UK Borders Bill

A Law Centre (NI) response

May 2007

1.  About Law Centre (NI)

1.1 Law Centre (NI) works to promote social justice and provides specialist legal services to advice organisations and disadvantaged individuals from our two regional offices in Northern Ireland .  Our services are provided to almost 500 member agencies.  Five specialist lawyers carry out our immigration and asylum work and we facilitate the Immigration Practitioners’ Group which consists of lawyers and voluntary sector organisations from across Northern Ireland . We welcome the opportunity to comment on the UK Borders Bill as now before the Lords.

1.2 Law Centre (NI) is conscious that the background to this Bill is the administrative failures identified within the Home Office/IND in 2006.  This is the fifth major piece of legislation on immigration in the last six years and the seventh piece of immigration legislation introduced by the government since 1997.  For this reason, we are concerned there has been insufficient time for existing legislation to become embedded and understood, particularly by those most affected by it, and that further complex legislation will exacerbate this.  

1.3 Law Centre (NI) is concerned that the Home Office, in this Bill, is attempting to conflate the two issues of crime and immigration.  This approach may be interpreted, by some, as justifying a prejudicial attitude toward migrants (a perception that would only be increased after the comments of the Home Secretary to BBC radio on 7 March in which he spoke of "foreigners" coming to the country illegitimately "stealing our benefits”).[1]

2.  Principal Areas of Concern

2.1 Despite a number of welcome amendments to the Bill made during the Committee stages in the House of Commons, we remain deeply concerned at the range of draconian measures proposed in the UK Borders Bill.  In particular, our concerns focus on: 

	a.  the increased powers proposed for the immigration service without the balance of corresponding provisions for codes of practice, training or oversight (clauses 1-4, 18, 23, 43, 44);
	b.  the introduction of biometric registration (clauses 5-15);
	c.  the extension of residence conditions to anyone within the UK subject to immigration controls (clauses 16);
	d.  the measures proposed to tackle people trafficking (clause 30);
	e.  detention and removal powers (clauses 3, 7, 31--38);

3. The Increased Powers Proposed for Immigration Officers Clauses 1-4, 18, 23, 43 & 44

3.1 The proposals to considerably increase the powers of Immigration Officers raise concerns that the Bill will effectively create a ‘second police force’ within the UK .   These powers come without corresponding regulatory and oversight frameworks, including provision for the introduction of prescribed codes of practice; training in the use of the new powers, and independent oversight procedures to ensure accountability under the new provisions.  For this reason, we would suggest that criteria  should be established for the appointment of Immigration Officers, in Clause 1,  as proposed in the proceedings of the Public Bill Committee on March 6, by Damien Green and Crispin Blunt  that

(4) “The Secretary of State shall, by regulation, make provision as to the necessary qualifications and training for a designated immigration officer.

(5) Regulations under subsection (4) shall be published no less than six months before the commencement of Section 1 of this Act.’

In adopting this approach the regulations will be open for parliamentary scrutiny and debate, allowing for a considered discussion on the remit of Immigration Officers.  

3.2 Clause 2 provides powers for an Immigration Official to hold an individual suspected of an immigration offence for up to 3 hours at a port before a police officer must attend.  The powers set out in Clause 2 (Detention) are extensive as, given the list of offences covered by s24 of PACE in England and Wales and Article 26(1), (2) or (3) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)), the United Kingdom Immigration Service (UKIS) is in effect able to arrest and hold anyone, including UK citizens for up to 3 hours, if they suspect them of an ‘arrestable’ offence; i.e. not only immigration offences. This means the Immigration Service will become a de facto second police force within the UK ’s borders.

3.3 We would argue that without suitable regulation of the use of detention powers by Immigration Officers there should be no such powers in the Bill and that even if regulations for such detention are laid, detention for a period of 3 hours, by an Immigration Officer, should be an absolute maximum. Without regulations and Codes of Practice covering the exercise of this power we would anticipate that this could be open to a challenge under Article 5 of the European Convention of Human Rights.

3.4 Within Northern Ireland we have been aware that for some time Immigration Officers have been seizing individuals under ‘Operation Gull’[2], detaining them without access to legal advice and removing them as soon as practicable from the jurisdiction.  Given the concerns we have over the lack of oversight of the operation and the secrecy with which these raids take place we are extremely concerned that the Home Office is looking to extend the measures employed in Operation Gull across the whole of the UK by introducing a range of measures that make it easier for Immigration Officers to act without proper oversight.

3.5 We are further concerned that the legislation set out in Clause 21 for assaulting an Immigration Officer is unnecessary as an individual assaulting an Immigration Officer would be subject to punishment under existing law.  We are also concerned that the scope of the powers of arrest set out in Clause 22 for assaulting an Immigration Officer are unnecessarily wide ranging reinforcing the need for a comprehensive Code of Practice to ensure these powers are not used improperly. 

