Memorandum submitted by Joint Council for the Welfare of Immigrants (UKB 4)

 

I am writing on behalf of JCWI in response to an invitation to submit evidence to a Parliamentary scrutiny committee on the new UK Borders Bill.

 

The JCWI (Joint Council for the Welfare of Immigrants) is an independent national non-profit organisation which has been providing legal representation to individuals and families affected by immigration, nationality and refugee law and policy since 1967. Our mission is to combat discrimination and injustice wherever they arise in immigration and asylum law and policy. Our casework is delivered by a team of 9 lawyers most of whom are qualified barristers or solicitors and level 2 accredited. The team possesses over 100 years of experience in the area of immigration, nationality, asylum law and practice and our success rate on appeals is in excess of 80%. We conduct funded casework via our contract with the Legal Services Commission and in addition we hold an exclusive contract to provide advice and assistance to clients under the Harmondsworth Fast Track Scheme. We hold a Specialist Support Contract to provide assistance to LSC contracted lawyers in the areas of immigration, nationality and asylum law. Furthermore we are participating in the current LSC pilot to provide advice to clients detained at Yarls Wood and Harmondsworth detention centres on a rota basis.

 

February 2007

 

Appendix A 

 

UK Borders Bill: House of Commons - Second Reading

 

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 has only dealt with the following sections of the UK Borders Bill:

Detention at ports

Treatment of claimants

Enforcement

Deportation of criminals

 

JCWI's concerns are highlighted below in some detail however in short we are worried that:

 

1. The powers can be used against both British and foreign nationals but we apprehend that there will be a disproportionate effect on members of BME communities.

2. The Government is seeking to substantially increase the powers of the immigration service to those similar to the police without ensuring that the immigration officers will receive a similar level of training so that these powers will be properly exercised.

3. There appears to be no provision for a body like the Independent Police Complaints Commission to monitor and/or review the conduct of the designated immigration officers.

4. There are no codes of practice to govern the arrest and detention of individuals under the powers contained in the Bill.

5. There may be potential breaches of the European Convention of Human Rights in particular  Articles 5 (Liberty and Security), 7 (Retrospectivity), 8 (Private and Family life)

 

  

JCWI's detailed concerns are below:

 

 

Clauses 1- 4: Detention at Ports

 

Designated immigration officers

 

1.0 The clauses give powers to designated immigration officers to detain any individual at port for up to three hours.

 

1.1 The concern is that police powers are being given to immigration officers.

 

1.2 These powers can be used against British citizens and foreign nationals alike.

 

1.3 The powers are to be used in pursuance of ordinary criminal matters as well as immigration related offences.

 

1.4 There is a need for a Code as to how a person may be treated during the three hours detention permitted.

 

1.5 A person detained may be forced or feel compelled to answer questions without understanding the purpose of such. They may also be questioned about matters in circumstances where a caution should have been administered.

 

1.6 JCWI believes that The European Convention on Human Rights ("ECHR") is engaged. In terms of the power to detain Article 5 (Right to liberty and security) is in issue. In terms of the power to search individuals and seize material Article 8 ("Right to respect for private and family life) and Protocol 1, Article 1 ("Protection of Property") is in issue.

 

 

2.0 The Home Secretary is given the power to designate an immigration officer, whom he considers to be suitably trained for the purpose of detaining persons, searching them, and seizing material.

 

2.1 We are concerned that there are no adequate safeguards so that a designated immigration officer will be subject to the same procedures and safeguards as a police officer exercising the powers to search and detain an individual and seize material from that person.

 

2.2 Once an immigration officer is considered suitably trained, he is designated and has the power to search and detain. When he comes to exercise his powers the exacting standard that regulate police officers and hold them to account in the event of error are conspicuous by their absence. For the police the relevant standards are found in the Codes issued pursuant to the Police and Criminal Evidence Act 1984 ("PACE").

 

2.3 A designated immigration officer is not subject to the Independent Police Complaints Commission ("IPCC") even though he will be exercising what are police powers. This omission leaves the detained person, British citizen and foreign national alike, vulnerable in the absence of this essential safeguard.

 

Detention

 

 

3.0 The power to detain an individual may be exercised if the designated immigration officer thinks that person may be liable to arrest by a police constable under section 24(1), 24(2) or 24(3) Police and Criminal Evidence Act 1984 ("PACE") or if he thinks the person is subject to arrest warrant.

 

3.1 This provision gives the designated immigration officer extremely broad police powers exercisable in respect of all relevant criminal matters whereby a person is liable to arrest. JCWI has grave concerns about the ability of immigration officers to exercise powers of this nature without adequate and sufficient training and, thereafter, adequate scrutiny.

