts of migration at the local level, commissioned by the LGA from the Institute of Community Cohesion (ICoCo) and based on submissions from more than 100 authorities, identified that: — Evidence clearly shows that the eVects of recent inward migration are geographically widespread. Substantial numbers of European migrants go to towns and rural areas with little previous experience of international migration, alongside significant movement into places more traditionally associated with population change, such as London and the South East. — In-migrants are not homogeneous: some come to work, some to study, some to retire, some travel as family groups, some come to join family already here and some travel alone. 3.2 The research showed that local councils in general welcome migrants as they may: — contribute to local economic growth, for example, plugging gaps in local labour markets, especially social and health care, agriculture and food, and the hospitality sector; — bring young people and young families into areas where the population is ageing, with the consequence, for example, of keeping schools open or raising standards in schools; and — introduce entrepreneurship and businesses in run down areas. 3.3 However, the report additionally outlined impacts on local services that include the following: — Children’s Services: The impact of “churn” in schools can involve the problems with the numeracy and literacy of young children, the disruption caused by mid-term arrivals and the lack of records and assessments. Local children’s services can find it diYcult to investigate and monitor transient families. — Community Safety: migrants are more likely to be victims of crime than perpetrators but there are some oVences with a significant incidence amongst new groups such as absence of driving documentation, non-use of seat belts and drink driving. — Health: impacts depend on the nature of migrant population but use of the more expensive accident and emergency services route instead of GPs has been highlighted. — Housing: most migrant workers live in private rented sector housing. Whilst most landlords take their management responsibilities seriously, some continue to oVer poor quality housing to some of the most vulnerable people in society—including migrants. Too many migrants live in overcrowded properties in a poor state of repair with attendant fire or other health and safety problems. Councils can find it diYcult to use their enforcement powers as migrant workers are often reluctant to complain and when they do, are simply moved on by their landlord. There are also some signs of emerging housing market issues (eg sharp price rises in cheaper properties for buy to let), with ripple eVects to neighbouring authorities. 3.4 The research also supported the view from Councils, the National Statistician, the Governor of the Bank of England and Ministers across government departments that current population estimates, nationally and locally, do not fully account for the impact of migration, especially with the increase in migrant worker from EU accession states since 2004. Although concrete figures are not available, it is reasonable to estimate that the combination of longer term migrants and shorter term population churn, for example arising from students, seasonal workers and those here for shorter periods, means that there may be a population undercount to the tune of 1 to 1.5 million people at any given time. Processed: 23-04-2009 22:48:33 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 125
3.5 This is important because the impacts on services (such as those summarised above) and on community infrastructure resulting from recent and high levels of migration aren’t funded because of inaccuracies in the data used for RSG, and the extent of churn. 3.6 In consequence, services are being stretched and there are further concerns about whether this stretch is sustainable. Additional resources are needed to address this. This would cover: — Short term action to tailor services to new migrants’ needs, such as translation and English teaching and to fund any work with the host community (including settled migrant communities) around sustaining community cohesion; and — Longer term planning and change where community needs change or there is a need to review policies such as provision of school places or housing provision. 3.7 EVective population data is also key to understanding present and future communities, and to indicate population change at an early stage, not least because the dynamics of the world economy mean that population flows both within and between countries can change rapidly. This is crucial for eVective planning and targeting of services and in setting appropriate levels of funding for local service delivery and local work on cohesion. We are working with ICoCo on further work on quantifying service costs arising from recent migration. 3.8 For more information on these issues, the LGA’s evidence to House of Lords Economic AVairs Select Committee Inquiry on the Economic Impact of Immigration is attached as Appendix 1.
4. Local Impacts—Possible Solutions 4.1 ONS plans for improvements in population statistics are welcome but they need accelerating: they currently estimate that it will take seven years for the full reform. The LGA is now working with ONS to identify sources and approaches which might be used to improve the quality of local population statistics. There are also short term steps that could improve matters by systemizing use of administrative data to check and adjust ONS estimates of local population. 4.2 The LGA has suggested that a contingency fund where there are particular shorter term pressures on local services. £250 million has been proposed as this represents 1% of the overall funding allocation and reflects an approximate 1% underestimate of actual population. 4.3 The proposed migrant integration fund will go some way to meet this need for adequate funding. We welcome the proposed approach which would allow local areas to determine their own response to ongoing changes in their populations—but look forward to further information on the fund level, the method of distribution and expected types of use. The LGA would not support a fund with excessively prescriptive grant conditions or one that places extra burdens in terms of performance monitoring. As a supply-led funding stream, the government may need to make a “core” funding oVer, even if this needs to be supplemented by other government sources, so local authorities can plan ahead eVectively based on- secure funding levels. We also would welcome the consideration of the inclusion of Regional Strategic Migration Groups as an advisory role on the allocation of this new resource. 4.4 We also need to ensure that the charge on migrants, in what is already a complex system, does not outweigh any benefits. The proposals also place an additional charge on non-EEA nationals but local services are impacted on by a range of migrants both from within and outside the EEA. Some authorities have specifically encouraged migration to tackle imbalances in the local population and workforce profiles in order to sustain local businesses and fill hard-to-fill occupations, as well as deliver their own services. We would not want the charge to act as a disincentive for potential migrants as this would have a negative impact on local authorities in terms of the impact on local economies and service delivery. Given the aim to simplify the process, we also would have concerns around the proposals in relation levying a charge on migrants who tend to consume more in public services such as children and elderly relatives, rather than one determined by the income of the applicant. Given that the government continues to reference the economic benefits of migration, particularly in terms of increased taxation and productivity, it would seem more appropriate to disperse these benefits at a local level rather than increase the burden upon migrants themselves. 4.5 However, we do not believe that charges alone are likely to provide a fund of suYcient size given the overall scale of population increase that has been primarily driven by migration. Government needs to fully recognise the extent of mismatch in funding and the extent to which some authorities are now seriously stretched. Funding formulae need to reflect the extent of chum (rapid population turn over where migrants may only stay for a few months but are replaced by others when they move on). Following further evidence and analysis of the costs involved, we will be seeking further dialogue with Government later in the year. 4.6 We welcome the introduction of incentives to encourage English language learning and skills development amongst migrants. However, this also must be supported by adequate funding from central government to meet the demand for fund projects that will deliver this objective. Such projects could be administered by local authorities. Processed: 23-04-2009 22:48:33 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 126 Home Affairs Committee: Evidence
4.7 Finally, as the 2007 report by Sir Michael Lyons indicated, if we had a more locally based way of raising revenue for councils rather than central grants based on out of date population estimates, this might better enable local authorities to manage the pressures they face.
5. Border Controls and the Point System 5.1 We are concerned that the system will not be flexible enough for the prompt action often required to sustain local economies, for example by employers who may need to respond to local labour market conditions by employing migrants to sustain local businesses. There is clear evidence that aspects of the food and agriculture sectors and the hospitality sector are heavily reliant on seasonal labour. We are not aware of any convincing evidence that suggests that these workers could be recruited from other areas of the UK, or necessarily the EU in future. Similarly there is no evidence that would suggest that the social care workforce could be recruited from the UK or EU—they too have labour shortages, not least due to ah increasingly aged population profile in the indigenous population. International protocols also have been developed to guard against stripping countries like Zimbabwe and the Philippines of their trained staV.
6. Impacts on Benefits System 6.1 In relation to the role of councils, the main impacts of migration on benefits are two fold: — Migrants often need help to navigate unfamiliar administrative systems and to understand what help might be available, where they need to go to seek it and how they establish eligibility. As direct providers or funders of benefits advice and support, there are clear costs to councils where existing services need to be adapted or new services established to respond to the needs of migrant groups. — Specifically, some councils report increased costs in administering housing benefits.
7. Implications for Local Government Asylum Support The draft Bill itself does not yet include key elements of proposed changes to asylum support. However, there are some clauses in the Bill which may cause concern to local government: — Introduction of concept of Temporary Protection—Local Government wish to ensure that the apparent exclusion of discretionary leave (DL) from this does not exclude those groups to whom DL would previously have been awarded, thus preventing them from accessing benefits and potentially increasing the financial burden upon local government in terms of supporting those who become destitute. — Children’s Applications—whilst the inclusion within the partial draft of advice that “close attention should be given to the welfare of the child at all times” and that particular care is to be given to unaccompanied asylum seeking children (UASC) is most welcome, further clarity and specific examples to support this principle would be helpful. Local Government has long advocated a much closer synergy between immigration legislation, process and practice and established childcare practice. The reference in section 16 to tracing any members of an unaccompanied child’s family upon an asylum application being made are also welcome. However, the nature and extent of tracing family needs to be clearly established and clear outcome orientated processes should that tracing process be successful need to be outlined. The reference in section 16 to the provision of a representative for an unaccompanied child “as soon as possible after an asylum application is made” is also welcome but will need to take into consideration potential process changes in the support of UASC as the proposed Home OYce’s Reform Programme develops. — “Probationary citizenship” category—this additional stage may further complicate migrants’ path to permanent settlement in the UK, possibly slowing down the integration process for some new refugees and work migrants. Volunteeringin just one of the variety of ways in which the integration process and developing stronger, cohesive communities can be supported. Government should recognise that for many migrants work pressures may make volunteering more diYcult and that participation in other community and/or civicactivities may be more appropriate. The requirement to undertake voluntary work in order to demonstrate “active citizenship” also may be particularly diYcult for migrants with community care needs. There should be some discretion for this group as already local authorities have been increasingly burdened by the cost of providing accommodation and subsistence support to people who have would have no recourse to public funds but qualify for services due to having care needs and being destitute. September 2008 Processed: 23-04-2009 22:48:33 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 127
Memorandum submitted by Road Haulage Association Ltd We were recently informed of the Committee’s request for evidence about changes to existing immigration legislation, which are to form part of a new Immigration and Citizenship Bill. Our interest is the legislative eVect on carriers liability.We believe the proposals remain largely unchanged from current legislation, whose fundamental weakness is that it does not reflect modern industrial practice, does not secure the haulier from unreasonable demands from the authorities yet at the same time exposes hauliers to increasing risk as they are obliged to confront clandestines on board their vehicles before receiving the protection of the law. The Road Haulage Association is the largest trade association devoted to the Hire and Reward road haulage sector. We have upwards of 9,500 company members who control over 60,000 vehicles and employ around 250,000 employees. We have had a long and sometimes tortuous experience of the management of this part of current legislation and the new proposals show little new knowledge of the road haulage industry, the various risks and procedures experienced and practised by road hauliers in international business nor the contradictory pressures applied by this proposed legislation and other UK Government proposals, including those of the Home OYce, for the adoption of so-called Secure Supply Chains. In particular the proposal to retain the imposition of fines prior to the outcome of objection or appeal, and the minimal circumstances under which objections or appeals may be mounted demonstrate to us unreasonableness and a willingness, despite previous assurances, to pressure small businesses needlessly. This organisation has been co-operating with the Home OYce for many years on the vexed issue of clandestine entrants and we believe our co-operation, inter alia, has reduced incidents of clandestine entry by upwards of 90% if Home OYce figures are to be believed. Therefore, we find it odd that the draft Bill has not attempted to capitalise on that co-operation but resonates more of the early part of the decade, when clandestine entry to the UK was much worse than it is now. Our concerns are that, if the faults in the Bill are not at least considered, we can only conclude that this new Bill is not meant to improve immigration control, but is, at best, a tidying up exercise which will merely have the eVect of entrenching oYcial attitudes and shortcomings. The assumption behind current immigration law is that, without an eVective system in place to prevent their presence, any clandestines found on board a truck or trailer will result in the driver and/or operator being jointly and severally liable for fines of up to £2,000 per clandestine. We have always found this requirement unreasonable because the word “eVective” is not defined. It has in the past led to operators being expected to put their staV at risk mounting unreasonable and in some cases unsafe inspections of their vehicles at night and in bad weather. The legislation also does not absolve the driver from fault if he/she declares clandestines at the border. The new rules allow some easing of the rules if the driver can show he/ she was subject to duress by the clandestine/s. However, how one proves duress is not defined; visible injuries perhaps? Furthermore, the new legislation does not protect the driver if he/she suspects he has illegals on board, only that he/she must have been subject to duress first. Recent meetings with the Home OYce lead us to believe that carriers liability may be re-defined to align with existing customs legislation. Our fundamental concern here is that the current Customs Act is over 30 years old201 and does not reflect modern logistic practice whereby,for operational security reasons, the driver often does not know, nor is he/she expected to know, what is in the vehicle.202 Because customs law is a European Union competence changes are slow to come. A review of customs legislation was proposed and then delayed in 2005. We believe that blaming the driver/operator for clandestines found inside a vehicle which is itself inside another vehicle such as a ferry is unreasonable because, having passed through immigration controls, a driver is required to leave the ferry vehicle deck until the ship is about to make landfall. The same principle would apply to train journeys where the driver is accommodated in a drivers’ coach not in the vehicle itself. We know that port areas are not always secure but blaming the haulier for others’ failures is wrong. New proposed legislation does not propose any change. It is as if the Police will arrest a householder for having a burglar on his premises because the burglar disabled the burglar alarm. We note that the new legislation applies diVerent punishments for the same oVence between England and Scotland, even though we understand immigration is a national competence. To us, being penalised depending on where the oVence was committed seems perverse and likely to reduce rather than encourage “buy-in” by the international haulage community which, at present, is 80% foreign operated. It also seems likely to encourage criminals to concentrate on the region with the lesser punishments. We hear of a plan to increase fines though we cannot see why. Given that current average fines are barely 40% of the maximum this suggests to us that most hauliers have credible defences when found with clandestines on board. We think this is because security in parts of Northern France is so poor that hauliers cannot protect themselves en-route to the Channel ports. We hear of attacks on drivers, though mercifully few in number, becoming more aggressive and of clandestines attacking solid sided vehicles not just the soft
201 Customs and Excise Management Act (CEMA) 1979. 202 CEMA assumes that drivers supervise loading and unloading of cargo and that trucks are one vehicle(so called rigid vehicles). It is much more common for drivers not to be told what is in the freight other than what is described on the freight documents. Modern heavy trucks are more likely to be articulated with the tractor unit separate from the trailer, which is often loaded before the tractor unit arrives for pick up. Processed: 23-04-2009 22:48:33 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 128 Home Affairs Committee: Evidence
so-called “curtainsider trailers”. We believe therefore that a full review of existing carrier’s liability legislation is due. We should not be satisfied with a so-called “tidying up exercise” otherwise this legislation will retain seriously unfair elements and not fit for purpose in the 21st Century. We are working with oYcials on some of the issues above but recommend that the Committee should remain appraised of developments. We would be happy to provide further information as the Committee sees fit. September 2008
Memorandum submitted by Liberty
About Liberty Liberty (The National Council for Civil Liberties) is one of the UK’s leading civil liberties and human rights organisations. Liberty works to promote human rights and protect civil liberties through a combination of test case litigation, lobbying, campaigning and research.
Liberty Policy Liberty provides policy responses to Government consultations on all issues which have implications for human rights and civil liberties. We also submit evidence to Select Committees, Inquiries and other policy fora, and undertake independent, funded research.
Introduction 1. Liberty is delighted to have the opportunity to respond to the Home AVairs Committee call for evidence on the partial draft Immigration & Citizenship Bill. The explanatory notes to this draft Bill state that it is intended to “consolidate, simplify and repeal” a total of 10 immigration and asylum related pieces of legislation. Liberty welcomes this idea. Immigration law in the UK has been enacted in a piecemeal way, with, in recent times, annual reforms in this area. The law governing immigration is, as a result, highly inaccessible and confusing for those using in the system. 2. While we endorse the intention to simplify the law in this area, we have concerns that this draft Bill retains an unnecessarily complex framework for immigration and citizenship. Further, the draft Bill goes well beyond a straightforward consolidation exercise and we welcome this opportunity to provide evidence on the concerns we have about the substantive reforms proposed. 3. At the outset it is worth noting that we are uneasy about the political tone surrounding this draft Bill. In particular the emphasis given to the need for migrants to “prove their worth”—the implication being that they are an automatically less deserving or less trustworthy group than those born into British citizenship. The draft Bill, for example, creates a “probationary citizenship” category. This terminology implies mistrust and suspicion yet the category itself is nothing more than “temporary permission” by another name. Probationary citizenship bestows none of the recognised entitlements of citizenship and instead adds further complexity to the system. 4. We also note at the outset that this is a partial draft Bill and that a number of additional topics will be included in the final Bill, including: powers of arrest, entry, search; data sharing; biometrics; asylum support and access to public funds. We will examine these proposals once the full Bill has been published.
Immigration Permission (Part 1) 5. Part 1 of the draft Bill replaces current concepts of leave to enter, leave to remain and entry clearance with a single concept of “immigration permission”. Several types of permission have been created, including temporary and permanent permission (replacing indefinite leave to remain or enter), probationary citizenship permission, protection permission and refugee permission. We understand however that there will still be categories of people who will be allowed to be in the UK but who will not have formal “permission”. This seems to confuse the aim of the “plain English” simplification project.
Conditions 6. Clause 10 sets out conditions that may be placed on those with temporary permission and replaces the reporting and residence conditions that were introduced by the UK Borders Act (2007). Liberty raised concerns about reporting conditions at the time, namely, the lack of restriction on the types of conditions that can be imposed; the purpose for which they can be imposed; and their duration. Such conditions can potentially be used in addition (or even instead of) the control order regime and it is easy to see how the Processed: 23-04-2009 22:48:33 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 129
restrictions could become punitive in themselves, potentially raising human rights concerns under Articles 8 and 11. The potential for unfairness and arbitrariness is compounded by clause 11 which gives the Secretary of State a wide discretion to change, cancel or vary the conditions of someone’s immigration permission. 7. Our concerns regarding the scope of immigration conditions are compounded by the introduction of severe sanctions for breach under this draft Bill. Failure to immediately disclose a change of address to the Home OYce could provide grounds for expulsion (with no right to appeal) (Clause 37(4)(d)); future exclusion from the UK for an (as yet) unspecified time; and may constitute a criminal oVence (attracting a potential sentence of up to 51 weeks) under Clause 99.
Cancellation of Permission 8. Clause 13 of the draft Bill introduces a new concept of automatic cancellation of permission. Examples include where: (i) a person has remained outside the UK for a continuous period of two years or more (ii) an expulsion order is made against the person (iii) a person becomes subject to an international travel ban (iv) a person’s permission has been extended pending a decision on an appeal or application for further permission and that person leaves the UK. Automatic cancellation does not attract the right of appeal. Clause 14 grants the Secretary of State a discretionary power to cancel immigration permission. The grounds for such cancellation are to be set out in the Immigration Rules as so we reserve further comment until the rules are published. We do however raise concerns at the power of automatic cancellation introduced here. We consistently advise against blanket rules and mandatory sanctions in the immigration context. It is far better to allow for an element of discretion in decision-making so as to avoid unfair and disproportionate outcomes.
Powers of Examination (Part 2) 9. Clauses 25–28 include broadly drafted powers that go far beyond the traditional scope of border control. Clause 25 extends the categories of persons that may be examined for immigration purposes. In addition to the current powers to examine those arriving in the UK, clause 25 permits examination of anyone who has ever entered the UK (whether recently or some time previously), those who are abroad and seeking to enter and those making an application for permission at any stage. This extends powers of examination to several new categories including anyone in the UK (whether a British citizen or not) who has ever left the UK at any time. The oYcial will determine whether the person requires permission, whether the person has permission and if so, whether permission should be cancelled. No reasonable cause or suspicion is required for examination to be exercised. Article 8. The explanatory notes do not make clear why the category of persons able to be examined for immigration purposes needs to be extended beyond those arriving in the UK. Furthermore, the draft Bill does not define what is meant by “examine” and this should be clarified when the full bill is published. 10. Clause 28(3) creates a power, which the Government has consistently pledged to resist. Under this clause, anyone who may be examined under clauses 25(1) and 26(1) “must produce a valid identity document if required to do so by the Secretary of State”. Failure to produce an identity card or otherwise prove identity is a criminal oVence (under clause 101) and can lead to detention until the requirement has been satisfied (under clause 53). Currently, the police are allowed to ask for identity documents if there is a reasonable suspicion that a person has committed an oVence203. Immigration oYcials also have the power to question people regarding their immigration status if they have a reasonable suspicion that a person is an immigration oVender. Clause 28(3) dramatically changes this premise allowing identity documents to be demanded of anyone that has at any time entered the UK by anyone authorised by the Secretary of State. No suspicion of criminality or immigration oVending is required. 11. Liberty has profound concerns about the interference with the right to respect for private life (protected under Article 8) created by clauses 25–28. While immigration control has been recognised as a legitimate aim capable of restricting Article 8 rights, these powers go far beyond what can reasonably be considered necessary for immigration control purposes. Liberty is concerned that this power will give a blank cheque to “authorised persons” to ask those who do not “look like” EEA citizens to establish their status. We are, concerned that it will be predominantly black and minority ethnic people who may be required, arbitrarily, to submit to examination or prove their status. We believe that the catchall remit of this power is disproportionate and that its enactment would not only damage community relations but would represent a fundamental shift in the relationship between the State and those present in the UK. 12. Clauses 25–28 also extend the category of persons who can exercise examination powers. Currently exercisable by immigration oYcials the new power will be delegated by the Secretary of State to oYcials in the UK Border Agency. This extension continues a worrying trend which extends powers traditionally reserved for the police. The UK Borders Bill (2007) extended certain powers to “designated immigration oYcials”. This draft Bill seems to be going even further with no mention made of how such individuals might be trained or held accountable for complaints and grievances.
203 Under section 24 of the Police & Criminal Evidence Act (1984) Processed: 23-04-2009 22:48:33 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 130 Home Affairs Committee: Evidence
Citizenship &Earning the Right to Stay (Part 3)
13. Clause 34 sets out the new timeline for naturalisation of migrants as British Citizens. It is an unnecessarily complex clause. Under the new timeline, the default qualifying period for applicants with permission to be here in their own right and dependant relatives of British citizens is eight years. The default qualifying period for partners of British citizens, bereaved partners of British citizens and victims of domestic violence by a British citizen partner is five years. The power is reserved, for the Secretary of State, through regulations, to amend the length of the eight or five year default qualifying periods.
14. While there is no right to citizenship status under human rights law, Liberty is concerned that the extended periods for naturalisation proposed under this Bill will mean that migrant workers, refugees and asylum seekers will remain vulnerable for longer periods. Longer periods “in limbo” will mean reduced access to mainstream benefits and services and those allowed to work may be made further vulnerable to employers for a longer period, possibly working longer hours or accepting lower pay for fear of having immigration permission revoked. Extending the naturalisation process will arguably hinder community cohesion. Those processing through the system will now spend longer being scrutinised by various agencies, including the Border & Immigration Agency, the police, employers, voluntary organisations (see below) and others. This prolonged journey combined with further tests and possible penalties (considered below) may well perpetuate feelings of exclusion within migrant communities.
15. Clause 34 introduces the new concept of an “activity condition” for migrants. Under this clause an applicant for citizenship can reduce their qualifying period by two years “if the Secretary of State considers that—(a) A has participated otherwise than for payment in prescribed activities, or (b) is exempt from participation in such activities”. Clause 35 provides for regulations to be made which define the prescribed activities which can reduce the length of the qualifying period and prescribe categories of persons exempt from carrying out the prescribed activities. Under the regulations the Secretary of State can amend the length of the two year discount period and even set it at zero “so that prescribed activities have no eVect on the default qualifying period”.
16. While Liberty is relieved that the draft Bill is not seeking to introduce compulsory volunteering (as was hinted at in the Green Paper which preceded the draft Bill204) we have deep concerns about a proposal for formal volunteering to speed up the naturalisation process—a process that this draft Bill proposes to extend. Liberty does not believe that migrants should be expected to do more than those born into British citizenship. An incentive of this kind is wrong in principle and will be discriminatory and exploitative in practice. While the draft Bill does not reveal the types of activities that will be prescribed however the government consultation which preceded the draft Bill suggested that activities such as volunteering with a recognised organisation; serving on community bodies and fundraising for schools and charities would be considered. This type of volunteering will necessarily ignore the ways in which many migrants already volunteer their services to the community, for example with informal childcare arrangements or teaching English.
“Managing local impacts”
17. The Home AVairs Committee call for written evidence asks for views on the governments proposals for “managing any local impacts” including the simplification of legislation on access to benefits and services. While these provisions are not included in the partial draft Bill the foregoing Green Paper proposed that migrants will be required to contribute to a “transitional fund” with those likely to put the most pressure on public services—such as children and the elderly—required to contribute more. This proposal is discriminatory and unjustified. It will disproportionately impact the most vulnerable who may have less ability to pay and it may well fall foul of Article 1 Protocol 1 of the HRA (which protects the right to property covering issues of taxation) when taken together with the right to enjoy rights without discrimination (including on the basis of a person’s national origin) under Article 14. Liberty is concerned that a levy on migrants may, in some circumstances, interfere with the right to family reunification protected by Article 8 of the HRA. The Government has, further, failed to make any practical case for an additional levy on migrants. The Green Paper was itself clear that “on average migrants pay more tax than non-migrants and consume fewer public services”205. Migration may well place temporary pressures on diVerent localities making a dedicated fund a logical proposal. However there is no reason why this fund cannot be established from general tax revenue to which migrants already make a bigger contribution.
204 “The Path to Citizenship: Next Steps in Reforming the Immigration System” 205 At page 33. Page 10 of the Green Paper states “Evidence suggests migrants have a positive impact ton GDP per head directly through their own output and indirectly through raising the productivity of others. On average the foreign born are more likely to earn more that the UK born and more likely to be in employment as a proportion of the population”. Processed: 23-04-2009 22:48:33 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 131
EVect of Criminal Convictions 18. Clause 34 further introduces extended qualifying periods when an applicant, or a connected person, is convicted of a prescribed oVence. Again the prescribed oVences, and the amount of time by which the qualifying period will increase will be set out in Regulations. 19. Without information concerning which oVences will be prescribed and the extended period for naturalisation that will be incurred it is diYcult to comment in detail on this part of the clause. It is however possible to note that the proposal continues two worrying trends. 20. The first is the imposition of an “immigration sanction” against the innocent, when a family member or a “connected person” is convicted of a criminal oVence. This principle was seen in the Criminal Justice & Immigration Act (2007) which created “special immigration status” for those sentenced to over two years imprisonment or in receipt of a shorter sentence for a specified oVence. The power allows for restrictions to be imposed on foreigners and their family members. Liberty expressed concerns at the time about the imposition of conditions on the innocent and we raise similar concerns about the current proposal for the naturalisation process to be extended for “those connected” to a convicted person. We have significant concerns about the imposition of conditions on the innocent and on children in any circumstances. The UN Convention on the Rights of the Child (UNCRC) makes specific provision to ensure that children are not disadvantaged as a consequence of the actions of their parents. Article 2.2 of the Convention states that “States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members”. It is unfortunate that this measure is being considered at the same time as the Government has announced the positive step of removing the reservation on the UNCRC for non-national children. 21. The second trend seen here is the introduction of a blanket mandatory sanction for migrants. We raised concerns when this principle was adopted in the UK Borders Act 2007 (UKBA), with the introduction of automatic deportation for all foreign criminals sentenced to a period of custody of over 12 months. In proportionality terms, prolonging the naturalisation process is, of course, preferable to automatic deportation. As the European Court of Human Rights has recognised in several cases, deportation following conviction for people who have developed strong family and personal ties is disproportionate and can violate Article 8 rights.206 However, while the current proposal may have a less intrusive impact, the principle is deeply flawed as individual circumstances will not be considered and assessments of fairness cannot be made. This is especially the case when, as is proposed here, the sanction eVectively amounts to a double punishment. In light of the above, Liberty would urge that any blanket extension of the naturalisation period for those convicted of a prescribed oVence should not be excessive.
Expulsion Orders &Removal from the UK (Part 4) 22. Clause 37 introduces the new “expulsion order” which is intended to replace two distinct systems currently in operation, namely administrative removal and deportation. 23. Under Clause 37(2)(b) the Secretary of State is required to make an expulsion order in relation to a person who is a “foreign criminal” under section 51 unless an exception applies. Under clause 37(2)(a) the Secretary of State will have the power to make an expulsion order against diVerent categories of non-British citizens including those who have temporary permission and have breached a condition subject to which the permission was granted. Both of these provisions maintain the position established in UKBA.207 24. Clause 37(2)(c) however extends powers established under UKBA. Under section 7 of that Act failure to comply with registration requirements can lead to the cancellation or variation of leave to enter or remain. It does not allow the cancellation of permission for family members. This draft Bill changes that situation by creating a power to expel non-British citizens who are family members of a person against whom an expulsion order has been made. Someone could, therefore, be automatically expelled from the UK if a family member failed to adhere to a reporting condition.208 The expulsion power created under the UKBA is already overbroad and raises proportionality concerns. This is especially so as the reporting conditions may in themselves raise Article 8 and Article 11 (The Right to Free Association) HRA issues. Liberty is concerned at an already overbroad power being extended to cover those not directly at fault. 25. Our concerns are exacerbated by the fact that that the new single expulsion order provides for future exclusion from the UK for a period of time (not yet specified) and there is no right of appeal once an expulsion order has been made. Currently those who have faced administrative removal are able to reapply
206 Lamguindaz v UK (1993) 17 EHRR 213 207 Liberty had profound concerns about the introduction of automatic deportation for foreign criminals and their family members—a reform that was driven by the exposure of administrative errors rather than any gap in the law. Liberty’s briefing on the proposal can be accessed at: http://www.liberty-human-rights.org.uk/pdfs/policy07/borders-bill-2nd-reading- lords.pdf 208 Furthermore, under the clause 37(9) there is no time limit on when the expulsion order can be made by the Secretary of State. Somebody who inadvertently breaches their reporting conditions during the first few weeks of their permission period would therefore have the threat of expulsion hanging over them for the rest of the period. Similarly, a person who cannot be deported (for example if one of the exceptions applied) would have the threat of deportation hanging over them for the duration of their temporary permission period during which the liability to deportation could change. Processed: 23-04-2009 22:48:33 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 132 Home Affairs Committee: Evidence
for permission to enter the UK. If the single expulsion applies across the board, inappropriate re-entry bans will apply, for example, to failed asylum seekers who have been returned to a country whose human rights situation may then deteriorate. Blanket re-entry bans are not appropriate for all those that may be removed from the UK and at the very least an appeal right should be provided.
Powers to Detain and Immigration Bail (Part 5) 26. Clause 53 provides the power to detain a person who is liable to examination under clauses 25 and 26 until all “relevant matters” have been decided (see paragraph 10 above). 27. Clauses 54 & 56 allow the Secretary of State to require the captain of a ship, aircraft or train to prevent a person from disembarking in the UK and allows the captain to detain the person in custody on board. Liberty understands that it can be convenient to give non-policing bodies police powers (examples include the extension of traditional powers to immigration oYcials and community accreditation schemes). However, useful does not necessarily mean appropriate. Specific justification should be provided justifying extension. The last few years have seen a continual legislative roll out of powers tratidionally the preserve of the police. This has frequently been to bodies without proper training.or accountability. In this case it is not clear that there is a real problem that needs addressing. We expect that police are present at all points of disembarkation in the UK and, unlike pilots and captains, are far better positioned to exercise such powers. 28. Clause 55 provides for the detention of a person against whom an expulsion order has or may be made, until that order is made or the person departs from the UK. Clause 55(4) places a duty on the Secretary of State to detain a person against whom an expulsion order has been made if the expulsion order has been made under clause 37(2)(b)209 unless in the circumstances the Secretary of State thinks it inappropriate. Liberty believes that the detention of asylum seekers for mere administrative convenience violates the right to liberty as protected under Article 5 of the HRA.210 Depriving any individual of their liberty can only be legitimately justified when it is necessary rather than convenient. Despite this clause 55 gives a wide discretion to the Secretary of State including the power to detain individuals “if the Secretary of State thinks that a person is someone in relation to whom an expulsion order may be made”. We are also particularly concerned by Article 55(4) which eVectively reverses the presumption of liberty, requiring detention rather than making it a measure of last resort. 29. Clause 57 broadly replicates the power created in section 2 UKBA allowing a “designated oYcial” to detain a person that they believe could be arrested without warrant under section 24 of PACE. Clause 57 extends the power from ports to international railway stations. Liberty raised concerns about extension of powers to designated immigration oYcials under the UKBA. Clause 58 however goes even further providing a power for a person to be forcibly removed from a ship, aircraft or train under the authority of the Secretary of State. We repeat the concerns raised at paragraph 28. Police powers, particularly those necessarily involving force should not be extended without clear justification. We note that the draft Bill contains no mention of accountability processes for those exercising the extended powers. 30. Clause 59 provides that those detained may be “detained in such places that the Secretary of State may direct”. Liberty is uneasy about this power. Short term holding facilities have already been established for such detentions where at least some degree of accountability and oversight can be exercised.
Immigration Bail 31. Clause 62 provides the power to grant immigration bail. Factors to be taken into account in consideration of bail include only those that weigh against the grant of bail and exclude all relevant factors that may weigh in favour of bail such as duration of detention, history of torture, impact of detention on individual and their family, physical and mental heath. Sub-clause (6)(b) and (7) prescribe that convictions outside of the UK must be taken into account when considering the granting of immigration bail. Liberty has concerns about what has been included and excluded in the list of considerations. In particular, given the political background for many of those claiming asylum in the UK, it is alarming that consideration is not given to the safety of any foreign convictions. 32. Clause 62(2)(c) requires the Secretary of State to consent to an AIT decision to grant bail to those facing imminent removal despite the fact that the AIT already consider whether removal is imminent when making the bail determination. This sub clause is not only therefore unnecessary but it is an inappropriate extension of the Secretary of State’s powers: directly challenging the role and mandate of the judiciary. The discretion aVorded to the Secretary of State may potentially leave her open to inappropriate political repercussions should it emerge that a person granted bail failed to comply with certain bail conditions. It would also arguably lead to an increase in the number of people detained, as it is often the case that removals intended to be imminent are in fact quite the reverse. Clause 68 follows in a similar vein, allowing the Secretary of State to amend or add to the conditions of immigration bail granted by the AIT. Again, Liberty is concerned by this unjustified encroachment on the AIT’s remit.
209 Expulsion orders must be made under clause 37(2)(b) in relation to a person who is a foreign criminal under clause 51. 210 As we argued when we intervened in Saadi v UK (Application no 13229/03) Processed: 23-04-2009 22:48:33 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 133
33. Clauses 62(11) and 64 introduce the concept of financial security (or a “bail bond”) as a condition of immigration bail. From a human rights perspective, bail bonds are preferable to detention—involving less of an interference with a person’s right to liberty. In theory provision for a “bail bond” already exists however the surety is only promised and does not need to be deposited. In the vast majority of cases these in immigration detention will be unable to pay a bail bond. The introduction of bail bonds is likely to mean that more detainees are held (often for periods of over 12 months) while there is still no prospect of deportation. Liberty does not believe that bail bonds are viable on principle and our scepticism is reinforced by the administrative diYculties such a system would present.
Offences (Part 7) 34. The partial draft Bill replicates a number of criminal oVences already in existence. As a result of extended powers created elsewhere in the draft Bill, Part 7 also criminalizes new areas of behaviour. An example is Clause 99. While this clause essentially replaces existing law—making it an oVence to knowingly breach a condition of immigration permission, the extension of conditions that can be imposed under Clause 10 of the draft Bill extends the potential impact of Clause 99 (see paragraph 6). 35. Liberty has significant concerns about clauses 101 and 102, which follow a similar thread. These clauses replace sections 24(1)(d) and 26 of the Immigration Act (1971) however, extended powers of examination under Clauses 25–28 of the draft Bill result in a major extension of criminal behaviour. As discussed at paragraphs 9 & 10 above, under clause 101 anyone who has entered the UK, applied to enter the UK or who is seeking to arrive in the UK commits a criminal oVence (liable to imprisonment of up to 12 months) for failing to submit to an examination under clause 26 or failing to produce identity documents under clause 28. As with the creation of any new criminal oVences, Liberty believes that principles of necessity and proportionality should govern. We maintain that the extension of examination powers in the draft Bill is unjustified, let alone the criminalisation of failure to comply with such powers. 36. Clause 121 makes it an oVence to resist or obstruct, without any reasonable excuse any person exercising a function conferred by or by virtue of the provisions in the draft Bill. The 2007 UK Borders Act made it an oVence to assault an immigration oYcial. Liberty did not take particular issue with the recognition that immigration oYcials, like police, undertake diYcult duties which can place them in physical danger. However, clause 121 goes well beyond such recognition. It is an extremely broad provision which criminalises behaviour at a threshold much lower than an assault (an oVence relatively easily committed). Of particular concern is that this new oVence criminalises behaviour (i) whether or not it was intentional and (ii) where the person carrying out a function under the Act may not be readily identifiable. We do of course understand the need for those enforcing immigration rules to have the necessary powers to do so. However, criminalising mere resistance or obstruction to any of the powers in the Bill is grossly disproportionate. This is especially so given the range of oVences that already exist and the fact that the full range of powers to be contained in the draft Bill still remains to be seen.
