Briefing Paper:
House of Commons Report and Third Reading
July 2009

The Border, Citizenship and Immigration Bill goes before the House of Commons for the Report Stage and Third Reading on Tuesday 14th July. In its current form, the Bill will have profound implications for Northern Ireland.  Below we highlight key concerns with the Bill, specifically in relation to:

• Proposals for the Common Travel Area (CTA)
• Oversight of Immigration Officers powers
• The welfare of children
• The transfer of judicial review applications

This briefing paper builds upon a previous submission on the scheme of the Bill prepared jointly by Law Centre (NI), UNISON and STEP in advance of the House of Common’s Second Reading (attached). It provides a background to the Bill, and outlines concerns relating to the extension of immigration powers, new citizenship arrangements and an amended definition of short-term holding facilities. These proposals (and subsequently, our concerns) remain unchanged.

Common Travel Area (Clause 50)

The House of Lords voted against the Government’s proposed amendments to the CTA with a resounding two thirds majority. Nonetheless, the Government has re-introduced the proposal as Clause 50.

The Government is seeking far-reaching powers from Parliament to introduce immigration control on all sea and air routes between Northern Ireland and the Republic of Ireland and between Northern Ireland and GB. The powers will also give the Government the capacity to introduce border check-points along the land border. The Government denies that it intends to introduce fixed border controls but nonetheless continues to seek powers that will enable it to do so. The Northern Ireland Human Rights Commission has argued that the extensive powers sought by the Government may run contrary to the Belfast (Good Friday) Agreement 1988.¹

The Government has failed to make its case for the necessity of the proposals. In its initial consultation, ‘Strengthening the Common Travel Area’, UKBA argued that the proposals were necessary to reduce irregular migration. However, the Government has since adopted a different argument before the Lords, citing the need to apprehend “people of international counter-terrorism interest.” Little empirical evidence has been provided to support or explain the need for the changes nor to substantiate these somewhat vacuous claim.

The Government’s figures demonstrate the significant economic impact of the proposals: the cost of implementing the proposals is estimated at £67 - £75.8 million and will result in a £43.5 million reduction in UK tourism over ten years.²

Ad hoc immigration checks at the land border present concern about the use of racial profiling in the application of these powers. The Government denies this insisting that its operations will be ‘intelligence-led’ but has offered little explanation as to what this will entail.

RECOMMENDED ACTION: Vote against Clause 50 and Support Amendment 14, which calls for the clause to be deleted.

Oversight of Immigration Officers (Clauses 28-30)

Part I of the Bill significantly expands the powers of Immigration Officers without appropriate oversight mechanisms.  Immigration Officers will be empowered to operate police-type powers and while in some instances, the relevant PACE codes of conduct will be applied to the work of Immigration Officers, the Bill still does not subject the operation of these powers in Northern Ireland to oversight by the Police Ombudsman.  This is a serious gap in oversight.

RECOMMENDED ACTION: Insert a statutory basis for Police Ombudsman oversight in Part 1, ‘Inspection and Oversight’, Clauses 28- 30.

Welfare of children (Clause 56)

Despite much debate, the proposed statutory duty regarding the welfare of the children, is still only limited to children who are physically in the UK.

Approximately 3,000 - 4,500 immigration officials work outside the UK at juxtaposed immigration control and Entry Clearance posts. UKBA officials also escort unaccompanied children back to their country of origin. The statutory duty to children should be comprehensive and protect all children who come into contact with, or are in the responsibility of, UKBA.

RECOMMENDED ACTION: Seek an amendment to Clause 56 so that it applies extraterritorially.

Transfer of judicial review applications (Clause 54)

Clause 54 re-introduces the Government’s original proposal to transfer immigration/nationality judicial review cases away from the High Court to the Upper Tribunal. This proposal was defeated in the House of Lords and was replaced with a much more restrictive power that would apply only to fresh claims.  With a narrow majority in the Commons Committee, the original proposal has been resurrected.

Law Centre (NI) opposes this clause. Firstly, the provisions would be utterly unworkable in Northern Ireland given current arrangements whereby the Upper Tribunal sits only every 4 to 6 months. The urgency of some immigration/nationality judicial review cases – including reviews on Removal Directions – require them to be heard promptly. In Northern Ireland, the High Court is therefore the suitable forum for these cases.³ Secondly, our casework experience indicates that High Court judges have a much broader knowledge of human rights issues and international conventions than Tribunal judges. This broad experience is essential in immigration/nationality cases, which are often very complex in nature and where an incorrect decision can potentially lead to a loss of life or serious harm. Again, the High Court is the appropriate forum.

RECOMMENDED ACTION: Oppose Clause 54.