Memorandum submitted by the Mayor of London (UKB 13)

 

 


Implications for London

 


Context

 

1. The Mayor of London recognises that immigration - whether voluntary or forced - is a key determinant of London's social and economic development. Policy on immigration including the control regime is therefore of central concern to London and to him as Mayor. It links directly with his statutory duty to promote social and economic development in the capital on the basis of equality of opportunity, health of Londoners and sustainable development - as well as with his proposed new powers on housing and health inequalities.

 

2. Since the late 1990s London has been the main destination for new migrants to the UK. Net immigration from abroad has been increasing the city's population by around 100,000 new residents per annum, which is around two-thirds of the UK total. Whilst movement of workers from east European states after EU enlargement in 2004 may have reduced London's share of total net immigration to some extent, its role as the focus for UK settlement of migrants from abroad is likely to prevail for the longer term. The Mayor has factored this flow into his London Plan for the period to 2016.

 

3. People born abroad - that is, migrants - now make up around 30 per cent of London residents. Among the city's working age population, 37 per cent were migrants in 2003/04 and this proportion is likely to have risen since then. Just over three-quarters of London migrants in that year were from beyond present EU-25 borders.[1]

 

 

Getting the benefit of migration: preconditions

 

4. Potential gains to London from this process are huge, in the Mayor's view. New Londoners from abroad are a mainstay of the city's economy and public services, offering it skills, energy and ideas. They renew its diversity and vibrancy, key factors in its appeal as a place to live and invest. Many offer civic leadership, strengthening social cohesion.

 

5. But these gains cannot be taken for granted. To realise them will, firstly, call for sustained investment of effort and resources by the Mayor and partners across the city in all sectors. An example of this strategic approach is the Board for Refugee Integration in London which the Mayor established in 2006 - with Home Office support - to lead and coordinate city-wide integration work with its forced migrant population.[2]

 

6. The second precondition for realising fully the gains from migration is that the wider policy setting should enable people reaching the city - unless intent on doing harm - to settle here if they wish in security and equality, allowing them to contribute in their own way to its development. Since 2001 the Mayor has repeatedly had to point out a wide discrepancy between Government measures on immigration and the balanced, forward-looking policy London needs as a world city whose development relies on international migration. It is a matter for regret that the UK Borders Bill contains provisions which, once again, risk turning this process from London's opportunity into a source of division and community tension.

 

 

UK Borders Bill - key areas of concern

 

7. The Mayor acknowledges some provisions of this Bill which usefully correct anomalies in existing statute. He welcomes for example Clause 27 which makes clear that those involved in trafficking people to the UK for exploitation are committing an offence regardless of their location or nationality.

 

8. Given his statutory responsibilities as indicated above, however, he draws the Committee's attention to three elements of this Bill which in his judgment put at risk the well-being of London and Londoners. He would ask the Committee to consider how the Bill could be altered to remove these risks. The three provisions which particularly concern him are:

 

biometric immigration document: Clauses 5 to 15;

limited leave to remain - conditions: Clause 16;

entry, search for, and seizure of nationality documents: Clauses 40 and 41.

 

 

Biometric immigration document - Clauses 5 to 15

 

9. Whilst the Mayor is not in principle opposed to the introduction of a universal identity (ID) document for UK residents, he believes any such scheme must include safeguards to ensure it will not bear disproportionately on ethnic minority Londoners, or foster division among the city's diverse communities.

 

10. Clause 5 of the present Bill gives the Home Secretary the power to require anyone 'subject to immigration control' to have a biometric immigration document recording both their external physical characteristics and other, non-biometric information about them. This refers to anyone who requires leave to remain in the UK, whether or not they have got it, thus covering people with both time-limited and indefinite leave to remain - including for example many refugees and Commonwealth citizens.

 

11. Among London's total migrant population, numbering over two million, the proportion who are subject to immigration control is unknown. But GLA estimates indicated that 58% of foreign-born Londoners in 2002/03, or some 1.2 million people, did not have UK nationality. Allowing for the city's EU-born population (which has of course grown since then), this suggests that several hundred thousand Londoners - possibly approaching a million - are today under immigration control and may therefore be required to apply for the biometric immigration document.

