23. Memorandum submitted by the Joint
Council for the Welfare of Immigrants
The JCWI (Joint Council for the Welfare of Immigrants)
is an independent national organisation which has been providing
legal representation to individuals and families affected by immigration,
nationality and refugee law and policy since 1967. JCWI actively
lobbies and campaigns for changes in law and practice and its
mission is to eliminate discrimination in this sphere. JCWI works
to influence debates on immigration and asylum issues in both
the UK and at European level.
1. INSTITUTIONAL
STRUCTURES AND
CO -ORDINATION
The co-operation between the UNHCR and the Home
Office in respect of the Quality Initiative is welcome. However,
in light of recent evidence about the treatment of failed asylum
seekers who have been removed to Zimbabwe, and political pressure
on the Home Office to achieve deportation targets the question
of whether the Home Office can reach an impartial, complex but
essentially humane decision is now a very serious one. Its inherent
limitations in respect of asylum claims must be acknowledged and
an alternative independent decision-making body on asylum claims
should be considered.
With the advent of managed migration, the lack
of consistency between the Home Office and various UK missions
abroad is more apparent and is discussed below (11). The UKvisas
stakeholder group has an extremely wide remit, and is consequently
ineffective on its own. Stakeholder groups with specific remits
on a regional basis and by type of application need to be implemented.
2. QUALITY OF
INITIAL DECISIONS
(BOTH ENTRY
CLEARANCE AND
AFTER-ENTRY)
Entry Clearance: ECO decision-making
is poor and inconsistent between UK missions, manifesting a lack
of understanding of the law, lack of transparent criteria which
can be understood by applicants and a reliance on personal value
judgements as reasons for entry refusal. There is the tendency
to produce local responses to applications which means that the
rules applied in one country or region can be markedly different
from another. This can be interpreted as unfair and discriminatory:
for example the sudden and arbitrary decisions by the Nigerian
mission to suspend award of entry visas to young males.
After entry: Home Office decision making,
in particular in applications that concern "switching"
from one category under the immigration rules to another, or in
applications based on exceptional, compassionate circumstances,
are still subject to huge delays. In addition, the frequency of
successful appeals, suggests that there is inadequate knowledge
of the law by those taking initial decisions.
3. PARTICULAR
AREAS OF
POLICY, INCLUDING
THE PROPOSED
POINTS-BASED
SCHEME
The schemes under which people may come to the
UK to work are excessively complex. The points-based scheme will
not necessarily constitute a simplification. We are particular
concerned about the absence of rights of unskilled temporary migrant
workers. The new scheme divides the workforce into distinct classes
attached to separate conditions of entry and residency, creating
bias in favour of higher skilled migrants. The main effect will
be that those in the least advantaged groups will find it much
harder to recoup the initial investment in migration and having
sharply limited leave to remain tied closely to their category
of work. Consequently, they may have a perverse incentive to turn
to the informal economy and be more vulnerable to abusive and
exploitative employers. The further assumption that the majority
of vacancies in the lower skilled categories should be filled
by EEA nationals also risks racialising the tier system. Of course
professionally trained non-EEA nationals will have the opportunity
to enter in the highly skilled category. However, because disproportionately
large numbers in the developing countries of Latin America, Africa
and Asia are unable to access mass education systems, let alone
professional training, they will be disbarred from opportunities
to enter the UK in jobs that might otherwise have provided them
with "launch pads" for bettering themselves and earning
remittances to send home. Thus the tier system may perpetuate
institutional racism while frustrating the goals of international
social justice.
Decisions on who will and will not be given
the opportunity to migrate to the UK to take up work, will in
future lie with UK Entry Clearance missions. The Immigration and
Asylum Bill 2005 (IAN) proposes to abolish appeal rights against
entry clearance refusals, for amongst others, workers. In view
of our comments above on the quality of ECO decision making, it
is all the more important that ECO's decisions can be reviewed
independently via appeal.
Current policy fails to address the reality
of half a million people who are here illegally, whose situation
will be problematised by the new employment clauses under IAN
and any compulsory ID card scheme and who it will neither be cost
effective nor practical to deport. Government policy should urgently
address the question of a regularisation scheme which would win
support from a wide range of stakeholder and which would carry
the benefits of bringing more individuals within the scope of
effective immigration control and the Inland Revenue as well as
according them basic social rights.
We refer you to the attached/enclosed JCWI briefings
on the proposed points based scheme [not printed]:
Response of the Joint Council for the Welfare
of Immigrants to the Home Office Consultative Document Selective
Admission: "Making Migration work for Britain"
"Recognise Rights, Realise Benefits"
A JCWI analysis of the Government's five-year plan on immigration
http://www.jcwi.org.uk/
4. APPEALS AND
JUDICIAL REVIEW
The immigration legal regime has been "reformed"
by primary legislation five times in 10 years. The frequency of
legislation militates against systems efficiency, given the confusion
which inevitably sets in. Reforms have generated a complexity
in non-asylum and asylum appeals, which disables applicants in
representing themselves. It is troubling that politicians then
appear to blame immigration applicants for acting as "a drain"
on the Legal Aid system. Restricted appeal will increase the arbitrary
nature of the system.
