Submitted by the Immigration Law Practitioners'
1. The Immigration Law Practitioners' Association
(ILPA) welcomes the principle of the publication of the draft
Freedom of Information Bill in advance of the legislative time-table.
In the long term, we hope that this procedure will be used more
often and that the additional opportunities for debate and for
both public and Parliamentary scrutiny will lead to improvements
in the quality of legislation.
2. Our comments on the Consultation Document
and on the draft Bill are set out below. To place these comments
in context, we first wish to outline the work of ILPA and the
legal framework within which we operate.
3. The Association was first established
in 1984 as an unincorporated association and became the Immigration
Law Practitioners' Association Limited, a company limited by guarantee.
ILPA currently has a membership of over 800 which includes lawyers,
advice workers, academics and law students. The objects of the
Association as set out in our constitution include
to promote and improve the giving
of advice to and the representation of immigrants from whatever
part of the world whether coming to or intending to come to the
UK for settlement or some limited purpose and to promote further
and assist by whatever means the giving of advice to and representation
of immigrants or emigrants to or from any other part of the world.
to disseminate information and views
on the law and practice of immigration and nationality in the
UK and elsewhere.
to make representations for and on
behalf of immigration and nationality practitioners.
4. Our members' clients range from asylum
seekersperhaps the most vulnerable people in the worldto
rich investors seeking to enter in order to make a significant
contribution to the economy. Our work can involve significant
questions of human rights and may often be generated by political
or social changes in other states. Current issues for the Association
include the Immigration and Asylum Bill and the chaos in the IND
5. ILPA welcomed the Government's decision,
made under the Code of Practice on Access to Government Information,
to publish the Immigration Directorate's Instructions to Immigration
Officers and the Asylum Directorate's Instructions
and has worked with the Home Office to ensure that they reached
a wide audience. The value of these to our members is a testament
to the Code in particular and to the importance of freedom
of information (FOI) provision in general.
6. The Instructions were released pursuant
to the second edition of the Code of Practice. That edition
included an amendment to the reasons for confidentiality set out
in Part II. Para 5 of Part II includes as an exemption from the
provisions of the Code for
"Information relating to immigration, nationality,
consular and entry clearance cases . . ."
but goes on to say that
" . . . information will be provided, though
not through access to personal records, where there is no risk
that disclosure would prejudice the effective administration of
immigration controls or other statutory provisions."
7. Although we welcomed the disclosure of
the Instructions, we have our concerns about the way the Code
is worded and we had hoped to see an improvement in the Bill.
We have been disappointed.
DOES ILPA REQUIRE?
8. ILPA and its members require information
from government about the policies and procedures of the Home
Office, the Immigration Service and many other bodies including
the Foreign and Commonwealth Office, the Department for Education
and Employment, the Benefits Agency and local authorities. We
also require information about conditions in other states. There
is one particular aspect of our workthe exercise of discretion
outside the Immigration Ruleswhere we feel that an FOI
Bill could be particularly valuable.
9. The framework of immigration law in this
country is set out in the Immigration Acts, in delegated legislation
made under those Acts, and in the Immigration Rules. The Rules
are made by the Secretary of State under Sections 3(2) of the
Immigration Act 1971 and are:
"rules of practice to be followed in the
administration of the Act for regulating the entry into and stay
in the UK of persons required by the Act to have leave to enter
. . ."
Statements of changes in the Rules are laid
before Parliament by the Secretary of State from time to time
and are subject to a negative resolution procedure in a similar
manner to delegated legislation.
10. What is important for present purposes
is that the Immigration Rules do not provide a comprehensive code
of all the practices regulating entry into the UK. Indeed the
1971 Act states that the Act does not require uniform practice
as regards the admission of persons for employment or study or
as visitors or dependants.
11. The effect of this rather unusual legal
framework is to give the Secretary of State a considerable measure
of discretion to grant leave to enter or remain in the UK outside
the Immigration Rules. There exist a number of established policies,
practices and so-called "concessions" outside the Immigration
12. For example, there is the so-called
long residence concession under which indefinite leave to remain
may be granted to a person who has been here for 14 years or more.
The domestic worker's concession allows for those who entered
the UK on condition that they work for a particular employer and
who can satisfy the Secretary of State that they left their employer
following violence or abuseoften fleeing conditions amounting
to slaveryto be granted leave to remain in the UK.