 

12. The requirement will not necessarily be imposed on all of them at once. Clause 5(2)(a) allows the Home Secretary to apply regulations about the biometric document either 'generally' - to everyone subject to immigration control - or 'only to a specified class of persons subject to immigration control'. The latter seems to refer to major migrant categories like (for example) asylum seekers or certain kinds of migrant worker. Whilst limiting the number of people caught by the new measure may make it easier to implement, it will of course also make it more explicitly discriminatory.

 

13. Because the Bill empowers the Secretary of State to implement this measure through regulations, key details are left unspecified. Crucially, the Bill does not say whether the Government envisages requiring holders of the biometric immigration document to carry it with them. The risks of division and ethnic or cultural targeting, which the Mayor has warned against, could become acute if certain groups of migrant Londoners are required unlike other residents to carry the ID document on them.

 

14. An obligation to carry it seems to be implied by the Government's present proposal. Its key argument is that the biometric immigration document will help tackle illegal working.[3] But it can do so only if it enables UK Immigration Service (UKIS) or the police to identify irregular migrants in situ where they are employed, directly proving breach of immigration rules by the employer. If workers have to be asked to go home and retrieve their proof of status, the evidence of that offence can be expected literally to walk away. If evidence is sought instead in the firm's personnel records under the Home Secretary's existing powers, the biometric document is superfluous. Since scanning and interpreting its encoded data will be a matter for UKIS or the police, not for employers, its content could not appear in their personnel records.

 

15. The Mayor urges the Committee to explore three questions about this provision in the UK Borders Bill:

 

Has the Home Office explained how in practice its selective introduction of a biometric immigration document will cut crime in the UK, and in particular reduce the scale of illegal working?

Is the Home Office's account of the document's practical effect sufficiently convincing, and well enough supported by evidence, to justify ordering several hundred thousand Londoners to undergo a selective registration procedure which many may find vexatious and highly intrusive?

Above all: why has the Home Secretary not guaranteed on the face of this Bill that the requirement for selected UK residents to get a biometric ID document will entail no obligation to carry it for inspection on demand - and will he now agree to write such a guarantee into the Bill?

 

16. The last point is crucial. The Committee will appreciate the gravity of the issue raised here by the Mayor. Especially when taken together with Clause 16 about conditions of residence, a requirement for large categories of migrant resident to carry this ID document and show it on demand is likely to be deeply divisive.

 

17. In the London context, such a requirement has disturbing potential to dislocate the Mayor's strategic work on equalities, social cohesion and community safety:

 

Londoners affected by it will largely belong to ethnic minority groups.

Many will be in Muslim communities which already feel beleaguered by media and public hostility, and by pressures to act against 'radicalisation'.

Such a requirement may (as experience of differential entitlement in the NHS tends to suggest) increase the risk of discriminatory responses to ethnic minority users of public services, where some front-line staff may assume they know which users 'ought' to be carrying the ID document.

It is likely to undermine the work of the Mayor's Board for Refugee Integration in London, mentioned above, reinforcing barriers to integration. As their initial leave to remain is now always time-limited, a growing proportion of refugees as well as asylum seekers will be caught by it.

It could further erode any confidence London's migrant communities may feel in policing and the criminal justice system, restricting flows of intelligence to the Metropolitan Police with disturbing consequences for the fight against serious and organized crime in the capital.

 

18. The Mayor would urge that, if an ID document is to be introduced selectively for migrants as proposed by Clause 5 et.seq., the Home Secretary should at least be debarred by statute from adding any requirement that its holders produce it for inspection on demand by any public agency or authority.

 

 

Limited leave to remain - conditions: Clause 16

 

19. Existing rules under the Immigration Act 1971 allow the Home Secretary, in giving a migrant limited leave to enter or remain in the UK, to attach conditions relating to employment; to having no recourse to public funds; or to registration with the police. These constraints have operated as general rules for very broad groups of migrants.