5. E-BORDERS,
INCLUDING BIOMETRICS
The new immigration proposals assume that Government
should closely regulate every aspect of migration, and that technology
will enable it do so. More sophisticated and intrusive systems
of surveillance are being built on to existing databases to include
fingerprints of all visa nationals, and may be widened to include
other biometric data such as iris prints. All of this may precede
a compulsory ID card registration scheme for foreign nationals.
These intrusive systems of surveillance, are
justified by the Government under the heading of assuring the
integrity of the immigration system, "security", good
race relations and ensuring that only those entitled to public
services claim it. We are of the view that the use of these technologies
risk generating a culture of fear against foreign nationals and
new types of injustice.
The technology necessary for the biometric ID
card will not provide the seamless surveillance expected, but
instead will bring its own complications. Research on current
technology has shown that the risk of biometric information being
misread is greater for people who are Black or Asian. We are concerned
that there appears to be no strategy in place for an applicant
to contest information that may be held on him or her on databases
which may affect ability to secure entry clearance to a range
of countries as well as the UK.
6. REPORTING,
INVESTIGATING AND
PUNISHING IMMIGRATION
OFFENDERS
The new restrictions on migrant healthcare access,
the ID proposals and the new employer clauses in IAN could breed
a nation of immigration "inspectors" where a range of
players, including colleges, employers, public service workers,
organisations delivering services and local government are implicated
in immigration control without sufficient understanding of immigration
status or complicated entitlement rules. Research conducted in
Europe shows this culture can feed xenophobia and racism and damage
social cohesion (Adrian Beck and Kate Broadhurst: Policing
the community: the impact of national identity cards in the European
Union, Journal of Ethnic and Migration Studies, Vol 24, No
3, 413-431, July 1998).
It is high time the disproportionate resources
expended on tracking, detaining and removing immigration offenders
are weighed against the benefits of a regularisation scheme for
undocumented workers who might thus be brought within the realm
of the formal economy and taxed in favour of the public purse.
Removals: A removals system which is
characterised by increasing powers of immigration officers and
a political priority to step up the numbers removed, will only
serve to increase tensions between enforcement officers and local
communities. Removal processes will become increasingly heavy-handed,
often sub-contracted out to private contractors, and an urgent
assessment needs to be made before proceeding down this route,
of the social cost of removal (as well as the financial cost)
against the perceived benefits. Further, the methods employed
by immigration officers themselves need to be subject to scrutiny
and a complaints mechanism akin to the police for public confidence
to be maintained. Otherwise the Government will itself be jeopardising
its own aims of assuring the integrity of the immigration system.
7. DETENTION
POLICY AND
CONDITIONS
Detention is the severest penalty in UK law,
reserved for serious criminal offenders, and it is being used
increasingly inappropriately for administrative purposes as a
means of immigration control. There is no prescribed time limit
on detention and the presumption in favour of liberty is being
eroded with the New Asylum Model's fast track processes and the
introduction of more removal centres, many of which detain people
for prolonged periods of time at any time during the asylum process
when removal cannot take place.
There is no automatic judicial oversight of immigration
detention. Vulnerable categories (torture victims, children, people
with mental and/or physical health problems etc) are currently
being detained, and should not be, under any circumstance. There
is restricted access to legal information and advice and inadequate
facilities for interpreters and translated material. Despite a
promise by the government to discontinue the detention of asylum
seekers and immigrants in prisons, statistics show that immigrants
and asylum seekers continue to be detained in prison establishments.
The bail provisions, in particular the provision for Chief Immigration
Officers to grant bail, are too arbitrary, with excessive reliance
on sureties and recognisances formally set at disproportionately
high levels.
8. RACE EQUALITY
ISSUES
Asylum seekers, refugees and economic migrants
are not racial groups under the Race Relations Act but they do
generally enjoy de jure protection from discrimination
on grounds of colour, race, nationality, ethnic or national origins.
There are specific exceptions however under ministerial authorisation
which the Independent Race Monitor has commented upon. JCWI would
like to see action taken in respect of her comments on the discriminatory
examination of passengers on arrival and the entrenchment of views
by officers that certain nationals are "suspect".
IND, must produce a race equality scheme, and
assess its policies, for potential effects on its race equality
duty. The CRE-recommended mechanism for this assessment is the
REIA, (race equality impact assessment), to be used for "pre-empting
the possibility that any proposed policy could impact on some
racial groups disfavourably." The recommended methodology
and process are freely accessible via the Home Office link to
the CRE. We were therefore dismayed by the admission we received
in the course of a private meeting with a senior Home Office representative
in 2004 that IND's REIA of the marriage clause contained in the
Asylum and Immigration (Treatment of Claimants) Act 2004 was deliberately
"quick and dirty" so as to facilitate the late inclusion
of this clause in the Bill. Following this conversation and our
appraisal of the relevant REIA we are of the view IND failed to
conduct an REIA of this marriage clause in a way which conformed
with its race equality duty.
