A Law Centre (NI) Briefing
February 2009

Introduction

Law Centre (NI) is a public interest law non-governmental organisation. The Law Centre works to promote social justice and provides specialist legal services to advice organisations and disadvantaged individuals through our advice line and our casework services from our two regional offices in Northern Ireland.  The Law Centre provides advice, casework, training, information and policy services to over 450 member organisations in Northern Ireland. We are the main advisers on immigration law in Northern Ireland and facilitate the Immigration Practitioners’ Group consisting of lawyers and voluntary sector organisations.

We welcome the opportunity to provide a briefing for the House of Lords Second Reading relating to the Borders, Citizenship and Immigration Bill 2009. This submission is informed by our experience of immigration work in Northern Ireland. Accordingly, in addition to addressing key issues raised in this Bill – increased powers for Immigration Officers, a new citizenship regime, statutory duty towards children – this submission focuses on the Common Travel Area, which is a particular issue affecting Northern Ireland. The final section of this submission outlines suggested amendments to Parliamentarians.

The Consolidation Project

As many stakeholders have identified, immigration legislation is in urgent need of consolidation; the current piecemeal legislation is unwieldy and contributes to confusion, lack of transparency and poor quality decision making. The Draft (partial) Immigration and Citizenship Bill 2008 outlined a proposal to consolidate legislation; however this aim has since been replaced by a two-track approach: this Bill, which has a much reduced scope than the 2008 Bill, and an Immigration Simplification Bill to be published at the end of the parliamentary session.  We question why the latter Bill has not been given priority for parliamentary time.

We are pleased to see that a number of measures first proposed in the 2008 Bill appear to have been dropped,¹ however, we are concerned that they will re-emerge in subsequent legislation. Presenting immigration reform in this disparate manner hinders an effective response; it is not possible to assess the legislative implications of these proposals unless viewed in their entirety. This Bill provides a broad framework and robust structural basis for new powers yet none of the supporting documents explain why the change has been instigated or indeed what new powers will be created.

Secondary Legislation

We regret the number of instances in which this Bill makes provision for secondary legislation. This is a worrying trend. On the one hand, the government seeks to limit discretionary grants of leave (see below section on Discretionary Leave) while one the other, the government increases the Secretary of State’s discretion in immigration matters through providing broad scope to bring forward secondary legislation and regulations.

Part I

Evolving role of UKBA

Part I of the Bill focuses on border functions. Our primary concerns relate to the significantly increased powers conferred on Immigration Officers and to the apparent lack of accountability.  The Immigration Act 1971 provides the legislative basis to Immigration Officers powers.  These have been expanded in subsequent Acts.  These powers - already considerably broad in some instances - are subject to a number of limitations.²

However, under this Bill’s provisions, Immigration Officers will be empowered to exercise revenue and customs functions, which have hitherto been restricted to HMRC. Extending HMRC powers to Immigration Officers will expand immigration powers considerably.³

New powers

The powers of HMRC officers can be found in the Customs and Excise Management Act 1979 and have been extended by the Finance Act 2008. The powers are extensive and include: invasive physical search powers; powers to visit and inspect premises without obtaining consent; powers to search computer records; powers to seize goods; powers to impound aircraft and ships; and powers to arrest and detain. The Act also renews the criminal offence of destroying or concealing records and introduces several penalties for non-compliance. Perhaps most importantly, the Finance Act 2008 creates a power to require a third party to provide information and documents for the purposes of checking a person’s tax position.⁴ The definition of ‘tax position’, outlined within the same Act, is arguably wide and would almost certainly require the provision of personal data that could be of use in an immigration context.⁵ Under existing immigration legislation, requirements relating to third parties are narrowly defined.⁶ Therefore, the proposal to require third parties to provide information is clearly a major increase in powers and constitutes a substantial intrusion into civil liberties.  We remain unconvinced that the government has justified any potential interference with Article 8 rights.⁷

Furthermore, Revenue and Custom powers enable arrests for offences that were committed (or suspected to have been committed) up to 20 years previously. Quite clearly Revenue and Custom powers could conceivably have wide application within an immigration context and few safeguards appear to be in place.

Immigration / criminalisation

We also have a broad policy concern about the continued association between immigration and criminal activity, which is compounded by the proposals to ‘merge’ immigration and HMRC powers. The trend to criminalize immigration matters has been widely criticized by Thomas Hammarbeg, the Council of Europe Commissioner for Human Rights, who fears the trend is disproportionate and warns it may lead to further stigmatisation and marginalisation.