Carrier’s Liability (Part 8) 37. Clauses 122–148 eVectively replace corresponding provisions in the Immigration and Asylum Act 1999. Clause 149 however introduces an “authority to carry” scheme whereby carriers may be required to obtain authorisation from the Secretary of State in order to bring certain passengers to the UK. 38. This power constitutes a wholesale extension of immigration control powers to private individuals and companies. Sub clause 1 allows the Secretary of State to make regulations requiring a carrier who brings a person to the UK to pay a penalty if the carrier did not seek authority to carry the person when required to do so or if the carrier carried a person event though permission had been refused. 39. Liberty has grave concerns about the detrimental impact that such a scheme could have on those fleeing persecution. Responsibility and liability for immigration control should not be the prerogative of private companies and individuals who are untrained and unaccountable. We are also concerned about the potentially discriminatory impact of the proposed scheme. Clause 149(2)(b) provides that regulations must specify “the description of passenger” to which they apply and sub clause (3)(b) specifies that “the matters by reference to which a description of passenger may be defined include nationality and the possession of specified documents”. In 2001 the UK stationed immigration oYcers at Prague Airport to screen all passengers travelling to the UK. The aim was to detect people who wanted to claim asylum in the UK and prevent them from travelling. The overwhelming number of passengers who were refused permission to enter the UK under this operation were of Roma211 origin. Liberty, representing the European Roma Rights Centre and six individual Czech Roma, challenged the policy and in 2004 the House of Lords judged that the practice was “inherently and systematically discriminatory against Roma”. The framework for the authority to carry scheme, as set out in clause 149, appears to have the same fundamental flaws and will likely be open to challenge on discrimination grounds.
211 Roma were 400 times more likely to be refused entry than non-Roma Processed: 23-04-2009 22:48:33 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 134 Home Affairs Committee: Evidence
Illegal Workers (Part 9)
40. The clauses contained in Part 9 eVectively replace sections 15–26 of the Immigration, Asylum and Nationality Act (2006). While there are no changes of substance here, we take this opportunity to reiterate that Liberty believes asylum seekers should be entitled to work while awaiting the outcome of their application. In the absence of this reform we accept that penalties for employers employing illegal workers are necessary to prevent exploitation. We only hope that these penalties will not dissuade employers from employing those with seemingly complex immigration status.
Simplifying the Appeal Process (Part 10)
41. The draft Bill contains some of the Government’s proposed reforms to the immigration appeal process. Liberty notes that the UK Borders Agency is currently consulting more widely on this212. Conscious of previous Government attempts to scrap the judicial review of immigration tribunal decisions as well as the ongoing problems with the quality of immigration decision-making at first instance, we intend to watch closely developments in this area. As regards the draft Bill we have two main observations regarding the erosion of appeal rights. 42. Clauses 169 and 170 cover appeal rights for refugees and others with immigration permission. Under clause 169 appeal rights for those with immigration permission (but who are not refugees) are precluded if permission is cancelled after the person has entered the UK. Appeal rights in these cases are only permitted if immigration permission is cancelled on the person’s arrival in the UK. Liberty is concerned about the restriction of appeal rights in this way. The statistics for successful appeals against initial immigration decision-making reveal starkly the importance of appeals in the immigration context. The lack of an appeal right in these cases is will undoubtedly lead to unfairness. This is especially so given the range of reasons for which immigration permission can be cancelled (including, for example, a one-oV breach of a reporting condition). 43. Clause 171 provides for an in-country appeals when expulsion orders are made. Appeal against an expulsion order is however excluded when it is made against a person who (i) does not have permission (ii) has permission but the permission was obtained through deception (iii) has breached a permission condition or (iv) is a “foreign criminal” or is related to a foreign criminal. Liberty has grave concerns about the number of categories for which appeals are prohibited. It is unclear why the Government is seeking to scrap appeal rights in this way. Instead of “simplifying” or “streamlining” the appeal process, the erosion of appeal rights is more likely to encourage wider use of judicial review, simply transferring the administrative burden to the higher courts. September 2008
Memorandum submitted by Still Human Still Here Campaign
Executive Summary — Government asylum support policy is leaving many refused asylum seekers destitute in the UK, deprived of the entitlement to work, support, housing, healthcare and education. — Destitution of refused asylum seekers results from the current statutory scheme and is a growing problem which is having a significant impact at a local level. This places increasing demands not only on statutory services and local authorities but also voluntary and charitable organisations. — There are many refused asylum seekers who might have benefited from a grant of Exceptional Leave to Remain (ELR) on the basis of instability in their home country if that policy had not been withdrawn in 2003. They fall into a protection gap. There are also some who have been failed by the faulty status determination process. — Other refused asylum seekers, including those that have been in the UK for a substantial period of time, those who are unable to obtain travel documentation and the stateless, present diVerent issues and policy needs to reflect their situation. — The government should amend the asylum support legislation and reconsider its position on the entitlement to work so that the starting point is that all refused asylum seekers are not threatened with destitution. — The government should close the protection gaps in its protection policy that have emerged since the withdrawal of ELR in 2003.
212 “Immigration Appeals: fair decisions, faster justice” Processed: 23-04-2009 22:48:33 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 135
Introduction
1. “Still Human, Still Here” (SHSH), the campaign to end the destitution of refused asylum seekers welcomes this opportunity to submit evidence on the Draft Immigration and Citizenship Bill. SHSH is a coalition of organisations213 campaigning to bring all refused asylum seekers out of destitution by extending asylum support, permission to work and access to health care and education until the time of departure or grant of leave to remain. 2. Destitution of refused asylum seekers results from the current statutory scheme and is a growing problem which is having a significant impact at a local level. This places increasing demands not only on statutory services and local authorities but also voluntary and charitable organisations. 3. Although asylum support is not yet included in the draft Bill, it is outlined for inclusion in the full Bill. This submission will focus on the destitution of refused asylum seekers who, for a variety of reasons, remain in the UK.
The scope and scale of the issue
4. There is a huge disparity between the number of people refused asylum and the number who are either forcibly removed or make a voluntary departure from the UK. More than 280,000 refused asylum seekers are at risk of destitution in the UK.214 5. Destitution among refused asylum seekers is widespread and is having a devastating impact on already vulnerable individuals. In recent years there has been a substantial amount of research on this issue with reports written by organisations such as Amnesty International, Refugee Action, the Children’s Society, Barnado’s, the Joseph Rowntree Charitable Trust and the Independent Asylum Commission.215 6. The evidence suggests that the problem is growing. Between October 2006 and May 2008 there was a “real and substantial increase” in the incidence of destitution amongst asylum seekers is Leeds; the latest survey indicating that they increasingly came from unstable countries such as Zimbabwe, Iran, Eritrea, the Democratic Republic of Congo and Iraq.216
The Government’s current policy
7. Government policy prohibits asylum seekers from working unless, through no fault of their own, no decision is made on their application within 12 months. Support and accommodation is provided to asylum seekers while their claims are considered,217 although there is evidence that many fall through the gaps and end up destitute.218 When an asylum claim has been refused and there is no outstanding appeal, a refused asylum seeker is expected to leave the country within 21 days, with the exception of families with children who continue to receive financial support and accommodation. For single adults and childless couples support and housing are cut oV at this point. Government policy also limits access for refused asylum seekers to non-emergency free secondary healthcare.219
8. There are very limited circumstances in which refused asylum seekers can receive low-level support and accommodation after their claims have been refused.220 9. If asylum seekers are granted asylum, humanitarian protection or discretionary leave, they are permitted to work and are able, if necessary, to access the welfare benefits system.
213 See www.stillhuman.org.uk for details 214 National Audit OYce, Returning failed asylum applicants, July 2005 215 See, for example, Amnesty International “Down and Out in London” www.amnesty.org.uk/uploads/documents/ doc 17382.pdf, Refugee Action “The Destitution Trap’ www.refugee-action.org.uk/campaigns/documents/ RA DestReport Final LR.pdf. The Children’s Society “Living on the edge of despair” www.childrenssociety.org.uk/ resources/documents/Research/ Living on the edge of despair destitution amongst asylum seeking and refugee children 6115 full.pdf, Bernado’s “Like any other child?” www.barnardos.org.uk/like any other child asylum report08 full.pdf, The Joseph Rowntree Charitable Trust “Destitution in Leeds” www.jrct.org.uk/documents.asp?section%00010006&lib%00030002, Independent Asylum Commission, Interim Findings “Fit for Purpose yet?” www.independentasylumcommission.org.uk 216 The Joseph Rowntree Charitable Trust ‘More Destitution in Leeds’ www.jrct.org.uk/documents.asp?section%00010006&lib%00030002 217 Immigration and Asylum Act 1999, Part VI 218 See research cited in footnote 4 above 219 Although the guidance to NHS trusts is currently being challenged in the Courts, see A v West Middlesex NHS Trust [2008] EWHC 855 (Admin) 220 See Immigration and Asylum Act 1999, Section 4 and The Immigration and Asylum (Provision of Accommodation to Failed Asylum-Seekers) Regulations 2005 S.I. 2005 No. 930 Processed: 23-04-2009 22:48:33 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 136 Home Affairs Committee: Evidence
10. The government’s policy has been strongly criticised. In its inquiry into “The Treatment of Asylum Seekers” 2006–07, the Joint Committee on Human Rights made recommendations regarding destitution: “Recommendation 14. “The policy of enforced destitution must cease. The system of asylum seeker support is a confusing mess. We have seen no justification for providing varying standards of support and recommend the introduction of a coherent, unified, simplified and accessible system of support for asylum seekers, from arrival until voluntary departure or compulsory removal from the UK. Recommendation 15. “We recommend that the Immigration Rules be amended so that asylum seekers may apply for permission to work when their asylum appeal is outstanding for 12 months or more and the delay is due to factors outside their control. We recommend that where there is evidence that an asylum seeker will not be able to leave the UK for 12 months or more, he or she should be granted limited leave for a 12 month period with permission to work attached.” 11. There is a widespread belief that the Government deliberately uses destitution or the threat of destitution as a policy tool to attempt to drive refused asylum seekers out of the country. The Government however strongly denies this. SHSH believes that the government’s policy on refused asylum seekers is inhumane, does not work and is forcing thousands into abject poverty.
Analysis 12. An analysis the population of destitute refused asylum seekers provides an informed basis for the replacement of the current failing policy. It shows that the population of refused asylum seekers are not a homogenous group. There are at least six subgroups within the general group of refused asylum seekers, although there is some overlap between the subgroups and particular individuals may fall into more than one. The subgroups are:
Subgroup 1: Those without protection needs, and for whom return is a viable option; Subgroup 2: Those for whom the barrier to removal is instability in their home country; Subgroup 3: Those who have protection needs that have not been adequately addressed; Subgroup 4: Those who have been in the UK for substantial periods of time; Subgroup 5: Those for whom return is not immediately viable due to documentation problems; Subgroup 6: Those for whom return is not viable due to statelessness. 13. This analysis was put to the Home Secretary when she met a delegation from SHSH led by the Archbishop of York in March 2008. It has formed the basis of ongoing discussions between the UK Border Agency and delegates from SHSH concerning the methods by which refused asylum seekers could be lifted out of destitution. 14. SHSH recognises that some refused asylum seekers have no protection needs. Member agencies of Asylum Support Partnership are of the view that for refused asylum seekers with no protection needs, to achieve increased voluntary and assisted voluntary departure, they must have suYcient confidence that decisions on their protection claims are safe and fair and that return will occur in a safe, dignified and considered manner. Refused asylum seekers with no protection needs must have confidence in the system in order to engage with the idea that their claim has been refused and that they should return. More of these people choose to return to their country of origin if supported by a trusted adviser and if they are not preoccupied by the need to survive while destitute. 15. However, Subgroup 2 (those for whom the barrier to removal is instability in their home country) or Subgroup 3 (those who have protection needs that have not been adequately addressed) represent people with continuing protection needs. Return is not the appropriate solution to their predicament. Forcing them into destitution is particularly inappropriate because they are trapped in the UK, failed by the system that has determined their claims. 16. Subgroup 2 includes many who fall in a protection gap between UK policy and practice and international standards and practice; particularly with respect to people fleeing armed conflict or endemic violence or those at serious risk of systematic or generalised violations of their human rights who have not been able to establish that they individually are at risk. Since the withdrawal of ELR and the country policies in 2003, that had acted as a safety net for this sub-group, there has been a radical reduction in rates of grants of subsidiary protection. This is particularly concerning because, for the majority of this period, asylum claims were considered by the then Immigration and Nationality Directorate’s unreformed and much criticised decision making process. 17. The issue can be illustrated by the position that the government in respect of civilians who are fleeing the risks to their lives resulting from armed conflict. Surprisingly the 1951 Convention relating to the Status of Refugees and the European Convention on Human Rights do not automatically provide protection to such claimants221 resulting in what UNHCR have term to be an “unacceptable protection gap”.222 A
221 See KH (Iraq) [2008] UKAIT 0002, paragraph 1 222 Note on Key Issues of Concern to UNHCR on the Draft Qualification Directive, UNHCR, March 2004 Processed: 23-04-2009 22:48:33 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 137
provision of the EU Qualification Directive, transposed into the Immigration Rules in October 2006, potentially extends an entitlement to subsidiary protection to this group. However, government policy is that this provision does not extend protection any further than the pre-existing rules.223 This leaves the protection gap open and results in absurd and inhumane outcomes where, for example, civilians that have fled the height of the violence in central and southern Iraq have had their claims refused and are left destitute, but are not being forcibly returned. In contrast, when the Ba’ath Party controlled Iraq, claimants from this part of Iraq were granted, at minimum, a period of ELR. 18. Another example of the failure of the policy relates to asylum seekers from Zimbabwe. By July of this year, it was estimated that there were up to 11,500 refused Zimbabwean asylum seekers in the UK. In the first quarter of 2008, 270 of 375 asylum claims considered by the UK Border Agency were refused and only 50 of 285 appeals were successful.224 Yet, only 1 forced removal to Zimbabwe has occurred since August 2005, and removals had previously been suspended between January 2002 and November 2004. Research, cited above, indicates that the numbers of destitute Zimbabweans is growing.225 However the government has failed to recognise the protection needs of this group and has maintained a policy of refusing them permission to work, often resulting in them loosing the valuable skills that Zimbabwe will need in its reconstruction. 19. Several EU member states bridge the protection gap by oVering some form of group or “categorized” protection, much as the UK used to with its country policies. A recent study,226 summarised in a European Parliamentary briefing227 shows that several EU member states oVer some form of protection based on the general situation in the country of origin, regardless of an applicant’s individual circumstances. Some states postpone the asylum decision,228 some postpone removal,229 if the asylum seeker does not have an individualised risk, while others grant fully fledged protection status,230 including residence rights, to asylum seekers from certain countries or parts of countries. Although the criteria used diVer, many of the states studied did oVer some form of categorized protection to applicants from Afghanistan, (central) Iraq, and Somalia between 2001 and 2005. The Netherlands currently oVers categorized protection to some Iraqi and Somali claimants. Case Study: Subgroup 2 Henry was an MDC activist in Zimbabwe who came to the UK in 2001 after facing threats of persecution relating to his opposition political activities. His claim was considered but refused on the basis that he was not senior enough in the MDC to face persecution if he returned. Henry was convinced that he would be in danger if he went back, and so ended up destitute and reliant on the support of friends and charity. After several months in this situation his dignity was so compromised that he chose to return and face the possibility of persecution than remain destitute in the UK. At least he would be able to support and feed himself in Zimbabwe, he reasoned. When Henry returned to Zimbabwe he was immediately identified, picked up and detained by security services, and brutally beaten and tortured. Eventually he managed to escape and fled back to the UK, and after a long process involving detention, a hunger strike and a fresh claim, he was granted asylum. 20. Subgroup 3 includes people who have not been granted protection because of the long documented failures and inconsistencies in the UK’s asylum determination process.231 Some have claims that have been wrongly refused or others have been failed by the system for example because they may have benefited from one of the UK’s country specific policies, which existed at some point during the lifetime of their claim, had the timing of the decision on their case been diVerent. Case Study: Subgroup 3 Ahmed is an Iraqi from Mosul. He fled the Ba’ath party regime, arriving in the UK in October 2002 when the government’s policy was to grant at least 4 years’ ELR to Iraqis in his position. His claim for asylum was refused after one year and his appeal was unsuccessful. His asylum support was withdrawn at that point but he was given section 4 support on the basis that the Secretary of
223 See UKBA Asylum Policy Instruction on Humanitarian Protection at www.bia.homeoYce.gov.uk/sitecontent/documents/ policyandlaw/asylumpolicyinstructions/apis/humanitarianprotection.pdf?view%Binary Article 15 c of the Qualification Directive is currently being considered in a reference from the Dutch Council of State to the European Court of Justice, see Elgafaji v Staatssecretaris van Justitie Case C-465/07 224 See Home OYce, Asylum Statistics, 1st Quarter, 2008 225 See footnote 4 above 226 Comparative Study on the Existence and Application of Categorized Protection in Selected European Countries, International Centre for Migration Policy Development (ICMPD), 2006, ordered by Adviescommisie Vreemdelingenzaken (Advisory Committee on Aliens AVairs of the Dutch Minister of Aliens AVairs and Integration), available at www.acvz.com 227 Briefing note on European protection in cases of group persecution, European Parliament, 2006 228 eg Switzerland, Netherlands 229 eg Denmark, France and Germany 230 eg Austria, Denmark and Finland 231 For a recent summary of those criticisms see the Independent Asylum Commission Interim Findings in note 2 above Processed: 23-04-2009 22:48:33 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 138 Home Affairs Committee: Evidence
State considered that there was no safe route of return for him. That support was withdrawn in July 2007 because Secretary of State now considered that there was a safe route of return. Ahmed fears returning to face the civil war in Iraq. In October 2007, the UN Secretary General reported that Mosul was second only to Baghdad in the number of violent attacks and, on several recent occasions, has recorded more daily attacks than Baghdad. He has been destitute for over 1 year and has slept rough on the streets of Portsmouth. 21. Subgroups 4, 5 and 6 each raise specific issues that are particular to their situation. Those that have been in the UK for a long period may have integrated have formed relationships and, like the stateless, be irremovable. Their situation is diVerent from those who, have arrived relatively recently, have no protection needs and who cannot be removed because of a temporary diYculty in obtaining travel documentation. 22. Aside from the human cost to the individuals concerned, in policy terms, it is undesirable for thousands of people to be driven into destitution, oV the radar of statutory services. Their survival might depend on finding irregular employment; they will be vulnerable to sexual exploitation and crime. The burden on communities undermines social cohesion, while local authorities are footing a growing bill for supporting those with needs beyond destitution. 23. The policy tools that government has at its disposal are currently limited to: — inducing consensual return by means of incentives; — coercing people into return by means of destitution; or — enforcing returns. 24. People who are afraid to return, such as many Iraqis from Central and Southern Iraq, Sudanese from Darfur, Eritreans, Somalis and Zimbabweans, are unlikely to consent to go, almost regardless of the level of assistance oVered. Moreover, many will feel unable to make the commitment to “voluntary” return which is one of the criteria that would qualify them for limited statutory support and avoid destitution. For these people, the current alternative policy options (using destitution as a lever to induce “voluntary” return or enforced return), are inhumane, may place individuals at risk and may run counter to international standards of protection. Enforced return of large groups has the additional drawback of being prohibitively expensive. 25. Existing policy tools are clearly inadequate. For these subgroups, return is unrealistic, destitution is inhumane and undesirable, and the public would support alternatives to return. 26. Since the abolition of ELR and country policies, compassion and discretion have been largely excised from decision making in the UK asylum procedure. A significant number of people have been denied protection, whose cases would have been considered suYciently strong to warrant it in the past. 27. ELR was abolished ostensibly because the government considered it to be a “pull factor”. Yet the main factor influencing an asylum seeker’s preferred destination is known to be the presence of family and friends.232 Research commissioned by the Home OYce shows: (a) there is little evidence that asylum seekers are deterred by the prospect of harsh treatment in a country of asylum;233 (b) measures that prevent asylum seekers from reaching their destination can aVect numbers (though the influence is usually temporary);234 (c) asylum seekers have little control over their route or final destination and have little knowledge of UK immigration or asylum procedures before they arrive, nor of entitlements to benefits, the availability of work or how UK policies compare to those of other EU countries.235 28. Recent research conducted for the Dutch Advisory Committee on Aliens AVairs found that the prevailing view that the Dutch group protection policy (similar to the UK’s country policies) had an “appealing eVect” could not be substantiated.236 29. The main influence on the fall in numbers coming to the UK since 2003 has been the fall in numbers of refugees worldwide. However, the policy measures that appear to have had an eVect on falling numbers have been barriers to entry, which have had an impact since ELR was abolished. The Home OYce’s own graphs show the sharpest falls occurred after the introduction of pre-entry measures, such as instituting visa controls on Zimbabweans and transit visas for other nationalities, new technology for searching freight at channel ports and the deployment of Airline Liaison OYcers.237 Such policies may be criticised for other reasons, but it appears incorrect to attribute the fall in numbers of asylum claimants on fewer grants of subsidiary protection or the harsher treatment of refused asylum seekers.
232 Asylum migration to the European Union : patterns of origin and destination, Bcker and Havinga 1998 233 An assessment of the impact of asylum policies in Europe 1990-2000, Zetter et al, Home OYce, 2003 234 ibid. 235 Understanding the decision-making of asylum seekers, V.Robinson, University of Wales, July 2002 236 Categoriaal Beschermingsbeleid een “Nood Zak”, ACVZ, 2006 237 Home OYce, Asylum Statistics 2004 Processed: 23-04-2009 22:48:33 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 139
Conclusions 30. In order to remedy the increasing numbers of refused asylum seekers who are forced into destitution, the Citizenship and Immigration Bill ought to reflect the following principles: (1) Asylum support provisions should be premised on the fact that asylum seekers should not be left destitute before they leave the UK and that they should have access to NHS healthcare and state funded education; (2) Government policy should recognise that refused asylum seekers are not a homogenous group and that policies need to be tailored to provide solutions that meet their particular situation; (3) A fair and eVective refugee status determination system where essential safeguards, such as adequate remedies and competent and adequately funded legal representation, exist and the protection gaps, which many destitute refused asylum seekers currently fall into, are closed. 31. The Still Human Still Here coalition would be happy to provide further detailed evidence once the support provisions of the Bill are published.
Memorandum submitted by Yorkshire and Humber Strategic Migration Group
1. Executive Summary of Main Points 1.1 The Yorkshire & Humber Strategic Migration Group [SMG] welcomes the principles of consolidation and simplification intended by the drafting of this new Bill, and is pleased to be able to comment upon the draft Bill and its associated documentation thus far. The SMG will also be keen to respond to the Asylum Support provisions when they are published. 1.2 The main issues of concern to the SMG include a general lack of detail surrounding many new proposals, and whether these genuinely enhance the Simplification Project or actually increase complexity. Examples of this include new terminology, the introduction of another stage in the citizenship process, and the unresolved issue of the relative prioritisation accorded to immigration law over other social welfare principles. 1.3 A second issue we hope the Committee will consider is the particular provision made for vulnerable categories such as children. In many cases, it appears that while the intention is to increase protection of these groups, it is not a constant consideration in each new proposal and will therefore be open to interpretation. 1.4 Finally, the proposal of a new Migrant Integration Fund is welcome particularly in light of the intended local and regional benefits. However, we hope that the omission of any reference to Strategic Migration Groups (including the Yorkshire & Humber Strategic Migration Group), which exist in each of the 11 regions / nations of the UK, in influencing the design of this fund will be reconsidered.
2. Brief Introduction to the Yorkshire &Humber Strategic Migration Group [YHSMG] 2.1 The Yorkshire & Humber Regional Migration Partnership [YHRMP] is the new name for what used to be called the Yorkshire and Humberside Consortium for Asylum Seekers and Refugees. We carry out an “enabling role”, which means that we try to ensure that agencies across the region provide appropriate and accessible advice, services and support for asylum seekers, unsuccessful asylum seekers, new refugees and migrant workers. We do this by providing an advisory, development and consultation function in the region. 2.2 We are a partnership of organisations in Yorkshire and Humberside from the statutory, voluntary, community and private sectors. All of us have some involvement with matters relating to asylum seekers, unsuccessful asylum seekers, new refugees or new migrants. We carry out our work through the Yorkshire & Humber Strategic Migration Group [SMG]. The Partnership Team services and supports the work of the YHRMP. 2.3 This written evidence has been submitted by the Partnership Team on behalf of the Yorkshire & Humber Strategic Migration Group and the Yorkshire & Humber Local Authorities Group on Migration, with the caveat that this submission does not necessarily reflect the views of UKBA staV who are also members of the SMG.
3. Recommendations for Consideration by the Committee 3.1 Definition of terms and their interrelationships (ie new terms “Immigration Permission”, “Temporary Permission”, “Permanent Permission” found in the Draft Bill, “Temporary Protection” outlined in the Draft Rules Annex, and existing statuses “Refugee Status”, “Humanitarian Protection” and “Discretionary Leave”) should be clearer in the Draft Bill and associated documentation to avoid subjective interpretation, Processed: 23-04-2009 22:48:33 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 140 Home Affairs Committee: Evidence
which clearly detracts from the principles of Simplification. For example, if a person receives a positive asylum decision, will they receive “refugee status”, “temporary protection”, “temporary permission” or all three? 3.2 It should be clear whether “Discretionary Leave” will continue to be used as a form of Immigration Permission, as neither the Draft Bill nor the Draft Rules mention the term. If not, the alternative status given to those formerly falling into this category (and their associated entitlements) should be made explicit, particularly those which may impose a financial burden upon Local Government. For example, will they now be eligible for Refugee Status, Humanitarian Protection, the generic “Permission” or none of these? 3.3 The instances where an asylum interview may not be necessary include those where the applicant “has only raised issues that are not relevant or of minimal relevance” (Draft Immigration Rules, Section 18(b)(iii)), or “has made inconsistent, contradictory, improbable or insuYcient representations which make the application clearly unconvincing” (18(b)(iv)). These instances need more detail in order to maintain transparency and fairness, and to minimise subjectivity on the part of the decision-maker. There must also be clear criteria to determine these particular instances, and a process of appeal against the judgment that an interview is not necessary. It should be considered that the likely high rate of appeal or complaint against such a judgment may make these new rules counterproductive in their apparent aim of fast-tracking cases. 3.4 A definite timescale should be stipulated for the production of a report of the asylum interview (Draft Immigration Rules, Section 20), which should give a realistic opportunity to subsequently prepare for appeal submissions. 3.5 The principles regarding children’s welfare (Draft Bill Clause 189, Draft Immigration Rules Section 13) need to be more specific with supporting examples to give clarity between the relative priorities of immigration legislation, process and practice versus established child care practice. 3.6 Similarly, the lack of clarity between the precedence of immigration legislation over the obligations of Local Authorities to both children and adults has led to confusion for staV, inconsistent service provision to clients, and a number of high profile court cases. These have led to influential case law, such as the Hillingdon and Westminster judgments. The simplification process should address these historical diYculties. 3.7 The powers to examine those arriving or leaving the UK (Draft Bill Part 2, Clauses 25–27) should make reference to specific categories of vulnerable people, such as children, and how they will be safeguarded during this process. 3.8 We welcome the statement that dependents will not usually be present at the personal interview (Draft Rules Section 19), as it is likely to be in the interests of the child and likely to allow parents to fully disclose relevant information during their interview. However, we also have concerns about what will happen to dependents during this time as the Draft Rules do not address this. We recommend that the Rules outline where dependents are expected to be during the interview, in line with the UKBA Code of Practice, in order to safeguard their welfare. 3.9 The processes for tracing members of an unaccompanied children’s family, mentioned in the Draft Rules (Section 28) should be clearly outlined, with appropriate safeguarding measures. The Red Cross tracing service may be a useful model or potential service provider for this process, given their expertise. 3.10 All measures relating to unaccompanied children, including the provision for allocating a representative (Draft Rules Section 16), should be able to take into account potential process changes as the Home OYce UASC Reform Programme develops. 3.11 Citizenship clauses of the Draft Bill should ensure that they are in line with Simplification principles. For example, the proposed “Probationary Citizenship” period may be in danger of further complicating the existing system instead. It should be clear what how this status aVects entitlements and access to services. 3.12 Some of our stakeholders feel that the term “probationary” should be reconsidered as it may be seen to have negative connotations and could be replaced with a more neutral term such as “provisional”. The possibility of not “passing” the probationary period also needs to be confirmed and if this happens, the consequences for the individual. The eVects of lengthening the qualifying period by introducing “probationary citizenship” upon community cohesion must also be considered here, as it increases the insecurity of those without permanent status in the UK. 3.13 The Draft Bill states that there may be an exemption from “active citizenship” requirements which will still ensure that the qualifying period may be reduced for up to two years (Clause 34(2)(b)). Accepted reasons for exemption need to be outlined, to ensure that certain groups with work or family pressures will not be disadvantaged from qualifying. 3.14 Discussions regarding regional distribution of the Migrant Integration Fund should include the existing Regional Strategic Migration Groups, including the YHSMG, as key advisory groups on the allocation of this new resource. Regional Strategic Migration Groups have cross-sectoral membership and they exist in each of the nine English regions, Scotland and Wales. They work to ensure that there is eVective regional strategic coordination on all matters to do with migrants in each of these regions/nations. Processed: 23-04-2009 22:48:33 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 141
3.15 The method of raising money for the Migrant Integration Fund should be reconsidered, given the proposed method will create the greatest additional burden on those with dependents themselves. Rather, some of the benefits of migration ie increased taxation could be redistributed locally rather than nationally. September 2008
Memorandum submitted by Sean Chan I think the draft bill is faulty because it makes no reference to people who already have ILR and will be qualified for applying for citizenship soon (for example in one year’s time). I myself will have met the current requirements for applying for citizenship by end of May 2009. What happens if the bill comes into eVect before then and the rules change? The bill should make it clear that it does not apply to people who will qualify for citizenship application in three years’ time. There is a reason for the provision of three years. This is because it currently takes six years to qualify for citizenship application (ie five year for ILR and one more year after ILR). For people who have already on the path to settlement for three years, the law should not change “half-way”! Recent court ruling on the immigration rule change on HSMP case (17 July 2008 Highly Skilled Migrant Programme Forum Judicial Review) against the Government means that the change of immigration rules must not have retrospective eVects. Existing ILR holders have a reasonable expectation that they should be able to apply for citizenship one year after they have received their ILR. These people should not be negatively aVected by the changes introduced in this bill! They have demonstrated that they have earned their ILR! Especially, mind you, the negative impact of any immigration rule change that has retrospective eVects can cause significant social uneasy and hardship. In one instance, this led to the above-mentioned Judicial Review in which the Government was criticised. Two websites, www.vbsi.org.uk (Voice of Britain’s Skilled Immigrants) and HSMP Forum were setup specifically to fight against such changes. Therefore, a serious, detailed and extensive Impact Assessment should be carried out for the finalisation of the current draft bill so as to avoid repeating past mistakes. September 2008
Supplementary memorandum submitted by Migration Watch UK In our original submissions paragraph 4 stated: “4 Migration Watch has been critical of the failure of the Points Based System to place any limit on the number of immigrants granted visas for the purpose of employment. Our proposal, therefore, is that the necessary powers to impose limits on the numbers of those granted particular types of visa should be conferred on the Secretary of State after consultation with concerned parties and should be exercisable by statutory instrument, subject to parliamentary approval in accordance with Clause 203(1) of the draft Bill.” On 8 September the newly formed cross party group, jointly chaired by MPs Frank Field and Nicholas Soames published its proposals on Balanced Migration. The proposals have been published in hard copy in a brochure under that title and are also available on the Migration Watch website as Briefing Paper 10.12. These proposals have attracted much public attention and have found favour in many quarters. What is meant by balanced migration is summarised at pages 37–38 of the brochure. Its objective as a policy is to bring the numbers of immigrants into line with the numbers of emigrants and for this purpose to control the numbers of work permits granted each year under the points based system and terminate the present system whereby persons granted work permits are entitled to apply for settlement after five years. Balanced migration would regulate only immigration from outside the European Union and would not aVect the acceptance of genuine asylum seekers, admission of genuine students for bona fide courses of study or of partners from abroad to genuine marriages. Our proposal therefore is that the necessary powers to impose annual limits on the numbers of those granted particular types of visa should be conferred on the Secretary of State after consultation with concerned parties and should be exercisable by statutory instrument, subject to parliamentary approval in accordance with Clause 203(1) of the draft Bill. It could perhaps be argued that such power will exist under the general power to make Immigration Rules in Clause 21, but so far as we are aware the restriction of numbers proposed has not previously been legally part of immigration policy and as a matter of prudence ought to be included in the Bill in specific terms. September 2008 Processed: 23-04-2009 22:48:33 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 142 Home Affairs Committee: Evidence
Memorandum submitted by Dr Charmain Goldwyn MB BS MRCGP IRC detainees have requested consultations with me as a visiting doctor within the detention centres; over the last two years I have seen at least 46 cases. Without exception they have all been depressed, and had feelings of hopelessness and vulnerability. All of the cases I have seen should not have been detained, because they had either a history of past torture, a present history of mental illness, for instance schizophrenia, PTSD or had severe physical illness. I am deeply concerned that rule 35 does not seem to have been applied to any of these people. I sincerely hope that during the deliberations of the committee there will be deep attention paid to rule 35 and it’s implementation. Of the people I have seen: Twenty of the 46 cases had been tortured in their own country and had scars consistent with their accounts. One could not fail to be moved by the sight of grown men weeping as the retold the story of their torture. Five patients had evidence of assault from attacks within the detention centres, four by warders, I by another detainee. Three women had been raped in their own countries. They were too distressed at their asylum interview to express this. I was involved with four schizophrenics, one severely distressed, sent back to Uganda in a psychotic state and now in a mental hospital there. One patient had renal failure and was on dialysis; he had to depend on variable prison transport to take him to hospital. One had unacceptably high blood pressure. One had severe asthma. He was sent back to Egypt in an ambulance aeroplane, and arrested as he had feared, on his return. I had severe diabetes, with so many cardiac and other problems he was not fit to fly, let alone be in detention. Two were the most depressed patients I have ever seen in all my 40 years as a GP, very serious suicide risks. One hunger striker was dangerously approaching renal failure. None of the above should be in detention according to rule 35, which had evidently not been applied. The level of sickness and distress puts stress on the staV of the IRC clinics. Those who have been assaulted on removal or within the jail are very distressed and unable to believe that such treatment should happen in the “Mother Country”. At first I could not believe it myself, until each account was so similar, coming from individuals that had no connection with each other. I applied the PTSD questionnaire to many of the people I saw. All had very high scores. The detention centres are full of persons seeking asylum in Great Britain, who feel hopeless, helpless, and humiliated; and who have no control over their lives. Besides that, many of them are physically and mentally sick, and have serious histories of torture. THEY SHOULD NOT BE IN DETENTION AT ALL. PLEASE LOOK CAREFULLY INTO RULE 35 AND MAKE SURE THAT IT IS APPLIED IN FUTURE. September 2008
Supplementary memorandum submitted by Dr Charmian Goldwyn MB BS MRCGP Further to my letter 4/9/08 on rule 35 and the detention of sick asylum seekers, and those who have been previously tortured. Detention Centre Rule 35 requires detention centre doctors to report to UKBA “ANY DETAINED PERSON WHOSE HEALTH IS LIKELY TO BE INJURIOUSLY AFFECTED BY CONTINUED DETENTION OR ANY CONDITIONS OF DETENTION” I was at a UKBA Workshop 24/9/08 and we discussed the implementation of this rule. Those asylum seekers who are detained pending removal are interviewed within two hours of their arrival at an IRC. The nurses I met who mainly do this task confided that it is extremely diYcult to assess someone in the short time they have. There is pressure of numbers and frequently language problems. Many asylum seekers prefer not to talk about being tortured, and the women hardly ever talk about their rape. Amnesty research has shown that 70% of women in Yarls Wood have been raped, though this is rarely spoken about in initial interviews. If they do report torture in their country to the nurse or maybe later to the doctor, they are referred then to their Case Worker. Processed: 23-04-2009 22:48:33 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 143
So who are these Case Workers? They are trained and employed by the Immigration service. It appears to me that they are trained to assume all detainees are lying unless there is cast iron proof in the form of typical scars. Even then they are not always released, even though the prison situation brings back horrific memories of their incarceration and torture in their own countries. Then there are the very sick patients that I see who should certainly not be in detention. Persons with renal failure, severe asthma, severe diabetes and unacceptably high blood pressure. Everyone I have seen is depressed, some suicidal, and some who have seriously self harmed. They are terrified of being returned to what they believe is certain torture or death in their country of origin. The doctors and psychiatrists paid by the Immigration service seem to accept this level of mental and physical distress, but as a retired GP who taught many young doctors and medical students, I find the whole situation unacceptable. I visit and consult with those detainees who have requested an outside doctor to assess their medical problems and past torture history. I also assess those who have been assaulted by the warders and escorts who are attempting to remove them. In all I have seen 50 cases, and am able to spend enough time with them to assess their medical problems and elicit a substantial account of their reasons for fleeing their country. Rule 35 which sounds so reasonable in content is not in fact being implemented as was intended. The weak spots are: 1. when the detainee is interviewed on admission. 2. the Case Workers are not detached persons, but paid and trained by the UKBA. In my opinion both of these factors must be addressed when you are discussing the Simplification of the Immigration Law. October 2008
Memorandum submitted by JUSTICE
Summary 1. Founded in 1957, JUSTICE is a UK-based human rights and law reform organisation. Its mission is to advance justice, human rights and the rule of law. It is the British section of the International Commission of Jurists. 2. JUSTICE welcomes the Committee’s inquiry into the draft Bill. As a human rights organisation, we have long been concerned with the issues of fundamental rights raised by immigration and asylum. And, as a law reform organisation, we have long been concerned with the increasing complexity of the law governing these areas,238 the generally poor quality of decision-making by immigration oYcials, and the progressive trend of government to seek to restrict the appeal rights of immigrants and asylum seekers. Most recently, we have become concerned by statements such as that in the Governance of Britain Green Paper last year,239 which seek to link rights explicitly to British citizenship rather than as something guaranteed to all people governed by British law. 3. As a law reform organisation, we therefore welcome the long overdue simplification and streamlining of immigration and asylum law that the draft Bill aims to achieve. Whether in fact it has achieved this is, however, open to question: Part 3 of the Bill dealing with citizenship seems to us one area where it has actually increased the complexity of the relevant law. More generally, however, we are concerned that the draft Bill has only continued the trend of recent immigration legislation: eroding rights of appeal and diminishing safeguards against arbitrary decision-making, rather than enhancing them. Given the size of the draft Bill, we can do no more than outline our key concerns in this submission.