There is a general lack of transparency about
the methodology and process used for IND REIAs. Frequently the
main race equality justification they advance for new policies
consists of the highly contentious argument that immigration controls
facilitate better race relations without any evidence of this
being the case. One example is the Identity Card Bill REIA about
which the CRE has complained. This REIA pays minimal attention
to a major piece of research which demonstrates that in European
countries with ID card schemes ethnic minorities are targeted
disproportionately for checking by officials. Additionally, far
from immigration control facilitating good race relations IPPR
research (Lewis, Miranda: Asylum: Understanding Public Attitudes
2005) argues that the more frequently politicians discuss immigration
controls in the media the more public anxiety is generated about
migrants; and in the wake of the General Election campaign in
which immigration controls were a prominent issue GLA evidence
showed that racist attacks had increased. In any case the whole
point of the REIA is not to argue that a particular measure placates
the feelings of the public on an issue, but that it will not adversely
affect a racial minority. In our experience IND's REIAs fail to
achieve this., IND, in the perfunctory attention it pays to the
REIA, runs the risk of disparaging the statutory race equality
duty and so giving a poor lead to other public bodies in meeting
this duty. The performance of other Government departments is
little better. We have been asking the Department of Health for
over a year to conduct an REIA of their proposed limitations on
migrant access to non-urgent primary health services. They have
never carried out or committed to doing any REIA limitations on
secondary health care entitlement introduced in 2004 despite evidence
repeatedly presented them of the potentially fatal effects these
rule changes are having on women of African ethnicity or nationality
seeking NHS antenatal services. The inability to conduct proper
race equality analysis of proposed immigration controls or immigration-related
policies in both IND and other departments carries adverse consequences
for Government agendas and targets on equalities and social inclusion.
9. CUSTOMER SATISFACTION
Fees for in-country immigration applications
were raised quite substantially this year. We question the justification
for above inflation increases, given a lack of evidence of improved
service by the Home Office to immigration applicants or commitments
to targets in this regard. The increase in fees is not compatible
with the Government aims of attracting high quality overseas students
and workers; and would seem unfair to those in lower-income categories.
We have not witnessed a marked improvement in
responding to telephone or written progress enquiries, a reduction
in delays in considering cases encompassing exceptional and compassionate
circumstances, or applications under Home Office policy / concessions;
or a reduction in delays of those cases where an application to
switch from a temporary to settled status is straightforward.
It is our experience that even where facts are undisputed, some
of these applications remain pending for two years or longer.
10. IMMIGRATION
STATISTICS
JCWI welcomes the Government's reviews on migration
statistics that has taken place recently.
In respect of statistics and evaluations more
generally, we are concerned that there are no meaningful statistics
or evaluations on the outcomes of IND's "pilot projects".
Despite indications that these would be made public, NGO's find
themselves repeatedly making requests to IND for information or
having to put together a piecemeal picture from anecdotal evidence.
The Home Office failed to make public its evaluation the pilot
on Electronic Monitoring for asylum seekers. The impression was
given that this information would be available prior to the General
Election; however, while IND has disclosed some findings to date
disclosure of the full evaluation is still awaited.
11. CO -ORDINATION
WITH EUROPEAN
IMMIGRATION POLICIES
The nature of European Directives are that they
are subject to the interpretation of Member States for transposition.
We acknowledge that the Government recognises the importance of
the European dimension and are encouraged that UK's non-asylum
policies are in many respects less restrictive compared to those
of other EU Member States. However, with that acknowledgement
we are concerned that the UK has more often adopted the more restrictive
approach in transposition, even where EU law actually created
higher standards. Where the UK did therefore not properly interpret
EU law, it has been left to individuals to litigate before the
European Court of Justice before changes are made to domestic
legislation (eg Chen).
In practical terms we are concerned about the
restrictive approach and lack of knowledge of decision makers
both in the Home Office and at Entry Clearance missions, on EU
law. For example, JCWI has discovered that the Association Agreements
are interpreted in a restrictive manner, applying complex procedures
and evidentiary requirements resulting in a high refusal rate
(overturned at appeal) and discouraging many people from applying.
This strict interpretation is against the spirit of EU law. We
have made UKvisas aware of our concerns on the implementation
/ interpretation of the European Association Agreements by Entry
Clearance Officers in relation to applications from self-employed
Bulgarian and Romanian nationals in particular. We can supply
further detail of research carried out on request.
In relation to asylum, it is JCWI's opinion
that transposition has often lead to a "levelling down"
of standards in asylum procedures. JCWI is of the view that in
terms of asylum policies the Government's approach is to reduce
the intake of asylum seekers by subjecting them to harsh procedures,
including Section 55 (2002 Act), increased use of detention and
removal (Re-admission Agreements).
2 December 2005
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