13. Because so much of the work of ILPA
members involves this exercise of discretion outside the Rules,
information about the effect of these policies is particularly
important. ILPA and its members are in constant correspondence
with the Home Office, making what are, in effect requests for
the disclosure of information about the extent and the detail
of government policies. Of course, our letters and those of our
members are rarely expressed as such. We also rely extensively
on Written Answers to Parliamentary Questions. The more significant
letters and answers are circulated in our regular mailings and
may be published in Tolley's Immigration and Nationality Law
and Practice (which is edited by the Association) or in other
professional publications. These sources of information (which
can be as insubstantial as a poor copy of a facsimile sent to
one of our members) can often acquire immense importance for clients.
They can give rise to far-reaching legal consequences and obligations
and may create a right to remain in the UK for large groups of
14. A recent example is instructive. The
so-called "backlog clearance measures" to clear the
large backlog of asylum applications which have not yet been determined
were described in outline in last year's White Paper Faster
Firmer Fairer. Further details of the effect of the policy
on applications for family reunion by those granted leave to remain
the UK as a result of the policy were then given in a letter from
the Asylum Policy Directorate to Asylum Aid which was circulated
in our mailing. That letter, and the original announcement in
the White Paper, was then supplemented by target dates for the
implementation of the policy provided in a Written Answer in January.
No single document set out the full extent of the policy.
Scope (clause 1)
15. We welcome the scope of the Bill and
the order-making power to designate further authorities.
General right of access (clause 8)
16. The Association is disappointed that
the general right of access is so restricted by exemptions and
that the Bill does not begin from a presumption of openness. Paragraph
1 of The Code of Practice on Access to Government Information
sets out the principle that information should be disclosed unless
the harm likely to arise from disclosure would outweigh the public
interest in making the information available. The Code
sets out various exemptions based on tests of harm or prejudice.
The White Paper Your right to Know: The Government's Proposals
for a Freedom of Information Act (Cm 3818) saw the tests for
harm in the Code as insufficient and proposed that
"the test to determine whether disclosure
is to be refused should normally be set in simple and demanding
terms" (Paragraph 3.7) and proposed tests of "simple
harm" and "substantial harm".
17. The Bill as drafted carries no such
presumption of openness and its tests are widely drawn, rather
than being set in simple and demanding terms. It proposes to place
on a statutory footing the much weaker test of "prejudice"
from the Code. The Association regrets this, notwithstanding the
fact that the disclosure of Immigration Directorate's Instructions
under the Code has been of great benefit to us.
Discretionary disclosures (clause 14)
18. The Association accepts the need for
some limitation on the freedom of access to government information
and would accept proposals which allowed for a measure of flexibility
or discretion in the wording of necessary exemptions. But this
clause is quite frankly objectionable. Clause 14(3)) obliges the
public authority making a discretionary decision to have regard
to all the circumstances of the case including
(a) the public interest in allowing public
access to information . . ., and
(b) whether the disclosure to the applicant
of the information in question would be in the public interest.
19. Our main concern is that the Bill as
a whole attaches no primacy to the public interest. It is merely
one factor for the authority to take into account and is far more
restrictive than the Code.
20. The effect of the proposal to require
an applicant to supply further information about the reasons for
requesting information and as to any use which he proposes to
make of the information (clause 14(4)(b)) would be to prevent
an application for information an application about a policy which
we might, at some point in the future, wish to query and to prevent
perfectly proper requests for information which left clients'
21. As we have explained above, the dissemination
of information is central to our work and the imposition of the
proposal to impose conditions restricting use or disclosure of
information (clause 14(6) would make any disclosure under the
clause of little use to us.
International relations (clause 22)
22. The Bill proposes to class as exempt
information which would, or would be likely to prejudice the UK's
international relations (clause 22(1)(a)). Our members who deal
with applications for asylum under the 1951 UN Convention Relating
to the Status of Refugees might have hoped that an FOI Bill could
lead to greater access to information held by the Government about
other states, such as information held by entry clearance posts
abroad. The Home Office Country Information Unit makes valuable
information available to our members for asylum cases; we had
hoped that FOI legislation would enable us to build on this. We
are concerned that the Bill will have the opposite effect.