Part 1: Entry into and Stay in the UK 4. Clause 1(1) provides that a British citizen is free to “enter and leave, and to stay in, the United Kingdom”. Clause 1(2) provides that this is “subject to any requirements or restrictions imposed by or by virtue of this Act or any other enactment”.240 The words “by virtue of” indicate that a citizen’s right to enter, leave or remain in the UK may be qualified not only by primary legislation but also by secondary legislation. However, given the draft Bill’s own extensive reliance on regulation-making powers (see eg the immigration rules in clause 21 and the power to designate oYcials in clause 24), we question whether any proposed limitations on a citizen’s right to enter, leave or remain should be open to qualification in this way.
238 In this context, we note the draft Bill is the seventh piece of immigration legislation since 1999. 239 See eg para 185: “The Government believes that a clearer definition of citizenship would give people a better sense of their British identity in a globalised world. British citizenship—and the rights and responsibilities that accompany it—needs to be valued and meaningful, not only for recent arrivals looking to become British but also for young British people themselves [emphasis added]”. 240 Emphasis added. Processed: 23-04-2009 22:48:33 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 144 Home Affairs Committee: Evidence
5. We note that the right to enter and return to one’s country is a fundamental right recognised in international and European law.241 Any restrictions on this right must, among other things, be necessary and proportionate and—above all—“must not nullify the principle of liberty of movement”.242 Although we accept that the right to enter and remain may be legitimately regulated, any proposed restrictions should be clearly spelt out in primary legislation by Parliament itself, not left to the generous rule-making powers aVorded to various subordinate oYcials. 6. We also note that the right to enter and return to “one’s own country” extends beyond people who are citizens. The UN Human Rights Committee makes clear that the right:243 is not limited to nationality in a formal sense, that is, nationality acquired at birth or by conferral; it embraces, at the very least, an individual who, because of his or her special ties to or claims in relation to a given country, cannot be considered to be a mere alien. 7. Unlike Part 1 of the draft Bill, the 1971 Immigration Act currently in force explicitly does not restrict the right to enter and remain to British citizens only—section 1(1) provides simply that any person with the right of abode under the Act “shall be free to live in and come and go into and from” the UK. By contrast, the provisions for immigration permission for non-nationals under clauses 2 and 4 draw no distinction between individuals who, on the one hand, may have substantial ties to the UK (including those with right of abode under the 1971 Act) and those whom, on the other hand, may be only temporary visitors. 8. In addition, the wide range of restrictions that may be imposed on those with temporary permission under clause 10 (including police reporting requirements and limits on residence and employment) are in many cases likely to engage the Convention rights of individuals (including the right to liberty under Article 5 and the right to respect for private and family life under Article 8). Moreover, the extremely broad discretion to impose conditions under clause 10 does not require any need or justification to be shown, eg the reasonable belief of an immigration oYcer that a residence requirement is necessary in any particular case. Of additional concern are the severe penalties for breach of conditions (that may include something as minor as failure to notify a change of address).244 9. A separate ground of potential concern is the provision relating to “designated controlled areas” under clauses 22 and 23. In particular, clause 23 provides that, where a designated control area exists at a port, a person “is not to be treated as entering the UK … until [they] leave the designated control area”. We think it important to reiterate that arrival in the UK, as distinct from entry into the UK, is the relevant trigger to the UK’s obligations against refoulement under the Refugee Convention, the Torture Convention and the ECHR in this context. Notwithstanding the provisions on entry, the use of designated control areas must not be allowed to interfere with an individual’s ability to claim asylum in the UK, nor their ability to prevent removal that would breach their rights under the European Convention.
Part 2: Powers of Examination 10. Clause 25 provides immigration oYcials with a strikingly broad power: a power to examine any person who has arrived in245 or has already entered246 the UK. This power may be exercised to determine the person’s identity and immigration status, including whether they are a citizen or not.247 There are no geographical or time limits on the exercise of the examination power,248 and it entails not only a power to require that person to submit to a medical examination,249 but also a power to detain that person pending the completion of the examination, until “all relevant matters have been determined”.250 In other words, clause 25 empowers immigration oYcials to stop any person in the UK at any time and lawfully detain them for as long as they deem necessary to determine any of the matters set out in clause 25(2). In addition, refusal to comply with an examination or to submit to a medical examination constitutes a criminal oVence.251 11. It is unnecessary to spell out the numerous ways that placing such a broad and unfettered power in the hands of immigration oYcials without safeguards would breach fundamental rights. It is plain that this power cannot sensibly be justified, and we look forward to major modifications to this Part in due course.
241 See eg Article 12(2) of the International Covenant on Civil and Political Rights and Article 2(2) of Protocol 4 of the European Convention on Human Rights: “Everyone shall be free to leave any country, including his own”. See also Article 45(1) of the EU Charter of Fundamental Rights: “Every citizen of the Union has the right to move and reside freely within the territory of the Member States”. 242 UN Human Rights Committee, General Comment 27, Freedom of movement (Art.12), U.N. Doc CCPR/C/21/Rev.1/Add.9 (1999), para 2. 243 Ibid, para 20. 244 See eg clause 37(4)(d) which makes an individual in breach of conditions of their temporary permission liable to expulsion without right of appeal, or clause 99(1) which makes “knowing” breach of such a condition a criminal oVence. The requirement to notify a change of address could be imposed under clause 10(1). 245 Clause 25(1)(a). 246 Clause 25(1)(b). 247 Clause 25(2)(a). 248 By contrast, the power to examine persons leaving the UK under clause 26 is only exercisable at a port, international railway station or “other place” which the Secretary of State believes is being used as an embarkation point from the UK (clause 26(1)(b)). 249 Clauses 25(3) and 27(1)(b). 250 Clause 53(1)(b). 251 Clauses 101 and 102 respectively. Processed: 23-04-2009 22:48:33 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 145
Part 3: Citizenship 12. Part 3 is intended to implement the government’s proposals first set out in its Path to Citizenship consultation,252 as well as those in Lord Goldsmith’s review of citizenship.253 We have elsewhere questioned the government’s proposal to link citizenship with the enjoyment of rights.254 Here we draw attention to the manner in which Part 3, far from simplifying the current law relating to British nationality, unnecessarily and unduly complicates it. No law which contains mathematical formulas such as those in clause 34 can rightly be described as simplifying anything. 13. We are similarly concerned at the proposed measure in clause 34(6) that seeks to extend qualifying periods for probationary citizenship, not simply for those convicted of criminal oVences but for persons “connected” with them—in essence, punishing persons not for their own actions, but for those they are related to. 14. We also draw attention to the language requirements for probationary citizenship, specifically “suYcient knowledge of the English Welsh, or Scottish Gaelic language” in clauses 32 and 33. We understand that the purpose of this is to ensure that UK citizens are able to communicate in at least one national language. However, we question the rationale for requiring knowledge of a national language as a prerequisite for citizenship. We note for example that there are approximately 58,652 Scots Gaelic speakers in the UK,255 as compared to approximately one million people in the UK who speak Urdu.256 If the purpose of a language requirement is to ensure that new citizens are able to communicate with at least some of their fellow citizens, then it is unclear why preference should be given to a language spoken by 0.01% of its population over one spoken by 0.5%. If, on the other hand, the government is willing to recognise the value of linguistic diversity in the UK and, indeed, tie this to its citizenship agenda, then—again—the question becomes why the government should be keen to welcome Scots Gaelic speakers as citizens and not those who speak other languages. If, however, the government’s goal is for everyone to speak English, then it is unclear why exceptions should be made for some minority languages but not others.
Part 4: Expulsion Orders and Removal from the UK 15. Expulsion orders under Part 4 combine two distinct and long-standing legal regimes—deportation and immigration removal—into a single legal scheme. The traditional “non-conducive” grounds for deportation under section 3 of the 1971 Act, for instance, are now one of several of grounds in clause 37(4) upon which the Secretary of State has the discretion to make an expulsion order against a non-national.257 Other grounds include being in the UK without permission (clause 37(4)(c)), breaching a condition of temporary permission (clause 37(4)(d)), and lack of transit permission (clause 37(4)(b)). 16. One of the key distinctions between deportation and immigration removal is that persons who are deported are unable to return to the UK while their deportation order remains in eVect, whereas persons removed on immigration grounds are free to seek re-entry into the UK (at which point their previous removal can be taken into account in the decision to allow entry). By contrast, clause 37(1)(b) provides that an expulsion order remains in eVect following removal, prohibiting re-entry until the order is cancelled or expires.258 Moreover, clause 37(6) allows expulsion orders to be made for an unlimited period. In other words, Part 4 imposes mandatory and potentially indefinite bans on re-entry for all persons removed from the UK, not simply those deported for reasons of criminality, for example. We question why it should be necessary to impose automatic bans of this kind, without any evidence to show that the existing regime governing immigration removal and re-entry has been unsatisfactory. 17. A second consequence of the new scheme for expulsion orders is to collapse the long-established distinction between a decision to remove on the one hand, and the setting of removal directions on the other. Currently,it is the decision to remove which is typically the main subject of legal challenge, while the removal directions may be set much later and given at much shorter notice (currently 72 hours prior to removal)259 and subject only to the more limited grounds of judicial review.260 By contrast, the making of an expulsion order will be eVective immediately upon notice to the individual concerned,261 and removal directions are not required to be served on them.262 The only bar on removal is clause 48, preventing removal where the individual has an in-country right of appeal. However, clause 171(3) excludes any appeal for persons alleged to have breached a condition of their immigration permission, and family members of such persons.263 Given that this is likely to be a common ground for expulsion, it is striking that appeal rights have been stripped away in such a fashion.
252 Border and Immigration Agency, Path to Citizenship: Next Steps in reforming the immigration system (February 2008). 253 Citizenship: Our Common Bond (October 2007). 254 See eg Metcalfe, “Human rights v the rights of British citizens”, 5 JUSTICE Journal (2008). 255 UK Census 2001, National Statistics OYce. 256 A Guide to Urdu (BBC Languages). 257 C.f. clause 37(4)(h) “the Secretary of State thinks that the person’s expulsion from the UK would be conducive to the public good”. 258 Clause 37(7). 259 See Border and Immigration Agency, Operational Enforcement Manual, chapter 44. 260 C.f. Part 54 of the Civil Procedure Rules, para 18, dealing with judicial review of removal directions. 261 Clauses 37(8) and 44. 262 Clause 44. 263 There is also no in-country right of appeal for exclusion orders against those designated as “foreign criminals”—see para 18 below. Processed: 23-04-2009 22:48:33 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 146 Home Affairs Committee: Evidence
18. Clause 37(2)(b) removes the discretion of the Secretary of State to make an expulsion order where the individual is a “foreign criminal” (as defined by clause 51). This essentially restates the automatic deportation provisions of the UK Borders Act 2007 and accordingly shares its flaws. In our view, the mandatory expulsion of persons for criminality without any kind of assessment of individual circumstances (including whether there is any risk of future oVending) smacks of arbitrariness, undermines the importance of rehabilitation in general, and are wholly unnecessary. The arbitrary nature of the mandatory scheme for foreign criminals is compounded by the lack of an in-country right of appeal,264 and the provisions for the deportation of family members.265 We also take the view that such provisions are incompatible with the provisions of Article 1(F) of the Refugee Convention, which disapplies the Convention only in cases of “serious” crimes—a mere 12 months imprisonment in clause 51(2) is in our view well below this threshold. 19. The limitations on making expulsion orders in clause 38 by and large restate UK’s obligations under the Refugee Convention, the ECHR and EU law. However, we see no reason for the formulation “the Secretary of State thinks that” in clause 38(1)—in our view, this introduces a wholly unnecessary degree of subjectivity into what are well-established public law principles governing ministerial decisions. We also note that there is no provision to prevent expulsion in contravention of the UK’s obligations under the Council of Europe Convention on TraYcking in Human Beings (all the more striking because such an exception is provided in relation to mandatory expulsion orders against foreign criminals in clause 39(5)).
Part 5: Powers to Detain and Immigration Bail 20. As noted above, the power to detain under clause 53 extends to any person subject to the power of examination under clause 25, which is to say: everyone in the UK. As before, we consider that this provision needs substantial amendment in order to be compatible with fundamental rights. 21. Clause 55 governs detention of persons pending their expulsion. Clause 55(1) grants the Secretary of State the power to detain where she “thinks” the person is someone liable to be subject to an expulsion order. As with clause 38(1) discussed above, we consider that the formulation “thinks” is an inappropriate formulation—at the very least, the power to detain an individual should only be exercised where the Secretary of State not only has reasonable grounds to believe they are liable to expulsion, but also where the Secretary of State reasonably believes that detention is necessary in order to eVect that expulsion. We are also concerned at the provision for open-ended detention, without time limits. We are particularly surprised at the provision in clause 55(4), which creates a presumption in favour of detention of foreign criminals subject to expulsion “unless, in the circumstances, the Secretary of State thinks it inappropriate”. Such a provision seems to us fundamentally at odds with the common law presumption of liberty and the right to liberty under Article 5 ECHR. 22. We are also surprised at the proposals in clause 62(2)(b) and (c) limiting the availability of immigration bail at the behest of the Secretary of State. Clause 62(2)(b) prevents the Asylum and Immigration Tribunal (“AIT”) from granting bail to any person detained on arrival (including a UK citizen) until they have spent at least a week in the UK. Clause 62(2)(c) prevents the AIT from granting bail to any person whose removal is imminent and who has no pending appeal, without the consent of the Secretary of State. It is well-established that the right to liberty under Article 5 includes under Article 5(4) the right to review of one’s detention by an independent and impartial tribunal “by which the lawfulness of his detention shall be decided speedily … and his release ordered if the detention is not lawful”. It is plain to us that a tribunal whose power to grant immigration bail is variously time-limited and subject to the consent of a government minister is not capable of meeting the requirements of Article 5(4) in such a case. 23. We are similarly concerned at the power in clause 68(1), where the AIT has granted a person immigration bail under certain conditions, for the Secretary of State to impose additional conditions or vary those the AIT has already imposed. This seems to us an unwarranted and improper intrusion by the executive into the independence of the AIT in carrying out its judicial functions.
Part 9: Illegal Workers 24. Part 9 of the draft Bill restates with little amendment the existing provisions relating to illegal workers in sections 15 to 26 of the 2006 Immigration Asylum and Nationality Act. As with the 2006 Act, we note that there is already no lack of criminal oVences in this area.266 Secondly, the focus on illegal workers seems to us a disproportionate measure, given that those subject to immigration control are already subject to strict conditions governing their freedom to work (indeed, asylum seekers in the UK are prohibited from working altogether save with the special permission of the Secretary of State).267 We note the right to work is a basic human right and one that the UK government has agreed to uphold and protect as part of its international
264 Clause 171(3)(b). 265 See eg clause 51. 266 See eg section 8(1) of the Asylum and Immigration Act 1996 which makes it illegal for an employer to hire a person subject to immigration control where that person lacks permission to work in the UK. Similarly, section 9 of the National Insurance Contributions and Statutory Payments Act 2004 creates a scheme of civil penalties for employers who do not make national insurance contributions in respect of their employees. 267 Section 8 of the Asylum and Immigration Act 1996 and the Immigration (Restrictions on Employment) Order 1996 (SI 1996/3225). Processed: 23-04-2009 22:48:33 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 147
obligations.268 Rather than reiterate the provisions of the 2006 Act, Parliament should focus on enhancing the right of all to participate in paid employment, including lifting the bar on asylum seekers from working and providing further protection for those workers subject to immigration control.269
Part 10: Appeals
25. We note that the UK Border Agency has recently commenced a consultation on the immigration appeals system,270 one that includes the long-standing proposal to roll the AIT into the common tribunal framework. We do not propose to comment on that proposal here, other than to note that it is liable to highlight many of the incongruities of the immigration and asylum appeals process and the general erosion of appeal rights as compared with other areas of administrative law. In any event, if that proposal is implemented, Part 10 is likely to undergo substantial revision. 26. As before, we note our concern about the eVects of expulsion orders on the current appeal arrangements, including the loss of notice concerning the setting of removal directions and the lack of an in-country right of appeal for those whom are alleged to have breached a condition of their temporary permission or classified as “foreign criminals”.271 As we have noted on many previous occasions, the quality of decision-making by immigration oYcials at first instance is in general staggeringly poor and this accordingly strengthens the case for eVective independent judicial oversight, rather than—as the draft Bill envisages—weakening it further. We are particularly concerned at the provision in clause 170(2) that would deny a person granted refugee status in the UK an in-country right of appeal if their permission was cancelled while abroad (eg on holiday). In our view, such a measure may amount to constructive refoulement of a refugee contrary to Article 33(1) of the Refugee Convention. We also reiterate our concern expressed earlier about the denial of an in-country right of appeal to family members of those designated as “foreign criminals”—whatever the merits or otherwise of the arrangements for those who have committed criminal oVences while in the UK, we can see no justification for denying access to justice to individuals simply by virtue of their family ties.
Part 12: Definitions
27. The definition of “refugee” in clause 205(3) as someone who is “recognised” as a refugee is at odds with the provisions of the Refugee Convention. Specifically, the definition of refugee under Article 1(2) of the Convention makes no reference to recognition by a receiving state and neither are the UK’s obligations under the Convention limited to those who are “recognised” as such. 28. We also take issue with the definition of “human rights protection” in clause 205(5), specifically its reference to further “conditions … as are specified in the Rules”. It is not suYcient that any proposed conditions be “framed by reference” to the UK’s obligations under the European Convention on Human Rights—they must in fact be fully compatible with those obligations and we can see no basis for attaching conditions of any kind to a person’s entitlement to protection under this head. 29. Lastly, the proposed limitation of the extraterritorial application of the draft Bill in clause 205(6) is incompatible with both the Refugee Convention and Article 1 of the ECHR. In respect of the Refugee Convention, it has never been held that the scope of a country’s obligations are limited to its territory and, in respect of the ECHR, it is clear from decisions such as R (B and others) v Secretary of State for Foreign and Commonwealth AVairs272 and Al Skeini and others v Secretary of State for Defence273 that the UK’s obligations under the Convention are not restricted to the territory of the UK. The ability of a person to make a protection application under the draft Bill should there match the UK’s own jurisdiction and control, rather than its territory. October 2008
268 See eg Article 23(1) of the Universal Declaration of Human Rights 1948: “Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment”. See also Article 6 of the International Covenant on Economic Social and Cultural Rights 1966, ratified by the UK on 20 May 1976; Article 15 of the EU Charter on Fundamental Rights. 269 See eg the Gangmasters (Licensing) Act 2004. 270 Consultation: Immigration Appeals—Fair Decisions; Faster Justice (UKBA, 21 August 2008). 271 See the discussion at para 17 above. 272 [2004] EWCA Civ 1344 at para 79: “the Human Rights Act 1998 requires public authorities of the United Kingdom to secure those Convention rights defined in section 1 of the Act within the jurisdiction of the United Kingdom as that jurisdiction has been identified by the Strasbourg Court”. 273 [2007] UKHL 26 per Lord Brown: “Parliament intended the [Human Rights] Act to have the same extra-territorial eVect as the Convention”. Processed: 23-04-2009 22:48:33 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 148 Home Affairs Committee: Evidence
Memorandum submitted by the Runnymede Trust Please find attached the Runnymede Trust’s submission of written evidence on the Draft (partial) Immigration and Citizenship Bill. Related papers on which this submission is based, and to which we would like to draw to the attention of the Committee and are attached to this submission are: 1. Written Comments on the “Draft (partial) Immigration and Citizenship Bill” by The Runnymede Trust, 30 September 2008 2. Runnymede Trust Written Consultation Response to The Path to Citizenship: the next steps in reforming the immigration system (Home OYce/BIA), 14 May 2008 3. Written Response to Marriage to Partners from Overseas by The Runnymede Trust, 27 February 2008 4. Written Response to Marriage Visas: Pre-Entry Requirement for Spouses by The Runnymede Trust, 27 February 2008 5. Written Response to the consultation on the Establishment of a Migration Advisory Committee by Runnymede Trust and Migrants’ Rights Network, 30 January 2007
Executive Summary In this submission, the Runnymede Trust expresses deep concerns about the Draft (partial) Immigration and Citizenship Bill. In our opinion, if the proposals set out in this Draft Bill are realised, the repercussions for equality and social cohesion will be severe. We are particularly concerned about the following: — The concept of “selective migration”—central to the Points Based System—which ignores the complexity of migratory processes. — The concept of “earned citizenship”, which implies immigrants are undeserving and suspect by default. — The weight given to “playing by the rules”, which implies a propensity on the part of migrants toward criminal behaviour. — Curbing access to benefits will result in Britain becoming a de facto dual welfare state, where diVerent rules apply according to an individual’s citizenship.
Introduction 1. The Runnymede Trust is an independent policy research organisation focusing on equality and justice through the promotion of a successful multi-ethnic society—a Britain where citizens and communities feel valued, enjoy equal opportunities to develop their talents, lead fulfilling lives and accept a collective responsibility, all in the spirit of civic friendship, shared identity and a common sense of belonging. Migration is of special interest to us, as recent developments in the ethnic diversification of Britain are intricately linked to changing patterns in global migration. Our current series of Community Studies— which explore Britain’s smaller, more hidden, and often voiceless communities and ethnic groups—has given us important insights into the lives and experiences of new migrants, and the barriers they face to full participation in British life. What we have found is that the lived reality of many of the new migrant groups include experiences of severe discrimination, exploitation and violation of rights. 2. We welcome the opportunity to submit our thoughts and views to the Home AVairs Committee on the Draft (partial) Immigration and Citizenship Bill. We have been closely following policy developments in what the Government refers to as the ‘biggest shakeup of the immigration in the last 45 years’. This debate has been important to us, and we have taken it very seriously,as the development of a successful multi-ethnic Britain is dependent on a progressive and fair immigration policy. If we get this “shakeup” wrong, the repercussions for equality and social cohesion will be severe. In its current form, we strongly believe that the Draft Bill will have dire consequences for minority ethnic groups in the UK. This view is supported by the Migration Integration Policy Index (MIPEX).274 3. By way of background, the MIPEX Index uses 140 indicators to compare the legal provisions in place across Europe to promote the integration of non-EU migrants. The index is based on a normative framework derived from the highest European standards expressed in human rights, antidiscrimination, and social, economic and civic inclusion laws and practices—laws which the UK played active and leading roles in creating and to which we are signatory (with some notable derogations). Though benchmarking is commonly used in the private sector and attracting growing interest in the field of justice, security and freedom, the exercise remains a relatively new phenomenon for immigrant integration. Whilst there are a number of initiatives around where indicators are just starting to develop, the second edition of MIPEX, published September 2007, has established it as a constant and reliable biannual stocktaking with the ability to track policy advances and reversals.
274 Migration Policy Group (2007) Migrant Integration Policy Index. Brussels: Migration Policy Group and British Council. Processed: 23-04-2009 22:48:33 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 149
4. The results of the MIPEX analysis enable the identification of national areas of strength and weakness for promoting integration of migrants and the nexus between Community and national law. When applied to these proposals, the following results were found: “The UK’s score on access to nationality would drop as much as 15 points, falling from its position as the 5th most favourable for promoting integration to 10th, just around the EU average. This drop comes from a slight change in the waiting periods for naturalisation and a dramatic one in the conditions. The UK’s score on eligibility would lose its tie for 5th place with IE, since the probationary period would make naturalisation longer for most first-generation migrants. In March 2007 the UK imposed conditions for naturalisation that were no better or worse than those in most European countries. Given the proposals on economic resources, integration, good character, and active citizenship, the conditions for naturalisation in the UK could go from this “middle of the road” (score 57) to becoming some of them most onerous in Europe, on par with Austria and Denmark (a score of 26),” 5. The type of rules a country will adopt to regulate entry and citizenship will depend to a considerable degree on the country’s experience and expectations but also on its vision for the society it is seeking to build. While identifying integration as a goal, many of the ways in which this is meant to be achieved may, in our view, be counter productive. The range of additional burdens and restricted rights to be extended over an increased number of years is more likely to alienate rather than to integrate people who choose to come to the UK to work or to join their families. 6. Given the strict word limit on this submission, we will focus on the matters we think are most pressing, namely the categories “Selective Migration”, “Earning the Right to Stay”, “Playing by the Rules” and “Managing Local Impacts”.
Selective Migration 7. In considering this question, we would draw the Select Committee’s attention to the critique to which hierarchical schemes such as the Points Based System (PBS) have been subjected, particularly those that come from expert non-governmental organisations such as the Joint Council for the Welfare of Immigrants. 8. The narrow formalism of the PBS as a managed migration scheme fails to tackle the complexity of migratory processes. Constructive thinking about the needs of the British economy for diVerent types of workers resists formalistic approaches to the question of skills. Whilst at one end of the spectrum precise measurements of the skill level can be expressed in terms of formal evidence of qualification, across a wider range of professions and jobs the requirements are a mix of general educational qualifications, work experience and the presence of soft skills of various types. We therefore strongly urge that the Home AVairs Committee think critically about the simplified skilled/unskilled categorisation inherent the PBS, and the significance this has on the proposals set out in the Draft Bill.
Earning the Right to Stay 9. The concept of “earned citizenship” is introduced in the Green Paper The Path to Citizenship, where it is stated several times and in diVerent ways that this piece of the immigration reforming process is about “putting British values at the heart of the system” (p.9).and designed to “contribute to the government’s wider agenda of reinforcing shared values” (p.11). 10. This new concept is set in a context of diversity—which seems mainly to mean racial and ethnic diversity more than anything else—and of promoting shared bonds for the purpose of building community cohesion and ensuring that some communities don’t isolate themselves or be mainly inward looking. The Green Paper states that “The key feature of the proposed system is that it aims to increase community cohesion by ensuring all migrants can “earn” the right to citizenship and asks migrants to demonstrate their commitment to the UK by playing an active part in the community.” (P-12) 11. We are deeply concerned with the way in which this idea is presented is negative and accusatory, and that the basic tenets of this concept were carried over from the Green Paper to the Draft Bill. This is likely to engender resentment and therefore create tension and reduce cohesion in our view. Indeed, the rhetoric of “earning rights” or as it was put in a public letter from the BIA on 20 February 2008, “matching the benefits and entitlements of migrants with the contribution they make to the UK”, implies that immigrants are undeserving and suspect by default. 12. The Government makes much about the net positive contribution of migrants to the UK economy, but simultaneously argues that there is a “transitional” negative impact on “our communities and public services” and argues for additional fees to be placed on migrants as part of the application process. The weight given to “obeying the law” in such a way implies a propensity on the part of migrants toward criminal behaviour, evidence for which there is simply none. And it implies that migrants don’t want to integrate, Processed: 23-04-2009 22:48:33 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 150 Home Affairs Committee: Evidence
particularly to learn English, which—as is clear from our series of Community Studies—is not the case. The tone which accompanies the concept of earned citizenship in current Government thinking is, in our view, both unwelcoming and oVensive to migrants—aspirant citizens—and completely unnecessary. 13. Judging from recent policy developments on migration and citizenship, what the Government fails to adequately acknowledge is that successful and positive integration of migrants rests on the concept of equal opportunities—in social and in civic terms—not on extending periods of insecure immigration statuses and increasing the number of hurdles to be overcome.
Playing by the Rules 14. Britain expects everyone to “play by the rules”, regardless of their nationality or immigration status. To make this a particular issue for migrants is disingenuous. We would welcome sensible policies on reducing the number of irregular migrants in the UK. However, we are highly sceptical about the eYcacy of the measures set out in the Draft Bill. For example, if recent developments in the crackdown on irregular migrants are anything to go by,the protection of vulnerable workers may amount to targeting small minority ethnic businesses,275 rather than supporting migrants’ rights and directly addressing the structural inequalities and exploitation in the labour market. Indeed, the question of rights is wholly absent from the Draft Bill, except in instances where the discussion revolves around how they can be further curbed. The tone of the Draft Bill reveals the tough stance the Government is taking not only on migration, but on migrants themselves. 15. Furthermore, a survey conducted by Professor Susanne Karstedt and Dr Stephen Farrall of people in England and Wales revealed that 61% of their sample (N%1,807) admitted to an oVence against business, government or employers. To subject migrants to standards we do not adhere to ourselves would be hypocritical.
Managing Local Impacts 16. The extended period of time it may take migrants to complete the “path to citizenship” puts all applicants at risk of greater failure—and without recourse to public funds, at risk of destitution, including homelessness. Quite simply, people’s lives and circumstances change, things happen, there are few of us who could go for 10 full years without there having been some form of personal, family or financial/job related crisis, and this system will not be sympathetic to this reality of life at all. Further, disadvantaged groups would also be a greater risk of failure than others, and this is likely to include Black and minority ethic groups disproportionately. Without access to public benefits over what is quite possibly a 10 year process, aspirant migrants who have in good faith committed themselves to our society will be left to fail and eventually expelled for experiencing a rather ordinary life event. This is unjust. 17. We are concerned that the proposals set out in the draft bill will result in Britain becoming a de facto dual welfare state, where diVerent rules apply according to an individual’s citizenship. From an equality and human rights perspective, this is clearly unacceptable. As we have argued, the justification for curbing migrants’ access to benefits and asking them to contribute even more reveals a stance towards migrants as undeserving and suspect by their very nature. If the state identifies a single group of people as undeserving, unworthy or having a lesser claim to public goods, what kind of example does this give to the general public? As we have argued elsewhere, “even if the state doesn’t mean that an individual deserves our contempt or lacks basic dignity, other citizens may adopt such an attitude on finding out that the state has conferred a bad reputation on some part of the citizenry. The state must exercise caution in making judgments about people as a matter of policy because of its power to influence citizens”.276
Conclusion 18. Through our Community Studies programme, Runnymede has gathered substantial data on the motivations and aspirations of recent migrants, which is very much at odds with the assumptions underlying the Draft Bill. It is disheartening that the government’s current policy responses to Britain’s emerging super- diversity tend to ignore the actual experiences of diVerent groups and individuals, how they interact amongst themselves and with others, and how they see their place in Britain. Recent developments in immigration policy, culminating now in the Draft Bill, reveals a stance towards migrants as undeserving and suspect by default. This is far from both the purpose as well as the outcome of Runnymede’s Community Studies programme. Most of our interviewees expressed a clear desire to contribute positively to their host society. Indeed, most conveyed a sense of appreciation for Britain giving them a chance to contribute. However, most also described diYculties in trying to do so, exactly because of widespread prejudice and discrimination.
275 Migrants’ Rights Network (2008) UKBA singles out BME businesses for fines in crackdown on irregular migrant workers. Available under: http://www.miorantsriqhts.orq.uk/eriews/2008/sDecialbulletin iune.pdf 276 Khan, Omar (2007) The State of the Nation: Respect as a Justification for Policy. London: Runnymede Trust. Processed: 23-04-2009 22:48:33 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 151
19. If maximising the benefits of migration is the primary concern of the government, it must recognise that the legitimate interests of migrant workers are by no means antithetical to the interests of Britain. In any case, it is nonsensical to speak of the interests of Britain as if Britain was a homogenous mass, without hierarchy, stratification and conflicts of interests.277 While some segments of British society may benefit from violating migrants’ rights and exploiting migrant workers, the majority of British workers do not. In fact, exploitation is arguably a larger threat to local communities than new migrant communities disproportionately accessing benefits or public services. Cementing migrants’ rights and protecting them from exploitation is the most eVective way to ensure healthy labour market participation and prevent migrant destitution. This, in turn, would promote integration, as economic migrants generally have strong instrumental reasons for wanting to integrate to British society. Integration enhances prospects on the labour market, which is a primary reason for economic migration. 20. We cannot end this submission without mention of the Govemment’s analysis of the responses to The Path to Citizenship, which raises serious questions not only about the way in which the consultation was carried out and analysed, but also about the very purpose of the consultation exercise. It is clear that consultation respondents disagreed with almost every single proposal made in the Green Paper. However, the main thrust of the Draft Bill remains more or less unchanged from the proposals made in the Green Paper document. The extraordinary measure to divide respondents into British citizens and non-British citizens, among other highly questionable methodologies applied to the analysis, appears to be based on the pragmatic objective to justify ignoring the consultation outcome in order to pursue their original aims. The purpose and value of public consultation, indeed democratic process itself, seem to be at question. 16 October 2008
Memorandum submitted by the Refugee Children’s Consortium Members of the Refugee Children’s Consortium are: Action for Children, The Asphaleia Project, AVID (Association of Visitors to Immigration Detainees), Bail for Immigration Detainees, Barnardo’s, BASW (British Association of Social Workers), British Associations for Adoption and Fostering (BAAF), Children’s Legal Centre, Child Poverty Action Group, Children’s Rights Alliance for England, The Children’s Society, The Fostering Network, FSU (Family Service Units), The Immigration Law Practitioners’ Association (ILPA), The Medical Foundation for the Care of Victims of Torture, National Care Advisory Service, National Children’s Bureau (NCB), NSPCC, Redbridge Refugee Forum, Refugee Council, Refugee Arrivals Project, Refugee Legal Centre, Scottish Refugee Council, Save The Children UK, Student Action for Refugees (STAR) and Voice. The British Red Cross, 11 MILLION (OYce of the Children’s Commissioner for England), UNICEF UK and UNHCR all have observer status.
1. Executive Summary 1.1 The Refugee Children’s Consortium asks the Committee to consider the needs of children under the proposals in the Draft (Partial) Immigration and Citizenship Bill; and to do so in context of: — The recent removal of the reservation to Article 22 of the UN Convention on the Rights of the Child.278 — Every Child Matters279 — The new duty to safeguard and promote the welfare of children when discharging immigration and nationality functions (cl.189); and the current duty (and forthcoming Code of Practice to Safeguard Children) under s.21 UK Borders Act 2007. 1.2 The measures outlined in the Draft (Partial) Bill at every stage of the immigration process will have a significant impact on children over and above that on those seeking asylum more broadly—for example in relation to powers of immigration oYcers, immigration oVences, exclusion orders, reporting and residence requirements, detention and destitution. We would welcome the Committee’s recognition that the current asylum system is failing to meet children’s needs or protect their rights and that there is a risk that many of the provisions in the Bill will exacerbate rather than ameliorate this situation. The aim of simplification must not be allowed to have the unintended consequence of weakening protections where they do currently exist for children; and where the proposed immigration legislation is identified as coming into conflict with existing child welfare legislation the latter should take precedent.