 

20. The UK Borders Bill in Clause 16 would add the power, where the Home Secretary gives limited leave to remain, to impose two new conditions on it. Unlike those applied hitherto, they could be set for each individual migrant. They are conditions:

 

requiring them to report to immigration officials;

'about residence'.

 

21. The Explanatory Note on the Bill does not elaborate on these conditions, saying only that Clause 16 'simply' adds to what was previously available. The Home Office has given no account of why it thinks they are needed or how they might be used. The Mayor is deeply concerned that measures with such wide potential implications should be laid before Parliament in this off-hand way.

 

22. They appear to offer the Home Office scope in principle to extend the kind of control regime now in force for most asylum seekers - with regular monitoring and restrictions on where people can live - to a much wider range of foreign nationals who ostensibly have been welcomed to the UK in accordance with the law. As well as the majority of migrants admitted for employment, for example, they would include most refugees recognised in recent years (cf. para 16 above, fourth bullet point).

 

23. The Mayor hopes the Committee will challenge the Home Office decision to seek these sweeping new powers and will insist that their possible application be clarified. He would in any case urge the Committee and Parliament to recognise that reporting requirements and restrictions on residence are oppressive and highly intrusive measures - suitable only for people charged with serious offences - which should play no part in the process of immigration to a world city like London.

 

 

Nationality documents - entry, search, and seizure: Clauses 40 and 41

 

24. Under Clause 40 of the Bill, if an immigration or police officer thinks that a person under arrest - for any offence - may not be a British citizen, and that 'nationality documents' relating to that person might be found on premises connected with them, then the officer may enter the premises to search for these documents. The only constraints on the exercise of this power are that:

 

it has to be authorised by a senior officer (inspector or higher, for the police);

officers must record their grounds for 'suspicion' that the arrested person is not a British citizen and the nature of the documents they will search for.

 

25. Clause 41 then gives the officer making this search the power to seize and retain anything which s/he 'thinks is a nationality document' relating to the arrested person. The officer may hold the document(s) for as long as they suspect that the person may be liable for removal from the UK under immigration rules, and that these documents will assist in removing them.

 

26. The Mayor points out that a great many London homes could be subject to search without warrant under this measure:

 

all offences are now arrestable, under Sec.110 of the Serious Organized Crime and Police Act 2005;

Clause 40 allows for search not only of the arrested person's home but also of the place where they were arrested;

people who are not British citizens make up a large minority of Londoners (cf. para.11 above), and UKIS and police officers' suspicions about who may not have British citizenship could of course extend far beyond this group to cover almost anyone thought to be of immigrant heritage - such as the two-fifths of the city's population who identify themselves as ethnic minority;

in requiring the officer who plans a Clause 40 search to state their grounds for 'suspecting' lack of British citizenship, the Bill does not stipulate that these grounds should be reasonable.

 

27. The range of papers which the officer can decide to search for is, similarly, set very wide. Clause 40 defines 'nationality documents' to mean not just those showing the arrested person's identity, nationality or citizenship - such as their passport - but also any documents showing where they travelled from to reach the UK, or where they are 'proposing to go to' from this country. It could thus empower UKIS or the police, subject only to sign-off by a superior officer, to search homes (for example) for correspondence about travel for family, work or study purposes.

 

28. This measure obviously engages Article 8 of the European Convention on Human Rights (ECHR), guaranteeing the right to respect for private and family life, home and correspondence. The Home Office justifies it and claims compatibility with the Convention on the basis that it will help secure deportation of 'those who are not British citizens who have committed a criminal offence'.[4]

 

29. Here the Home Office apparently alludes to the policy aim underlying Clause 28 of this Bill, which provides for mandatory (so-called 'automatic') deportation of any foreign national convicted of a criminal offence if they get a prison sentence of at least 12 months for it, or if it is on a specified list of serious offences.