 

 

4.0 A designated immigration officer who detains a person must arrange for a constable to attend as soon as is reasonably practicable. A designated immigration officer may search a detained individual and retain anything that must be used to escape or cause physical injury. Furthermore, a designated immigration officer, having searched a detained individual must retain anything which he thinks may be evidence of the commission of an offence. When a police constable arrives, a designated immigration officer must deliver anything retained in the search to him.

 

5.0 A designated immigration officer may use reasonable force in exercising a power.

 

5.1 JCWI is concerned about the absence of code of practice similar to those used to regulated police offices under PACE and the absence of IPCC scrutiny have been set out above.

 

 

6.0 Where a person whom a designated immigration officer detains or attempts to detain leaves the port, he may be pursued and returned by the designated immigration officer.

 

6.1 There is an imprecise definition of what constitutes a port. The definition of port is subject to the belief of the designated immigration officer as to the purpose for which an individual has gone to a place. This lacks legal certainty.

 

Enforcement

 

 

7.0 There are new criminal offences for (a) absconding from this form of detention, (b) assaulting an immigration officer in the exercise of a power under these provisions, (c) obstructing an immigration officer in the execution of one these powers.

 

7.1 JCWI is concerned that there are no corresponding criminal offences by which a designated immigration officer may be held to account for abuse of his powers.

 

 

Clauses 16 - 19 Treatment of claimants

 

 

Clause 16 conditional leave to enter/remain

 

8.0 By clause 16 further conditions will be able to be given to anyone with limited leave to enter or remain. These conditions relate to a condition requiring a person to report to an Immigration Officer or Secretary of State for the Home Department (SSHD) and a condition about residence.

 

8.1 We agree with the comments of ILPA that this is a very wide, onerous and practically cumbersome set of additional conditions being placed on a large number of migrants. People with limited leave to remain may have it for as long as 5 years - the idea of making them have to report regularly (weekly / monthly?) and reside at a particular location with prior approval is a recipe for administrative inefficiency if not chaos. Bearing in mind the chronic and systemic problems with basic administration that IND currently faces (making decisions, processing appeals, progressing cases) these additions to its workload are both unnecessary and likely to compound existing deficiencies.

 

8.2 It appears that the desire behind these additional conditions was to specifically catch certain persons e.g. UASC who could be removed at 18 and persons who Home Office want to remove but cannot and therefore have to give 6months Leave to Remain regularly. If that is right then it is appropriate for these additional conditions to be more carefully delineated than they currently are.

 

Clause 17 support for failed asylum seekers

 

9.0 This clause concerns the continuation of support for persons whose asylum claims have been determined finally negatively and who can continue to be provided with support if they have an appeal against an immigration decision pending under S82 NIAA 2002.

 

9.1 It appears to JCWI that this is an attempt to clarify the problem that may have arisen with the situation where the SSHD determines a claim but a person can pursue an appeal against the underlying immigration decision ( via S82) ( e.g. see M v Slough MBC CA ). However it may also help persons whose asylum claims are determined and they have another immigration decision that allows them an in country right of appeal e.g. asylum claim determined, marriage application made, refused, appeal under Article 8 etc. They will not face the problems of Schedule 3 NIAA 2002 etc.

 

9.2 The fact that this section will be treated as always having had effect is also helpful as well as the fact that it applies to Schedule 3.

 

 

Clause 19 points based applications: no new evidence on appeal.

 

10.0 The purpose of this clause is to limit the evidence that can be considered on an appeal before the Asylum and Immigration Tribunal in relation to adverse decisions on points based applications.

 

10.1 JCWI would agree with the criticisms already voiced on this by ILPA in that this restriction on evidence is not really of any practical benefit for decision makers, claimants and the appellate /judicial process. All that it will do is lead to yet more cases where fresh applications will need to be made if crucial evidence cannot be considered at the appeal hearing and/ or to further representations and challenges to Home Office decisions. Bearing in mind the systemic problems of the Immigration and Nationality Directorate and the strong philosophy of a one stop process ever since the advent of the 1999 Act it is surprising that this restrictive approach is being taken - particularly as a clear purpose has NOT been identified or justified behind it. 

 

 

Clauses 20-27 Enforcement

 

11.0 These new clauses continue the progression to what commentators have rightly described as an "Immigration Police Force" independent of the national police force. Their purpose appears to be

 

i.          to focus more on the pursuit of  immigration based criminal offences.

 

ii.         to allow the immigration service to investigate and pursue these matters and leave the police force to address more 'domestic' matters of law and order.

 

iii.        to assist in surveillance and intelligence gathering particularly in relation to overstayers and those facing administrative removal as well as deportation.

 

11.1 The increase in these powers to the Immigration Service raises a number of long term and difficult issues, in particular accountability, training, and the need to not undermine community relations with minority communities particularly at a time of heightened concern over potential violent activity.  In short there is a real problem of the likelihood of an increase in institutionalized racism against the Black community in the UK.

