Select Committee on Home Affairs Written Evidence

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.


  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.


  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.


  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


  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.


  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.


  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.


  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.


  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.


  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.


  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.


  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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