Absence of safeguards

By effectively merging the two roles and accompanying powers, Immigration Officers will now have similar powers to the police and yet, despite their quasi-police status, the proposed Bill makes no requirement for Immigration Officers to be subject to PACE safeguards.  Instead, Clause 22 enables the Secretary of State to make such an order. This discretionary power to make Immigration Officers accountable to police standards is simply inadequate.

Absence of policy justification

Given that these proposals constitute major institutional reform we are surprised that there has not been a formal period of consultation. The explanatory notes provide detail as to the mechanics of the reform, but provide little policy justification for the move. There is no detail provided listing the new transferable powers under the ‘merger’, which means that we simply do not know how the Secretary of State intends the powers to be used. The proposed legislative framework that will enable Immigration Officers to exercise revenue and customs functions is extremely thorough (Part I comprises almost half the provisions). However, scant consideration is given to the implications of a de facto ‘secondary police force’, which will be created by the additional powers outlined in this Bill.

Part II: Citizenship

Increased insecurity

With unwavering insistence the government continues to pursue a policy of effectively requiring migrants to apply for British citizenship by creating a powerful disincentive to permanent residency.⁸ This policy will increase insecurity for migrants who will be liable to removal action over a longer period under the new regime.⁹ This policy may have a discriminatory impact on persons whose nationalities preclude them from holding more than one nationality. The right to nationality is enshrined in the UN Declaration on Human Rights.¹⁰ The ‘choice’ between adopting British citizenship or facing continued insecurity may hinder freedom of movement for people required to renounce their previous nationality who may be prevented from returning to their country of origin.¹¹ This position is incompatible with UNHCR guidance, which maintains that repatriation may be the best long-term solution for most refugees.¹²

We cannot see how increasing the time required to be in the UK before applying for to naturalisation (and thus increasing periods of instability) is conducive to the aim of promoting integration. The government has not made its case as to the necessity for introducing such a regime.¹³ Implementing this new regime will cost the government approximately £15 million.¹⁴ Given the substantial cost to the public purse, one would assume it essential for the proposals to have a robust evidential basis, which is simply not the case.

Probationary citizenship

The term ‘probationary citizenship’ is incorporated into the legislation.¹⁵ The term is misleading as the status does not bestow the recognised entitlements of citizenship and provides no scope for the principle of reciprocity where increased legal duties are accompanied by enhanced rights. Moreover, ‘probationary citizenship’ is an illogical concept when applied to a person who is unable (or unwilling) to become a citizen. Equally, the concept inserts an additional stage into citizenship, which is not in keeping with the simplification ethos.

The implication of the government’s proposals is that integration can be promoted by requiring migrants to ‘earn citizenship’ and by increasing the time periods in which migrants are exposed to and can adopt shared British values.¹⁶ However, evidence identifies poverty as the greatest threat to social cohesion rather than a lack of shared values.¹⁷ This would suggest that the government’s focus on extending the naturalisation process is flawed. The cost of this new regime to the public purse is substantial,¹⁸ however, the evidential basis is lacking. This is a matter of concern.

One of the rationales for the new citizenship system is that ‘migrants and the public are uncertain as to what they are entitled to at each stage, and what criteria they must meet to progress to the next stage’.¹⁹ Clause 39(5), however, provides the basis for varying both the naturalisation requirements and time periods and therefore allows for the goal posts to be moved. This is wholly inconsistent with the objective of moving towards clarity.

There is no provision to reduce the qualifying periods necessary to naturalise for refugees and stateless persons. Such persons have already demonstrated their need for surrogate protection and a secure home is the corollary to this. The Bill fails to acknowledge that refugees are not motivated by choice and is contrary in spirit to international instruments.²⁰ The Bill should acknowledge that any time an applicant spends in the UK prior to being granted refugee status can contribute towards the ‘qualifying period’ for purposes of Clause 39.²¹

Acquisition of British citizenship through the female line

We are pleased to note Clause 41, which removes the provision preventing individuals born abroad to a British mother before 1961 from acquiring citizenship. This is a welcome provision, which improves gender equality.