277 Ryan, Bernard (2008) “Migrant Rights in the Workplace”, in Don Flynn and Zoe Williams (eds) Towards a Progressive Immigration Policy. London: Compass. 278 DCSF Press notice, 22 September 2008 http://www.dcsf.gov.uk/pns/DisplayPN.cgi?pn id%2008 0209 279 Cm 5860, September 2003. The equivalent strategy documents in Scotland and Northern Ireland are Getting it Right for Every Child and Children and Young People—Our Pledge: A ten year strategy for children and young people in Northern Ireland 2006–16, respectively. Processed: 23-04-2009 22:48:33 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 152 Home Affairs Committee: Evidence
2. Introduction 2.1 The Refugee Children’s Consortium (RCC) is a group of NGOs working collaboratively to ensure that the rights and needs of refugee children are promoted, respected and met in accordance with the relevant domestic, regional and international standards. 2.2 The Refugee Children’s Consortium asks the Committee to consider the needs of children under the proposals in the Draft (Partial) Immigration and Citizenship Bill. The RCC starts from the position that child refugees and children seeking asylum are children first and foremost and must be aVorded the same rights and protection as any other child in the UK. We believe that any proposals for this group of children must be judged against international obligations, notably the UN Convention on the Rights of the Child (CRC). The Government have recently announced that they will remove the immigration reservation. The reservation was widely criticised, and the Joint Committee on Human Rights stated that “read literally would allow the Government to disapply the CRC rights so far as they relate to persons subject to immigration control”280. This welcome move will require the Government to fulfil Article 22 which provides for protection and humanitarian help to children claiming asylum and refugees. 2.3 Proposals for children in the immigration process should also be judged against the Government’s own standards, priorities and outcomes for all children as set out in Every Child Matters (Cm 5860, Sept 2003): to ensure that all children are supported to be healthy, stay safe, enjoy and achieve, make a positive contribution and enjoy economic well-being. These outcomes should be the aspiration for all children regardless of their immigration status. 2.4 The RCC has long campaigned for immigration oYcials to safeguard children and promote their welfare—akin to the duty in s.11 Children Act 2004 which covers other statutory bodies, but excludes the immigration service. Section 21 UK Borders Act 2007 established a Code of Practice to safeguard this group of children, and cl.189 of the Draft Bill would go further to both safeguard and promote welfare. Whilst we welcome this clause which came about as a direct result of our continued lobbying, we want to ensure that it will protect children in line with the Children Act principles that underlie s.11 and its accompanying guidance. The Department for Children, Schools and Families’ continued dialogue with the Home OYce is vital in drafting the accompanying guidance (or secondary legislation) to take this forward. 2.5 The principles of the UN Convention on the Rights of the Child, Every Child Matters and the new duty to safeguard and promote the welfare of children should be the foundation of any consideration as to how the proposals in this Draft Bill (and the full Bill) will impact on children. 2.6 The Draft Bill as published is partial, and does not contain provisions on powers (of arrest, entry, search), asylum support and other matters. Our evidence takes into account the Government’s policy proposals for the remainder of the Bill as set out in the Green Paper The Path to Citizenship: Next Steps in Reforming the Immigration System.
3. “Strong borders” (including modernising border powers and carriers’ liability and powers to cancel visas abroad)
3.1 Most of the powers in relation to immigration oYcials—in particular arrest, entry and search—have not been included in this Draft (Partial) Bill. We recommend that when these clauses are introduced special provision is included for children to ensure that their safety, protection and welfare needs are met. Powers to search, use reasonable force and detain should only be situated within a fully accountable, trained statutory authority; and if these are to be contracted out to private bodies further safeguards would need to be introduced.
4. “Selective migration” (including the introduction of “permission” for migrants, replacing notions of leave to enter, leave to remain and entry clearance, and a single power of expulsion)
PART 1: Regulation of entry into and stay in the UK 4.1 Clause 10(1)(d) and (e) eVectively reproduce section 3(1)(c)(iv) and (v) of the Immigration Act 1971, as amended by section 16 of the UK Borders Act 2007. Section 16 gives the Secretary of State the power to impose reporting and residence requirements on those with discretionary leave, humanitarian protection and refugee leave. It provides for conditions such as curfews or a requirement to live in a particular location. In debates during the passage of the UK Borders Act 2007 the then Minister, Liam Byrne MP indicated that initially they intended to apply this measure to unaccompanied asylum seeking children—“we intend to use those powers for categories of people with whom we are keen to stay in close contact, such as unaccompanied asylum-seeking children, so that as they become removable, we can seek to remove
280 Joint Committee on Human Rights (2002) Seventeenth Report, The Nationality, Immigration and Asylum Bill, Para 17 Processed: 23-04-2009 22:48:33 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 153
them”.281 The Refugee Children’s Consortium (RCC) opposes the application of section 16 to children, contending that the Government’s rationale for doing so was flawed and that it would not achieve its intended aims. By subjecting young people to a reporting regime during this period the Government contends that it makes it easier to remove them. However, the great danger is that faced with these requirements, large numbers of children will be too frightened to comply resulting in increasing numbers disappearing from care to face possible sexual or economic exploitation on the streets. This would not only have the opposite consequence to that intended by the Government but would also seriously undermine the legal duty and moral commitment they have to safeguard all children. 4.2 As currently drafted, provisions in the proposed legislation make the implications of subjecting children to such residence and reporting conditions even more serious. A one-oV failure to report however inadvertent, minor or explicable would, provide a ground for the child’s expulsion with no right of appeal; future exclusion from the UK for a period of time (as yet unspecified)—see clause 37(2)(a); and may constitute a criminal oVence—see clause 99.
PART 4: Expulsion Orders and Removal etc. from the UK
4.3 Expulsion Orders are introduced by clauses 37–48 to replace the existing concepts of administrative removal, deportation and exclusion. Expulsion Orders extend further the changes to the Immigration Rules made by HC 321 introduced in April 2008 that introduced re-entry bans for anyone who has overstayed for more than 28 days, breached an immigration condition, entered the UK illegally or use deception in an application for entry clearance to the UK. In the debate on HC321 in the House of Commons on 13 May 2008, the Government conceded a “carve-out” for children. The eVect of this was that re-entry bans will not automatically be applied to anyone whose breach of UK immigration law occurred when they were under the age of 18. The Government also indicated during debates on HC321 that when the Council of Europe Convention on Action against TraYcking is ratified, victims of traYcking will also be exempted from mandatory re-entry bans in respect of breaches of UK immigration law that occurred by reason of their being traYcked. Despite the need for these exemptions being accepted by the Government only a few months ago there is currently no corresponding provision made in the draft legislation. Given the very broad nature of the expulsion powers it is vitally important that this is rectified.
5. “Playing by the rules” (including the introduction of “bail bonds” for those awaiting detention or expulsion, “immigration bail” as an alternative to detention, revised sanctions for breaches of immigration law, and a simplified appeals system)
Part 5: Powers to detain and immigration bail
5.1 The Draft (Partial) Bill continues to permit the detention of children with their families in Immigration Removal Centres (IRCs). The Refugee Children’s Consortium believes the case for ending the detention of children is clear and this legislative opportunity to do so should not be missed. 5.2 Children are currently detained under the same policy as adults, without judicial oversight and there is no consideration of the fact that they are vulnerable when a decision is taken to detain. Government guidance on detention states that: “In all cases detention must be used sparingly, and for the shortest period necessary”.282 However, despite this guidance recent Home OYce statistics show that large numbers of children are being detained with their families each year. Asylum statistics show that during 2006, 1,235 children were recorded as leaving detention and in 2005, 1,580 children were recorded as leaving detention.283 Moreover the statistics also show that they are being held for lengthy periods of time. As at 30 June 2007, 35 children were in detention and of this number, 10 (29%) had been in detention for between one and two months, 20 children (57%) had been in detention for between 15 and 29 days and only five children (14%) for seven days or less.284
PART 7: OVences
5.3 We are concerned that the overall eVect of the provisions in Part 7 will be to make it more likely that refugee children seeking asylum will be subject to prosecution for immigration oVences including breach of reporting conditions, or failure to submit to a medical examination, which will be punishable by up to 51 weeks imprisonment.
281 Hansard, House of Commons OYcial Report, Vol 456, No. 40 Monday 5 February, Column 600 282 Operational Enforcement Manual Chapter 38—Detention and Temporary Release 283 Home OYce (2007) Asylum Statistics United Kingdom 2006; Home OYce (2006) and Asylum Statistics 2005 284 Home OYce (2007) Asylum Statistics: 2nd Quarter 2007 United Kingdom Processed: 23-04-2009 22:48:33 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 154 Home Affairs Committee: Evidence
5.4 The provisions relating to documentation oVences (clauses 104–105) are particularly worrying. Despite assurances285 during the passage of existing legislation that children should not normally be prosecuted for such oVences, members of the RCC are aware of numerous examples of asylum seeking children and “age disputed” asylum seekers who have been arrested and prosecuted; for example under section 2 of the Asylum and Immigration (Treatment of Claimant’s etc) Act 2004, for failing to produce a passport on arrival in the UK. The Court of Appeal, Criminal Division recently heard an appeal by O against her conviction, on her guilty plea, of possessing a false identity card with the intention of using it as her own. Despite guidance that young people who might be traYcking victims, should not be prosecuted if there are concerns that they had been working under duress or if their well-being had been threatened O was convicted. This decision was overturned on appeal after fresh evidence, namely a report from the Poppy Project, was submitted in June 2008. 5.5 In July 2007 the Howard League for Penal Reform secured another important Court of Appeal decision in the case of J who arrived in the United Kingdom in April 2007 from China. J claimed asylum and was subsequently charged with an oVence of failing to have an immigration document contrary to section 2. Although J consistently said that she was 16 years old, she was deemed to be an adult, convicted in the Magistrates’ Court and committed to the Crown Court for sentence. In the Crown Court, the judge accepted that she was 16 years old but sentenced her to a four month Detention and Training Order. On Appeal it was ruled that a custodial sentence should not normally be imposed on a juvenile convicted of an oVence under section 2 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004. Parliament must heed these judgements and ensure that the drafting of oVences in this new legislation adequately protects asylum seeking children and victims of traYcking from such damaging prosecutions. For example by taking forward the concluding recommendations of the UN Committee on the Rights of the Child, which asked the UK to “consider amending section 2 of the 2004 Asylum and Immigration (Treatment of Claimants etc.) Act to allow for an absolute defence for unaccompanied children who enter the UK without valid immigration documents”286. 5.6 The provisions in clause 108 and 109 criminalise traYcking in human beings for labour exploitation and have been replicated from the Asylum and Immigration (Treatment of Claimants, etc) Act 2004. The definition of the “act” of traYcking is more limited than in the Palermo Protocol. Our main concern is that the definition of “exploit” in cl.109 (4) and (5) is not encompassing enough to apply to very young children. 5.7 We note that the additional proposed oVence of obstructing, resisting or assaulting oYcials is extremely wide ranging and ill defined. The Bill does not contain a definition of the term “obstructing” and we are concerned that it is capable of being open to broad interpretation and could for example negatively impact on the staV of RCC membership organisations in their work supporting asylum-seeking children.
PART 10—Appeals 5.8 The provisions in the Bill relating to appeals are incomplete and it is therefore diYcult to oVer any comprehensive comment on this section. We do however welcome clause 166 that has the eVect of restoring the right of appeal to anyone granted leave of any length on refusal of asylum. Currently under section 83(2) of the Nationality, Immigration and Asylum Act 2002 anyone granted leave that amounts to less than one year (in one grant, or aggregated) is denied this right, a situation which has disproportionately aVected unaccompanied children seeking asylum.
6. “Managing any local impacts” (including simplification of legislation on access to benefits and services) 6.1 Asylum support is not included in the Draft Bill, but will be included in the full Bill that will be laid before Parliament. The RCC does not believe that destitution should be used as a tool to force compliance with the immigration process, particularly in respect of children. We believe that asylum seekers should be treated humanely and fairly during the immigration process, given adequate support to ensure that they are not living in poverty, and have access to decent housing, healthcare and education. In particular we support the repeal of s.9 Asylum and Immigration (Treatment of Claimants etc.) Act 2004 as it is both an inhumane and ineVective policy. October 2008
285 Beverley Hughes House of Commons Committee 08.01.04 col 15 […] I accept that some individuals, particularly younger children, will be more likely to follow the instructions of facilitators. Because of their vulnerability they should not when they act in that way, be caught by the clause. It is not our intention that vulnerable people and, in particular, younger children should be convicted of the oVence in question. […] The prosecution would need to take into account the circumstances of the case—the alleged age and what is established to be the child’s age—in determining whether to bring a prosecution. Guidelines will be needed and they will be defined with reference to the police, the immigration service and the Crown Prosecution Service. They will attend carefully to issues relating to the prosecution of children. 286 http://www2.ohchr.org/english/bodies/crc/docs/AdvanceVersions/CRC.C.GBR.CO.4.pdf Recommendation 71(g), Concluding Observations published 3 October 2008 Processed: 23-04-2009 22:48:33 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 155
Memorandum submitted by United Nations High Commissioner for Refugees (UNHCR)
I. Introduction
1. UNHCR has been charged by the United Nations General Assembly with the responsibility for providing international protection to refugees and other persons within its mandate and for seeking permanent solutions to the problem of refugees by assisting governments and private organizations.287
2. In view of the OYce’s supervisory role under its Statute and Article 35 of the 1951 Convention Relating to the Status of Refugees288 (“1951 Refugee Convention”), UNHCR’s interpretation of the provisions of the 1951 Refugee Convention and 1967 Protocol Relating to the Status of Refugees289 (“1967 Protocol”) are generally considered an authoritative view which should be taken into account by States when deciding on questions of refugee law.
3. UNHCR welcomes the Home AVairs Select Committee’s Call for Written Evidence of 22 July 2008 and takes this opportunity to comment on the Draft (Partial) Immigration and Citizenship Bill 2008 (“Draft Bill”). UNHCR has consistently provided comments to previous legislation and policy consultations, including the initial consultation on simplifying immigration law of August 2007290, and will build on these comments in this briefing.
4. UNHCR commends the UK Government for the initiative and commitment to consolidate and simplify UK immigration and asylum law. UNHCR trusts that when this legislation is enacted it will not erode the UK’s time-honoured tradition of providing asylum to those who are in need of international protection in line with its international obligations and in particular under the 1951 Refugee Convention and its 1967 Protocol. UNHCR also welcomes the inclusion in section 189 of the Draft Bill, which places a duty on immigration oYcials specifically designated by the State to promote and safeguard the welfare of children in carrying out their duties (similar to the section 11 duty in the Children Act 2004).
5. In view of some of the issues of serious concern identified by UNHCR with the Draft Bill, UNHCR has obtained a joint legal opinion from Michael Fordham QC of Blackstone Chambers and Samantha Knights of Matrix Chambers (“Joint Opinion”), which is summarised under heading II below (and attached to this submission). Under heading III UNHCR will address further issues of concern within the framework of the parameters stipulated by the Committee in its Call for Written Evidence of 22 July 2008.
II. Core issues of concern to UNHCR set out in the Joint Opinion
6. The Joint Opinion covers 5 core issues which UNHCR has identified in the Draft Bill and “draft illustrative immigration rules on protection” (“Immigration Rules”) published by the UK Government at the same time as the Draft Bill. UNHCR is of the opinion that these core issues should be adequately addressed in the Draft Bill and Immigration Rules if the UK Government’s obligations under the 1951 Refugee Convention are to be fully adhered to.
7. There is no direct reference to the primacy of the 1951 Refugee Convention in the Draft Bill as is currently contained in section 2 of the Asylum and Immigration Appeals Act 1993. Instead, protection and reference to the 1951 Refugee Convention are confined to the draft Immigration Rules, which carries a number of risks. UNHCR is of the opinion that the duties and rights in the 1951 Refugee Convention should be fully reflected in primary legislation. Failing that, there should be an equivalent section 2 reference in the Draft Bill.
287 Statute of the OYce of the United Nations High Commissioner for Refugees, GA Res. 428(V), Annex, UN Doc. A/1775, paras 1, 6 (1950). 288 UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951. United Nations, Treaty Series, vol. 189, p. 137, available at: http://www.unhcr.org/refworld/docid/3be01b964.html 289 UN General Assembly, Protocol Relating to the Status of Refugees, 30 January 1967. United Nations, Treaty Series, vol. 606, p. 267, available at: http://www.unhcr.org/refworld/docid/3ae6b3ae4.html 290 UNHCR’s has previously supplied a “Response to Home OYce Border Agency consultation ‘The Path to Citizenship: Next Steps in Reforming the Immigration System’” as well as a response to the initial consultation “Simplifying Immigration Law”. The views expressed by UNHCR in this submission reflect the views contained in the both sets of consultation comments, available at: http://www.unhcr.org.uk/info/briefings/responding to policy/documents/ 080516ResponsetoHomeOYceBorderAgencyconsultationoncitizenship.pdf and http://www.unhcr.org.uk/info/briefings/responding to policy/documents/ UNHCRresponsetoInitialSimplificationConsultation.pdf. Processed: 23-04-2009 22:48:33 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 156 Home Affairs Committee: Evidence
8. The definition of a refugee in the Draft Bill must reflect the 1951 Refugee Convention, the 1967 Protocol and UNHCR’s Handbook 1979.291 Further, the definition is incorrect and should reflect the fact that recognition by the UK Government does not make someone a refugee but declares them to be one.292 9. Article 31 (1) of the 1951 Refugee Convention dealing with non-penalisation of refugees has not been accurately reflected in the Draft Bill, Part 11. The Draft Bill makes no mention of Article 31 (1) and adds qualifications which are not found in Article 31 (1). UNHCR believes that this issue could be addressed by having a direct reference to Article 31 (1) in the Draft Bill. 10. Although in section 38, the Draft Bill makes a direct reference to the 1951 Refugee Convention it goes on to include a subjective executive regarding element regarding whom the Secretary of State thinks the 1951 Refugee Convention should protect. 11. Finally, UNHCR is concerned that the Draft Bill appears to limit the UK’s obligations to persons present on UK territory. UNHCR’s view is that the 1951 Refugee Convention applies to state signatories in an extra territorial manner.293
III. Comments on specific aspects of the Draft Bill
“Strong borders” (including modernising border powers and carriers’ liability and powers to cancel visas abroad)—Parts 1, 2 and 8
12. As a signatory to the 1951 Refugee Convention and its 1967 Protocol the UK is obliged to identify persons with international protection needs within the phenomenon of mixed movements when undertaking migration control activities. In the management of migration and border control, States should ensure that safeguards are in place so that people who are seeking international protection can request asylum and be assured a fair treatment of their claims. Consequently, border control systems should incorporate measures which make it possible to identify people who are seeking protection. Within these flows, refugees and other people in search of international protection constitute a distinct category. 13. The proposals currently contained within the Draft Bill build on existing migration control measures including visa restrictions and the e-Borders programme without referring to core principles of refugee protection. Parts 1 and 2 of the Draft Bill extend existing powers, in particular those of “juxtaposed controls” and Airline Liaison OYcers operating overseas (see sections 14(3), 20(3), 25(1) and 25(2) as well as 25(2)(e) and 29(1) of the Draft Bill); powers which facilitate the UK to manage immigration controls in another country long before migrants and persons with international protection needs reach UK territory. In short, these immigration oYcials will be able to examine passengers and cancel previously granted immigration and transit permission. In UNHCR’s view, the measures in the Draft Bill do not diVerentiate adequately between persons seeking international protection and other third-country nationals, and may therefore impede safe access to asylum procedures for persons seeking protection. The proposed new power to refuse permission must not prevent individuals from fleeing persecution or result directly or indirectly, in their refoulement or denial of access to the asylum procedure. 14. In UNHCR’s understanding, the UK’s protection responsibility under international refugee and human rights law, including respect for the principle of non-refoulement, is engaged wherever it asserts jurisdiction in relation to all persons within its territory or subject to its jurisdiction, including asylum- seekers and refugees. This responsibility also extends to the actions of out-posted UK immigration oYcials, as representatives of the UK Government acting on behalf of the UK or in the exercise of governmental authority. UK immigration oYcials operating overseas to prevent entry to the UK must be required and empowered to identify the protection needs of the people they intercept, allow access to asylum procedures for those seeking international protection, as well as to provide appropriate and diVerentiated solutions for all the profiles of people involved in mixed movements. Out-posted UK immigration oYcials should be provided with the necessary specific training and clear instructions on how to uphold the UK’s international obligations under the 1951 Refugee Convention, including responding to and examining asylum applications and handling the needs of separated children, victims of traYcking and other groups with specific needs.
291 Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, HCR/IP/4/Eng/REV.1,1979 (Re-edited, January 1992), available at: http://www.unhcr.org/ cgi-bin/texis/vtx/refworld/rwmain?page%search&docid%3ae6b3314 292 Ibid, paragraph 29. 293 For more on the UK’s extra-territorial obligations see attached Legal Opinion. See also UNHCR “Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol”, 26 January 2007, available at: http://www.unhcr.org/refworld/docid/45f17a1a4.html. See also “The Scope and Content of the Principle of Non-Refoulement: Opinion”, Sir Elihu Lauterpacht and Daniel Bethlehem, 20 June 2001, in “Refugee Protection in International Law: ‘UNHCR’s Global Consultations on International Protection’”, edited by Erika Feller, Volker Trk and Frances Nicholson, Cambridge University Press, Cambridge (2003), available at: http://www.unhcr.org/publ/41a1b51c6.html and “UNHCR Note on Diplomatic Assurances and International Refugee Protection”, 10 August 2006, available at: http://www.unhcr.org/cgibin/texis/vtx/refworld/rwmain?docid%44dc81164&page%search Processed: 23-04-2009 22:48:33 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 157
15. UNHCR refers to the provisions of its position on interception measures,294 which, inter alia, recommends that any such interception measures be guided by the following considerations in order to ensure the adequate treatment of asylum-seekers and refugees amongst those intercepted: “ . . . Interception measures should not result in asylum-seekers and refugees being denied access to international protection, or result in those in need of international protection being returned, directly or indirectly, to the frontiers of territories where their life or freedom would be threatened on account of a Convention ground, or where the person has other grounds for protection based on international law. Intercepted persons found to be in need of international protection should have access to durable solutions; . . .” 16. UNHCR has developed a “Ten Point Plan of Action”295 to assist States in finding practical solutions to the challenges of managing their external borders, while complying fully with their obligations under international refugee and human rights law. These practical protection safeguards are required to ensure that such measures are not applied in an indiscriminate or disproportionate manner and that they do not lead to direct or indirect refoulement.296 17. Where profiling mechanisms do not exist or cannot be applied, UK border control oYcials should be helped to identify asylum seekers and other persons with special needs through the elaboration of guidelines or standardised questionnaires, protection hotlines and/or the possibility to consult with UNHCR. They should receive clear instructions that all asylum seekers are to be referred to the responsible asylum authorities.297 18. Part 8 of the Draft Bill concerns the extension of existing provisions for carriers’ liability—the application of civil penalties on carriers of irregular or undocumented passengers—and introduces the “Authority to carry” scheme (see section 149 of the Draft Bill). UNHCR’s principle concern is that carriers’ liability by preventing departure from a country of persecution or a country where protection is not guaranteed (such as a country of transit for example) conflicts with the spirit of the 1951 Refugee Convention in that it might ultimately prevent access to a territory where a claim for asylum will be adequately determined. Furthermore, these provisions may result in the refoulement of persons in need of protection due to the indiscriminate activities of private actors. 19. Through carriers’ liability provisions in Part 8 of the Draft Bill, private carriers are obliged to conduct immigration control activities, which may have the impact of seriously limiting the right to seek and enjoy asylum and may be incompatible with the humanitarian tenet on which the international regime for the protection of refugees is based. In UNHCR’s view, when interception measures are conducted by private actors on behalf of the Government or in the exercise of governmental authority, the UK should ensure that asylum seekers and refugees have access to protection and respect for the principle of non-refoulement. In UNHCR’s view, when interception measures are conducted by private actors on behalf of the Government, the UK still should ensure that asylum seekers have access to protection and respect for the principle of non- refoulement.
“Earning the right to stay” (including new requirements for citizenship and an automatic ban on returns with new powers to exclude criminals and immigration oVenders)—Part 3
20. In UNHCR’s view securing legal residence is of utmost importance to the successful integration of refugees and other persons with international protection needs. Consideration should be given to facilitating naturalisation, especially as regards certain conditions for naturalisation which may prove too diYcult for refugees to meet and in fact impair on refugees’ access to a durable solution. 21. UNHCR is of the view that the proposed route to citizenship complicates, rather than simplifies, the immigration system by requiring migrants and refugees to pass through an additional stage of ‘probationary citizenship’. There is a real risk that the complexity of the process and the fees involved will make the
294 UNHCR, Executive Committee (“ExCom”) Conclusion on Protection Safeguards in Interception Measures, 10 October 2003. No. 97 (LIV)—2003, available at: http://www.unhcr.org/refworld/docid/3f93b2894.html. The Executive Committee of the High Commissioner’s Programme (“ExCom”) has its genesis in para. 4 of the Statute of the OYce of the United Nations High Commissioner for Refugees, 1950. Under that provision, the UN Economic and Social Council of the General Assembly established an Advisory Committee on Refugees. In 1958 it became the Executive Committee of the High Commissioner’s Programme: ECOSOC Res 672 (XXV), 30.4.58. ExCom is currently composed of 70 States. Under its terms of reference, it inter alia advises the Commissioner at his or her request on the exercise of UNHCR’s protection functions under the statute (GA Res 1166 (XII), 26.11.57). The Commissioner is required to abide by the Committee’s conclusions on international protection: GA Res 1673 (XVI), 18.12.61, para 1, GA Res 1783 (XVI), 7.12.62. Given the duty on States under Article 35 1951 Refugee Convention to co-operate with the oYce of the UNHCR in order to facilitate the exercise of its functions, in particular its overarching “duty of supervising the application” of the CSR, the fact that ExCom conclusions bind the Commissioner is a strong pointer to their persuasive weight before a domestic court. 295 UNHCR, Refugee Protection and Mixed Migration: A 10-Point Plan of Action, January 2007. Rev.1, available at: http:// www.unhcr.org/refworld/docid/45b0c09b2.html 296 UNHCR, ExCom Conclusion on Non-Refoulement, 1977. No. 6 (XXVIII)—1977, available at: http://www.unhcr.org/ excom/EXCOM/3ae68c43ac.html 297 UNHCR’s Response to the European Commission’s Green Paper on the Future Common European Asylum System, September 2007, available at: http://www.unhcr.org/refworld/docid/46e159f82.html Processed: 23-04-2009 22:48:33 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 158 Home Affairs Committee: Evidence
integration process longer and more expensive for refugees, contrary to Article 34 of the 1951 Refugee Convention which requires that States “expedite naturalization proceedings” and “reduce as far as possible the costs and charges of such proceedings”. 22. UNHCR considers that, as a matter of best practice, the required period of residence in order to be eligible for naturalisation should not exceed 5 years for refugees. This is in order to restore an eVective nationality to refugees and those with humanitarian protection and promote their full integration into society.Further, UNHCR believes that a cumulative period of the initial 5 years should include periods spent in the country whilst asylum applications are under consideration. 23. UNHCR urges the UK Home OYce to consider making exceptions for refugees who are unable to participate, or are limited in the manner in which they are able to participate in community activities. In this regard it should be borne in mind that refugees may have faced specific forms of persecution in the past and the association with community activities may have an unintended impact on their emotional and physical well being. Although this ‘activity condition’ is not mandatory, it appears to serve as a form of indirect penalty for not participating in the community activities. In the circumstances described above, in UNHCR’s view, it would not be fair to expect the individuals concerned to spend three years as probationary citizens, increasing the total period of time before they become eligible for citizenship to eight years should they be unable, for reasons of their past persecution experience, to participate in community activities. 24. UNHCR is of the view that the language requirements imposed on refugees and their family members should be understood in the context of their flight. Refugees, unlike migrants, have not chosen to leave their country in freedom and are therefore particularly disadvantaged. UNHCR encourages the Government to ensure that refugees have access to Government funded English language classes given the fact that prior to their arrival in the UK, refugees, those with humanitarian protection and their families are likely to have had less access to English language training institutions and basic education facilities than regular migrants. Many will have fled from communities that have been torn apart by conflict; spent years in makeshift refugee camps; or lived in remote areas of the world where education facilities are minimal and access to specialized English language training as well as the internet is limited. Language classes should be further accessible to refugees taking into account the gender, age and diversity of the refugees to ensure that all refugees have equal access to assistance. 25. UNHCR is concerned that the provisions of the Draft Bill do not make it suYciently clear that persons who come to the UK illegally and who are in need of international protection should not be penalised.298 In light of this, UNHCR is concerned that as part of the requirements for naturalisation it is required that the applicant was not at any time in the qualifying period in the UK in breach of the immigration laws (section 33). 26. With regard to the resettlement of refugees to the UK under the Gateway Protection Programme, the majority of refugees who are resettled to the UK under the Gateway Protection Programme have been recognised as refugees by UNHCR for at least five years. They have often spent decades residing in refugee camps, and have been identified for resettlement because they are unable to integrate in their country of asylum, or return to their country of origin. Accordingly, the objective of resettlement is to provide these refugees with a durable and permanent solution. The grant of indefinite leave to remain upon arrival to the UK299 contributes significantly to the ability of refugees to begin to rebuild their lives in the UK (the first year of which is financed by the Government). UNHCR would like to draw attention to the fact that resettled refugees in all other resettlement countries receive indefinite leave to remain and not a temporary status.300
“Playing by the rules” (including the introduction of ‘bail bonds’ for those awaiting detention or expulsion, ‘immigration bail’ as an alternative to detention, revised sanctions for breaches of immigration law, and simplified appeals system)—Parts 4, 5 and 10 27. Part 4 of the Draft Bill seeks to combine administrative removal301 (used in the majority of cases of failed asylum-seekers), automatic deportation and deportation (used in cases where the concerned individual’s presence in the UK is considered not conducive to public good) into the single concept of “expulsion”. Part 4 also takes away the requirement to give notice to the individual facing expulsion and consequently gives the aVected individual no opportunity to make representations before the decision to expel is taken.
298 Section 31 of the Immigration and Asylum Act 1999 represents UK legislators interpretation of what is required by Article 31 of the 1951 Refugee Convention. Please also refer to UNHCR comments in paragraphs 35 and 37 of this submission for more on UNHCR’s concerns regarding Article 31 as well as the attached Legal Opinion. 299 This is currently the situation, see the Asylum Policy Instructions on the Gateway Protection Programme, available at: http:// www.bia.homeoYce.gov.uk/sitecontent/documents/policyandlaw/asylumpolicyinstructions/ 300 USA, Canada, Sweden, Norway, Finland, New Zealand, Denmark, The Netherlands, France, Ireland, Brazil, Chile, Argentina, Iceland, Poland, Portugal, Paraguay and Uruguay. 301 Prior to the changes to the Immigration Rules brought under HC321 in April 2008, administrative removal, did not bar removed individuals from returning to the UK. HC321 now imposes re-entry bans of varying lengths for any forced removals or voluntary departures after October 2008. For details on HC321 see http://ukba.homeoYce.gov.uk/sitecontent/documents/ policyandlaw/statementsofchanges/. See also UNHCR comments to Part 3 of the Draft Bill in this submission. Processed: 23-04-2009 22:48:33 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 159
28. UNHCR remains concerned about the Draft Bill’s insistence on prosecuting individuals in the UK over assessing their international protection needs. For example, the Draft Bill provides that persons sentenced to at least 12 months are liable to automatic expulsion because they become “foreign criminals” (sections 37(2)(b) and 51 read together)302. Recognised refugees and those granted subsidiary protection may come under the ambit of “foreign criminals” if they commit even minor oVences and are sentenced to at least 12 months. Such persons are protected from removal from the UK if this would contravene the UK’s obligations under the Refugee Convention while their application is being decided (according to section 38 (4) of the Bill)303. 29. Article 33 (2) of the 1951 Refugee Convention provides that no person shall be expelled to a country where they face persecution unless, “there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country”. UNHCR believes that the obligation which the Draft Bill places on the Secretary of State, to make an expulsion order where an individual has been imprisoned for 12 months sets too low a threshold to justify an exception to the principle of non-refoulement. 30. UNHCR has previously expressed its concerns to the UK Government regarding section 72 of the Nationality,Immigration and Asylum Act 2002 (as read with the NIAA Specification of Particularly Serious Crimes Order 2004) on its interpretation of the exception to the principle of non-refoulement in Article 33 (2) of the 1951 Convention304. The Article 33 (2) mechanism has always been considered a measure of last resort justified by the exceptional threat posed by the individual—a threat such that it can only be countered by removing the person from the country of asylum, including, if necessary, to the country of origin.305 31. Part 5 of the Draft Bill sets out the powers under which detention can be carried out on people liable to examination under the powers conferred in Part 2 of the Bill. It goes further by introducing a new concept of “immigration bail” to replace temporary admission and temporary release as well as financial bonds for those granted “immigration bail”. Part 5 also appears to take away the presumption of liberty for those in respect of whom an expulsion order has or may be made (section 55) and further weakens the judicial oversight on “immigration bail” by limiting the power of the Tribunal to cancel bail conditions imposed by the Secretary of State and by requiring the Tribunal to seek the Secretary of State’s consent before granting bail in cases where removal from the UK is imminent. 32. While UNHCR accepts that there may be exceptional situations under which States may detain individuals seeking international protection, it has always been UNHCR’s view that the detention of asylum seekers is inherently undesirable, and that there must be a presumption against its use as such measures are contrary to the fundamental human right of freedom from arbitrary detention306. UNHCR is therefore concerned that the proposed use of the term “immigration bail” in the Draft Bill is not appropriate where it is sought to apply to all individuals seeking international protection who are waiting for their applications to be decided. Individuals fleeing persecution have a right to ask the United Kingdom to oVer them international protection, and it is UNHCR’s position that the detention of such applicants should be resorted to only exceptionally and where such action would be proportionate to the objectives it is aiming to achieve.307 Use of the term “immigration bail” implies that detention is the rule and not an exception.