 

30. But, crucially, the new powers created by Clause 40 are not themselves directed at a criminal offence of any kind. To be under arrest is not proof of guilt. The Clause 40 'suspicion' which could empower UKIS or police officers to raid a large number of London homes without warrant and hunt for a wide variety of personal papers, is in fact a subjective belief about an attribute of these detained individuals which is entirely innocent and unrelated to criminality.

 

31. The Mayor draws the Committee's attention to concerns in particular about the community impact of this measure; about the conflation of immigration and policing - or criminal justice - objectives; and about risks of discrimination arising from it.

 

32. Community impact: action by these agencies to enter homes, search for and seize 'nationality documents' may cause real distress within the households in question and across wider communities. Migrant Londoners typically live in households larger than those formed by the UK-born, often with a mix of immigration status and nationality among their members. Whatever their relationship with the person under arrest, the kind of search proposed in Clause 40 is likely to be a disturbing experience for them and their communities. It could further weaken confidence in the Metropolitan Police Service, and hence hamper efforts to combat serious crime whose success usually depends on community intelligence.

 

33. Immigration control or criminal justice process? From the Home Office argument as to consistency of Clauses 40 and 41 with the ECHR (para.28 above), and from the reason for retaining seized papers put forward by the latter clause, it is clear that this measure's main purpose is to help the Home Office in getting foreign criminals deported. The idea appears to be that papers about an arrested suspect's nationality or international travel plans should be seized as early as possible in the criminal justice process, in case s/he should eventually be convicted with a sentence over the relevant threshold - when these documents could help to expedite their deportation from the UK. The police power to arrest people is thus treated by the UK Borders Bill as a device to facilitate the enforcement of a hypothetical immigration decision (deportation) at some time in the future.

 

34. Arrests are a key phase of the criminal justice process. The Mayor sees a real risk that the way they are handled could be distorted by treating them, in effect, as an accessory to the work of immigration enforcement. The Committee may want to ask for example whether:

 

the Police Service may come under pressure from Immigration Service colleagues to extend the period in which suspects are held in custody, so Clause 40 searches can be completed - given that the power to make such a search will lapse once the individual is released without charge;

migrant communities' trust in the objectivity of the UK criminal justice system may be further eroded if they think community members, possibly innocent of any wrong-doing, are being detained and their homes are being searched in anticipation of a trial outcome which is not due for some time after the arrest.

 

35. Risk of discrimination: risks of discriminatory practice inherent in an immigration control regime are, in the UK system, overlaid by the effect of Section 19E of the Race Relations (Amendment) Act 2000 which allows Ministers explicitly to authorise Home Office staff to discriminate on grounds of nationality and ethnic origin in carrying out this department's immigration functions. The work of the Independent Race Monitor overseeing the effect of this Section 19E exemption confirms the real risk that stereotyping by nationality or ethnicity may affect immigration officers' decisions.[5] The power now created by the UK Borders Bill invites officers to target arrested individuals for Clause 40 investigation according to their 'suspicion' about who is a foreign national likely to require deportation (see para.26 above). This inevitably compounds the risk of discriminatory practice.

 

36. The Mayor urges the Committee to press for deletion from the Bill of this extraordinary and ill-conceived measure which could in his view cause serious damage to community relations in London.

 

March 2007

 

 

 

 

 

 



[1] GLA Country of birth and labour market outcomes in London (DMAG Briefing 2005/1, January 2005)

[2] Information on the Board is at http://www.london.gov.uk/mayor/equalities/immigration/bril/index.jsp

[3] The claim that biometric documents will help 'combat illegal working' is pivotal - for example - in the Home Office assertion that Clause 5 of this Bill is compatible with the European Convention on Human Rights (House of Commons, UK Borders Bill - Explanatory Notes, Bill 53-EN January 2007, para .135).

[4] House of Commons, UK Borders Bill - Explanatory Notes. loc.cit. para.151

[5] See http://www.ind.homeoffice.gov.uk/6353/aboutus/fourthreportofindependentra1.pdf