Part III: Immigration

The Common Travel Area: Introduction

The establishment of the Common Travel Area in the 1920s as a passport free zone was in recognition of the interconnected social, economic and cultural relationship between the UK and the Republic of Ireland and the fundamental difficulty of policing the land border between Northern Ireland and the Republic.  Since its advent the Common Travel Area has only been suspended during World War II. Even at the height of the ‘troubles’ in Northern Ireland in the 1970s and 1980s the Common Travel Area was maintained.

Clause 46 effectively abolishes the Common Travel Area (CTA) by removing the provision that means that persons departing from or arriving in the UK from within the CTA are not subject to immigration control. The clause effectively introduces immigration controls on all sea and air routes between the UK and the Republic of Ireland. There is an expressed  intention also to increase the number of intelligence led ad-hoc immigration checks on the land border.²² The rationale given by the Government for these changes is set out in the impact assessment of the recent ‘Strengthening the Common Travel Area’ consultation. However, little empirical evidence is provided to support or explain the need for the changes.

The Common Travel Area: Intelligence-led operations

One of the strong concerns that Law Centre (NI) has is that the increased use of intelligence-led operations along the land border between the Republic of Ireland and the UK will actually have the effect of targeting individuals on the basis of their ethnicity. The Government claims that these operations will be intelligence-led and not based upon racial profiling,²³ but have not set out what criteria will be used as the basis for these operations or set out transparent monitoring to ensure that they are not relying upon racial profiling. Law Centre (NI) and Northern Ireland Human Rights Commission have already raised concerns over the activities of Immigration Officers operating the ad-hoc and semi-regular Operation Gull.²⁴

The legislative basis for powers exercised under Operation Gull officers is unclear and the legality of some Operation Gull exercises has been successfully challenged by the Law Centre.  Those targeted are questioned and if it is suspected they are entering Northern Ireland with a view to entering the Republic of Ireland illegally or are suspected of another immigration offence they will be detained and removed from Northern Ireland.    The speed and secrecy under which Operation Gull is carried out results in individuals being unable to access independent legal advice that would be able to determine whether they have been detained lawfully. The Impact Assessment to this Bill indicates that many more of these types of operations will apply in Northern Ireland.

The Common Travel Area: Compelling the carrying of ID & document requirements

In practical terms, the amendment to Clause 46 means that immigration officials can challenge an individual they suspect of not being in compliance with immigration rules to prove their nationality.  This will apply not only to those travelling by sea and air but also those stopped by an ad-hoc immigration check near the land border. As this power can be applied to any individual – including British and Irish nationals – it will mean that those living in the border area could be subject to frequent immigration checks on any journey near the border and could therefore feel compelled to carry ID with them on all journeys. Given our concerns over the basis for the ‘intelligence-led operations’ we would be concerned that this pressure may be felt most strongly among the ethnic communities living on or near the border and by individuals from these communities contemplating travel between Northern Ireland and the Republic of Ireland.

The Common Travel Area: Mirroring ROI operations

One justification for the changes to the Common Travel Area is that they only mirror measures in the Republic of Ireland. It has been the case for some while now that Immigration Gardai in the Republic of Ireland has been operating ad hoc immigration checks on land routes across the border. A number of organisations in the Republic of Ireland, such as National Consultative Committee on Racism and Inter-culturalism (NCCRI) have raised concerns that these operations could be based upon racial profiling and may not be human rights compliant²⁵. We would caution against mirroring such practice.

The Common Travel Area: Costs

The Home Office recognises that the ending of the Common Travel Area through the introduction of these measures carries significant costs. The implementation of the measures will cost up to £76m over 10 years. Equally, the Home Office acknowledges that implementing these measures would result in an 11% reduction in tourism revenue for Northern Ireland. This would be unwelcome in a strong economic climate but in the current UK economy it will have a significantly adverse effect on a key industry in Northern Ireland.

Common Travel Area: Belfast Agreement 1998

The impact of the proposals for increased border checks and the de facto identification requirement may be at odds with the spirit of the Belfast/Good Friday Agreement and is likely to attract considerable interest in Northern Ireland.

The Agreement affirms the right to freely choose one’s place of residence.²⁶ The impact of Clause 46, namely the implicit obligation to carry identification, may hinder free movement, and thus by extension, residency.  The Agreement also calls for social inclusion and social cohesion in urban, rural and border areas²⁷ and yet these proposals are likely to increase instability for immigrant communities and thus reduce social cohesion.