302 This regime currently exists in the UK Borders Act 2007 and is known as “automatic deportation”. See UNHCR Briefing for the House of Lords, second reading, June 2007 on the UK Borders Bill available at: http://www.unhcr.org.uk/legal/ documents/UNHCRComments.June07.pdf 303 See however, comments in paragraph 28 of the attached Legal Opinion. 304 See UNHCR Briefing On Nationality, Immigration And Asylum Bill, September 2002 available at: http://www.unhcr.org.uk/ legal/positions/UNHCR%20Comments/comments 2002Bill.htm These concerns were again raised in relation to Section 72 of the Nationality Immigration and Asylum Act (NIAA) 2002 and the NIAA Specification of Particularly Serious Crimes Order) both of which set thresholds for an exception to the non-refoulement principle that are not in line with the letter and spirit of the 1951 Refugee Convention, and do not meet the criteria as set out in Article 33 (2) of the 1951 Refugee Convention. 305 Lauterpacht & Bethlehem, Sir Elihu Lauterpacht & Daniel Bethlehem, The Scope and Content of the Principle of Non- Refoulement, Opinion (2001), available at http://www.unhcr.org/publ/PUBL/419c75ce4.pdf “The view has been expressed... that ‘the principle of non-refoulement of refugees is now widely recognized as a general principle of international law.’” and “the text of Article 33 (2) makes it clear that it is only convictions for crimes of a particularly serious nature that will come within the purview of the exception” (…) “the fundamental humanitarian character and primary importance of non-refoulement as a cardinal principle of refugee protection has also been repeatedly aYrmed more generally in Conclusions of the Executive Committee over the past 25 years”. 306 As set out in “UNHCR’s Guidelines on applicable Criteria and Standards relating to the Detention of Asylum Seekers”, February 1999. UNHCR also considers that there are certain categories of people who should not be detained, due to their particular vulnerability such as victims of torture, disputed minors, persons with a mental or physical disability, unaccompanied elderly persons, families with children, and other individuals with similarly vulnerable backgrounds and characteristics are also of concern to UNHCR in the context of detention. 307 In conformity with UNHCR ExCom Conclusion No. 44 (XXXXVII)—1986 (available at: http://www.unhcr.org/refworld/ docid/3ae68c43c0.html), the detention of asylum-seekers may be resorted to if no alternatives are available, and for the minimum period of time necessary to: 1) Verify Identity; 2) To determine the elements on which the claim for refugee status or asylum is based; 3) In cases where asylum seekers have destroyed their travel and/or identity documents or have used fraudulent documents in order to mislead the authorities of the State, in which they intend to claim asylum; 4) To protect national security and public order. See also UNHCR’s submission to the European Court of Human Rights in the case of Saadi v. United Kingdom (13229/03) 29 January 2008. Processed: 23-04-2009 22:48:33 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 160 Home Affairs Committee: Evidence
33. UNHCR is also concerned that the Draft Bill as currently drafted erodes judicial oversight in detention decisions and the granting of bail.308 In order to ensure that the detention of those seeking international protection is in conformity with international standards and that no individual is subjected to arbitrary detention, UNHCR believes that the detention of each individual held should be submitted to automatic judicial oversight.309 In this respect, UNHCR recommends the re-introduction of automatic bail hearings, as was the position with Part III of the Asylum and Immigration Act 1999, into the Draft Bill, or for the adoption of similar legislative provisions to ensure that a bail hearing is automatically triggered in relation to any individual seeking international protection, once a specified reasonable and proportionate period of time is passed in detention. UNHCR further recommends that aYrmative measures be put in place to facilitate bail applications by detained asylum seekers as well as the provisions of quality legal advice and representation. 34. Part 7 consolidates the pre-existing immigration oVences and adds a new oVence of “obstructing, resisting or assaulting oYcials”. 35. UNHCR’s main concern with this part of the Bill is that it makes it an oVence for asylum seekers to knowingly enter the UK without a valid travel document, contrary to the UK’s obligations under Article 31 (1) of the 1951 Convention. The right to seek asylum is recognized in the Universal Declaration of Human Rights (Article 14). Further, individuals become refugees by fulfilling the definition of a refugee under the 1951 Refugee Convention and State recognition simply declares refugee status but does not create it310. 36. The criminalisation of asylum seekers in UK legislation has been the subject of UNHCR comments on a number of occasions in the recent past, including to this Committee.311 Refugees are often forced to flee their own country in fear of their lives. In such desperate circumstances individuals may need to resort to desperate measures merely to survive. It is well-established that the need to escape persecution frequently compels refugees to resort to irregular means of entry into host countries—including reliance on facilitators and/or the use of false documentation. Article 31 is specifically aimed at protecting persons in this situation from prosecution for the measures that they were forced to use to reach safety.312 37. UNHCR is also not satisfied that the defence for entering the UK without a passport (section 104 (3) is suYcient to ensure compliance with Article 31 (1) of the 1951 Refugee Convention. UNHCR is of the opinion that the question of whether an excuse is “reasonable” (and whether non-compliance with the instructions of a facilitator was “unreasonable”) is inherently subjective and requires a careful assessment of the individual circumstances and special situation of asylum seekers. Veryoften persons who are of special interest to a government find it diYcult, if not impossible to either apply for a passport or to leave their country of nationality in a regular manner. Hence, the use of forged or irregular documents and departure by irregular means (including reliance on a facilitator) are common methods used by persons in need of international protection to arrive in a country of asylum. These issues were explored in UNHCR’s third party intervention in the recent case of R v Asfaw313. 38. Part 10314 of the Draft Bill deals with appeals generally, appeal rights, grounds of appeal and the proposed structure for the Asylum and Immigration Tribunal315. Section 164 will replace sections 82 and 83 of the Nationality, Immigration and Asylum Act 2002 but will also introduce some changes to the existing appeal rights. UNHCR welcomes the extension of the right to appeal against the cancellation316 of refugee status, which UNHCR has previously advocated for317. However, the Draft Bill also takes away some appeal rights in certain instances such as clearly unfounded claims, except in those cases raising family life issues
308 This point has been made in UNHCR’s Comments on the 2005 Immigration and Nationality Bill, October 2005 available at: http://www.unhcr.org.uk/legal/positions/UNHCR%20Comments/Comments2005IANbilldetention.htm. 309 UNHCR has stated in ExCom Conclusion No. 44 (see footnote 21 above), that detention measures taken in respect of asylum seekers should be subject to judicial or administrative review. 310 UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, paragraph 29, see footnote 5 above. 311 UNHCR has previously expressed its concern to this Committee, in December 2004, with regard to the implementation of legislation criminalizing asylum seekers for illegal entry or presence, see UNHCR’s submission to the Home AVairs Committee Enquiry into the Policy and Practice of Immigration Control Examination of the entry clearance (visa) system, the granting or refusing of further leave in the UK and the enforcement of immigration control. See also, Asylum and Immigration (Treatment of Claimants, etc.) Bill Lords 2nd reading, UNHCR briefing March 2004 and UNHCR Comments on the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, Clause 2 Draft Guidance of June 2004 available at: http://www.unhcr.org.uk/legal/position.html 312 Please also see paragraphs 23–33 of the attached Legal Opinion. Article 31(1) of the 1951 Refugee Convention provides that: “Contracting States shall not impose penalties on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence”. 313 [2008] UKHL 31 [2008] 2 WLR 1178. See also attached Legal Opinion paragraphs 23–33. 314 Part 10 has to be read together with Schedules 1 and 2 of the Draft Bill as well as the consultation on immigration appeals— “Consultation: Immigration Appeals—fair decisions; faster justice” published by the UKBA on 21 August 2008. 315 To highlight some of the provisions: Section 164 provides for the immigration decisions against which an appeal may be brought and these are further elaborated in Sections s 165 to 173 explaining when and where an appeal may be brought. Section 174 provides for grounds upon which an appeal may be brought. 316 UNHCR trusts that cancellation is used here generically to cover the following procedures; cancellation, cessation, revocation, exclusion and application of Article 33 (2). 317 See UNHCR comments to the transposition of Article 39 of Council Directive 2005/85/EC of 1 December 2005 laying down minimum standards on procedures in Member States for granting and withdrawing refugee status available at: http:// www.unhcr.org/cgibin/texis/vtx/refworld/ rwmain?page%search&docid%42492b302&skip%0&query%procedures%20directive,%20article%2039. Processed: 23-04-2009 22:48:33 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 161
(“family life application”). Further, section 178 gives the Secretary of State the power to amend the list of countries to which the non-suspensive appeal regime applies (manifestly unfounded claims) by reference to such factors as gender, language, race, religion, nationality, membership of a particular social group or political opinion. This list, however, is not exhaustive and may be extended by reference to “any other attribute or circumstance that the Secretary of State thinks appropriate”. 39. It is UNHCR’s view that a well-functioning appeals system is integral to fair and eYcient refugee status determination procedures318. The right to an eVective remedy is enshrined in international human rights law instruments: the International Covenant on Civil and Political Rights (Article 2, Paragraph 3) and Article 13 of the European Convention of Human Rights. The European Court of Human Rights has applied Article 13 to mean that an appeal mechanism for refugee status determinations is necessary where there is danger of refoulement.319 Article 13 of the ICCPR mandates that a review procedure should be allowed before an alien can be expelled from the territory320. 40. Given the potentially serious consequences of an erroneous determination at first instance, the suspensive eVect of asylum appeals is a critical safeguard to ensure respect for the principle of non- refoulement of asylum seekers. If an applicant asylum seeker is deprived of an appeal right or not permitted to await the outcome of an appeal against a negative decision at the first instance in the UK, the remedy against the decision is ineVective. This is because such a state of aVairs undermines the realisation of the very remedy sought by the appeal, in that the asylum seeker is appealing against a decision which in terms of the law, requires removal from the UK. UNHCR considers that the principle of non-refoulement is so fundamental to protecting the life and basic freedoms of an individual that it would be severely undermined if the authorities were enabled to remove a person without conducting a thorough review and assessing the reason being advanced for such a stand with full procedural guarantees. Exceptions to this fundamental principle should only be permitted in precisely defined cases, where there is clearly abusive behaviour on the part of an applicant, or where the unfoundedness of a claim is manifest321. 41. UNHCR regrets that for applications which are rejected at first instance and certified as manifestly unfounded, appeals do not have suspensive eVect in the UK. Such cases do not have an in-country right of appeal and can only appeal the decision to refuse the asylum application after return to their countries. In UNHCR’s view this provision greatly increases the risk of instances of refoulement, especially since the only way to challenge the decision to certify is through judicial review. 42. Although UNHCR welcomes any measures aimed at improving the appellate system and recognises that States may have recourse to accelerated procedures in determining asylum applications, the more accelerated a procedure is; the higher the risk that an erroneous decision will be taken, the consequences of which could include a return to the country of persecution for the applicant. Such decisions should, therefore, always be accompanied by the appropriate procedural guarantees, including a possibility of appeal within the UK. In particular, UNHCR would recall its Executive Committee, in Conclusion No. 30, of which the UK is a member, stated in 1983 that: “[A]n unsuccessful applicant should be enabled to have a negative decision reviewed before rejection at the frontier or forcible removal from the territory. Where arrangements for such a review do not exist, governments should give favourable consideration to their establishment.”322 43. UNHCR is seriously concerned by the proposal contained in sections 165(2)(b), 166 (2)(b) and 177 (2) of the Draft Bill to take away out-of-country appeal rights in refugee protection or subsidiary protection (human rights) cases which are certified by the Secretary of State as “clearly unfounded”. The only exception to this is where the human rights application raises family life issues. UNHCR has in the past expressed concern over the shortcomings of the provision of out-of-country appeals in accelerated procedures and is concerned that even that nominal appeal facility is now being taken away323. Completely abolishing appeal rights in certain cases would infringe on Article 39 of the European Council Directive on Minimum
318 The Global Consultations paper of 31 May 2001 on Asylum Processes (Fair and EYcient Asylum Procedures) states at para. 41: “Procedures in place in most States recognize that standards of due process require an appeal or review mechanism to ensure the fair functioning of asylum procedures…” 319 See European Court of Human Rights cases of H v. France (33087/07), Gebremedhin v. France (25389/05) 26 April 2007, Cˇ onka v. Belgium (51564/99) 5 February 2002, Jabari v Turkey (40055/98) 11 July 2000, available at: http://www.echr.coe.int/ ECHR/FR/Header/Case-Law/Hudoc/Hudoc!database/ 320 Article 13 states: “an alien lawfully in territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and have his case reviewed by, and be presented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.” 321 UNHCR Ex Com Conclusion No. 30 (XXXIV)—1983 on the Problem of Manifestly Unfounded or Abusive Applications for Refugee Status or Asylum, available at: http://www.unhcr.org/cgibin/texis/vtx/refworld/rwmain?page%search&docid%3ae68c6118. 322 Ibid. 323 See UNHCR’s comments on the Nationality Immigration and Asylum Bill, 2002, available at: http://www.unhcr.org.uk/legal/ positions/UNHCR%20Comments/comments 2002Bill.htm. In its comments to the 2002 Bill, UNHCR had indicated its diYculty with envisaging how it would be possible to properly launch an appeal against a refusal of an asylum claim from outside the UK, especially if the failed applicant were returned to his or her country of origin. Access to legal advice would be more problematic since it would be necessary to find a legal representative with experience of UK asylum law and practice. UNHCR urged the UK to ensure that safeguards in the clearly unfounded category of cases must include an appeal within the territory of the UK, and should not be made subject to exceptions in view of the potentially grave consequences for the applicant Processed: 23-04-2009 22:48:33 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 162 Home Affairs Committee: Evidence
Standards on Procedures in Member States for Granting and Withdrawing Refugee Status324. If no general suspensive eVect is required, at least access to protective measures by the judiciary must be guaranteed (Art. 39 (3) (b)). 44. UNHCR is further concerned that section 178 of the Draft Bill extends further the already wide powers of the Secretary of State to amend or expand the list of countries in Schedule 2 (deemed to be safe countries of origin). Specific factors describing a person such as those listed in section 178 (3) (“gender, language, race, religion, nationality membership of a particular social or other group, political opinion of any other attribute the Secretary of State thinks appropriate”) are inherent to an individual and part of an individualized refugee status determination procedure, and do not lend themselves to a generalized assessment on which to base a country designation. The proposed amendment of the list by reference to description of a person on the basis of is contrary to the Asylum Procedures Directive, which allows for factors such as “the legal situation, the application of the law and the general political circumstances” and not individual factors describing a person. 45. In UNHCR’s view, the “safe country of origin” concept should be applied narrowly and may only be resorted to as a procedural tool for prioritised or accelerated treatment of claims in carefully circumscribed situations. UNHCR does not oppose the notion of “safe country of origin” where it is used as a procedural tool for prioritized or accelerated treatment, in carefully circumscribed situations. However, it is critical that each case be examined fully and individually on its merits. Each applicant should be given an eVective opportunity to rebut the presumption of safety of the country of origin, in his or her individual circumstances and to access an eVective remedy in the form of an independent review. 46. UNHCR hopes that its concerns with the Draft Bill will be given due attention in order to ensure the United Kingdom’s full adherence to its international and legal obligations under the 1951 Refugee Convention. UNHCR wishes to thank the Home AVairs Select Committee for seeking its views and remains available to provide further clarifications and comment, in order to inform the legislative process as may be necessary. October 2008
Supplementary memorandum submitted by JUSTICE
Introduction 1. Founded in 1957, JUSTICE is a UK-based human rights and law reform organisation. Its mission is to advance justice, human rights and the rule of law. It is also the British section of the International Commission of Jurists. 2. In mid-2008, the partial Draft Immigration and Citizenship Bill was published. Among other things, it held out the prospect of consolidating legislation that would, for the first time since the 1971 Immigration Act was passed, provide a comprehensive legal framework for immigration and asylum in the UK. In JUSTICE’s view, consolidation is both essential and long-overdue as the current law is now spread across numerous Acts and exceedingly complex, contributing to poor quality decision making by immigration oYcials as well as a general lack of transparency and legal certainty. 3. As it was, the draft Bill itself was deeply flawed, containing much that would further erode appeal rights and increase arbitrary decision-making by immigration oYcials. In its place, the government has opted for a two-stage approach: the introduction of the Borders Citizenship and Immigration Bill containing a relatively narrow range of measures and an Immigration Simplification Bill towards the end of the current parliamentary session that would consolidate all existing immigration legislation into a single Act. 4. JUSTICE regrets that Parliament should be invited to consider a smaller range of immigration measures at this time, measures that in themselves do not seem to demand any urgency, while the far more important goal of consolidation is deferred until later. Clearly any consolidating legislation will require a very large amount of parliamentary time to consider, yet the time available for that task is now substantially reduced for the sake of the current Bill. In our view, there is little in the Bill before the House that warrants the apparent priority that has been given to it. Nor do the explanatory notes oVer any reason why these measures, if indeed necessary, could not have been included in the Simplification Bill itself. If enacted, it will be the seventh Act of Parliament dealing with immigration in the last 10 years.325 The goal of consolidation is not served by creating additional Acts to consolidate. 5. The Bill itself contains measures to allow immigration oYcers to exercise revenue and customs functions (Part 1), new provisions relating to citizenship and nationality (Part 2), and provisions relating to immigration and asylum (Parts 3 and 4). This submission focuses upon the latter provisions.
324 382005/85/EC, Asylum (Procedures) Regulations 2007 and HC 82. 325 The others are the Immigration and Asylum Act 1999, the Nationality Immigration and Asylum Act 2002, the Asylum and Immigration (Treatment of Claimants etc) Act 2004, the Immigration Asylum and Nationality Act 2006, the UK Borders Act 2007, and the Criminal Justice and Immigration Act 2008. Processed: 23-04-2009 22:48:33 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 163
Part 2—Citizenship 6. Part 2 is intended to implement several of the government’s proposals first set out in its Path to Citizenship consultation,326 as well as those in Lord Goldsmith’s review of citizenship.327 Measures on probationary citizenship were previously included in Part 3 of the partial Draft Bill published last summer. Although we are pleased to see some of the most egregious features of that Part have not been carried over into this Bill, problems remain with the concept and application of probationary citizenship set out in clauses 37 to 39. Far from simplifying arrangements, the status of probationary citizen seems to us an unnecessarily complex addition to the current law, one that will lead to confusion among both oYcials and applicants. A great deal will also depend on the detail of the regulations to be made under the provisions, eg the “activity condition” contained in clause 39(1) (inserting paragraph 4B(5) into the 1981 Act, which may in turn be dispensed with by the power in clause 39(3). More generally, we question the appropriateness of addressing citizenship and nationality in a Bill concerned chiefly with border control and immigration. 7. We do, however, welcome the long-overdue provision in clause 41 removing the discriminatory provisions of the British Nationality Act 1981 that prevented persons born abroad prior to 1961 acquiring British citizenship from their British mother.
Part 3—Immigration
Clause 46—Common travel area 8. Clause 46 introduces immigration controls for all persons travelling between the UK and the Republic of Ireland by air or ship, displacing the longstanding arrangements for the Common Travel Area following the Anglo-Irish Treaty in 1921,328 and most recently recognised in the Treaty of Amsterdam 1999. The introduction of immigration controls in this clause implements the proposals first set out in the UK Border Agency consultation in mid-2008.329 9. In JUSTICE’s view, insuYcient evidence has been put forward by the government to justify the introduction of immigration controls on air and sea links after a period of unrestricted travel that has lasted the better part of a century. This measure is particularly anomalous given that immigration controls will continue to be absent from the land border between the UK and the Republic—the one border that is easiest to cross. Given the historic links and close ties between the UK and the Republic and the general importance of the right to freedom of movement under Article 12 of the International Covenant on Civil and Political Rights (which both states have ratified), we consider that immigration controls should only be introduced into a previous common travel zone where a case of strict necessity (rather than mere administrative convenience) can be made out.
Clause 47—Restriction on studies 10. Clause 47(1) enables the Secretary of State to impose on a person “a condition restricting his studies in the United Kingdom” as part of a grant of temporary leave to enter or remain. Clause 47(2) allows the Home OYce the power to attach such a condition to any existing grant of temporary leave. 11. In JUSTICE’s view, if leave has been granted to a person to pursue their studies in the UK, we can see no basis for the Home OYce to have a power to restrict those studies. The UK Borders Agency has many competencies, but there is no evidence that an expertise in education is among them. Accordingly, we consider the Home OYce institutionally ill-placed to be imposing conditions on a person’s studies, and that this restriction is only likely to result in unnecessary and likely arbitrary interference with academic freedom and the right to an education under Article 2 of Protocol 2 of the European Convention on Human Rights. If there are doubts about an applicant’s ability or sincerity in pursuing a course of study in the UK, this should be determined at the point of granting leave, not in setting conditions on the studies that can afterwards be undertaken. We think it particularly useful to note, in this context, the comments of Lord Justice Sedley delivering the judgment of the Court of Appeal in OO and others v Secretary of State for the Home Department in July 2008:330 [I]t is relevant to recall that the admission of foreign nationals to study here is not an act of grace. Not only does it help to maintain English as the world’s principal language of commerce, law and science; it furnishes a source of revenue (at rates which, by virtue of an exemption from the Race Relations Act 1976, substantially exceed those paid by home students) of frequently critical budgetary importance to the United Kingdom’s universities and colleges as well as to many independent schools. We therefore find it unsurprising that the legislation and rules, correctly
326 Border and Immigration Agency, Path to Citizenship: Next Steps in reforming the immigration system (February 2008). 327 Citizenship: Our Common Bond (October 2007). 328 The Common Travel Area was first established by way of informal agreement between the British and Irish authorities, formalised in the UK by the Alien Orders of 1923 and 1925: see B Ryan, “The Common Travel Area between Britain and Ireland” (2001) 64 Modern Law Review 855–874. 329 UKBA, Strengthening the Common Travel Area (July 2008). See also the government’s response to the consultation, released 15 January 2009. 330 [2008] EWCA Civ 747 at para 4, emphases added. Processed: 23-04-2009 22:48:33 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 164 Home Affairs Committee: Evidence
construed, do not place arbitrary or unnecessary restrictions on what foreign students can study here. It does not require evidence to remind us that it is not uncommon for a student to realise that he or she has made an unwise choice, or perhaps is being poorly taught, and to change courses or institutions with beneficial results. A rule preventing students from making such a change might well be arbitrary or unnecessary in the absence of case-specific reasons.
Clause 48—Fingerprinting of foreign criminals liable to automatic deportation 12. This provision expands upon the provisions for deportation of foreign criminals in ss 32–39 of the UK Borders Act 2007, allowing the power to take fingerprints under section 141 of the Immigration and Asylum Act 1999 to be exercised in such cases. The 2007 provisions were, of course, a response to the failure of the Home OYce to consider the eligibility of foreign prisoners for deportation at the conclusion of their sentence. Consequently, the fingerprinting measure is an addendum to a wholly makeshift scheme that was devised in response to operational errors, rather than any defect in the existing law governing deportation. The more responsible act of Parliament should be to question the continuing need for the 2007 provisions, rather than to add to them.
Clause 49—Extension of sections 1 to 4 of the UK Borders Act 2007 to Scotland 13. Sections 1 to 4 of the 2007 Act extend a detention power to designated immigration oYcials in cases where they believe a person is liable to be arrested by police. We note that although section 145 of the Immigration and Asylum Act 1999 allows the Home Secretary to apply the provisions of the PACE Codes to immigration oYcers exercising police-like powers, there has been little use of that provision thus far. Parliament should refuse to extend the powers under sections 1 to 4 of the 2007 Act to Scottish immigration oYcials until the government has taken the necessary steps to ensure that immigration oYcials exercising police-like powers are bound by the relevant PACE provisions (including the corresponding provisions in Scotland).
Part 4—Miscellaneous and General
Clause 50—Transfer of immigration or nationality judicial review applications 14. Clause 50 seeks to amend section 31A of the Supreme Court Act 1981. This section, as amended by section 19 of the Tribunal Courts and Enforcement Act 2007, blocks the transfer of any immigration or nationality judicial review to the Upper Tribunal created by the 2007 Act. 15. This restriction was imposed at the time of the 2007 Act for two main reasons. First, unlike many other areas of administrative law, immigration judicial review frequently engages fundamental rights such as freedom from torture, inhuman and degrading treatment and the right to liberty. The consequences of error for an asylum seeker include return to a country where they may face serious persecution or death. As such, judicial review by a High Court judge is often an essential safeguard for basic rights in this area. Secondly, the sheer volume of poor quality administrative decisions by immigration oYcials raises serious doubts about the capacity of an untested tribunal to provide the necessary degree of judicial scrutiny. 16. No evidence has been put forward by the government to address the concerns that originally led Parliament in 2007 to prevent the transfer of immigration cases to the Upper Tribunal. In the meantime, judicial scrutiny by the Administrative Court has continued to reveal an array of disturbing practices by immigration oYcials: see for example the decision of Mr Justice Davis in the case of Abdi and others v Secretary of State for the Home Department in December 2008 in which he found that the Home OYce had, in eVect, operated for two years an undisclosed and unlawful policy of automatic detention for foreign prisoners pending deportation:331 While the Home OYce has, to put it mildly, not covered itself in glory in this whole matter … I think the failings were in essence one of failing, promptly and directly, to confront and address a perceived legal diYculty: whether through concerns at being bearers of unwelcome news to the Ministers or through an instinct for ducking an apparently intractable problem or through institutional inertia or some other reason, I cannot really say. I am not prepared, however, to conclude on the material before me that there was a conscious decision within the Home OYce to operate tacitly an unpublished policy, known to be highly suspect, in the hope it would not be uncovered or, if it was uncovered, against a plan, if the courts intervened, to present that reversal as being due solely to the courts or the Human Rights Act. 17. That UK Border Agency was operating an unlawful policy of detention for two years as a result of institutional inertia rather than some malign intent is hardly comforting. Cases such as Abdi are indicative of serious and continuing flaws in immigration and asylum operations and policy. Indeed, the fact that the
331 [2008] EWHC 3166 (Admin) at para 205. Processed: 23-04-2009 22:48:33 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 165
Home Secretary lost four out of five of the immigration cases that reached the House of Lords in 2008332 shows something of the extent of the problem. In JUSTICE’s view, now is clearly not the time to transfer immigration cases from the Administrative Court to an administrative tribunal untested in such matters. February 2009
Supplementary memorandum submitted by Ahmad Shad 1. As we all know that, the Immigration and Citizenship Bill the Next Step in Reforming of Immigration system is a follow-up of the review on British citizenship conducted by Lord Goldsmith QC, as requested by the Prime Minister Gordon Brown. And one of the key points of Lord Goldsmith’s review was “to consider the diVerence between the diVerent categories of British nationality. “In his Citizenship Review Lord Goldsmith has recommended that all British nationals should be given an entitlement to register as full British citizens to reduce the number of British nationalities and also so that equal rights are accorded to all British nationals”. 2. Although, it is a fact that Lord Goldsmith cited the Joint Declaration with China is the main reason not to extend this recommendation (full Citizenship rights) for British National (Overseas), as he wrote in report: “…this would be a breach of the commitments made between China and the UK in the 1984 Joint Declaration on the future of Hong Kong, an international treaty between the two countries; and that to secure Chinese agreement to vary the terms of that treaty would not be possible. On that basis, I see no alternative but to preserve this one anomalous category of citizenship.” however, it is critically important to highlight the fact that the Joint Declaration between China and the UK is mainly for the indigenous Chinese population of Hong Kong BN(O) nationals, it makes no provision for the ethnic minorities of Hong Kong. (eg Indian, Pakistani, Nepali descent) 3. Its mean the reason Lord Goldsmith cited for not to extend full citizenship recommendations for British National (Overseas), does not apply to Hong Kong ethnic minorities of BN(O) holders. 4. And if UK grants full British Citizenship to this unique particular group of otherwise stateless British Nationals, the treaty of 1984 Joint Declaration between China and UK shall not be breached. 5. Creation of the category of British Nationals (Overseas) after the return of Hong Kong to China in 1997 created a unique form of British citizenship which did not accord such persons the same status as other British citizens in that it does not allow an unqualified right to enter and remain in the UK. And because of these Immigration restrictions the UK government is not fully complying with obligation under International Covenant on Civil and Political Rights (ICCPR) & Protocol 4 to the European Convention of Human Rights (ECHR).
1. Part III, Article 12 1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. 2. Everyone shall be free to leave any country, including his own. 3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant. 4. No one shall be arbitrarily deprived of the right to enter his own country.
2. Protocol 4 to the European Convention of Human Rights (ECHR) Article 3. Prohibition of expulsion of nationals 1. No one shall be expelled, by means either of an individual or of a collective measure, from the territory of the State of which he is a national. 2. No one shall be deprived of the right to enter the territory of the state of which he is a national. 6. Therefore, In the case of ethnic minorities of Hong Kong BN(O) holders, there’s no legitimates reasons (or excuses) for the United Kingdom Government to refuse to comply with above obligations, and deny entitlement to register as full British citizens to this particular group of Solely British Nationals, this can be confirm with Lord Goldsmith, he already recommend full British citizenship for British nationals, Lord Avebury, Equality & Human Rights Commission of United Kingdom.
332 Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39; Chikawamba v Secretary of State for the Home Department [2008] UKHL 40 ; EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41; EM(Lebanon) v Secretary of State for the Home Department [2008] UKHL 64; Processed: 23-04-2009 22:48:33 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 166 Home Affairs Committee: Evidence
7. The new Bill would have been an excellent chance to put these recommendations into place and to restore full citizenship rights to otherwise stateless Hong Kong Ethnic minorities of Solely British nationals. However, it is apparent that the question of the diVerent categories of British nationals has not been addressed in the Bill at all. 8. UK Government promised all existing immigration laws will be replaced with a clear, fair to all, consistent and coherent legal framework for the control of borders and management of migration. But violation of Human Rights of otherwise stateless British Nationals (Overseas) holders, of Hong Kong ethnic minorities has not been addressed in the Bill at all. March 2009
Supplementary memorandum submitted by BritishHongKong
UPDATES TO BRITISHHONGKONG’S SUBMISSION TO THE HOME AFFAIRS COMMITTEE 1. “BritishHongKong” is a registered organisation in Scotland, which advocates the restoration of full British citizenship, European Union citizenship and other basic human rights to “British Nationals (Overseas)” of all ethnicities. 2. We are disappointed by Her Majesty’s Government’s reluctance to resolve the problems of racial discrimination and lack of human rights in the UK’s nationality laws. We sincerely hope that the Borders, Citizenship and Immigration Bill will uphold justice for those British nationals who have been deprived of the unconditioned right to enter the UK and access to full British citizenship.
The Degrading of Human Dignity
3. We want to point out that before the creation of the British Nationality Act 1981, all British nationals held the same status as “Citizens of the United Kingdom and Colonies” (CUKC); and before the commencement of the Commonwealth Immigrants Act 1962, all of them could freely enter the UK without subject to immigration control. 4. However, these British nationals were forcibly separated by the British Nationality Act 1981 (and subsequent amendments) into six categories: — “British Citizens” (BC), — “British Nationals (Overseas)” (BN(O)), — “British Overseas Territories Citizens” (BOTC), — “British Overseas Citizens” (BOC), — “British Subjects” (BS) and — “British Protected Persons” (BPP). 5. Although all these people used to hold the same status, this categorisation only allows the first of the six groups to retain the status as full citizens of the UK with the right of abode in the UK, while the other five groups are deprived of the basic civil right to enter the UK freely and are placed under immigration control. This degrading of human dignity from some selected British nationals is unfair, unjustified, and is heavily based on race and ethnic origin. 6. Anne Dummett, the founder of the Joint Council for the Welfare of Immigrants (JCWI), has described the British Nationality Act 1981 as “an over-complicated scheme based on old categories, whose eVect is to give full British citizenship to a group of whom at least 96% are white people, and the other four forms of nationality to groups who are at least 98% non-white.” [1] 7. In other words, the British Government had limited the right to settle in the UK to a predominantly white group, while keeping other groups of predominantly non-whites out of the UK. The British Government’s policy of keeping those non-white British nationals out of the UK is a form of racial segregation, and has the same nature as the Apartheid policy that kept non-white South African nationals in Bantustans. This is totally incompatible with Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination, which the British Government had ratified in 1969. 8. We would like to emphasise that the equal status as full citizens of the UK and the right to freely enter the UK were forcibly removed from some British nationals with no justifiable reasons, and we therefore demand that full British citizenship (with the right of abode in the UK) be restored to those British nationals. Processed: 23-04-2009 22:48:33 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 167
Continuing the Infringement of Human Rights 9. The right to enter one’s country of nationality is a basic human right guaranteed under Article 12 of the International Convention of Civil and Political Rights (ICCPR) and Protocol 4 of the European Convention of Human Rights (ECHR). 10. It is apparent that the British Government is aware that the UK is currently in breach of these human rights instruments, as it has admitted that “in the absence of any change in the arrangements for issuing British passports and the relevant provisions of our immigration legislation, it is not possible to ratify” [2] Protocol 4 of the ECHR. 11. However, although the UK has signed these human rights instruments more than 30 years ago and the Government is aware that legislative changes are necessary, it is appalling that the Government is “not proposing to make any changes in relation to the status of British nationals” [3] and thus have decided to continue infringing on the human rights of its own nationals by denying them entry into the UK. 12. To add insult to injury, more than 400 million European citizens are already guaranteed these very same rights to live and work in the UK under European Union treaties, which have been present since the 1970s. 13. Given that these rights are already enjoyed by hundreds of millions of foreign nationals, there is no justifiable reason for the UK to continue to deny these rights to British nationals, whose number is far less than the number of European citizens. Therefore, it would only seem logical to make immediate legislative changes to restore the right of abode in the UK to all British nationals.
No Genuine Entitlement to Full British Citizenship 14. In response to a question on whether the Borders, Citizenship and Immigration Bill would include provisions to give British nationals who are not British citizens’ entitlement to full British citizenship, the Government claimed that “there is [already] provision with the nationality law for […] those with another form of British nationality to be registered as ‘full’ British citizens. If a person lives in the United Kingdom for a period of five years, and meets certain residence requirements, he or she can apply for registration.” [4] 15. This pathway for British nationals who are not British citizens to register as full British citizens is set out in Section 4 of the British Nationality Act 1981. However, it comes with lots of prerequisites. In addition to the requirement that the person has to live in the UK for a period of five years, he/she has to be free from immigration time constraints during the 12 months immediately before application, satisfy the good- character requirement etc. 16. This pathway to full British citizenship is by no means an entitlement. An entitlement should be unconditional, and a pathway through which a British national is required to satisfy many conditions in exchange for the full British citizenship does not constitute an entitlement. 17. Ironically, British nationals who are not full British citizens are subject to immigration control in the UK. If they are not granted certain residence permits before entering the UK, they could be deported after six months. When that happens, there is simply no way for them to “live in the United Kingdom for a period of five years, and meet certain residence requirements.” 18. This absurdity needs to be seriously considered, and a genuine, unconditional entitlement should be provided for British nationals to be registered as full British citizens. 19. Her Majesty’s Government has repetitively argued that restoring full British citizenship to the people of Hong Kong would breach the Sino-British Joint Declaration of 1984. However, the House of Commons concluded that the issue of British nationality of ethnic Chinese is not part of the Sino-British Joint Declaration in 1989. Any change of our status of British nationality is not a breach of the Treaty [5]. Besides, the laws of British nationality allow dual nationality. British National (Overseas) with Chinese nationality should not be regarded as a barrier to grant full British Citizenship [6].
Examples of other European Countries 20. The unfair categorisation of British nationals has been criticised by both the European Commission of Human Rights [7] and the United Nations Committee on the Elimination of Racial Discrimination [8] as having elements of racial discrimination. 21. Some might attribute this byzantine complexity in the British nationality law to Britain’s history as a colonial empire. However, France also had similar history as a colonial empire, but it only has one kind of French citizenship nowadays. A person born in Metropolitan France and a person born in a French overseas territory are both regarded equally as full French citizens, and both of them have the right to reside in France and to full EU citizenship. Meanwhile, Denmark and the Netherlands have similar policies as in France. It is apparent that the British nationality policy is not compatible with the human right standards attained by other European countries. Processed: 23-04-2009 22:48:33 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 168 Home Affairs Committee: Evidence
22. The situation of Hong Kong is comparable to that of Macau. Macau was administered by Portugal until it was transferred to China in 1999. However, all people born in Macau during Portuguese administration have full Portuguese citizenship, and can keep that status even after 1999, with Chinese nationality. The full Portuguese citizenship gives the people of Macau the right of abode in Portugal and full EU citizenship.
Conclusion
23. It is therefore with great regret to the current government insensitivity and inability to resolve this matter that we must re-present our case on fighting for the restoration of full British citizenship, European Union citizenship and other basic human rights to “British Nationals (Overseas)” of all ethnicities. The circular argument of not-ratifying Protocol 4 to the ECHR to deny full rights to all British nationals is not tenable, and we recommend the UK should follow examples from the other European countries where also had a colonial legacy to stop the nationality segregation by categories.
References [1] Anne Dummett, The New British Nationality Act, British Journal of Law and Society, Vol 8, No 2. [2] House of Lords—Answer to Question HL349 [3] House of Lords—Answer to Question HL1301 [4] Foreign and Commonwealth AVairs Committee—Answer to Question 244735 [5] Foreign AVairs Committee: Hong Kong, Second Report, 1988/1989 HC281, Page xviii. [6] There is no statement regarding to the matter of dual nationality. Nevertheless, there is statement on British Passport says, “…A person having some connection with a Commonwealth of foreign country (eg by birth, by descent through either parent, by marriage or by residence) may be a national of that country, in addition to being a British national. Acquisition of British nationality or citizenship by a foreigner does not necessarily cause the loss of nationality of origin.” [7] East Asian Africans v UK (1981) 3 EHRR 76: “… the legislation applied in the present cases discriminated against applicants on the grounds of their colour or race”. [8] Concluding observations of the Committee on the Elimination of Racial Discrimination : United Kingdom of Great Britain and Northern Ireland. 28/03/96. CERD/C/304/Add.9 [9] Foreign AVairs Committee: Hong Kong, Second Report, 1988/1989 HC281, Page xviii. March 2009
Supplementary memorandum submitted by Immigration Law Practitioners Association (ILPA) 1. ILPA is a professional association with some 1,000 members (individuals and organisations), who are barristers, solicitors and advocates practising in all aspects of immigration, asylum and nationality law. Academics and non-government organisations working in this field are also members. ILPA aims to promote and improve the giving of advice on immigration and asylum, through teaching, provision of resources and information. ILPA is represented on numerous government, court and tribunal stakeholder and advisory groups.