 

11.2 In relation to the increase in powers there is a real and urgent need that what powers are given are exercised responsibly. This in itself requires immigration officers to respect codes of guidance and practice given in exercise of their functions. The safeguards set out in PACE should govern such situations. However the problem that currently exists is a lack of a coherent and accessible set of guidance for the training of Immigration Officers and for the benefit of claimants and their advisers. The Immigration PACE Codes of Practice 2000 and the subsequent amendments were brought out pursuant to S145 of 1999 Act.

However

i.  they no longer appear on the HO website;

ii. they did not reflect the amendments that subsequently took place to  

    PACE itself;

iii. they did not fully incorporate the provisions of PACE.

 

11.3 It is critical if any confidence is to be established between the Immigration Service and communities affected by these significant increases in powers for Codes of Guidance to exist and for them to be accessible. This point is reinforced by the concerns that have been continually expressed of abuses of power by certain immigration officers (e.g. Panaroma programme on Detention centres recently, the many unlawful detention cases that are coming up before the courts).

 

11.4 As to accountability it is noted that the Police and Justice Act 2006 (received royal assent 8th November 2006) at section 41 states that the Secretary of State may make regulations conferring functions on the Independent Police Complaints Commission (IPCC) in relation to the exercise by immigration officers of specified enforcement functions and the exercise by officials of the Secretary of State of specified enforcement functions relating to immigration or asylum. However it remains to be seen as to how effective a safeguard the IPCC will be and further such Regulations would not apply in relation to Detention Centres

(see s41(3)) which is an important omission as this is where a lot of the

problems are arising (e.g. see above).

 

11.5 Finally the clauses relating to facilitation and people trafficking are not objectionable but there remains a problem of the admissibility of certain types of evidence that is not straightforward.

 

 

Clauses 28 - 35   Deportation of Criminals

 

 

12.0 Here a non-British citizen who is convicted in the UK of an offence is designated as a foreign criminal if either:

 

(a) sentenced to imprisonment for at least 12 months, or

 

(b) sentenced to an offence specified by the Home Secretary under the Nationality, Immigration and Asylum Act 2002 and sentenced to imprisonment.

 

 

13.0 There is a new automatic statutory presumption that the deportation of a foreign criminal is conducive to the public good.

 

13.1 Hitherto the Home Secretary and thereafter the Asylum and Immigration Tribunal have enjoyed a discretion to consider the merits of whether or not deportation is conducive to the public good in the light of the facts of the individual case. An appeal on the merits of whether deportation is will no longer be available to a person designated as a foreign criminal under these provisions.

 

13.2 What is being lost, is the ability for the Home Secretary and the Asylum and Immigration Tribunal to determine not only what the merits of a person's case require but also what the public interest requires. It is a regrettable fetter of the discretion and judgment of administrators and judges to legislate in a way that could produce effects that are contrary to the public interest.

 

 

14.0 However, there is to be no automatic presumption that deportation  is conducive to the public good where an exception  applies that:

 

(a) the foreign criminal was under 18 date of conviction,

 

(b) removal would breach an European Community free movement right,

 

(c) the foreign criminal was subject to certain mental health detention provisions.

 

 

 

14.1 The exception for a foreign national under 18 should relate to the date of the commission of the offence not the date of conviction. JCWI believes that what matters here is that the person was a child when the offence was committed. Conviction may happen much later.

 

 

15.0 There is a new statutory requirement  that the Home Secretary must make an automatic deportation order in respect of a foreign criminal.

 

15.1 Hitherto the Home Secretary and thereafter the Asylum and Immigration Tribunal have enjoyed discretion as to whether a deportation order should be made in the light of the facts of the individual case. An appeal on the merits of the issues will no longer be available to a person designated as a foreign criminal under these provisions.

 

15.2 By clause 44, the provisions relating to automatic deportation orders may be applied to persons convicted of offences before the Bill is passed. This raises concerns under Article 7 ECHR (no heavier penalty to be imposed than one applicable at the time the offence was committed).

 

 

16.0 There is to be no requirement to make a deportation order where an exception  applies that:

 

(a) Removal of the foreign criminal would breach rights under the Refugee Convention or the Human Rights Convention.

 

(b) the foreign criminal was under 18 date of conviction,

 

(c) removal would breach an European Community free movement right,

 

(d) the foreign criminal is subject to extradition proceedings,

 

(e) the foreign criminal was subject to certain mental health detention provisions.

 

16.1 The exception for a foreign national under 18 should relate to the date of the commission of the offence not the date of conviction. What matters here is that the person was a child when the offence was committed. Conviction may happen much later.