23. Whilst the grant of refugee status by
one state is not to be interpreted as a hostile act by the state
from which the refugee seeks refuge, none the less it is possible
to envisage situations in which this clause could prejudice applicants
for refugee status. In a recent case, the House of Lords held
that female victims of domestic violence in a particular state
were refugees under the 1951 Convention. If a similar case were
to arise in relation to another state, and an immigration lawyer
sought information about the status of women in that state from
the Country Information Unit, the Foreign Office or from a consular
post, such information might be considered sensitive and damaging,
particularly if sensitive trade negotiations were under way. We
do accept that there are circumstances in which information about
other states should remain confidential but the "prejudice"
test is too wide and potentially damaging to our clients.
Information which would or would be likely to
prejudice the operation of immigration controls (clause 26 (1)
24. This clause appears to be an attempt
to strengthen the wording of the exemption in the Code
although it is hard to see how the distinction between the "administration"
(in the Code) and the "operation" of immigration
controls would affect disclosure of information in practice.
25. The Immigration Acts set out a number
of administrative and criminal sanctions which the Government
can enforce against those in breach. Police officers have powers
of arrest under the 1971 Act and under the Police and Criminal
Evidence Act. In our view, these sanctions, together with clauses
25(1) and 26(1)(a) of the draft Bill, should be sufficient. We
do not think that there can be any justification for any wider
26. We are concerned that the effect of
this clause would restrict the flow of information to those advisers
who act quite properly, if robustly, in advising their clients
on how they may lawfully obtain leave to enter or remain in the
UK. There is a world of difference between such advice and the
giving of improper advice on how to flout the Immigration Rules.
Where improper advice is given, there are professional sanctions
and criminal offences (such as assisting illegal entry). The forthcoming
Immigration and Asylum Bill proposes a system of registration.
This will in time become a sanction against those who give improper
advice. If the Government is concerned about the giving of improper
advice, it should invoke the existing or indeed the proposed sanctions.
Decision making and policy formulation (clause
27. We have no doubt that many other bodies
will make representations on this point. But we wish to place
our views on record. A good deal of our work is connected with
representations about the development of immigration policy, such
as the various policy concessions outside the Immigration Rules
and the policies and procedures of (for example) the IND. We are
concerned that the effect of this clause would be to restrict
the valuable flow of information from government to our members
and, as a result, the flow of information from our members to
government. This two-way exchange of information is undoubtedly
beneficial to both parties. It gives government the ear of our
members and undoubtedly makes for better policy making. We are
concerned that this clause will severely restrict our ability
to engage in proper and democratic debate in support of our objectives.
The duty to confirm or deny (clause 8(1)(a))
28. The sub-clause gives an individual a
right to be informed that a public authority does or does not
hold the information requested by an applicant. But where the
exemptions apply, the so-called "duty to confirm or deny"
does not arise. So an applicant can have no way of knowing if
particular classes of information are held. This adds to our concern
that our existing channels of inquiry and communication will be
limited by the Bill.
Effect of disclosure (clause 37)
29. Our concerns are merely amplified by
this clause, the so-called "jigsaw" clause, which says
in effect that where a disclosure would not in itself be, nor
be likely to be a disclosure of exempt information, it shall be
taken to have that effect if other exempt information became available
at the same time. This could be applied to restrict the disclosure
of, for example, part of a paper on a foreign state on the grounds
that another part of the paper was exempt. Thus preventing the
disclosure of material which was not of itself exempt.
30. We have already explained how much we
rely on written answers in particular for information which we
often then disseminate to our members. By a resolution of each
House of Parliament, The Code of Practice was adopted as
the standard to which civil servants are required to prepare answers
to Parliamentary Questions and to supply other information to
parliament. Paragraph 53 of Part I of the Consultation Paper refers
to further discussions about the inclusion of Parliament and bodies
accountable to it within the Bill. In remarks to the Campaign
for Freedom of Information, the Home Secretary confirmed his wish
to dovetail parliamentary proceedings with the FOI regime. In
our view, this would be a fundamental incursion upon Parliamentary
privilege and the sovereignty of Parliament. It would have the
effect of dramatically reducing the amount of valuable information
we receive via written answers and debates in Hansard as
well as from the proceedings of committees.
31. The Association has many other concerns,
particularly about the enforcement provisions and the lack of
a suitable remedy for those wishing to challenge decisions about
disclosure. It is likely that applicants under the Code
have a more effective remedy in the form of a complaint to the
Parliamentary Commissioner for Administration (the Ombudsman)
whose decisions are usually followed than they will have under
the Regime proposed in the Bill. Others will do doubt provide
a more comprehensive critique of the Bill. What we have sought
to do in this paper is to outline the background to our work and
to raise those issues which particularly affect us.