Introduction
2. ILPA has to date produced several briefings on the Borders, Citizenship and Immigration Bill. Many of these relate to discrete provisions in the Bill, and amendments that have been tabled to those provisions. These briefings are available in the “Briefings” section on our website at www.ilpa.org.uk and several of them are highlighted in the body of this submission so that Committee members may choose to consider briefings on specific areas of interest to them. 3. In this submission, we highlight in short form outstanding matters of interest and concern, which have been raised in the debates to date on the Bill—particularly at Committee stage in the House of Lords.333
333 The Bill was due to have, and almost, completed Committee stage on Wednesday 4 March 2009. 334 Liam Byrne MP, Minister for Immigration, Citizenship and Nationality Hansard, HC UK Borders Bill Committee, FiFth Sitting 6 Mar 2007 : Column 142 Processed: 23-04-2009 22:48:33 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 169
Regulation,Oversight and Accountability of UK Border Agency Powers
4. When establishing the agency status of what was the Immigration and Nationality Directorate, the Government insisted on the need for its powers to be matched by “much stronger oversight”,335 “transparency”336 and “accountability”337. In this Bill, the Government is introducing revised powers to be able to apply PACE Codes of Practice to immigration oYcials.338 However, it first took such powers in 1999339 and has barely acted upon these. The application of PACE to oYcials exercising extensive policing and police-like powers is long overdue, and since private contractors increasingly exercise some of these powers PACE should be extended to them. 5. The Government has stated that it intends to make an order under powers in the Bill “to bring together in one place the PACE powers and safeguards to be applied in relation to the UK border force and its immigration functions”.340 However, the Government says that contractors would be excluded, as would certain “administrative immigration processes”.341 If the Government’s previously stated commitments to ensuring stronger oversight and accountability are to be achieved, it is high time that those exercising policing and police-like powers are subject to police-like standards. 6. Related concerns arise in connection with this Bill as to the role and remit of the Independent Police Complaints Commission342 and resourcing of the Chief Inspector of the UK Border Agency.343 Independent investigation of serious complaints needs to be fully extended throughout the UK and to places overseas where the UK Border Agency operates, including at juxtaposed controls. 7. For further information please see ILPA Committee stage (HL) briefings on: — Part 1 Clause 22 (Police and Criminal Evidence (PACE) powers). — Part 1 Clause 22 (complaints and misconduct, IPCC jurisdiction).
Naturalisation
8. The Government is proposing to introduce complex provisions to make unnecessary changes to the current naturalisation provisions.344 Committee stage has not provided any greater clarity as to the purpose or meaning of several of the terms and provisions in the proposed new naturalisation clauses. Key problems include: a. The proposed new “probationary citizenship” stage is unnecessary and adds complication since it is nothing more than a new name for “temporary leave” which is also a stage on the route to citizenship. b. Those who do not wish or cannot (eg because their current citizenship prohibits dual nationality) naturalise as British citizens would be subjected to extended delays on their route to “permanent residence”. c. The length of time it would take for a migrant to complete the route to citizenship would, for many, be made more lengthy, variable and very uncertain. This uncertainty would be compounded by the proposal to extend the point before which migrants can access benefits and services (relating to welfare, education and housing). d. The provisions contain extensive powers for the Government to substantially lengthen the route to citizenship by regulations.345 9. Stated objectives of the Government in creating a new naturalisation process (ensuring migrants seeking citizenship speak English, obey the laws and pay taxes346) do not require any change to the current process. Despite this, the Government is currently insisting on making changes by this Bill that are very complex, and with Government amendments during Committee stage347 have become even more complex.
335 Liam Byrne MP, Minister for Immigration, Citizenship and Nationality Hansard, HC UK Borders Bill Committee, FiFth Sitting 6 Mar 2007 : Column 142 336 Lord Bassam of Brighton, Minister of State Hansard, HL Grand Committee 2 Jul 2007: Column GC57 337 Liam Byrne MP, Minister for Immigration, Citizenship and Nationality Hansard, HC Second Reading 5 Feb 2007 : Col 591 338 Clause 22, HL Bill 15 339 Section 145, Immigration and Asylum Act 1999 340 Lord West of Spithead, Minister of State Hansard, HL Committee 25 Feb 2009 : Column 263 341 Lord West of Spithead, Minister of State Hansard, HL Committee 25 Feb 2009 : Column 267 342 Clause 28, HL Bill 15 343 Clause 26, HL Bill 15 gives a much extended remit to the inspectorate, but it has not been made clear that the inspectorate is to be adequately resourced: see exchange between Baroness Hanham and Lord West of Spithead at Hansard, HL Committee 25 Feb 2009 : Column 292 344 Part 2, clauses 37–39, HL Bill 15 345 Clause 37, HL Bill 15 346 see Home Secretary’s Foreword to The Path to Citizenship: next steps in reforming the immigration system, July 2008, p4 347 Amendment Nos. 50, 53, 57, 60, 64–76 and 106–108 on the Marshalled List for HL Bill 15 in Committee Processed: 23-04-2009 22:48:33 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 170 Home Affairs Committee: Evidence
10. For further information please see ILPA Committee stage (HL) briefings on: — New Clause before Clause 37 (probationary citizenship). — Clause 37 (probationary citizenship). — Clause 37 (absences). — Clause 37 (continuous employment). — Clause 37 (temporary admission and pending refugee/human rights claims). — Clause 38 (absences and family association). — Clause 39 (qualifying period: activity condition). — Clause 39(2) (qualifying period: Henry VIII clause).
British Nationality 11. The need to address longstanding anomalies in British nationality law remains pressing, and in significant part was highlighted by the Lord Goldsmith Citizenship: our common bond enquiry last year.348 However. The next step after this Bill is to be immigration simplification, so the Bill is likely to provide the last opportunity for some considerable time to address a range of anomalies and injustices. The Government has indicated that it would, before Report, be looking closely at several of these to see if it was possible to address them now.349 12. For further information please see ILPA Committee stage (HL) briefings on: — Part 2 Clauses 40 and 42 (children born to members of armed forces). — Part 2 Before Clause 41 (British National (Overseas)). — Part 2 Clause 41 (descent through the female line). — Part 2 (the Ilois: Chagos Islanders). — Part 2 (stateless children of British nationals). — Part 2 (stateless children of British citizens). — Part 2 (acquisition by registration: minors). — Part 2 (section 4B: modalities of registration). — Part 2 (acquisition by registration: British nationals, Amendment 95) [see also briefing listed below]. — Part 2 (legitimacy). — Part 2 (acquisition by birth or adoption: children or British nationals). — Part 2 (acquisition by registration: British nationals, Amendment 101) [see also briefing listed above]. — Part 2 Clause 43 (good character: war wives and widows).
Common Travel Area 13. The Government insists that it is maintaining the Common Travel Area,350 yet it is unclear what it means by that. Currently, the Common Travel Area is established in immigration law by the provision that “a local journey” within the Common Travel Area “shall not be subject to [immigration] control.”351 The Bill would remove this provision.352 14. For further information please see ILPA Committee stage (HL) briefing on: — Part 3 Clause 46 (Common Travel Area).
Restrictions on Studies 15. The Government says that it needs to tie foreign national students, who have come to the UK on Tier 4 of the points-based system, to a particular educational institution.353 It says this is necessary to manage sponsorship and other arrangements of the system so as to avoid abuse of Tier 4.354 16. However, the provision in the Bill355 goes much wider than this. It would allow any other restrictions on studies to be imposed. It would allow these restrictions to be imposed on any migrant with limited leave to enter or remain. For instance, workers, family members and refugees, who wished to undertake studies,
348 See http://www.justice.gov.uk/docs/citizenship-report-full.pdf 349 See Lord Brett, Minister of State Hansard, HL Committee 4 Mar 2009 : Column 737; the Minister gave similar responses to a number of amendments tabled on nationality law during that same debate. 350 Lord West of Spithead, Minister of State Hansard, HL Committee 4 Mar 2009 : Column 765 351 Section 1(3), Immigration Act 1971 352 Clause 46, HL Bill 15 353 Lord West of Spithead, Minister of State Hansard, HL Committee 4 Mar 2009 : Column 777 354 Lord West of Spithead, Minister of State Hansard, HL Committee 4 Mar 2009 : Column 777 355 Clause 47, HL Bill 15 Processed: 23-04-2009 22:48:33 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 171
could have this restricted. The Government’s opposition to amendments to limit the power in the Bill is simply that: “. . . it is usual practice for the overall architecture of the immigration system to be set out in primary legislation, with the Immigration Rules containing the detail of how the power will apply. . . . the ability to amend the Immigration Rules, rather than having to amend primary legislation, is an essential tool which is vital to ensure that necessary legislative changes can be implemented quickly and eVectively...”356 However, this suggests that the provision needs to be implemented via the Immigration Rules; and that is not correct. Hence the need to expressly constrain the power in the Bill. 17. For further information please see ILPA Committee stage (HL) briefing on: — Part 3 Clause 47 (Students).
Transfer of Judicial Reviews 18. The Bill would allow for immigration and nationality judicial reviews to be transferred from the High Court to the Upper Tribunal,357 which is the second tier of the tribunal regime established in November 2008 under the Tribunals, Courts and Enforcement Act 2007. This could mean that judicial reviews are heard by judges who do not sit in the High Court. The Bill would allow for a mandatory direction by the Lord Chief Justice and Lord Chancellor whereby a class of cases were required to be transferred, and this would allow for a position whereby all immigration and nationality judicial reviews must be heard in the Upper Tribunal. 19. The provision in the Bill is premature, coming as it does before there is any opportunity to review the capacity and competence of the tribunal to whom it is intended to allow for transfer of judicial reviews. This is contrary to the agreement reached between Government and Parliament on what became the Tribunals, Courts and Enforcement Act 2007. In the words of one, among several peers who have made similar points: “I regard [the provision] as a straightforward breach of faith with your Lordship’s House”358. The Court of Session judiciary in Scotland also regards the provision as premature. 20. For further information, please see ILPA Committee stage (HL) briefings on: — Part 4 Clause 50 (Judicial Review: Mandatory Transfer). — Part 4 Clause 50 (Judicial Review: Nationality).
Duty to Safeguard and Promote the Welfare of Children 21. The eYcacy of the provision in the Bill359 is seriously constrained by the inclusion of the words “in the United Kingdom”360, which would excuse UK Border Agency staV and private contractors from the duty to safeguard and promote the welfare of children in carrying out their duties overseas. The Government’s explanation for this is confused and inaccurate. 22. The Minister stated, referring to the duty and guidance under it, that: “Clearly, when it comes to something such as getting a visa, or anything else that applies in this country, all these rules will apply”361. This may, for instance, be significant in relation to traYcking cases, where a visa application is made to an overseas post for the purposes of traYcking a child. However, the plain wording of the provision in the Bill contradicts the Minister’s statement. Similarly,he said: “As for escorting children overseas, when it is carried out by UKBA staV or contractors, the duty will apply”362. Again, that is contradicted by the plain words of the provision. 23. On the other hand, the Minister said: “What we cannot do is require the duty to apply on the soil of another country”363. This too is inaccurate. The duty requires that the UK Border Agency, when exercising its functions shall have regard to its duty to safeguard and promote the welfare of children. The duty does not, as the Government has repeatedly made clear, introduce additional functions on the UK Border Agency. It can only, therefore, apply to children, in respect of whom the UK Border Agency is exercising functions, and only to the extent and in the context of those functions. It is no diVerent to where one of the agencies, subject to the similar duty in section 11, Children Act 2004, escorts a child overseas, in which the agency (eg a local authority, police, probation) would still be required to exercise its functions towards the child having regard to its duty to safeguard and promote the welfare of that child. 24. For further information, please see ILPA Committee stage (HL) briefing on: — Part 4 Clause 51 (Children: “in the UK”).
356 Lord West of Spithead, Minister of State Hansard, HL Committee 4 Mar 2009 : Column 777 357 Clause 50, HL Bill 15 358 Lord Kingsland Hansard, HL Committee 4 Mar 2009 : Column 794; other peers supported the position that the clause is premature (Lord Thomas of Gresford, Lord Lloyd of Berwick and Lord Cameron of Lochbroom—see Hansard, HL 4 Mar 2009 : Columns 792, 796 and 798 respectively). 359 Clause 51, HL Bill 15 360 Clause 51(1)(a) and 51(4)(a), HL Bill 15 361 Lord West of Spithead, Minister of State Hansard, HL Committee 4 Mar 2009 : Column 822 362 Lord West of Spithead, Minister of State Hansard, HL Committee 4 Mar 2009 : Column 821 363 Lord West of Spithead, Minister of State Hansard, HL Committee 4 Mar 2009 : Column 821 Processed: 23-04-2009 22:48:33 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 172 Home Affairs Committee: Evidence
25. At Committee stage, peers expressed profound concern at the news that, just as the Government’s provision to safeguard and promote the welfare of children was being debated, the Government was withdrawing funding from the Refugee Council’s Children’s Panel364. The Minister stated: “We have agreed to fund [the Panel] to carry out substantially the same services as in previous years; the only significant change is that we will no longer fund it to liaise with local authorities on age assessment”365. The reason given was that the UK Border Agency will deal direct with social workers. The UK Border Agency already deals direct with social workers on age assessment; and this has caused significant problems in relation to age assessment as explained in the ILPA report When is a child not a child?366, which report also explains the need for independence in age assessment which cannot be provided by local authorities367. Without the Panel, many children wrongly assessed by social workers and the UK Border Agency, and held in detention, would not have had their wrong age assessment challenged. This would leave children detained, and wrongly treated as adults. 26. For further information on age disputes, please see ILPA Committee stage (HL) briefing on: — Part 4 Clause 51 (Children: age disputes).
Trafficking 27. The oVence of traYcking in UK law368 is inadequately drafted as it does not capture the traYcking of babies and young children. The Government acknowledges this369, but has suggested that correcting this lacuna can be left to the Immigration Simplification Bill370, which is expected in October 2009 but only in draft. There is no good reason why this lacuna should not be filled now. 28. For further information, please see: — ILPA Second Reading (HL) briefing on Baby TraYcking: Borders, Citizenship and Immigration Bill. — ILPA further submission to Home AVairs Committee Enquiry into TraYcking (March 2009)371. 29. At Committee stage, peers also pressed the Government about the plight of children traYcked to work in cannabis factories in the UK. The Minister’s response was: “If the police were to encounter children in that situation, they would pursue the culprit who was doing and safeguard the children they found”372. However, this needs further attention because, despite CPS guidance, traYcked children have continued to be prosecuted in these circumstances373. 6 March 2009
Supplementary memorandum submitted by the Refugee Council
1. Introduction 1.1 The Refugee Council was pleased to make a submission to the Home AVairs Committee regarding the Draft (partial) Immigration and Citizenship Bill 2008 and we welcomed the opportunity to provide oral evidence on 11 November 2008. 1.2 One of our major concerns at that time about the UK government’s proposed approach to simplifying immigration legislation was that it attempted to do too much on too tight a timescale. We strongly recommended that the government should first consolidate existing legislation, before attempting to change or simplify it. 1.3 Now the original timetable for the Simplification Project has slipped and the Borders, Citizenship and Immigration Bill (BCI Bill) is being introduced in order to pursue limited objectives that the government regards as urgent.
364 See Baroness Hanham Hansard, HL Committee 4 Mar 2009 : Columns 830 and 834; other peers raised similar concerns (Lord Avebury, Earl of Listowel, Baroness Howe of Idlicote and Baroness Miller of Chilthorne Domer, Hansard, HL Committee 4 Mar 2009 : Columns 831, 832, 832 and 835 respectively). 365 Lord West of Spithead, Minister of State Hansard, HL Committee 4 Mar 2009 : Column 834 366 A full copy of the report and an executive summary are both available in the “Publications” section of the ILPA website at www.ilpa.org.uk 367 One of the key points highlighted in the executive summary to When is a child not a child? op cit is the “potential conflict of interest between the requirement of social service departments to undertake age assessments and the obligation to provide services to children in need.” 368 Section 4, Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 369 Lord West of Spithead, Minister of State Hansard, HL Committee 4 Mar 2009 : Column 827 370 Lord West of Spithead, Minister of State Hansard, HL Committee 4 Mar 2009 : Column 827 371 This submission is available in the “Submissions” section of the ILPA website 372 Lord West of Spithead, Minister of State Hansard, HL Committee 4 Mar 2009 : Column 828 373 see http://www.newstatesman.com/law-and-reform/2008/11/cannabis-farms-children Processed: 23-04-2009 22:48:33 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 173
1.4 By taking a piecemeal approach to implementing the Simplification proposals the current Bill adds to, rather than reduces, the existing complexity of asylum and immigration law, and reduces opportunities for proper parliamentary scrutiny of the whole simplification programme.
2. Executive Summary 2.1 The Refugee Council has serious concerns about the implications of some elements of the BCI Bill for refugees and refugee protection. Our key concerns are: — Citizenship: Refugees whose need for protection is recognised by the UKBA should immediately be given permanent rights of settlement so they can rebuild their lives. They should not be faced with further hurdles such as extra years of “probationary citizenship” and should not be made to fulfil additional obligations such as doing voluntary work. — Children: Whilst the Refugee Council welcomes the duty to safeguard the welfare of children, assurances are needed that any updated guidance made to the Children Act duty will automatically update the guidance under this clause, without the need for the Secretary of State’s intervention. — Judicial Review: This should be retained in the High Court for immigration cases. — Common Travel Area: the UK government must make provision for documentation used by refugees and others with protection needs, such as stateless persons and those with humanitarian protection, by including these in the list of acceptable documentation for travel between the UK and Ireland.
3. Citizenship (Part 2) 3.1 In our earlier submission we made the following points: — Once somebody has been recognised as a refugee they should be allowed to permanently settle immediately. — Secure protection should not be something that has to be earned. — Volunteering should not be a core component of the naturalisation process and may be discriminatory. 3.2 Since this aspect of the draft (partial) Immigration and Citizenship Bill is being brought forward in this new Bill we would like to make the Committee aware of the following additional concerns: 3.3 In the scheme outlined in The Path to Citizenship, if refugees did not wish to apply for citizenship they would be forced to wait a further two years for permanent settlement. There is no reference to this in this Bill but we assume this remains the intention. We thus remain concerned that refugees who wish to settle, but not become UK citizens, will be penalised by having to wait a further two years before becoming eligible for permanent settlement in the UK. 3.4 UKBA has indicated no clear process showing how the review of a refugee’s status after five years relates to the probationary citizenship period. This is pivotal to the whole new citizenship ‘architecture’ being proposed. Refugees who receive a positive review after their initial five year period of leave ends, but who do not meet the entry requirements for probationary citizenship, will require successive periods of temporary leave until they do meet the entry requirements. This is unacceptable for refugees who are unable to return home and who are in most need of secure future in the UK. 3.5 We believe that refugees should be exempt from fee charges for naturalisation or permanent residence, whether these charges are imposed directly, through the application process, or indirectly as a result of requirements to take the English for Speakers of Other Languages with a Citizenship Context or the Life in the UK test. We are concerned that restricting access to public funds for those with temporary residence, including home fee status for further and higher education, will impact negatively on refugees. 3.6 We are additionally concerned that the “qualifying period” to become eligible for probationary citizenship only starts once leave has been granted and therefore that periods of temporary admission do not apply. Given the time it takes for some asylum applications to eventually be resolved, in many cases several years, many refugees will, in practice, wait considerably longer than the minimum of six years before being able to settle permanently.
4. Duty Regarding the Welfare of Children (Part 4) 4.1 We welcome this measure as it brings immigration oYcers into line with other public bodies by replicating the wording of Section 11 of the Children Act 2004. However, there is the need to ensure that the clause will result in the protection of children as intended. In particular, clarification is needed on the purpose and meaning of the addition of “children who are in the United Kingdom” in 51 (1) (a), as some UKBA staV work outside of the UK. We believe that the duty of UKBA staV should be consistent wherever they may work. Processed: 23-04-2009 22:48:33 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 174 Home Affairs Committee: Evidence
4.2 Also assurances are needed that any updated guidance issued under the aforementioned Children Act duty will automatically update the guidance under this clause, without the need for the Secretary of State’s intervention.
5. Judicial Review (Part 4) 5.1 Judicial review by a High Court judge has frequently proved a crucial safeguard for refugees facing the threat of unlawful detention or removal. The proposal to allow the transfer of these cases to the new Tribunal, currently prohibited for immigration cases, was part of a UKBA consultation on immigration appeals in August 2008. 5.2 Although the UK government has given assurances that the Upper Tier would be accorded the status of the High Court, it is far from clear what this would mean in practice. It does not appear to mean that a High Court judge will be present at every such case, which we would regard as a minimum requirement. Thus it is highly questionable whether this Tribunal will in fact have the status and independence of the High Court and hence whether this contentious area of law will continue to receive the anxious scrutiny it requires. 5.3 In any event, the Refugee Council believes that it is premature to be legislating for this power in advance of the immigration jurisdiction itself being transferred to the new Tribunal and without any evidence of how it is functioning.
6. Common Travel Area 6.1 The Refugee Council is concerned that there is no provision for refugees who may be travelling between the UK and the Republic of Ireland. There is no reference to the primacy of the 1951 Convention relating to the Status of Refugees, including the obligation on states to receive refugee claims. We are particularly concerned with regards to the treatment of vulnerable refugees, including children, at border posts and recommend that their interests are protected, in particular where they may be returned under the Dublin II Regulation.
7. Missed Opportunities 7.1 This Bill is being brought forward ahead of the rest of the simplification project on the premise that it contains urgent matters that require immediate legislation. However, the Refugee Council believes that many of the issues contained in the BCI Bill are far from urgent, and that there are many more pressing issues that need to be urgently addressed, including action to end the destitution of asylum seekers, enabling asylum seekers to work, and ensuring that the UK’s borders are protection sensitive.374 March 2009
Supplementary Memorandum submitted by Bail for Immigration Detainees (BID)
Bail for Immigration Detainees 1. Bail for Immigration Detainees (BID) works with asylum seekers and migrants detained under Immigration Act powers in the UK. BID provides free legal advice and information to detainees to help them to exercise their right to liberty. BID also uses research and evidence from its casework to influence detention policy and practice and to campaign for an end to arbitrary detention.
Executive Summary 2. BID welcomes the government’s commitment in clause 51 to safeguard children in the immigration system. However, it is BID’s view that detention is inherently damaging to children, and if this clause is to have meaning it must be accompanied by a commitment to end the detention of children and their families. While children continue to be detained, BID would like to see new duties in the Bill: — on the Secretary of State for Children to consider the welfare of the child before detention can continue beyond 28 days; and — on the Home Secretary to collect and publish detailed statistics on the detention of children. 3. BID is concerned that clause 50 would allow for the transfer of complex litigation on the legality of detention to a tribunal which does not have the capacity or competence to deal with such cases. We recommend that this clause is removed.
374 See the full Refugee Council briefing on the Borders, Citizenship and Immigration Bill at: http://www.refugeecouncil.org.uk/ policy/briefings/2009/borders citizenship immigration.htm Processed: 23-04-2009 22:48:33 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 175
4. BID recommends that the measures in clause 48 and clause 49 relating to foreign national ex-prisoners are used as an opportunity to examine the widely drawn automatic deportation regime introduced in the 2007 UK Borders Act. In particular, BID is concerned about the disproportionate, lengthy, expensive and routine use of detention against foreign national ex-prisoners.
Clause 51: Safeguarding Children 5. BID believes that the use of immigration detention for children is disproportionate, unnecessary and inherently harmful and that it must be ended immediately. 6. 40% of children who are detained in the UK go on to be released, their detention having served no purpose.375 7. In addition, there is no evidence that children are systematically at risk of absconding if they are not detained. A 2002 study of single asylum seekers found that 90% of those bailed complied with their bail conditions even though some knew they were due for removal from the UK.376 In our experience the risk of families absconding is even lower. 8. At a cost of £130 per day,377 the unnecessary detention of children is a shameful waste of taxpayers’ money. 9. There is considerable evidence to demonstrate that children are harmed by the very act of being detained. Academic studies show that detention is linked to post-traumatic stress disorder, major depression, suicidal ideation and self-harm in children.378 BID recommends that the immigration detention of children and their families should be ended immediately.
Safeguards 10. Government safeguards to keep children in detention safe, including ministerial authorisation after 28 days, are confusing, contradictory and do not provide adequate protection. 11. In her 2008 inspection of Yarl’s Wood, Her Majesty’s Chief Inspector of Prisons (HMIP) concluded that “there was no evidence that children’s needs were systematically taken into account when decisions to detain were made”.379 12. In February 2007, the former Immigration Minister told the Joint Committee on Human Rights that “to date I have not refused any request for extended detention”.380 13. In many cases, ministerial authorisation is granted despite serious welfare concerns. For example, in February 2009 a family BID worked with was awarded £150,000 compensation after the government admitted their detention was unlawful and had left one of the children suVering from post-traumatic stress disorder. In this case, ministerial authorisation would have been granted at 28 days but the family went on to be detained for over eight weeks in total. 14. One measure which would strengthen existing safeguards would be for the Secretary of State for Children to have oversight of decisions to detain children beyond 28 days. BID supports the amendment tabled by Lord Ramsbotham, Lord Avebury, Baroness Miller and Baroness Hanham, which would place a duty on the Secretary of State for Children to consider the welfare of the child before detention can continue beyond 28 days.381
Statistics 15. The total inadequacy of data collected by the Home OYce on the children it detains obstructs work to monitor or hold the government to account. 16. The Home OYce does not publish information on how many children are detained over a given period, the length or outcome of their detention, their ages or nationalities.
375 Home OYce, Freedom of Information Act request released 16 May 2007 http://www.homeoYce.gov.uk/about-us/freedom- of-information/released-information/foi-archive-immigration/6506-Immigration-Centre?version%1 376 South Bank University, Maintaining Contact: What happens when detained asylum seekers get bail? by Professor Irene Bruegel and Eva Natamba, June 2002 377 Hansard 11 Nov 2008: Column 973W. 378 Mares, S., & Jureidini, J. “Psychiatric assessment of children and families in immigration detention—clinical, administrative and ethical issues” Australian and New Zealand Journal of Public Health, 2004, 28, 6, pp520–526. 379 HMIP Report on an announced inspection of Yarl’s Wood Immigration Removal Centre 4–8 February 2008, August 2008 p31 380 Liam Byrne MP in Joint Committee on Human Rights, Treatment of Asylum Seekers Tenth Report of Session 2006–07 Vol 2—oral and written evidence, Q528 381 Amendment number 117A*, Borders, Citizenship and Immigration Bill [HL], Second Marshalled list of amendments to be moved in committee http://www.publications.parliament.uk/pa/ld200809/ldbills/015/amend/ml015-ii.htm Processed: 23-04-2009 22:48:33 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 176 Home Affairs Committee: Evidence
17. HMIP expressed serious concerns about data on the detention of children in her 2008 report on Yarl’s Wood: “We were concerned about ineVective and inaccurate monitoring of length of detention in this extremely important area”.382 18. In BID’s view, it is not possible for the Home Secretary to safeguard the welfare of children if she does not keep basic information such as the length of their detention. BID supports the amendment tabled by Lord Ramsbotham, Lord Avebury, Baroness Miller and Baroness Hanham, which would require the Secretary of State to collect and publish detailed statistics on the detention of children.383
Clause 50: Transfer of Judicial Review Applications 19. Clause 50 would allow judicial reviews of immigration, asylum and nationality cases to be transferred from the High Court, where judicial reviews are currently heard, to the Upper Tribunal of the Tribunals Service. 20. This provision would allow for judicial reviews of the legality of detention to be sent to the Upper Tribunal, rather than the High Court. BID is concerned that this would further reduce detainees’ access to eVective legal redress for unlawful detention. 21. Experience shows that the opportunity to litigate in the higher courts is crucial to ensuring proper scrutiny of detention policies and practices. For example, in the case of R(Abdi & Ors) v SSHD [2008] EWHC 3166 (Admin), the High Court ruled that the Home OYce’s secret policy of automatically detaining foreign national ex-prisoners was illegal. This policy had operated for over two years without being disclosed to detainees, lawyers or the courts, until litigation in the high court forced the Home OYce to make the policy known. BID is concerned that if cases are transferred to the Upper Tribunal, they will not be subject to the degree of scrutiny which led to a significant change of policy in this case. 22. In addition, as the Upper Tribunal has been operational for barely three months, and the Asylum and Immigration Tribunal continues to sit outside the new two-tier Tribunals Service, there is currently no basis to assess the Upper Tribunal’s capacity or competence to deal with judicial reviews concerning immigration or asylum cases. There is, therefore, a very real risk that if such cases are transferred to the Upper Tribunal at this stage, detainees will be denied access to fundamental rights, unjust Home OYce practice will go unchallenged, and large numbers of cases will be sent to the Court of Appeal. BID recommends that clause 50 should be removed.
Clause 48 & 49: Foreign National Ex-prisoners (FNPs) 23. Clause 48 extends the fingerprinting powers of the 1999 Immigration and Asylum Act to foreign national ex-prisoners who are subject to automatic deportation. Clause 49 extends the powers of detention at ports in the UK Borders Act 2007 to Scotland. 24. These provisions provide an opportunity to examine the impact of the automatic deportation regime which was introduced in the 2007 Act. 25. Foreign national ex-prisoners are detained for long periods, at great expense to the public. 1,701 FNPs are currently being held under Immigration Act powers, at a cost in excess of £80 million per year.384 Four out of five FNPs are held in immigration detention for, on average, over four months while awaiting deportation action.385 26. It is BID’s view that it is unnecessary and disproportionate to routinely hold people in detention for such long periods. 27. In BID’s experience, a significant proportion of FNPs have committed petty crimes such as document oVences which do not make them a danger to the public. In some cases people have established significant family life in the UK having lived here for many years with partners and children who are British citizens. Others cannot be removed because they cannot obtain travel documents or their countries of origin are too dangerous. For example, there are currently 45 Zimbabwean nationals in detention, despite the fact that UKBA is not currently enforcing returns to Zimbabwe.386
382 HMIP,Report of an unannounced inspection of Yarl’s Wood Immigration Removal Centre 4–8 February 2008, August 2008, Introduction 383 Amendment number 117, Borders, Citizenship and Immigration Bill [HL], Second Marshalled list of amendments to be moved in committee http://www.publications.parliament.uk/pa/ld200809/ldbills/015/amend/ml015-ii.htm 384 Hansard Commons Written Answers 13 January 2009: Column 721W; Costs calculated from Hansard Commons Written Answers 14 January 2009: Column 787W 385 Hansard Written Answers for 23 Oct 2008: Column 513W 386 See the case of RN (Returnees) Zimbabwe CG (2008) UKAIT 0008 in November 2008. BID was informed by UKBA at a meeting on 02/03/09 that there were 45 Zimbabwean nationals held in immigration detention. Processed: 23-04-2009 22:48:33 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 177
BID recommends that: — Home OYce policy on automatic deportation is revised to avoid disproportionate and expensive immigration detention. — Decisions to detain are made subject to automatic judicial oversight. — A statutory time limit is placed on immigration detention. March 2009
Supplementary Memorandum submitted by United Nations High Commissioner for Refugees (UNHCR) I am writing in response to the Home AVairs Select Committee’s call for updates to the written evidence that was submitted in October 2008 on the Draft Immigration and Citizenship Bill. UNHCR appreciates this opportunity to comment on those provisions of the Draft Bill that have been brought forward in the new Borders, Citizenship and Immigration Bill, introduced in the House of Lords on 14 January 2009. In undertaking this enquiry into the new Bill, UNHCR urges the Home AVairs Select Committee to ensure that the principles of international refugee protection remain a priority for the Government and that the new legislation will uphold the UK’s tradition of providing sanctuary to those fleeing persecution. UNHCR has particular concerns regarding the acquisition of British citizenship proposed by Clauses 37–39 of the new Bill. As securing legal residence is of utmost importance in the successful integration of refugees and other persons with international protection needs, UNHCR recommends that consideration is given to facilitating naturalisation. UNHCR is concerned that the requirements, as presently outlined in the Bill, may prove too diYcult for refugees or those with humanitarian protection to meet, and may therefore impair integration and access to a durable solution. UNHCR particularly wishes to draw the Committee’s attention to three specific areas of concern relating to the Bill: 1. The qualifying immigration period and the “community activity” requirement. 2. The language requirement. 3. Penalisation for illegal entry with regard to qualifying immigration status. I very much hope that the Committee will take UNHCR’s written submission into consideration in its enquiry into the Borders, Citizenship and Immigration Bill. I would be willing to provide oral evidence or further details as required.
Annex Executive Summary
UNHCR has been charged by the United Nations General Assembly with the responsibility for providing international protection to refugees and other persons within its mandate and for seeking permanent solutions to the problem of refugees by assisting governments and private organisations.387 UNHCR has previously commented on aspects of the Draft (Partial) Immigration and Citizenship Bill and wishes to comment on provisions that have been brought forward from the Draft Bill in the new Borders, Citizenship and Immigration Bill (“the Bill”), introduced in the House of Lords on 14 January 2009. UNHCR is concerned that the acquisition of British citizenship proposed by Clauses 37–39 complicates the naturalisation process; in particular, that the naturalisation requirements, as presently outlined in the Bill, may prove too diYcult for refugees or those with humanitarian protection to meet and may in fact impair integration and access to a durable solution. UNHCR particularly wishes to draw the Committee’s attention to a number of areas of concern relating to the new Bill: — The required qualifying immigration period and the “community activity” requirement: In order to restore eVective nationality and promote integration, UNHCR considers that as a matter of best practice the required period of residence in order to be eligible for naturalisation should not exceed five years in the case of refugees and those with humanitarian protection. The introduction of a probationary citizenship period would increase the total period before being eligible for citizenship to six years if a “community activity” requirement is met, and to up to eight years if it is not. UNHCR is concerned for refugees and those with humanitarian protection who may be unable to participate, or limited in the manner in which they can participate, in such activities due to having faced specific forms of persecution or ill-treatment in the past.
387 Statute of the OYce of the United Nations High Commissioner for Refugees, Annex to GA Res 428(V) (1950) (UN Doc. A/ 1775) paras [1] & [6] Processed: 23-04-2009 22:48:33 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 178 Home Affairs Committee: Evidence
— The language requirement: UNHCR agrees that language is fundamental to integration and cohesion but emphasises that refugees, unlike other migrants, have not chosen to leave their country of origin and are particularly disadvantaged. Many have had little access to education, coming from areas torn apart by conflict or having spent years in refugee camps. — Qualifying immigration status and penalisation for illegal entry: UNHCR reiterates the view that asylum seekers should not be penalised for illegal entry and reminds the Committee that such penalisation is prohibited under Article 31 of the 1951 Refugee Convention. UNHCR is concerned that penalisation for illegal entry should not operate to prolong the “qualifying immigration status” period.
I. Introduction 1. The UN Refugee Agency (UNHCR) has been charged by the United Nations General Assembly with the responsibility for providing international protection to refugees and other persons within its mandate and for seeking permanent solutions to the problem of refugees by assisting governments and private organisations.388 Article 35 of the 1951 Convention Relating to the Status of Refugees389 (“1951 Refugee Convention”) requires that States co-operate with the UNHCR in the exercise of its supervisory function. 2. In view of the OYce’s supervisory role, UNHCR’s interpretation of the provisions of the 1951 Refugee Convention and 1967 Protocol Relating to the Status of Refugees390 (“1967 Protocol”) are generally considered an authoritative view which should be taken into account by States when deciding on questions of refugee law. 3. UNHCR has previously commented on aspects of the Draft (Partial) Immigration and Citizenship Bill to the and the Home AVairs Select Committee391 and Joint Committee on Human Rights.392 UNHCR would like to take the opportunity of the second reading of the Border, Citizenship and Immigration Bill (“the Bill”) to comment on specific aspects of the provisions therein. UNHCR has particular concerns in respect of the provisions of the Bill relating to “acquisition of British citizenship by naturalisation” (Part 2, Clauses 37–39), which substitutes various provisions of the British Nationality Act 1981 (“BNA 1981”). 4. UNHCR has previously observed that securing legal residence is of the utmost importance to the successful integration of refugees and other persons with international protection needs.393 In this regard, UNHCR has noted that consideration should be given to facilitating the naturalisation of refugees and those with humanitarian protection.394 UNHCR observes that Article 34 of the 1951 Refugee Convention requires that States “expedite naturalization proceedings” and “reduce as far as possible the costs and charges of such proceedings”. 5. UNHCR is concerned that the acquisition of British citizenship proposed by Clauses 37–39 complicates the naturalisation process; in particular, that the naturalisation requirements, as presently outlined in the Bill, may prove too diYcult for refugees or those with humanitarian protection to meet and may in fact impair integration and access to a durable solution.