Part IV: Miscellaneous and General

Judicial Review

Clause 50 of the Bill removes the current restriction on transferring Judicial Review applications to the Upper Tribunal relating to decisions under the Immigration Acts. The effect of this is that such applications can now be transferred to the Upper Tribunal. Law Centre (NI) has opposed such a move on the grounds that it would be wholly impractical in the context of Northern Ireland given the present practice of reconsideration applications and the short period of times relating to removals.²⁸

Duty regarding the welfare of children

The government’s commitment to remove its general reservation on immigration and citizenship matters to the UN Convention on the Rights of the Child is welcome.²⁹ Equally welcome is the recently published UKBA Code of Practice,³⁰ which recognises international standards of good practice by stating that the best interests of the child will be a primary consideration.³¹ Clause 51, which requires the Secretary of State to make arrangements to ensure the need to safeguard and to promote the welfare of children who are in the UK, is a positive development as it mirrors the duty outlined in the Children Act.³² However, the government should take this opportunity to better extend protection to children in the following ways.

Firstly, the “best interests” principle, outlined in the Code of Practice and which is consistent with international best practice, should now be enshrined in the Bill.

Secondly, Clause 51 (3), which creates a duty for persons to have regard to guidance relating to the welfare of children provided by the Secretary of State does not impose a statutory obligation on the Secretary of State to produce such guidance. This should be rectified.

Thirdly, the government should use this opportunity to create a statutory limit on detention for children.³³

Finally, the limited territorial application of Clause 51 should be reconsidered.  The provision only extends to children who are in the UK. This is problematic as the legal definition of ‘in the UK’ may be narrower than perhaps a practical reading would suggest.³⁴ This means that children who are physically in the UK might be excluded from the benefit of the provisions. Furthermore, through measures such as ‘juxtaposed immigration control’, when UK Immigration Officers exercise immigration functions outside the UK, it becomes all the more essential that any child who comes into contact with a UK Immigration Officer will be protected by this duty.³⁵

Discretionary Leave

The Bill makes no move to abolish Discretionary Leave, but its silence on this point is of concern as follows.   The Impact Assessment to the Bill outlines three possible routes to citizenship: economic, family and protection.³⁶ The protection category omits the possibility of obtaining protection through Discretionary Leave. The application of Discretionary Leave is also omitted with regards to access to benefits: only refugees and those granted humanitarian protection will continue to be entitled to access all benefits and services.³⁷

The omission of Discretionary Leave in these circumstances appears to be consistent with the government’s policy objective to reduce reliance on discretion.³⁸ Discretionary Leave forms an essential component of the immigration system and offers a form of protection for many vulnerable people including children and victims of trafficking. Indeed, current Home Office policy explicitly recognises the importance of Discretionary Leave.³⁹ Law Centre (NI) has relied upon the principles of Discretionary Leave in a number of successful cases for vulnerable clients who have no other route open to them for leave to remain. We can provide case studies if required. We would therefore urge Parliamentarians to ensure that its legislative basis is not undermined – either in this Bill or future Bills.

Suggested amendments

In light of the above, Law Centre (NI) urge Parliamentarians to seek the following amendments to the legislation:

Part I: Border Functions

• In Clause 22, introduce a requirement for Immigration Officers to be subject to PACE safeguards when exercising functions.

Part II: Citizenship

• Abolish the principle of probationary citizenship.
• Abolish the move to increase qualifying periods to naturalise/obtain permanent settlement until the government provides evidence as to its necessity.
• In Clause 39, ensure that any time period spent in the UK while waiting for an asylum application to be processed contributes towards qualifying periods.
• In Clause 39, delete the provision that enables the Secretary of State to extend the qualifying period.

Part III: Immigration

• With regards to Clause 46, delete the amendment to the Common Travel Area.
• Formalise the existing Common Travel Area arrangement through the introduction of a mutually recognised visa or jointly issued common visa system.
• Secure a confirmation that passport control will not be introduced on the Northern Ireland/Republic of Ireland land border or the ferry crossings between Northern Ireland and the Republic of Ireland.

Part IV: Miscellaneous and General

• In Clause 51, embed international standards relating to children in primary legislation (rather than relying on the Code of Practice).
• In Clause 51, remove the territorial application of the duty to children and extend it to all situations where Immigration Officers exercise functions in relation to children.
• Introduce a commitment to retaining the provision of Discretionary Leave in primary legislation and accompanying materials.