Liz Griffith, Policy Officer at Law Centre (NI), is pleased that the new Act has not eroded the Common Travel Area but concerned about the human rights impact of the many of its provisions.

The UK’s immigration system is undergoing substantial change. In July 2009, the Borders Citizenship and Immigration Act received Royal Assent and sections are now in force. This is the first part of the system’s overhaul; the second piece of legislation is due in autumn 2009. This article discusses some of the provisions of the new Act.

Freedom of movement

The new legislation applies across the UK. One particular provision, however, was of particular interest to local organizations and political representatives as it would have affected the freedom of movement of Northern Ireland residents. The Common Travel Area is a decades-old arrangement that allows British and Irish nationals to travel freely between the UK and the Republic of Ireland. The government sought extensive new powers that would allow it to introduce immigration control on all routes between Northern Ireland and the UK and across the land border. After much debate in both chambers and a resounding defeat in the House of Lords, the government withdrew its proposal. There is a need now for vigilance as the government seems determined to resurrect this provision through other legislative proposals.

Positive features

Some provisions of the Act have been welcomed by human rights practitioners. The Act has revoked the discriminatory provision that prevented British mothers from passing on their nationality to children born abroad prior to 1961. It also closes a loophole which had enabled human traffickers to avoid prosecution for trafficking babies and young children for certain forms of exploitation. Further, it introduces a new statutory duty regarding the welfare of children, albeit falling short of the ‘best interest’ principle enshrined in the United Nations Convention on the Rights of the Child.

Matters of concern

Unfortunately, the Act introduces provisions that may be damaging to human rights.

a. Increased powers and lack of oversight for Immigration Officers

From 5 August 2009, the customs functions of HM Revenue and Customs were transferred to the UK Border Agency; approximately 4,500 Customs Officers and 3,500 Immigration Officers are now sharing wide ranging powers. This means that immigration officers have acquired significantly increased ‘police-type’ powers. However, the operation of these new powers is not subject to oversight by the Northern Ireland Police Ombudsman.

b. Citizenship

The Act introduces a new concept of ‘probationary citizenship’ for applicants seeking permanent settlement in the UK and extends the qualifying period for naturalization to eight years. Migrant communities in Northern Ireland, many of whom despite contributing to tax revenue are denied access to social protection until they acquire naturalisation, were dismayed by these new requirements that move the goal posts. The Act also introduces a ‘community activity’ provision that reduces the qualifying period by two years for participation in voluntary work. No exemption is currently made for those who are unable to undertake such work due to caring responsibilities or other extenuating circumstances. This section of the Act does not come into effect until July 2011 so the detail of these provisions remains to be fleshed out.

c. Restrictions on studies

Overseas students can now be subject to restrictions on their studies. Failure to obtain UK Border Agency permission before transferring to a different educational institution may result in criminal prosecution. Although the government has stated that it will not prevent students from transferring on to a different course within the same institution, this assurance is not reflected in the legislation.

d. Access to justice

The Act will prevent ‘fresh claim’ asylum applications from being heard by the High Court. They will instead be transferred to the Upper Tribunal of the Asylum and Immigration Tribunal. We are concerned that access to the High Court is being limited in these instances. We are also worried that Northern Ireland applicants might face delays given the Tribunal’s intermittent sittings in Northern Ireland.

Highly politicized

Immigration is becoming an increasingly politicized issue. For this reason, it is critical that human rights principles are at the heart of new legislation and policy. The Law Centre will monitor the new ‘immigration simplification’ bill, expected in the autumn, against these standards. For more information contact the Law Centre’s Policy Unit.