II. The Required Qualifying Immigration Period and the “Community Activity”Requirement 6. UNHCR considers that as a matter of best practice, the required period of residence in order to be eligible for naturalisation should not exceed five years in the case of refugees, including those resettled under the Gateway Protection Programme, and those with humanitarian protection. This is in order to restore an eVective nationality to refugees and those with humanitarian protection and to promote their full integration into society. Further, UNHCR believes that a cumulative period of the initial five years should, where relevant, include periods spent in the country whilst asylum applications are under consideration. 7. UNHCR wishes to draw attention to the case of those refugees who are resettled to the United Kingdom under the Gateway Protection Programme, the majority of whom have been recognised as refugees by UNHCR for at least five years. They have often spent decades residing in refugee camps and have been identified for resettlement because they are unable to integrate in their country of asylum, or return to their country of origin. Accordingly, the objective of resettlement is to provide these refugees with a durable and permanent solution.
388 Statute of the OYce of the United Nations High Commissioner for Refugees, Annex to GA Res 428(V) (1950) (UN Doc. A/ 1775) paras [1] & [6] 389 UN General Assembly, Convention Relating to the Status of Refugees (28 July 1951) 189 UNTS 137 390 UN General Assembly, Protocol Relating to the Status of Refugees (30 January 1967) 606 UNTS 267 391 UNHCR, “Draft (Partial) Immigration and Citizenship Bill: Submissions to the Home AVairs Select Committee in response to the Call for Written Evidence of 22 July 2008” (Oct, 2008) (“UNHCR Submissions to the HASC”), available at: http://www.unhcr.org.uk/info/briefings/responding to policy/documents/HASCopinion.pdf 392 UNHCR, “Draft (Partial) Immigration and Citizenship Bill: Submission to the Joint Committee on Human Rights” (Nov, 2008) (“UNHCR Submissions to the JCHR”) 393 UNHCR Submissions to the HASC, supra n 4, para [20], UNHCR Submissions to the JCHR, ibid, para [12] 394 Ibid Processed: 23-04-2009 22:48:33 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 179
8. UNHCR is therefore concerned with the new required qualifying immigration periods and related conditions of residence to be met by refugees and those with humanitarian protection status in order to achieve naturalisation. The provisions of the Bill would require all refugees, including those resettled under the Gateway Programme, and those with humanitarian protection to pass a qualifying period of five years and an additional “probationary citizenship” period prior to qualification for naturalisation. Applicants could apply for naturalisation after three years of probationary citizenship, or after one year if they are able to demonstrate “community involvement”.395 9. UNHCR remains of the view that it would be inappropriate to require refugees, including those resettled under the Gateway Programme, and those with humanitarian protection status to spend more than five years before being able to apply for naturalisation. The introduction of a probationary citizenship period would increase the total period of time before refugees become eligible for citizenship to six or eight years respectively depending on whether the “community activity” requirement is met. UNHCR is particularly concerned for refugees or those with humanitarian protection status who may be unable to participate in “community activities” due to having faced specific forms of persecution or ill-treatment in the past. 10. UNHCR would recommend that the “community activity” requirement include a specific exception recognising that there may be refugees or others who are unable to participate, or are limited in the manner in which they are able to participate, in any required community activity for the reasons set out above.
III. The Language Requirement 11. UNHCR agrees that language is fundamental to integration and cohesion for communities. However, in UNHCR’s view refugees, their family members and those with humanitarian protection should be given the opportunity to learn English following their arrival in the UK. However, UNHCR has previously expressed concern with respect to language requirements imposed on refugees, their families and those with humanitarian protection as a prerequisite to the acquisition of citizenship.396 Unlike other migrants, refugees and those with humanitarian protection status and their families have not freely chosen to leave their country of origin and are therefore particularly disadvantaged. Prior to their arrival in the UK, many refugees and those with humanitarian protection status will have fled from communities that have been torn apart by conflict, spent years in makeshift refugee camps, or lived in remote areas of the world where education facilities are minimal and access to English language training and the internet is limited. 12. UNHCR observes that the Bill includes a waiver in relation to certain requirements for naturalisation to be met by those that have a family connection. In this respect, those seeking naturalisation on the basis of a family connection may be exempt from demonstrating “suYcient knowledge of the English, Welsh or Scottish Gaelic Language”;397 and “knowledge about life in the UK”398 if, “the Secretary of State considers that because of A’s age or physical or mental condition it would be unreasonable to expect A to fulfil that requirement or those requirements”.399 13. Given the above precedent, UNHCR recommends the inclusion of a similar waiver for refugees, their family members and those with humanitarian protection in circumstances where it would be unreasonable to expect the language requirements to be fulfilled.
IV. Qualifying Immigration Status and Penalisation for Illegal Entry 14. UNHCR has repeatedly expressed the view that asylum seekers should not be penalised for illegal entry.400 UNHCR observes that Article 31 of the 1951 Refugee Convention prohibits States from imposing penalties on refugees “on account of their illegal entry or presence”. In this respect, the criminalisation of asylum seekers by the UK authorities for illegal entry has been the subject of UNHCR comments on a number of occasions in the recent past.401 15. In relation to acquisition of British citizenship, UNHCR is concerned that penalisation for illegal entry may operate to prolong the period in which refugees or those with humanitarian protection will be able to apply for naturalisation. As part of the requirements the Bill would require applicants to demonstrate that they “were not at any time in the qualifying period in the UK in breach of the immigration rules”.402
395 BNA 1981, Sch 1, Para 4B(3)(a)&(4)(a) respectively [as inserted by Clause 39(1) of the Bill] 396 UNHCR Submissions to the HASC, supra n 4, para [24], UNHCR Submissions to the JCHR, supra n 5, para [15] 397 BNA 1981, Sch 1, para 3(1)(d) [as substituted by Clause 38(3)] 398 BNA 1981, Sch 1, para 3(1)(e) [as substituted by Clause 38(3)] 399 BNA 1981, Sch 1, para 4(f) [as substituted by Clause 38(4) of the Bill] 400 UNHCR, “Comments on Home OYce Asylum Policy Instruction (API) on Section 31 of the Asylum and Immigration Act 1999 and Article 31 of the 1951 Convention Relating to the Status of Refugees and UNHCR third party intervention in the case of R v Asfaw [2008] UKHL 31 [2008] 2 WLR 1178”, available at: http://www.unhcr.org/refworld/docid/483d12222.html 401 See, UNHCR, “Asylum and Immigration (Treatment of Claimants, etc.) Bill, Lords 2nd Reading: UNHCR Briefing” (Dec, 2003), and UNHCR, “Comments on the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, Clause 2 Draft Guidance of June 2004” (July, 2004), available at: http://www.unhcr.org.uk/legal/position.html 402 BNA 1981, Sch 1, Para 1(2)(f) [as substituted by Clause 37(2) of the Bill]. Processed: 23-04-2009 22:48:33 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 180 Home Affairs Committee: Evidence
16. UNHCR would urge that the Bill be amended to ensure that penalisation for illegal entry does not operate to aVect the ‘qualifying immigration status’ period. March 2009
Supplementary memorandum submitted by the Migrants’ Rights Network (MRN)
Migrants’Rights Network The Migrants’ Rights Network (MRN) was established in December 2006. We work to support migrant community organisations and organisations working with migrants, on issues related to employment, the community, access to public services, and on other matters which have consequences for migrants’ rights and social justice. We work within a framework of discussion, sharing of experiences, promotion of research, policy analysis and lobbying and campaign activities. Currently over 1800 organisations and individuals participate in MRN’s policy discussion and information exchanges.
Executive Summary Our primary concern—and the focus of this briefing paper—is the impact of the Part 2 of the Bill, outlining a reform of the naturalisation process. The changes proposed would introduce significant new barriers to migrants wishing to become British citizens. The time taken to become a British citizen would be lengthened from a standard five years to eight years (and from three to five years in the cases of spouse/ civil partner applications), in a new “probationary citizenship” period. Migrants would be expected to remain in continuous employment throughout their “probationary citizenship”, despite continuing to have no access to non-contributory public benefits in the UK. The Bill would introduce new restrictions on the types of leave which would qualify in migrants’ journey towards citizenship, and restrict the amount of time migrants can spend outside the UK if they want to move towards naturalisation. MRN has serious concerns about the rationale and impact of the measures proposed in this Bill in relation to citizenship, as detailed below. Consultation and briefings with migrant community groups and campaigning organisations have informed the perspectives referred to in this submission where possible.
Putting into Practice “Earned Citizenship” The Bill would put into practice the government’s notion of “earned citizenship”—a reworking of the naturalisation process for foreign citizens. This concept was coined by Labour ministers Ruth Kelly and Liam Byrne in 2007403 during the period of the Lord Goldsmith Review into the meaning and significance of British citizenship.404 The Home OYce Green Paper The Path to Citizenship, released in February 2008, laid out Government plans for a new “earned citizenship” process which would aim to “reinforce our shared values”.405 It proposed, however, pursuing these “shared values” by placing a heavier burden on migrants to “demonstrate a more visible and a more substantial contribution to Britain” and withstand a longer and tougher journey towards naturalisation.406 The new strategy rested on the introduction of a new “probationary citizenship” period, in addition to making further restrictions to the path to citizenship for migrants. The proposal failed to address the need for Britain to better meet its responsibilities to support and accommodate migrants, undermining Government claims that this would be an even-handed measure. MRN believes the “earned citizenship” proposals were, and are, misleading and unfair. The rationale behind “earned citizenship”—that it is right to increase the demands on migrants already living and working here—ignores the vital ongoing contributions made by migrants to the UK. Migrants shape at every level the dynamic development of British economy, society and culture, in both visible and invisible, but no less essential, ways. There is no evidence to suggest that they do not value the opportunity to live and work in the UK, or that they lack a sense of belonging and appreciation of the UK, despite the costs and barriers they already face.407 Through the earned citizenship measures proposed in the Borders, Citizenship and Immigration Bill, we would see many of the most hard-working and committed people living and working
403 Ruth Kelly and Liam Byrne, Free Thinking, 2007 http://fabians.org.uk/index.php/2007091583/Publications/Freethinking- Papers/A-Common-Place.html 404 Citizenship: Our Common Bond: Lord Goldsmith QC Citizenship Review http://www.justice.gov.uk/docs/citizenship- report-full.pdf 405 Jacqui Smith in The Path to Citizenship, February 2008: http://www.ukba.homeoYce.gov.uk/sitecontent/documents/aboutus/ consultations/closedconsultations/pathtocitizenship/pathtocitizenship?view%Binary 406 http://www.ukba.homeoYce.gov.uk/sitecontent/documents/aboutus/consultations/closedconsultations/pathtocitizenship/ pathtocitizenship?view%Binary 407 See: Immigration and social cohesion in the UK: The rhythms and realities of everyday life, London Metropolitan University, July 2008 http://www.jrf.org.uk/publications/immigration-and-social-cohesion-uk and Beyond Naturalisation: Citizenship policy in an age of super mobility Institute for Public Policy Research, March 2008 www.justice.gov.uk/docs/beyond- naturalisation.pdf Processed: 23-04-2009 22:48:33 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 181
in the UK subjected to longer periods of insecurity. We believe that the Government should instead focus on enabling, rather than impeding, migrants’ movement towards citizenship, in order to bring them to a point where they can make long-term plans for their lives in the UK.
Introduction of “Probationary Citizenship” Currently, applicants for naturalisation must be resident in the UK for a minimum of five years before applying for British citizenship, at least 12 months of which the applicant should have held indefinite leave to remain or “settlement”. Spouses or civil partners of British citizens must be resident in the UK for a minimum of three years before making a citizenship application. Under the provisions in this Bill, foreign nationals from outside the EEA would be required to be resident in the UK for an additional temporary period of between one and three years, called “probationary citizenship”;408 in eVect extending their full “qualifying period” for citizenship from a standard five years to eight years. For those applying as a spouse or civil partner of a British citizen, the full qualifying period would be extended from three to five years. As a result, the UK would introduce one of the longest “paths to citizenship” in Europe.
Permanent residence Under the new provisions it would remain possible for people to move from temporary to permanent residence in the UK without naturalising as a British citizen. However, this would be actively disincentivised, aiming to reduce the numbers of migrants who, for widespread reasons, may settle in the UK but exercise their right not to take up British citizenship. Such migrants are seen by ministers as “languishing in limbo”.409 New provisions would make it significantly more diYcult to become a permanent resident in the UK than a British citizen. Currently, migrants can apply for indefinite leave to remain (ILR, or “settlement”), usually after between two and five years residence in the UK, and dependent on the type of temporary visa they have held. The new system, as indicated by Home OYce policy papers, would require migrants to pass from temporary residence into probationary citizenship, before applying for permanent residence. In what would appear to be a penance for their decision to become permanent residents rather than citizens, migrants would be required to spend a minimum of three years in probationary citizenship, in contrast to the minimum one year as a probationary citizen for those moving towards British citizenship.410 Overall, “probationary citizenship” would eVectively act as an extension to the current paths to citizenship or settlement, during which migrants would be expected to demonstrate their commitment to the UK according to the “earned citizenship” rationale. Government policy papers have made clear that migrants would be expected to work during this additional period, but would have no access to non- contributory benefits and, if they fall foul of the rules, could be expected to begin the naturalisation process again from the beginning. The Government claims that “probationary citizenship” would act as a test of migrants’ values and commitment to the UK; however the punitive language and rationale behind this measure is likely to generate only resentment and a sense of unfairness, by increasing the insecurity of migrants’ position in the UK. The features of Probationary Citizenship under provisions within the new Bill which most concern us are:
“Continuous employment” during Probationary Citizenship Under the new Bill, applicants for citizenship would be required to show they have been in ‘continuous employment’ for the entire period of their “probationary citizenship”—up to three years. This will put intense pressure on all economic migrants and refugees, particularly within the context of ongoing recession and increasingly competitive UK job markets. We are extremely concerned that migrant workers who are made redundant or have a short break between jobs would fall foul of the rules and be required to begin their journey to citizenship again—a possible further eight years. Migrant domestic workers, whose visas are tied to work for specific employers on an annual basis, would find their dependency on employers—and therefore liability to exploitation—severely increased. It is unclear what requirement would be made of refugees here. Providing proof of continuous employment would provide additional diYculties for many migrants, particularly those who have been exploited or experienced problems with their employers9. We would be concerned that, if employers neglected to secure proper contracts of employment or failed to make National Insurance or tax contributions on behalf of their workers, migrants undergoing probationary citizenship
408 Under these proposals there would be no Indefinite Leave to Remain stage in the journey to citizenship. Applicants would progress straight from temporary leave to probationary leave, a new temporary category. 409 Jacqui Smith, quoted in The Times, 21 February 2008 http://www.timesonline.co.uk/tol/news/politics/article3405621.ece 410 The Path to Citizenship: Next steps in reforming the Immigration System. Government Response to the Consultation. July 2008 UKBA, http://www.ukba.homeoYce.gov.uk/sitecontent/documents/aboutus/consultations/closedconsultations/ pathtocitizenship/ Processed: 23-04-2009 22:48:33 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 182 Home Affairs Committee: Evidence
might be unable to prove their employment and subsequently penalised. This is an unrealistic and unnecessary requirement which would lead to intense stress on the part of migrants and have no conceivable benefit.
“Activity condition” during Probationary Citizenship
The Bill proposes that the probationary citizenship period could be reduced from three years to a minimum of one year (or from two years to one year in the case of spouse/civil partner applications) if migrants fulfil an “activity condition”, ie “participate otherwise than for payment in prescribed activities”. It is not clear what would qualify as an “activity condition”, although it is likely that this would refer to volunteering in local communities according to Government stipulations. We criticised the proposal of coerced voluntary activity at the Green Paper stage for being culturally specific and demanding conformity to a prescribed notion of “community engagement”, with the potential to penalise against migrants unable to meet the necessary criteria.411 From the top-earners to those struggling to receive minimum wage in low-paid work, the pressures of working life in the UK make it diYcult for many (both migrants and British citizens) to undertake additional voluntary responsibilities. Within the context of financial crisis and increasing instability in the British job market, undertaking additional voluntary activities on top of making ends meet is increasingly diYcult for many to do. Despite these barriers, many migrants do contribute locally, whether in formally or on an ad hoc basis such as building positive local relations or providing support to neighbours. Introducing an incentivised and formal “activity condition” into the naturalisation process would discriminate against those migrants who lack the time, energy or opportunity to do so. For economic migrants, most of whom are required to remain in full-time employment during their time in the UK, it is diYcult to find the time and energy to volunteer in a formal manner. Many highly skilled migrants, working long hours in high-pressure and demanding environments as doctors, nurses, architects or accountants, are unlikely to be able to engage in additional voluntary activities. Migrant domestic helpers, on the other hand, typically work at least 16 hours per day within private households, meaning that the time and freedom to volunteer is virtually non-existent. This requirement would additionally disadvantage migrants who are physically impaired or ill, women with children or other dependents, or those who find opportunities to volunteer are limited in their local area.
Restricted access to public services and benefits during Probationary Citizenship
The majority of migrants who currently reach the stage of applying for citizenship have been paying taxes and National Insurance contributions throughout a minimum of the five-year qualifying period, and would be required to continue to do so throughout a new probationary citizenship period. The Bill does not outline details of migrants’ entitlements to public services and benefits during probationary citizenship—however we are aware from previous policy papers that the Government plans that restrictions on accessing non- contributory benefits, social assistance, local authority housing or homelessness assistance will continue throughout probationary citizenship.412 We are extremely concerned about the implications of an extended period of temporary residence with no access to mainstream benefits. Migrants who become unemployed or suVer a family breakdown during this period could find themselves supported and at risk of illness, destitution and homelessness with no state support. In the context of a national financial crisis, likely to increase the vulnerability and instability of many migrants in the UK, such restrictions will have an even greater impact.
Concerns about Retrospective Application of Measures
As the Bill is still in the early stages, and no secondary legislation has been released, we are not aware of any Government intentions to implement transitional measures, easing the impact on those migrants who have already begun their journey towards citizenship under the existing framework. In the case of any changes to the naturalisation process, concessions must be made for those migrants currently living and working in the UK, who have already begun their journey towards citizenship under the understanding of the current rules.
411 The Path to Citizenship: Comments on the Home OYce Green Paper, Migrants Rights Network, 25 March 2008 http:// www.migrantsrights.org.uk/files/briefingpaper/pathtocitizenship.pdf 412 The Path to Citizenship: Next Steps in Reforming the Immigration System: Government Response to Consultation, Home OYce UK Border Agency July 2008. Processed: 23-04-2009 22:48:33 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 183
Briefings/Consultations This submission draws on briefings/consultations with the following organisations/groups: — Kalayaan. Kalayaan is a charity which works with migrant domestic workers (MDWs) who are in the UK. See their briefing on the Bill at: www.kalayaan.org.uk. — Kanlungan Filipino Consortium. The Kanlungan Filipino Consortium works in London to support Filipino migrants. — Highly Skilled Migrants Programme (HSMP) Forum “HSMP Forum” is a campaign group, formed after the 2006 decision by Government to apply new qualifying criteria for Highly Skilled Migrant Programme (HSMP). See their briefing on the Bill at: www.hsmpforumltd.com/ submission to jchr.pdf — UNISON Overseas Nurses Network (ONN). The ONN is based in Glasgow, providing support to migrants working in the healthcare sector in Scotland. March 2009
Supplementary memorandum submitted by Liberty
Introduction 1. The Government’s zeal for reform of the criminal justice system, is perhaps only matched by its unchecked enthusiasm for piecemeal reform of immigration and asylum law. A partial (draft) Immigration & Citizenship Bill was first published in July 2008 and Liberty gave written and oral evidence to the HASC at the time. Liberty is relieved that several unwelcome reforms which featured in the draft Bill have been removed from the present Bill. We are however, not convinced that these proposals have been dropped altogether. We understand that the Government intends to introduce an Immigration Simplification Bill towards the end of this parliamentary session.413 2. Turning to the present Bill, Liberty is principally concerned with the roll out of invasive customs powers to untrained and unaccountable immigration oYcials (Part 1), and reform of the naturalisation process for migrants (Part 2). Before detailing and questioning the specifics of these proposals we would like highlight the damaging political rhetoric which has attached to the formulation of this Bill.414 The Home OYce Green Paper The Path to Citizenship: Next Steps in Reforming the Immigration System coined the phrase “earned citizenship” and took as its starting point the premise that migrants must “prove their worth”—the implication being that they are an automatically less deserving or less trustworthy group than those born into British citizenship. The concept of “probationary citizenship” which finds expression in this Bill was also discussed in the Green Paper along with a proposal for enforced volunteering for those wishing to obtain citizenship.415 This language and these proposals are unfair, discriminatory and dangerous. As we head towards a general election, Liberty urges parliamentarians not to endorse rhetoric or policy attacking migrants for the sake of short-term political point-scoring.416
Border Functions (Part 1) 3. Part 1 creates a legislative framework to allow immigration oYcers to exercise revenue and customs functions which have up to now been exercised by Her Majesty’s Revenue and Customs (HMRC). The explanatory notes to the Bill state that “The UKBA will carry out physical examinations at the frontier…and may support HMRC investigations inland into revenue smuggling”, Clause 1 extends functions of “general customs matters” that are currently exercisable by Commissioners for HMRC to the Home Secretary.Clause 1(2) excludes a few categories from the control of the Secretary of State (in particular
413 Liberty has been calling for the consolidation and simplification of the law governing immigration and asylum for some time. Since the Immigration Act 1971, immigration law has been subject to regular reform and amendment meaning that the law in this area is currently highly inaccessible and confusing for those in the system. This not only leads to uncertainty and vulnerability for migrants but has contributed to the huge quantity of poor quality decision making by immigration oYcials. While we welcome long-promised consolidation in this area we are disappointed that the consolidation exercise has been left to the end of the parliamentary session. We are also concerned that several of the measures contained in the draft Bill and now dropped may re-emerge in the Simplification Bill. 414 See the preceding Green Paper The Path to Citizenship: Next Steps in Reforming the Immigration System available at http:// www.ukba.homeoYce.gov.uk/sitecontent/documents/aboutus/consultations/closedconsultations/pathtocitizenship/ and the Draft Bill available at: http://www.oYcial-documents.gov.uk/document/cm73/7373/7373.pdf 415 Liberty is relieved that enforced volunteering has not been included in the present Bill. However a diluted of this proposal does feature (discussed at paragraphs 6–9). The Green Paper further sought views on an “additional migrant tax” while at the same time accepting the migrants make a net contribution to the UK’s economy. 416 Liberty has launched an Asylum Election Pledge which can be signed by prospective parliamentary candidates http:// www.liberty-human-rights.org.uk/news-and-events/1-press-releases/2009/21-01-09-liberty-issues-asylum-election- warning.shtml Processed: 23-04-2009 22:48:33 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 184 Home Affairs Committee: Evidence
matters relating to tax)417 but clause 2 reserves the right for the Secretary of State to add or modify the matters that come within their control by order. Clause 3(1) provides that the Secretary of State may designate an immigration oYcer or any other of her oYcials as a general customs oYcial for the purposes of Part 1 of this Bill. Under clause 3(2) once designated, this oYcial has the same functions as an HMRC oYcer in relation to “general customs matters”. This includes functions listed in any other enactment (made before or after the Bill). 4. Liberty has raised concerns about previous extensions of powers exercisable by immigration oYcials. Sections 1 to 4 of the UK Borders Act 2007 allowed for the designation of immigration oYcers to enable them to exercise detention powers against anyone who is (or is suspected) of oVending. After detention a police oYcer must be called to attend and detention cannot exceed three hours. These powers are similar to other recent powers which have standardised arrest powers for non policing bodies.418 However, the powers granted in the UK Borders Act went further in that they allowed for search and for the use of reasonable force to detain. As a consequence, the powers extended to immigration oYcials under the UK Borders Act were more on a par with those enjoyed by oYcers of HM Revenue and Customs. Part 1 completes that shift and represents a breathtaking extension of the powers of immigration oYcials. 5. The Customs and Excise Management Act 1979 confers the functions and powers available to customs oYcers. Under the Act a customs oYcer may ask to search a person or anything they have with them is he or she reasonably suspects the person is carrying any item which is prohibited or restricted or any item which is liable to excise duty or tax which has not been paid. Customs oYcials have the power to detain for “as long as reasonably necessary” while a search is being carried out419 and if a person does not agree to the search the customs oYcial may make an arrest. The threshold for reasonable suspicion is low and can include a combination of factors such as destination arrived from; clothing; and an unusual quantity of luggage. Customs oYcials have the most intrusive types of search powers. Searches include pocket searches; a “rub- down”; a strip search and an intimate search.420 Powers available to customs oYcials also include among other things forfeiture powers; entry of premises powers; search and seizure powers; This Bill will extend these powers to UKBA staV who will be able to carry out physical examinations at the frontier of their own volition and at the request of HMRC. 6. Customs oYcials also have the capacity to take fingerprints and DNA, and can seize money under the Proceeds of Crime Act 2002. They also have surveillance powers under the Regulation of Investigatory Powers Act 2000, and data-acquisition and sharing powers under the Identity Cards Act 2006, the UK Borders Act 2007, and the Serious Crime Act 2007.421 7. During the passage of the UK Borders Act, Liberty acknowledged that there may be occasions where the powers proposed might be appropriate. The same cannot be said here. Part 1 is not proposing complimentary powers that might be necessary for immigration oYcials in discharging their functions. It is proposing an entirely new function for immigration oYcials which wholly conflates the distinction between immigration control and criminality.Liberty has often advised that Governments should be wary of sending continuous signals that immigration is criminally suspicious per se. Part 1 does exactly that. At the same time, the roll out of customs functions to immigration oYcers dramatically extends those who are subject to the powers of immigration oYcials. The extension of powers under the UK Borders Act brought British nationals within the control of the immigration service for the first time. The proposed extensions in this Bill would cement this shift. Liberty would expect that dramatic extensions to the functions and powers of immigration oYcials would be preceded by consultation and accompanied by extensive policy justification. Neither has happened. The explanatory notes contain scant reference to the policy behind this reform. 8. In addition to our principled opposition to this extension of powers Liberty is concerned by the lack of provision for the training and accountability of immigration oYcers who discharge customs functions. Clause 4 provides that the Secretary of State may designate an oYcial under clause 3 only if she is satisfied that the oYcial is: capable of eVectively carrying out the functions that are exercisable; has received adequate training and is otherwise a suitable person. A designation may be permanent or for a specified period and may be varied or withdrawn. We hope that further details about the manner of training and what constitutes “adequate training” will emerge during progress of the Bill. It might be appropriate for regulations to set out the designation and training process in greater detail. Clause 22 provides that the Secretary of State may by order provide for the application of provisions of the Police and Criminal Evidence Act 1984 (PACE) to persons detained and investigations conducted by designated customs oYcials and immigration oYcers. Section 145 of the Immigration and Asylum Act 1999 made similar provision for the Secretary of State to apply PACE codes to immigration oYcials. Liberty is not aware of this provision yet being used. Giving the
417 For tax-related customs matters clauses 6-13 provide for the creation of a “Director of Border Revenue” to be appointed by the Secretary of State. A Home OYce oYcial shall be appointed to the role (with the consent of the Treasury) and shall exercise the same functions as the HMRC Commissioners in relation to customs revenue matters. The Director will have the power designate any immigration oYcer or any other oYcial of the Secretary of State by whom general customs functions are exercisable as a “customs revenue oYcial”. 418 Under s24A of the Police and Criminal Evidence Act 1984, which was amended by the Serious Organised Crime Act 2005. 419 Under section 164. 420 An “intimate search” means any search which involves a physical examination (that is, an examination which is more than simply a visual examination) of a person’s body orifices. 421 See Guy Herbert, Another Home OYce Power Grab The Guardian, 13 February 2009 available at: http://www.guardian.co.uk/ commentisfree/2009/feb/12/police-law Processed: 23-04-2009 22:48:33 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 185
Secretary of State only the power to apply PACE provisions is unsatisfactory where the extension of intrusive powers is proposed. If this reform goes ahead, at the very least, a requirement for PACE protections must be incorporated into primary legislation.
Use and Disclosure of Information 9. Clauses 14—20 deal with disclosure of information. Clause 14(1) creates a new powers for the use and disclosure of information. Designated customs oYcials; immigration oYcers; the Secretary of State (or other Minister) by whom general customs functions are exercisable; the Director of Border Revenue and any person acting on behalf of these people may use customs information that they have acquired through one function, for the purpose of any of their other functions. Even more broadly, any one of these people may disclose customs information to any other for any exercisable function. Once you give oYcials multiple functions it is diYcult to prevent them using information discovered or received under one function for the purpose of another. However allowing full disclosure between all immigration and customs oYcials goes even further. As with the extension of functions and powers under Part 1, we question the policy justification behind allowing complete information sharing between the immigration service and customs and revenue.
Citizenship (Part 2) 1. Clauses 37–39 and 45 amend the rules on naturalisation. The amendments will mean that the general rule is that those who are resident in the UK need to have a certain residential status for eight years (up from six years) before being eligible for naturalisation, and those seeking to naturalise on the basis of marriage will now take five years (up from three). These periods could be reduced if a person participates in certain activities, which will be set out in regulations (dealt with below). Clause 39(2) also provides a regulation- making power which can amend the length of the qualifying period for naturalisation. 2. Under clause 37(11) in order to qualify as time spent towards naturalisation, the period of time spent in the UK has to be spent while resident on a certain type of visa or entitlement. This includes indefinite leave to remain, a Commonwealth right of abode or an EEA entitlement. Time spent in the UK on a visa which is time limited as to duration will only count if the leave is granted for a purpose that is set out in Rules made by the Secretary of State. It is therefore impossible to know at this stage what categories of persons this will apply to. There may well be large numbers of people on certain visas who do not fall within this category. 3. This Government has displayed a penchant for secondary legislation. Indeed it has become a common theme that the Secretary of State, by regulation, may amend or create a whole host of rules that have dramatic—often adverse—impacts on the rights of large numbers of people. While regulations may serve a useful function for disposing of the administrative duties of Executive they should not be used to make law that should properly be subject to scrutiny by Parliament. The period for naturalisation of migrants is one such law. Naturalisation has far-reaching implications for individuals. The Bill should set out the categories of time-limited leave to remain that will qualify as time spent for the purposes of naturalisation. It is unacceptable that something of such fundamental importance to so many should be left to be set out in secondary legislation at the discretion of the Secretary of State. 4. We are particularly concerned that refugees may take longer to qualify for British citizenship under these changes. As stated above, it is unknown what type of limited leave to remain will count towards the qualifying period. It may well be that periods of temporary admission given to refugee claimants pending determination of their claims (which can take years) may not count towards the qualifying period for naturalisation. If this is the case it is our submission that the UK would be in breach of the 1951 Refugees Convention to which the UK is a party. Article 34 of the Convention states that parties to the Convention shall “so far as possible facilitate the assimilation and naturalization of refugees. They shall in particular make every eVort to expedite naturalization proceedings”. Article 7 provides that except where the Convention provides for more favourable treatment a state “shall accord to refugees the same treatment as is accorded to aliens generally”. The purpose of article 7 is to ensure that refugees receive the benefit of all laws and policies which normally apply to non-nationals, and simply put refugees cannot be excluded from any rights which the UK ordinarily grants to other foreigners.422 It is therefore essential that any period spent by a refugee awaiting determination of his or her status count towards the qualifying period, to ensure refugees are not treated less favourably than other migrants that have a diVerent visa status. Until this is set out on the face of the Bill it is impossible for Parliament to know whether the legislation breaches the Refugee Convention, or indeed article 8 (right to private and family life) together with article 14 (non- discrimination) of the HRA.423 5. Extending the naturalisation process for migrants (and refugees in particular) will arguably hinder community cohesion. Those processing through the system will spend longer being scrutinised by various agencies, including the Border & Immigration Agency, the police, employers, voluntary organisations (see below) and others. This prolonged journey may well perpetuate feelings of exclusion within migrant communities. It will also mean that migrant workers, refugees and asylum seekers will remain vulnerable
422 James C Hathaway, The Rights of Refugees Under International Law, 2005, page 197. 423 Articles 8 and 14 of the European Convention of Human Rights as incorporated into the Human Rights Act 1998. Processed: 23-04-2009 22:48:33 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 186 Home Affairs Committee: Evidence
for longer periods. Longer periods “in limbo” will mean reduced access to mainstream benefits and services and those allowed to work may be made further vulnerable to employers for a longer period, possibly working longer hours or accepting lower pay for fear of having immigration permission revoked.
“Activity Condition” 6. Clause 39 also introduces a new concept of formal volunteering into the qualifying process. Under clause 39(1) an applicant for naturalisation can reduce their qualifying period by up to two years if they fulfil an “activity condition”. The type of activity that will count as an “activity condition” is not specified in the Bill but is reserved for secondary legislation. While Liberty is relieved that the draft Bill is not seeking to introduce compulsory volunteering (as was hinted at in the Green Paper)424 we have deep concerns about a proposal for formal volunteering to speed up the naturalisation process—a process that this draft Bill proposes to extend. Liberty does not believe that migrants should be expected to do more than those born into British citizenship. An incentive of this kind is wrong in principle and will be discriminatory and exploitative in practice. While the Bill does not reveal the types of activities that will be prescribed, the Green Paper suggested that activities such as volunteering with a recognised organisation; serving on community bodies and fundraising for schools and charities would be considered. This type of volunteering will necessarily ignore the ways in which many migrants already volunteer their services to the community, for example with informal childcare arrangements or teaching English. 7. The “activity condition” will also operate in a discriminatory way in practice. It is easy to see how some, and not others, will find it easier to formally “contribute”. The Government will most likely use the inclusion of clause 39(5)(b)425 to argue that those who, for a variety of reasons, may be unable to volunteer formally will not be discriminated against.426 Over and above the administrative nightmare created by such a discretion, it will not prevent discrimination taking place. The Bill sets out no criteria for determining when a person shall be deemed to have fulfilled their activity requirement. In any case, it is impossible to see how the Secretary of State will be able to determine fairly and equally when a person can be excused. 8. In addition to our principled opposition to the activity requirement Liberty has serious reservations about the impact on the voluntary sector who, as far as we are aware, have not asked for the creation of large numbers of potential “volunteers”. It is unclear from clause 39 how the Government intends or expects to regulate volunteering on this scale. By creating unprecedented levels of supply, there is inevitably a danger that those seeking to volunteer may be exploited as an industry of “volunteering opportunities” is created. 9. Under clause 39(3) regulations made by the Secretary of State can amend the length of the 2 year discount period and even provide that meeting the activity condition will have no eVect on the qualifying period. Retrospective removal of the discounted period is, of course, manifestly unfair and if utilised will do nothing to instil the trust of those that the Government is seeking to naturalise.
Nationality—mothers passing on nationality 10. Under current law, children born abroad to British mothers before 1961 could not acquire British citizenship. Clause 41 amends section 4C of the British Nationality Act (BNA) to remove this historical discrimination which prevented citizenship being passed in the same way by the female line. Liberty welcomes the removal of this anomaly. Non-discrimination on the basis of gender is a fundamental pillar of the post-war human rights framework
Part 3—Immigration
Clause 47—Restriction on Studies 11. Clause 47 inserts into the Immigration Act 1971 (IA) an additional condition that may be imposed on those given limited leave to enter or remain in the UK: “a condition restricting his studies in the United Kingdom”. The explanatory notes contain no policy justification for the introduction of this reporting condition but merely state that the condition may be used ‘to stipulate an educational institution at which a student is granted leave to study’. 12. Conditions which can be imposed on those with immigration status (which already included employment, maintenance without recourse to public funds) were extended by the UK Borders Act to include residence conditions. Liberty raised concerns about this at the time, namely, the lack of restriction on the types of conditions that can be imposed, the purpose for which they can be imposed, and their duration. We can see no policy basis for this further extension in possible conditions. Particularly restrictive immigration conditions or a combination of diVerent conditions could breach several articles of the Human
424 The Path to Citizenship: Next Steps in Reforming the Immigration System. 425 Clause 39(5)(b) creates a discretion whereby the Minister can treat a person as having participated in prescribed activities where this is not the case. 426 For example, those with certain disabilities, the elderly, those who have little or no time due to various social, family responsibilities. Processed: 23-04-2009 22:48:33 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 187
Rights Act 1998 including the right to private life (Article 8) and the right to freedom of assembly (Article 11). Clause 47 could, in its application, result in a breach of the right to education (Article 2, Protocol 2) as well as non-discrimination (Article 14). 13. The implications of a failure to report a change in educational institution are hugely disproportionate. As the explanatory note states: “breach of the condition will be a criminal oVence under section 24(1)(b)(ii) of the IA and may result in removal from the UK”. Unnecessarily intrusive conditions with blanket sanctions attached not only punish individuals but inevitably result in appeals that clog the system and lead to further expense.
