Draconian measures to police and control immigration

Mark Beal, policy officer at Law Centre (NI), gives a preliminary critique of the new UK Borders Bill and expresses concerns that it may encroach on the human rights of people who are subject to immigration control.

On January 29, the Home Office tabled its latest Immigration Bill before Parliament. According to Immigration Minister Liam Byrne the focus of the Bill was to: ‘give immigration officers vital new powers to do their job better, to secure our borders, tackle the traffickers and shut down illegal working. It will build on existing legislation and com-mitments made by John Reid last summer to overhaul our immigration system.’

The Bill’s clauses advance a radical package of measures to make the UK immigration system more authoritarian. It has been seen as a response to the crisis in the Home Office in 2006 over the deportation of foreign prisoners. Yet, while that was an administrative failure, the package of measures in the Bill focus on extending immigration powers both at entry points to the UK and internally and the continuing gradual move to criminalise immigration rather than dealing with the actual issues such as Home Office administration and the concerns of Her Majesty’s Inspectorate of Prisons (HMIP) over the quality of detention facilities. Instead the Bill focuses on the role of immigration officials, the use of biometric registration, the treatment of claimants, extending enforcement powers, the sharing of information on immigrants and an overhaul of the legislation relating to the deportation of foreign criminals.

Powers at ports

One of the areas of greatest concern is the considerable increase in powers immigration officials will have as a result of the Bill. The powers given to immigration officers (IOs) raise concerns that the Bill will effectively create a second police force within the UK which will need prescribed codes of practice for exercising the new powers and sufficient training in their use yet worryingly is not subject to sufficient independent oversight or accountability.

These increased powers are set out throughout the Bill. In its first section they include extending the powers for an IO to hold an individual suspected of an immigration offence for up to three hours 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, the United Kingdom Immigration Service (UKIS) is in effect able to arrest and hold for up to three hours anyone it suspect of an immigration offence. Furthermore, it is arguable that the legislation could stretch these powers further; for instance though s2 (2)(a) states that an IO must arrange for a constable to attend as soon as is reasonably practicable, it does not appear to make this mandatory. This is compounded by clause 3(1) (b) and (c) where resisting arrest or assaulting an IO 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 than an individual subject to immigration control would have no recourse in the face of action undertaken by immigration officials.

The use of biometric information

The government is using the Bill to identify immigration as being the problem for which ID cards are the solution. This is particularly problematic given the draconian penalties facing immigrants in breach of immigration controls. As the Bill sets out in s7(2), not only are defaulters liable to fines, but non-compliance can also result in the cancellation of leave, which is a disproportionate penalty. Similarly s7(2) (b) allows the Home Office to disregard an immigration application, without clarifying what this process would entail or apparently establishing any right of appeal.

Another issue with the use of biometric information and establishment of an ID cards scheme is that it is limited to a group, migrants, who are already subject to scrutiny from immigration officials. As the Guardian newspaper recently highlighted, a Home Office report has shown that non-white individuals from Canada and South Africa were nine and ten times, respectively, more likely to be stopped by immigration officials than white individuals from these countries. As with ‘stop and search’, other reasons are often used to justify prejudicial practices so if immigrants are required to carry ID cards an unregulated immigration force could target individuals in a prejudicial manner.

Finally and worryingly, in s8 on biometric information the government is reserving for itself wide ranging powers for the subsequent future use of personal information. Not only will future regulations be subject to less parliamentary scrutiny but the intention appears to be to share information across government and other agencies, a move that would appear to be in contravention of Article 8 of the European Convention on Human Rights.

Treatment of claimants

The Law Centre and others are concerned about Clause 16 which makes anyone subject to immigration control potentially liable to have a condition of residence and/or reporting criteria attached to the leave to remain. There are no limits in the Bill to this power, the potential for abuse is huge and as it applies to EEA nationals too it could be in contravention of EEA free movement principles. It appears the government wishes to give itself the power, if it so chooses, to force migrants to report every time they move residence, which is an attack on an individual’s human rights.

Another disproportionate response is Clause 18 which makes abusing the National Asylum Support Service (NASS) system an arrestable offence. This will have the effect of further criminalising and demonising asylum seekers and may deter those in need from claiming support for fear of arrest and subsequent deportation.

Clause 19 drastically reduces appeal rights. This arbitrary measure restricts access to justice without taking into account potential errors in the original decisions, indeed a recent Amnesty International report highlighted significant flaws in the quality of Home Office decision making. This measure will affect most those who have not received advice when making their initial application.

Enforcement

We are also concerned that provisions to automatically detain individuals prior to or during the deportation process are contrary to Article 5 of the European Convention on Human Rights. Moreover, measures to arrest employers in relation to illegal working set out in Clause 23 will deter good employers from employing those subject to immigration control for fear of falling foul of the constantly changing immigration measures. This will force more people into employment with criminal employers, which will only scapegoat migrants.

Clause 27 addresses a number of loopholes relating to people trafficking. While the commitment of the government to tackle this crime is welcomed we are concerned that the other measures in the Bill will make it less likely that individuals will come forward to report incidents given the penalties they could face for having an illegal immigration status.

Deportation of criminals

The Bill seeks to address the issue at the centre of the Home Office crisis last year. Yet the measures proposed in the Bill restrict the scope for action of officials, including the discretion of the Home Secretary, and refute the present appeal process. These are moves likely to lead to further administrative problems and potential injustices. Another questionable measure is the exception made for commonwealth citizens and citizens of the Republic of Ireland. Given that there is no exception for other EEA citizens we would foresee that this would be an area open to challenge.

Information

Clause 40 allows officials to search premises for proof of nationality if they believe an individual is subject to immigration control. This power is open to considerable abuse, particularly given the changing demographics of society. It effectively allows immigration officials to challenge and detain individuals on an arbitrary basis.

Conclusion

The UK Borders Bill is a wide ranging attempt to implement a number of draconian measures that pander to a media agenda rather than address the real issues facing migrants and immigration practitioners in the UK. The Bill is likely to provoke greater vilification of migrants and make it more difficult for people who are subject to immigration control to enjoy their human rights while, in effect, also segregating society. The Bill has finished its committee stage in the House of Commons and is going to the House of Lords. The Law Centre will be monitoring its progress.