3.6 Clause 23 allows an Immigration Officer the powers of a police officer for recovering cash from an individual suspected of gaining the money from an immigration offence. We would strongly argue that if the Home Office is committed to strengthening the powers of Immigration Officers as promoted in the Bill then there must be an adequate and credible form of independent authority tasked with scrutiny over the operation of Immigration Officers.

3.7 Clause 43 allows an official to search premises for proof of nationality if they believe an individual is subject to immigration controls while Clause 44 allows Immigration Officers to seize any document if they believe the individual may be liable to be removed.  It effectively allows Immigration Officers to raid property and seize valuable possessions on the basis of suspicion of an immigration offence.  This is a significant increase in the powers of the State to intrude into an individual’s home and private life which is arguably unnecessary.  We would subit that existing police powers utilising search warrants would safeguard the rights of migrants and still allow the State to check an individuals documents.

3.8 In sum, it is our recommendation that the powers of the Immigration Officer as set out in this Bill should not include powers traditionally the preserve of police officers, specifically, the powers of detention, the seizure of property and the power to enter, without a warrant, an individual’s house to search for and seize personal documents. Should, however, the Government pursue the introduction of these powers, they must be accompanied by adequate safeguards, including the establishment of an independent supervisory and oversight body (modelled, possibly, on the police board established in Northern Ireland); a comprehensive code of practice to regulate the operations of Immigration Service and that formal and extensive training should be provided so that officers are aware of the rights of individual migrants and the responsibilities they have as officers of the state.

3.9 Law Centre (NI) does not believe the need for safeguards and oversight is effectively met by the establishment of a Border and Immigration Inspectorate (clauses 45-53). While we welcome the moves at the Committee stage in the House of Commons to introduce measures to establish a Border and Immigration Inspectorate, we are concerned the body proposed lacks the autonomy of the four bodies it is replacing[3].  Furthermore we believe the Inspectorate should have the power to investigate individual cases. We are also concerned that unlike the reporting arrangements for the four independent monitoring bodies the inspectorate will replace, which provide that reports submitted to the Home Office must be presented before Parliament in full, the Secretary of State may omit material in his presentation to Parliament.  Notwithstanding the grounds for this ie national security and individual safety we believe this is, in principle, wrong.

4. The Introduction of Biometric registration Clauses 5-15

4.1 Law Centre (NI) is concerned at the proposed use of biometric registration as set out in the Bill.    

4.2 Clause 5 (1) (a), (b) & (c) compels those subject to immigration controls to apply for a biometric ID card, specifies the uses of the ID card and requires the provision of secondary ID to corroborate the ID card.  From our experience of monitoring ‘Operation Gull’ in Northern Ireland , measures that single out particular groups for extra scrutiny should be subject to transparent and substantial oversight.  It is our contention that legislating to introduce compulsory ID cards for those subject to immigration control could lead to the creation of a multi-tiered society where those who immigration officers perceive to be subject to immigration procedures could be subject to repeated requests for identity documents.  We believe that the current legislation proposed could be extremely prejudicial in practice, damaging to community relations and open to abuse.  Moreover it could end up being discredited in much the same way that ‘stop and search’ procedures were discredited.  As a result the proposals are likely to prove counter productive.

4.3 The nature of the penalties facing immigrants who breach the requirements for biometric registration are severe.  Clause 7(2) provides that not only are defaulters liable to fines, but that non-compliance may, in circumstances yet to be determined, result in the cancellation of leave.  This is a disproportionate penalty.  Clauses 7(2) (b) and (e) in particular establish wide ranging and harsh consequences for non-compliance.  Under clause 7 (2) (b) the Home Office may prepare regulations that ‘disregard’ an immigration application, without clarifying what this process would entail or apparently establishing any right of appeal, while 7(2)(e) allows for regulations that give the Home Secretary discretion in determining the consequences of non-compliance with apparently no restriction on the exercise of his discretion.

4.4 Clause 8, providing wide ranging powers for the subsequent future use of personal information, raises further concerns. The intention appears to be to share information across government and other agencies and there appears to be a lack of provision for appropriate controls on the use of the data captured.  This would appear to be in contravention of Article 8 of the European Convention of Human Rights.

4.5 We are extremely concerned by the extent of the powers the Bill purports to retain for the Home Secretary, (Clause 5(2) (3) (4) and (5)) in relation to the use of ID cards and the requirements placed on the holder of the ID card. The powers to make regulations under these provisions will impact most on already vulnerable groups within society and will impose strict conditions on those subject to immigration control, yet as secondary legislation will not warrant the same level of parliamentary scrutiny as afforded primary legislation.  We would recommend that the Home Secretary introduces the measures to Parliament as primary legislation to ensure full oversight of the measures.