Clause 48—Fingerprinting of foreign criminals liable to automatic deportation 14. Clause 48 extends the power to take fingerprints under section 141 of the Immigration & Asylum Act 1999 (IAA) to cover people who are subject to automatic deportation under section 32 of the UK Borders Act. Section 32 created a system of automatic deportation for any foreign criminal who has been sentenced to a period of custody of 12 months or who is imprisoned for a serious oVence listed by order made under section 74(4)(a) of the Nationality Immigration and Asylum Act 2002. Deportation became an issue in April 2006 when the Home OYce admitted more than 1,000 foreign prisoners were released on completion of their sentence between 1999 and March 2006 without being considered for deportation. This administrative failure became the basis for the toughening up of the foreign prisoner deportation regime. Liberty raised grave concerns about basing a major policy shift on mistakes. Passing new, knee-jerk laws does not compensate for systemic Home OYce failure. Public safety is far better served by ensuring that existing processes work eVectively. Automatic deportation is also contrary to the approach traditional to both crime and immigration matters: that is that each case is judged on its merits. It now appears that where foreigners are concerned a one size fits all approach will suYce. 15. The need for retrospective provisions to allow the taking of fingerprints from those subject to automatic deportation further demonstrates the arbitrary outcomes that occur when blanket rules on deportation are applied. Presumably, those that have been convicted of oVences where fingerprints may be relevant have already had their fingerprints taken as part of the evidence gathering process. They are therefore, only now going to have their fingerprints taken as a result of their deportation. We urge parliamentarians to look again at the 2007 deportation scheme instead of adding a further arbitrary amendment to an already capricious system.
Part 4—Miscellaneous and General
Clause 50—Transfer of immigration or nationality judicial review applications 16. Section 19 of the Tribunal, Courts and Enforcement Act 2007 (TCEA) allowed for the transfer of judicial review applications to the Upper Tribunal. As a result of concern expressed by parliamentarians during the passage of the Act, judicial review applications that call into question decisions under the Immigration Acts or the BNA were specifically excluded from the jurisdiction of the Upper Tribunal. Clause 50 reverses this and brings immigration and nationality judicial reviews within the Tribunal’s jurisdiction. Liberty believes that removing the exception before assessing the performance and capacity of the newly established Tribunal is dangerously premature. Immigration applications can be highly complex and contentious. More frequently than in other spheres decisions regarding immigration and asylum applications engage fundamental rights. Often engaged is the absolute right against torture, inhuman and degrading treatment. 17. We also echo the concerns expressed by the Immigration Lawyers Practitioners Association (ILPA) as to why it is the Home OYce who have led consultation on this issue.427 The Home OYce is, of course, a party to litigation in this area and is frequently held to be in breach of their obligations under immigration, asylum and human rights law. It therefore seems questionable that the Home OYce has been allowed to lead a contentious initiative to reform the process of judicial reviews to which they are subject.
Duty regarding the welfare of children 18. Clause 51 imposes a duty on the Secretary of State to make arrangements for ensuring that their functions in relation to immigration, asylum or nationality; the functions of immigration oYcers and the functions of designated customs oYcers are “discharged having regard to the need to safeguard and promote the welfare of children who are in the UK”. Liberty welcomes the introduction of this duty which mirrors the duty in section 11 of the Children Act 2004 (CA) that currently only applies to public authorities.428 However, Clause 51 suVers from a significant limitation in that it only covers the treatment of children “who are in the UK”. Immigration oYcials, of course, exercise many of their functions in relation to children
427 The Home OYce has recently conducted a consultation on the future of the Asylum and Immigration Tribunal in which it proposed removing the exclusion. 428 The public authorities covered by the section 11 duty include local authorities, the police, the prisons service etc. Processed: 23-04-2009 22:48:33 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 188 Home Affairs Committee: Evidence
outside of the UK.429 Conscious of the frequent reports of abuse and heavy-handedness in the removals process Liberty believes that immigration oYcials and contractors should be subject to the same duties in their dealings with children when outside the UK as they are within the jurisdiction. 19. In September 2008 the Home Secretary announced that the Government intended to remove its reservation to the UN Convention on the Rights of the Child (CRC)—a reservation precluded the UK’s obligations in respect of children subject to immigration control. Liberty had consistently pressed for the removal of the reservation430 and welcomed the Home Secretary’s statement. In light of the removal of the reservation we reiterate our call for the Government to scrap its policy of immigration detention for children. We believe that the detention of children for administrative convenience would put the UK in breach of the CRC. It may also put UKBA in breach of clause 51 when enacted. March 2009
Supplementary memorandum submitted by the Refugee Legal Centre
Executive Summary
Nationality — The Bill should be amended to enable recognised refugees to count the time spent in the UK making a well-founded claim for asylum as part of their qualifying period for naturalisation.
Judicial Review — Clause 50 should not stand part of the Bill; it is premature, and it potentially undermines the constitutional role of judicial review. If it is to remain, it must at minimum be amended in order to ensure that all claims begin in the Administrative Court, with that court having the discretion to transfer suitable cases to the Upper Tribunal.
Children — We welcome proposed amendments to require the Home OYce to publish statistics on the detention of children. — While we welcome a proposed amendment that would require the Secretary of State in person to authorise extended periods of detention in cases involving children, we would prefer a statutory ban on the detention of children. Failing that, we would recommend a provision requiring the detention of a child to be automatically reviewed by the Tribunal after 7 days, and then periodically.
Introduction 1. Thank you for inviting the RLC to submit further evidence on the Border, Immigration and Citizenship Bill (“the Bill”) which follows a Home OYce consultation on the simplification of the UK’s immigration law. 2. This paper focuses on Part 2 of the Bill which amends the law relating to nationality, clause 50 which removes the statutory bar on transferring immigration and nationality judicial reviews from the High Court to the new Upper Tribunal created by the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”), and the provisions in part 4 regarding the welfare of children.
Nationality 3. Under both the current system, and the new system proposed in the Bill, an individual must spend a certain period of time lawfully present in the UK before they become eligible for naturalisation as a citizen. Under the current system the partner of a British Citizen must meet a qualifying period of three years lawful residence, for all others the qualifying period is five years. In addition to meeting the qualifying period, an applicant under both regimes must meet a number of other criteria relating to character, conduct, and knowledge of life in the UK. 4. The Bill changes much of the statutory language regarding the qualifying period. The eVect of clauses 37 and 38 is to discount the time a recognised refugee spent in the UK making a well-founded claim for asylum as part of their qualifying period for naturalisation.
429 This includes both at entry clearance posts and in the course of removals. 430 http://www.liberty-human-rights.org.uk/publications/pdfs/liberty-consultation-response-keeping-children-safe-from- harm.pdf Processed: 23-04-2009 22:48:33 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 189
5. It is well-established that a person becomes a refugee the moment they are outside their country of nationality with a well-founded fear of persecution;431 clauses 37 and 41 should be amended to reflect this.432 The logic of this is that an asylum seeker does not become a refugee because the Home OYce decides to grant them refugee status; the decision to grant status is a declaration that the person already was a refugee. 6. As such, in our view, having been recognised by the Home OYce as a refugee the individual has been lawfully present in the UK ever since their claim was made. Sometimes it can take several years before a positive decision is taken, generally through no fault of the asylum seeker. However under the proposed regime none of that time would count towards the qualifying period for naturalisation. That approach is inconsistent with the Refugee Convention itself, and is counter-productive in terms of fostering the integration of refugees.
Transfer of Judicial Review 7. When the 2007 Act which created the new Upper Tribunal was being debated in parliament, the government agreed that there should be a statutory bar on transferring immigration and nationality judicial reviews to the Upper Tribunal. It was accepted that these cases were simply too complex and sensitive, and that they should remain within the sole jurisdiction of the higher courts.433 8. In the August 2008 consultation paper, the government proposed that this bar be lifted.434 No explanation was oVered as to why such a change was appropriate, only one year after parliament had enacted the statutory bar. Far too little information was given about how the Upper Tribunal’s judicial review jurisdiction would work to enable any considered response from the sector, indeed less than one page was devoted to the proposal. There is no discussion about the constitution and procedure of the Upper Tribunal hearing such cases; in particular there is no guarantee that there will be rights of oral renewal against negative decisions on the papers, and no elaboration of any timeframes for the making of applications or lodging of appeals. 9. Of particular concern is the lack of any rules regarding which judges can hear judicial reviews in the Tribunal. Clause 50, read with the 2007 Act, would appear to potentially allow any immigration judge to hear an immigration judicial review, with a right of appeal directly to the Court of Appeal against his or her decision. While we see the potential benefits of involving the senior immigration judiciary in some judicial reviews, we consider that a judge of the High Court must always preside given the fundamental constitutional role of judicial review. 10. We would respectfully agree with the comments of the two Lords of Appeal who spoke during the debate on the statutory bar in the 2007 Act. The Baroness Butler-Sloss said: “I support my noble and learned friend Lord Lloyd of Berwick in relation to the requirement to have someone of the level of a High Court judge to hear a judicial review in the tribunal. It would be invidious for there not to be a judge of that rank dealing with it. I support my noble and learned friend very strongly.”435 Far from prohibiting this invidious outcome, clause 50 as it stands positively endorses it. 11. The RLC and others, in our responses to the consultation, urged the government to consult fully on the proposal before taking a firm policy position. Instead, and before the Home OYce has even published a response to the inadequate August 2008 consultation, clause 50 has made its way into the Bill. While we do not necessarily oppose in principle the lifting of the statutory bar, to do so without any safeguards in relation to the constitution and procedure of the Tribunal leaves open the possibility that the fundamental constitutional role of judicial review could be undermined. 12. While the burden of immigration judicial reviews on the Administrative Court is plainly unsustainable, it is our view that clause 50 as it stands is a counter-productive and objectionable legislative response. It fails to engage with the cause of the problem, and instead institutes a system which fails to ensure that immigration judicial reviews receive the level of scrutiny they require, and which is likely to simply transfer the burden to the Court of Appeal. Instead we would encourage the government to consider investing in the quality of Home OYce decision-making, and ensure that publicly funded legal representation is available to asylum-seekers who cannot pay for it themselves to reduce the burden created by unrepresented claimants.436
431 Article 1(A)(2) of the 1951 Convention Relating to the Status of Refugees. 432 A proposal which received widespread support during the committee stage of the Bill in the House of Lords on 2 March 2009. 433 See Hansard, House of Lords, Grand Committee, 13 December 2006, Columns GC67—GC70 for an exchange between the Lord Lloyd of Berwick and the Baroness Ashton of Upholland, in which the Minister confirmed that immigration cases were to be excluded because they were at the most sensitive end of judicial review. 434 At paragraph 39. 435 Hansard, House of Lords, Grand Committee, 13 December 2006, Column GC68. 436 Information disclosed to the RLC under the Freedom of Information Act confirms that 1082 judicial review applications in the last year were made by unrepresented claimants, or 23% of the total. In the same period, permission to proceed was granted to only 19 unrepresented claimants. By way of contrast, permission to proceed was granted to some 456 claimants who were legally represented. Processed: 23-04-2009 22:48:33 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 190 Home Affairs Committee: Evidence
13. It is our view that clause 50 should not stand part of the Bill for the reasons given above. If it is to remain, it must at minimum be amended in order to ensure that all claims begin in the Administrative Court, with that court having the discretion to transfer suitable cases to the Upper Tribunal.437 14. These changes to the legislative framework must be read alongside proposed changes to the appeals machinery, which themselves will not be automatically subject to Select Committee scrutiny as they can be eVected through secondary legislation only. The proposed new appeals system would seriously undermine the rule of law by excluding access to the higher courts, potentially leaving an appellant with no remedy against a decision even if that decision is vitiated by bias, irrationality or a lack of jurisdiction.
Welfare of Children
15. The RLC will shortly publish a report highlighting how children seeking asylum are routinely denied basic protection that other children in the UK enjoy. We welcome the introduction of a duty to promote the welfare of children in clause 51 and the development of new guidance to back this up. However, we will demonstrate that guidance is not enough: there must be a commitment to follow it and it must underpin a thorough overhaul of policy and procedures for dealing with children’s cases. 16. The RLC strongly supports amendments 117 and 117A on the Marshalled List of Amendments to be debated during the committee stage in the House of Lords. Amendment 117 would place a duty on the Secretary of State to collect statistics on the detention of asylum seeking children. This would fill the woeful gap in national statistics in relation to this most vulnerable group. Having committed itself to the promotion of the best interests of the child, in particular through the withdrawal of the UK’s reservations to the UN Convention on the Rights of the Child, the government continues to refuse to release all but the most basic statistics on the detention of children—often citing disproportionate cost. This is unacceptable, and parliament ought to compel the collection of these statistics. 17. We would also recommend extending the proposed duty to cover statistics regarding the enforced return of children to their countries of origin. Information released to the RLC under the Freedom of Information Act confirmed that at least 105 children under 18 (including some 45 under the age of 14) were removed in 2007 alone, including children who were citizens of countries such as Iran, Iraq, Afghanistan and Sudan. These are not children who were dependent on relatives’ asylum claims (the statistics for whom are much higher) but children who were pursuing their own freestanding asylum claims. When the RLC pushed the Home OYce to confirm how many of those returns were enforced as opposed to voluntary, how many were returned to their home country as opposed to a third country, and how many were unaccompanied—they replied that they did not hold those statistics and could only reply by searching individual files at disproportionate cost. In our view these are statistics of vital importance given our commitments under the UN Convention, and parliament ought to compel the government to collect them. 18. Amendment 117A would require that the detention of a child must be authorised by the Secretary of State in person if that child is to be detained for longer than 28 days, and that such ministerial authorisation must be renewed every 7 days thereafter. While we would welcome this as a move in the right direction, we would much prefer a statutory ban on the detention of asylum seeking children in all but exceptional circumstances. Failing that, we would prefer a provision to ensure the detention of children is automatically reviewed by the Tribunal after 7 days and then periodically thereafter. March 2009
Supplementary memorandum submitted by the Joint Council for the Welfare of Immigrants
Introduction
The Joint Council for the Welfare of Immigrants is an independent, voluntary organisation working in the field of immigration, asylum and nationality law and policy.Established in 1967, we provide legally aided immigration advice to migrants and actively campaign for changes in the above areas. Our aim is to promote the rights of migrants within a human rights framework. Whilst we have a number of concerns about the Borders, Citizenship and Immigration Bill, we set out below only our key concerns. These are articulated primarily by reference to international human rights obligations that the UK has assumed, but also by reference to human rights norms more generally, as these provide an eVective indicator of the most pressing areas of concern together with internationally accepted standards against which to measure this Bill.
437 A proposal which received widespread support during the committee stage debate in the House of Lords; see Hansard, House of Lords, 4 March 2009, Column 791 onwards. Processed: 23-04-2009 22:48:33 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 191
Part 1: Border Functions
1. The Government has confirmed that it will make an order pursuant to clause 23 to replace and consolidate the Immigration PACE Codes of Practice with a view to applying these to certain immigration functions. “Administrative immigration processes”438 such as immigration detention and removal would remain outside of its scope. 2. Arbitrary detention, inhumane treatment and wrongful refoulement during the above processes are now well documented.439 Given the inadequacy of existing “safeguards”,440 the application of the more exacting PACE standards441 would be an eVective mechanism through which to ensure compliance with obligations under the European Convention on Human Rights (“ECHR”) including Article 3 (no inhumane or degrading treatment) and Article 5 (right to liberty and security). They could also contribute to averting the kind of rioting witnessed more recently.442
Part 2: Naturalisation
3. The conferral of nationality is matter of fundamental importance given that the right to vote, and therefore participate in national life attaches to it.443 It is also an important source of rights444 particularly given the Government’s intention to link it with economic entitlements, and residential stability. 4. Our key concern about the generality of part two of the Bill is that is shares the characteristics of most 21st century immigration legislation. It is vague enabling legislation445 which provides for subsequent, more precise provisions on matters engaging fundamental rights to be contained in guidance, immigration rules and statutory instruments at some future point in time. This secondary legislation will by its nature receive inadequate parliamentary scrutiny and does therefore in our view represent one of the chief threats to securing compliance with legal obligations and generally accepted human rights norms. Further, from the point of view of furthering integration, the risk as a result of this of developing in migrants a sense of injustice, and exclusion will do little to foster in them the sense of membership that integration requires. Our more specific concerns which largely flow from the above are set out below:
(i) Article 34 of the 1951 Convention Relating to the Status of Refugees—the duty to facilitate naturalisation
5. Article 34 of the Refugee Convention requires the UK to facilitate the naturalisation of refugees in so far as this is possible. Whilst the existing scheme is already deficient in this respect, it will now be exacerbated by clause 37(11). 6. By clause 37(11) periods spent on temporary admission, release and detention pending determination of immigration/asylum applications will all be discounted for the purposes of the naturalisation qualification period.446 Those who seek human rights/refugee based protection are most likely to possess this status for some time given that 40% of cases still presently take over half a year to conclude.447 There are also remaining unresolved cases in which refugees will have held temporary admission for several years. This measure would therefore penalise them for ineYciency of the UK Borders Agency.448
438 Hansard, HL Committee 25 February 2009: Col. 267 439 See for example Outsourcing Abuse the use and misuse of state sanctioned force during the detention and removal of asylum seekers, Medical Justice, Birnberg Peirce and Partners and National Coalition of Anti- Deportation Campaigns, 2008 www.medicaljustice.org.uk. See Asylum Seekers Riot At Detention Centre, Nigel Harris, Independent 15 March 2007. 440 See Immigration Directorate Instructions Ch. 31 Section 1, March 09 441 Code C which creates for example rights of access to healthcare and a lawyer for example. 442 For which see footnote 2. 443 With the exception of Commonwealth and citizens of the Republic of Ireland non nationals are unable to vote or stand for elections, and may also have greater restrictions placed on their political activities. 444 An unconditional right of entry and departure, EU Citizenship and the associated rights of free movement, security of residence, consular protection, an expectation of diplomatic protection. 445 The following will be left to secondary legislation (i) the eVects of failure to fulfil the criteria to move from probationary citizenship to British Citizenship; (ii) the categories of “migrant worker” who will be eligible for probationary citizenship and therefore British citizenship; (iii) the categories of migrant who would have a “family association” for the purpose of facilitated access to naturalisation; (iv) the nature of the “activity condition”; (v) the circumstances in which discretion is to be exercised in cases where the “continuous employment” or “90 day” requirement is not fulfilled, and indeed the definition of “continuous employment” itself, (vi) transitional arrangements (vii) changes to the qualifying periods which would permit lengthier qualification periods. 446 Currently some of these periods are capable of counting towards the qualification period for which see para 8.7, Annexe B, Chapter 18 Nationality Instructions 447 See Hansard HL Committee 2 March 2009: Col.537 448 Whilst we note that Lord Brett confirmed during the course of committee proceedings that the Government would table an amendment to provide discretion to waive the requirement. He also stated “that it would be used only in a limited number of cases” and that “we do not propose to go as far as permitting any time spent [in those capacities]… to count towards the qualifying period”. See Hansard HL Committee 2 March 2009: Col.537 Processed: 23-04-2009 22:48:33 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 192 Home Affairs Committee: Evidence
(ii) Article 6 of the 1997 European Convention on Nationality (“ECN”)—limits on residence requirement for naturalisation 7. Whilst the UK has not signed or ratified the ECN449, the European view and associated practice as reflected in Article 6(3) is that naturalisation residence periods should not exceed 10 years. Furthermore, naturalisation should be facilitated for spouses.450
(a) Maximum residence periods 8. By clause 37(2)(c) migrants must possess a “qualifying immigration status” for the whole of the “qualifying period”. Qualifying immigration status will only include temporary leave in the event that it is given for a purpose by reference to which a grant of probationary citizenship leave may be made. We do not have the draft immigration rules governing this, however the overall eVect of this is that it would exclude various types of lawful temporary leave including leave as a student, long residence leave and temporary admission from counting towards the relevant period. A tier 2 worker therefore who has been in the UK for five years who switches into the student category as a result of being made redundant, and then switches back to tier 2 would have to restart the qualification period again. Additionally, the eVect of failure of the continuous employment requirement (see below), or remaining outside of the UK for more than 90 days (see below) would also appear to reset the clock to zero for qualification purposes. This will result in a residence period that considerably exceeds a decade in the case of some migrants.
(b) Spouses 9. By clause 38(3) the expedited naturalisation procedure will only be available in circumstances where there is a “qualifying immigration status” based on possession of a relevant family association.451 Its eVect will be to nullify facilitative measures for naturalisation of spouses to whom it applies given that leave preceding the acquisition of leave on this basis will be discounted.452
(iii) Article 8 of the 1950 Convention for the Protection of Human Rights (“ECHR”)—no arbitrary interference with private and family life 11. Article 8 ECHR requires that there is no arbitrary interference by the state with private and family life. Conferral of status can engage Article 8 as can removal where private and family life is established.453 12. By clauses 37(2) (b) and 38(2)(b) migrants cannot not have left the territory during the qualification period for more than 90 days per annum. Further, clause 37(2)(e) requires that migrants granted probationary citizenship status for work purposes must show that they have been in “continuous employment” for its duration. There is a discretionary power of waiver in each case454 though the circumstances in which this is to be exercised are not set out, nor is the definition of “continuous employment”. From the point of view of Article 8 ECHR (ie the need for legal certainty/establishment of a specified legitimate aim) this is cause for concern. Indeed it is presently impossible to assert that these provisions are compliant with this.
(iv) Article 12 (3) of the 1966 International Covenant on Civil and Political Rights (“ICCPR”)—no arbitrary interference with the right to leave a country 13. Article 12 (3) of the ICCPR requires that no arbitrary restrictions are placed on the “right to leave a country”.455 The very nature of migration means that migrants will have interests in more than one country and indeed in an era of globalisation there are number of reasons that migrants would wish to leave the UK for more than 90 days in one year. These include work reasons, family bereavement, legal proceedings, accidents etc. From the perspective of Article 12 (ie the need for legal certainty/establishment of a legitimate aim) clauses 37(2) (b) and 38(2)(b) also raise cause for concern. Indeed it is presently impossible to assert that they are compliant with Article 12.
449 This has been signed by 18 European states 450 Article 6(4) 451 Presently one need only establish the existence of the relationship and time runs from the residence in the UK rather than the date of the grant of leave 452 A related but separate problem revolves around the right of abode. Whilst those with the right of abode will be included within this category as a result of a Government amendment, there is ambiguity about who is deemed to have the “right of abode” for which see Hansard HL Committee 2 March 2009: Col 521 453 The proposition that status engages Article 8 was accepted by the Government in S and Others v Secretary of State for the Home Department [2006] EWCA Civ 1157. See also the Grand Chamber judgment in Sisojeva v Latvia App. No 60654/00 and See also admissibility decisions in Slivenko and others v Lativia App. No. 48312/99 and Karrassev and Family v Finland App. No 31414/96 confirming that arbitrary denial of citizenship may breach Article 8 ECHR. 454 Clause 37(4)(7) and 38(4) 455 General Comment 12 (1) makes clear that this applies to legal rules and administrative practice by states and to nationals and non nationals. Whilst the UK has entered a reservation against every human rights provision in the ICCPR for non citizens/those without the right of abode it is anticipated that it would only be necessary to apply this from “time to time” and it is also subject to a test of “necessity”. Processed: 23-04-2009 22:48:33 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 193
(v) Article 19.7 of the 1961 European Social Charter (“ESC”)—equal treatment of migrant workers to remuneration/working conditions 14. Article 19.7 of the European Social Charter requires the UK to ensure that migrant workers are not treated less favourably than nationals in relation to remuneration and working conditions. A “continuous employment” requirement in the terms that the Bill team suggest under clause 37(2)(e)456 will, upon interaction with restrictions; on access to welfare, the labour market and the ability to change employer, undermine the ability of migrant workers to claim their contractual, statutory and human rights. This would be inconsistent with the spirit of the ESC. Additionally it may lead to indirect discrimination on grounds of race or gender in a way that is inconsistent with Articles 14 (no discrimination in relation to Convention rights) and 8 ECHR given its propensity for disproportionate impacts on women who most obviously may need to take time out of the labour market due to pregnancy and child-care responsibilities, or certain ethnic groups (and women), given their greater tendency to be located in insecure employment as a result of labour market discrimination.
(vi) Article 14 and 8 ECHR—no discrimination in relation to matters falling within the ambit of a Convention right and Article 4 ECHR—prohibition on compulsory labour 15. By clause 39, the qualifying periods are capable of “reduction”457 in the event that “an activity condition” performed without remuneration is fulfilled. We do not have details of the activity condition. There is however a discretionary power of waiver though no indication of when this would be employed. 16. Article 14 ECHR prohibits discrimination in relation to matters that fall within the ambit of a Convention right. We can think of a number of migrants who may potentially struggle with an “activity condition” including: (a) Migrants with health problems (including mental health problems). (b) Migrants with disabilities. (c) Migrants with learning diYculties. (d) Elderly migrants. (e) Migrants with personality disorders. (f) Migrants who work long hours. (g) Migrants who undertake shift work. (h) Migrants on low incomes. (i) Single parents and other migrants with caring responsibilities. (j) Female migrants who for “cultural reasons” are “prohibited” by their spouses and families from participating in public domains. 17. We note that by clause 39(5) there is a discretionary power of waiver though no indication of when this will be applied. We do not yet have details of the activity condition. Accordingly, given that a grant of citizenship status is arguably within the ambit of Article 8, this is cause for concern and it is presently impossible therefore to assert that these requirements are compliant with the above obligations. 18. Additionally, Article 4 ECHR prohibits the performance of “compulsory labour”. A scheme requiring voluntary works in order to secure residential stability and welfare entitlements more swiftly could arguably be considered “compulsory labour” given that it arguably does not part of “normal” civic obligations in the UK. Accordingly this is also cause for concern given that it is impossible to confirm that this requirement is compliant with Article 4 ECHR.
(vii) Probationary citizenship/access to contribution based benefits—inconsistency with common standards including the 1966 International Covenant on Economic, Social and Cultural Rights (“ICSECR”) 19. The scheme overall envisages at minimum (a) one additional year to which migrant workers and spouses are to be subject to a public funds restriction and (b) three additional years to which other family members are subject to a public funds restriction. At maximum, it envisages three additional years to which (a) will be subject to a public funds restriction and five additional years for (b), or possibly no upper limit for both in the event of a failure to fulfil both existing and new requirements.458 20. The eVect of the above mean that some migrants will be precluded from accessing most welfare benefits (ie contribution based benefits such as Housing Benefit/ homelessness assistance) for very lengthy and possibly indefinite periods. As we document in our committee stage briefings, the absence of the availability of non-contribution based welfare tends to lock both migrant workers and family members into
456 Continuous employment’ is not defined within the Bill however in a telephone conversation on 16.02.09 between Neil Parking, UK Borders Agency and Hina Majid it was confirmed that continuous employment “means what it says on the tin, a continuous unbroken period of employment in the absence of the exercise of discretion.” 457 They are still however longer qualification periods for residential stability than at present 458 None of this is explained in the Bill or the notes but has been confirmed by the Bill team. Processed: 23-04-2009 22:48:33 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 194 Home Affairs Committee: Evidence
highly exploitative and undesirable conditions with particularly acute eVects for women and certain ethnic groups.459 Indeed the UK was heavily criticised by United Nations CEDAW Committee for the application of its public funds restriction given its role in trapping women into situations of spousal violence.460 21. The requirement is also arguably inconsistent with Article 9 of ICESCR which recognises the right of everyone to social security, and requires this to be provided on “a non discriminatory basis” (extending to grounds of national origin or status) to the “maximum of its available resources”.461 It is also inconsistent with European approaches462 to “integrating migrants” which recognise the importance of equal treatment in relation to social and economic rights in facilitating integration and participation in economic and social spheres of society.
Part 3: Restrictions on Studies
(i) Article 2 of Protocol 1 ECHR- the right to education/Article 8 ECHR 22. Article 2 of Protocol 1 requires that there is no arbitrary interference with the right to education. Further, education can form a part of private life under Article 8 ECHR.463 23. By clause 47, a new discretionary power to impose upon anyone with temporary leave any “condition” restricting [their] studies in the UK’ is introduced with a view to averting abuse of tier 4. Non- compliance with a condition attached to leave can in certain circumstances amount to a criminal oVence attracting a sentence of up to six months and/or a level 5 fine464 together the possibility of removal. The power is required to avert immigration based abuse of tier 4. 25. The breadth of this clause, and scope for arbitrary interference with the right to education of all migrants raises concerns from the point of view of Articles 2 and 8 ECHR. With the precise circumstances to be set out in the Immigration Rules, it is impossible at this stage to assert that the clause complies with Convention rights.
Part 4:
A. Transfer of Judicial Review 26. By clause 50 the Administrative Court is empowered to transfer immigration, asylum and nationality judicial review cases to the Upper Tribunal.465 Additionally, the eVect of this would be that: (a) The Lord Chief Justice with the agreement of the Lord Chancellor could specify a class of case that must be transferred into the Upper Tribunal.466 (b) The Lord Chancellor could by order require that leave to appeal from the Upper tribunal to the Court of Appeal is only granted in cases where (a) the proposed appeal raises some important point of principle or practice, or (b) there is some other compelling reason for the appeal to be heard. 27. Our concerns about this are as follows:
(i) Limited expertise and reducing the standard of protection of fundamental rights 28. Whilst the Tribunal at its upper levels possesses (or will possess with transfer of personnel from the present Asylum and Immigration Tribunal) valuable knowledge of immigration and asylum law and practice, this does not extend to expert knowledge of constitutional or administrative law, of civil liberties, or of judicial review law and practice. This expertise is important because: (i) Immigration and asylum cases often tend to be those in which precedents of wider application in constitutional and administrative law are established. (ii) The procedures in question are the means by which the adherence of the United Kingdom to its international obligations under the Refugee Convention/Citizens Directive and the ECHR including the right to life (art 2 ECHR), (art 3 ECHR); and the right to liberty and security of person (art 4 ECHR) is sought to be ensured.
459 Women tend to assume caring responsibilities, be inclined greater job insecurity and discrimination in the work place and the average incomes of certain ethnic groups tend to be lower. 460 Concluding Observations of the Committee on the Elimination of Discrimination Against Women CEDAW critiqued the UK on the basis that this was inconsistent with the duty to promote equality. CEDAW/C/gbr/co/6 UK41 st session July 2008, at para.47 461 The UK has not entered a reservation based on immigration in relation to Article 9 and is therefore bound by this. 462 The sixth principle of the EU Common Basic Principles for Immigrant Integration Policy in the European Union recognise that “Access for immigrants to institutions, as well as to public and private goods and services, on a basis equal to national citizens and in a non-discriminatory way is a critical foundation for better integration”. 463 GOO & Ors c Secretary of State for the Home Department [2008] EWCA Civ 747 464 Section 24 (1)(b)(ii) Immigration Act 1971 465 Section 20 Tribunals Courts and Enforcement Act 2007 (“TCEA 2007”) 466 Section 13(6) TCEA 2007 Processed: 23-04-2009 22:48:33 Page Layout: COENEW [O] PPSysB Job: 423079 Unit: PAG2
Home Affairs Committee: Evidence Ev 195
29. If a scheme of this kind is to apply it is therefore essential that there is (i) some appropriate mechanism in place to identify the kinds of cases suitable for hearing by a High Court Judge possessing administrative and constitutional law expertise and (ii) to ensure that that where this expertise is necessary, such cases are dealt with by a High Court judge.
29. The power to direct that all cases or any specified class of immigration and nationality judicial review must be transferred to the Upper Tribunal is inconsistent with the requirement for a reasonable process of selection separating those cases which are suitable for transfer to the Upper Tribunal from those which are not. The diYculty is magnified by absence of clarity as to how many High Court judges would sit in the Upper Tribunal and how, and at what level it would be decided within the Tribunal whether any particular case should be heard by a High Court judge.
(ii) Limitations on access to the Court of Appeal and compliance with ECHR and other international obligations
30. Our key concern lies in the risk of limitation on the right of appeal to the Court of Appeal. Currently leave to appeal will be granted where the contemplated appeal would have a real prospect of success without the need to show an important point of law of principle or practice or compelling reason for the appeal to be heard. If Section 13 (6) of the TCEA 2007 is brought to bear upon judicial review work transferred from the Administrative Court, it would bar recourse to the Court of Appeal even where there has been a fairly clear error of law by the Upper Tribunal in a Refugee Convention case (invoking the United Kingdom’s duty to protect from persecution) or in a serious human rights case (invoking the right to life or freedom from torture or inhuman or degrading treatment under ECHR).467 With appeals procedures not ensuring this either, the risk of critical injustice and non-compliance with international obligations would be greatly magnified in the event that the same eligibility test is imposed in the judicial review cases.
31. The application of the above test would also be contrary to the spirit of Article 13 (right to a remedy) ECHR given that it would lead to refusal of a remedy for breach of Convention rights that would otherwise be available in non- immigration cases.
B. Duty to Promote the Welfare of Children
(i) 1989 Convention on the Rights of the Child (“CRC”)—child’s best interests as the primary consideration
32. Article 3(1) of the CRC468 requires a child’s “best interests” to be the primary consideration in all UK state actions concerning children. Article 2(1) requires respect for CRC rights without discrimination on grounds of status or national or ethnic origin.
33. By clause 51, a new duty to promote and safeguard the welfare of children ‘in the UK’ is introduced. It’s scope would not however extend to children: i. With “temporary admission”. ii. At entry clearance posts. iii. At juxtaposed controls (with British immigration oYcers). iv. In circumstances where they are escorted to third safe countries for their care. v. In cases where there is a dispute about age.
Given that in all of the above cases the UK Border Agency will arguably be exercising jurisdiction, the provision is arguably inconsistent with the spirit and legal requirements imposed by the CRC.
467 See Uphill v BRB (Residuary) Ltd at para. 24 for the application of proposed test. 468 The UK has signed and ratified this. Processed: 23-04-2009 22:48:33 Page Layout: COENEW [E] PPSysB Job: 423079 Unit: PAG2
Ev 196 Home Affairs Committee: Evidence
British Nationality and the Right of Abode 34. A final word should be said about British nationals without the right of abode. It is arguably a principle of customary international law that states are under an obligation to admit their nationals. Articles 12(4) of the ICCPR and Protocol 4 ECHR represent the legal concretisation of this.469 35. Given that this Bill is primarily concerned with citizenship we believe that it should finally seek to resolve the position of British nationals without the right of abode. This could be achieved either through simply restoring the right of abode to them; or if this is not favoured through a modified version of the model recommended by Lord Goldsmith.470 36. Finally, given that this Bill is primarily concerned with enhancing the value and significance of citizenship, we would urge the Committee in the light of the Government’s clear intention to abolish the single most important right attaching to British citizenship (ie the right of abode)471 in a way that opens up frightening possibilities and is wholly inconsistent with international norms, to seek a clear commitment from the Government that the right of abode for British citizens will be retained.472 March 2009
469 The ICCPR has been signed and ratified by the UK though a reservation has been entered to cover British nationals without the right of abode. Protocol 4 has been signed though not ratified by the UK. 470 For which see P Goldsmith, Citizenship: Our Common Bond, 2007, p 172–74. The proposal is for a time limited registration system and the abolition of these categories all together. We note that Lord Goldsmith QC concludes that a registration system for British Nationals Overseas would be in breach of commitments made between China and the UK in the 1984 Joint Declaration on the future of Hong Kong. It is worth noting however that the Foreign AVairs Committee when examining the same point concluded “To grant full British Citizenship, however, would contradict the British memorandum on nationality attached to the Joint Declaration. This memorandum is not part of the Joint Declaration and to go against it would not constitute a breach of the Treaty” Page xviii, Foreign AVairs Committee: Hong Kong, Second Report, 1988–89 HC281. There would however also be other alternatives such as registration for an entitlement to ILR/permanent permission or renegotiation of the treaty. See generally the detailed submissions/bill briefings of the ILPA on British nationals without the right of abode available at www.ilpa.org.uk 471 See clause 1 (1) (2) of the Draft (Partial) Immigration and Citizenship Bill under which entry/residence or departure of a British citizen will be “subject to any requirement or restriction imposed by or virtue of this Act or ant other enactment” 472 We believe that other existing right of abode holders should also continue to retain their status.
Printed in the United Kingdom by The Stationery OYce Limited 4/2009 423079 19585