5. The Proposed Controls on Residency and the Treatment of Claimants Clauses 16-19

5.1 Clause 16 of the Bill makes anyone subject to immigration controls (with limited leave to remain) potentially liable to have a condition of residence and/or a reporting criteria attached to the leave to remain.  The proposed provision to require migrants to report every time they move residence, is potentially in contravention of Article 8 ECHR.  We can see no rationale or justification for visitors, spouses, work permit holders, students, refugees etc being forced to report regularly to an Immigration Officer in order to move around the UK , yet the Bill appears to suggest no limitation or restriction to this power.  We are also deeply concerned as to the extent of the penalties for failure to meet these conditions which include arrest, detention, possible revocation of leave and deportation.  Not only is this measure unjustifiably punitive but it is also an unnecessary and undoubtedly, costly, expansion of State bureaucracy.

5.2 Clause 18 of the Bill, which makes abuse of the system of support for asylum seekers an arrestable offence, is a disproportionate response to the issue this provision seeks to address  and may deter those most in need from claiming support for fear of arrest and subsequent deportation.  Indeed as the report of the Joint Committee Report on Human Rights into the treatment of asylum seekers makes clear, a recent pilot that resulted in asylum seeking families having their financial support removed “caused considerable hardship [without appearing] to have encouraged more refused asylum seeking families to leave the UK” .[4]  We would agree entirely with the Joint Committee report that “using both the threats and the actuality of destitution and family separation is incompatible with the principles of common humanity and with international human rights law and that it has no place in a humane society”[5].  We would recommend that the Home Office, instead of limiting financial support strives to ensure that no asylum seeker be faced with destitution.

5.3 Clause 19 drastically reduces appeal rights by disallowing new evidence on appeal. This arbitrary measure restricts access to justice without taking into account potential errors in original decision-making. For years, national and international NGOs and monitoring bodies have been highlighting the poor quality of initial decision making at the Home Office, indicated by the discrepancy between the number of refusals at initial decision and the success rate at subsequent appeals.[6]  This measure will affect most those who have not received advice when making their initial application. 

6. People Trafficking Measures Clause 30

6.1 Clause 30 addresses people trafficking and aims to tighten the existing legislation by extending the legislation to cover offences carried out prior to entry into the UK .  The commitment of the Government to tackle this crime is welcome. Concerns remain, however, that other measures in the Bill may make it less likely that victims of trafficking will come forward to report the traffickers and co-operate with the authorities, given the penalties they could face for having an illegal immigration status. To protect those victims of people trafficking we would recommend that the UK follows up its decision to sign the Council of Europe on Action against Trafficking in Human Beings[7] by ratifying the Convention.

7. Detention and Removal Powers Clauses 3, 7, 31-38

7.1 Clause 3(1) (b) and (c) provides that resisting arrest or assaulting an Immigration Officer is now punishable with imprisonment.  As the Bill, under its automatic deportation measures, provides for individuals imprisoned to be deported after their conviction, this would suggest that an individual subject to immigration control would in certain circumstances face a double penalty not only of imprisonment but also of losing all rights to be in the UK .

7.2 We are concerned that provisions in clause 35 to automatically detain individuals prior to, or during the deportation process are contrary to Article 5 of the European Convention on Human Rights.  We here echo and support the concerns raised by the Foreign National Prisoner Group in their submission on this Bill.

7.3 The issue of the non-deportation of foreign national prisoners at the end of their sentence which was at the centre of the Home Office crisis last year is addressed in Clause 31 on automatic deportation.  Clauses 32, 34 and 35 set out the exceptions to automatic deportation, the appeal process against automatic deportation and the powers of detention the Home Office may utilise to detain those who have completed their sentence. 

7.4 Clauses 31 and 32 provide for the deportation of ‘foreign criminals’. The legislation as set out has very few exceptions; with the punishment often being disproportionate to the crime committed and, in this way, will lead to further difficulties for those who are not citizens of the UK , the Commonwealth or the EEA.   Under the proposed legislation, those guilty of minor offences who had been residing in the UK for many years and who may have established families, could be subject to removal by the Immigration Service without the possibility for the exercise of discretion due to extenuating circumstances.  This approach will in all probability lead to a number of costly court cases and forced removals.  We would recommend these measures be dropped and that the issue would be better addressed by a more diligent approach within those departments tasked with managing the cases of overseas nationals imprisoned in the UK .

8.  Conclusion

8.1 The draconian measures outlined in the UK Borders Bill, provide for the creation of a second (and substantially less regulated) police force in the UK; attempt to force through the implementation of Biometric Identity Cards and will lead to the creation of a ‘multi-tiered society’ where those who do not appear to be liable to immigration controls enjoy much greater freedoms than those who do.   It is our contention that these measures take the immigration debate in the wrong direction focussing on the easy, vulnerable target, rather than tackling the more difficult problem of devising an immigration system that works for all.  We would recommend the UK Borders Bill be replaced with legislation aimed at making the system fairer not harsher for those, from overseas, seeking to live, work and seek asylum in the United Kingdom .