 

17.0 The application of any exception will not prevent the making of a deportation order. There is to be no requirement to make a deportation order where that person enjoys the benefit of protection from deportation under the Immigration Act 1971 (certain Commonwealth and Irish citizens, crew, armed forces and diplomats).By these clauses, no deportation order may be revoked unless an exception applies or the foreign criminal is outside the UK

 

 

18.0 By these clauses no deportation order may be made while a criminal appeal against conviction or sentence is being made or could be made.

 

 

19.0 Also there is to be no bar to making an automatic deportation order while an immigration appeal to the Asylum and Immigration Tribunal is pending.

 

19.1 Hitherto, there has been a bar to the making of all deportation orders while an appeal to the Asylum and Immigration Tribunal (AIT) was pending. JCWI is concerned that an appeal to the AIT may not be effective if the individual is already subject to a deportation order.

 

 

20.0 Under these clauses a decision that the automatic deportation order provisions apply to a foreign criminal may be the subject of an appeal to the Asylum and Immigration Tribunal.

 

20.1 However appeal rights to challenge the substantive decision to deport have been abolished.

 

 

21.0 Also no appeal against an automatic deportation order applies while the person is in the UK unless a claim under the Human Rights Convention or the Refugee Convention has been made.

 

21.1 Hitherto, all appeals against deportation have been in-country appeals. JCWI is gravely concerned that this valuable protection is being abolished unless reliance can be placed on the Refugee Convention or the Human Rights Convention.

 

22.0 A person may be detained while the Home Secretary considers whether to make an automatic deportation order and where he thinks one should be made, pending the making of such an order. Under these clauses, the Home Secretary shall detain a person who is the subject of an automatic deportation order applies unless he thinks it inappropriate.

 

 

23.0 Also a family member of a person against whom an automatic deportation order is made, may not be made the subject of a deportation order eight weeks after the end of any immigration appeal against the automatic deportation order or eight weeks after the immigration appeal could have been brought.

 

 Appendix B

 

IDENTITY CARD BILL

ADVICE

1. I am asked to advise JWCI whether specific clauses in the Identity Cards Bill (ICB) will discriminate against 'foreign nationals' and ethnic minorities residing in the UK.

2. In particular there is real concern that the cumulative effect of clauses 6, 9, 15, 17 and 18 ICB will have a discriminatory impact on these groups.

3. Clause 6:-

4. This clause provides for entry on the Register to be made compulsory either for all registrable individuals, or for designated groups by order of the Secretary of State subject to a "super-affirmative" process of parliamentary authorisation under clause 7. The designated groups include foreign nationals.

5. Foreign nationals would be required to apply for entry onto the Register, and therefore to allow themselves to be photographed, to have fingerprints and other biometric data taken and recorded, and to provide such other information as may be required by the Secretary of State. Persons within the categories designated by order, who did not apply for entry onto the register within a specified time, would be liable to a civil penalty of 2500.

6. The Explanatory Notes at paragraph 45 this subsection provides the facility to phase in the compulsory registration, for example, so that different categories of people over a certain age may initially or permanently be excluded from the requirement to register. It might also be compulsory, for example, for a third country national to register before such time as the scheme becomes compulsory for European Economic Area or UK nationals.

7. The Government has expressed it view that the ICB is bound by the Race Relations Act 1976 as amended by the Race Relations (Amendment) Act 2000 and the scheme will be universal and inclusive, designed to cover everyone who has the right to be here.[1]

8. The ID card scheme is intended to cover all those resident in the UK (it seems for a period longer than 3 months).

9. There are good reasons for believing that Article 8ECHR applies to this scheme:-

10. The details of any limitations on the right to remain in the UK and to work in the UK including his/her nationality and other private matters of third country nationals (called registrable facts) will be included in the Register.[2]

11. This scheme of registration and retention of information about an individual in my view engage Article 8 ECHR.[3] The Strasbourg Court has held that "information relating to private life" is to be construed broadly to include any information relating to an identified or identifiable individual.[4] Publicly available information relating to a person's private information falls within the scope of Article 8 where it is systematically collected and retained. Article 8 rights are engaged when there is a gathering and recording of personal data, including data to establish a person's identity.[5]

12. Every individual has the power to decide who should know his details and these private details constitute 'informational privacy'.

13. "This notion of privacy derives from the assumption that all information about a person is in a fundamental way his own, for him to communicate or retain for himself as he sees fit": per La Forest J in R-v-Dyment [1988] 2 SCR 417 at p 429.[6]

14. Any justification under Article 8.2 for retaining or storing each of the registrable facts entered in respect of an individual, it must pursue a legitimate aim listed under Article 8.2; and which is necessary in a democratic society, proportionate to the aim it pursues, and in pursuit of a pressing social need. This requires that privacy rights should be interfered with to the minimum degree necessary.

15. Thus compulsory registration by an individual of registrable facts clearly amounts to an interference with Article 8.

16. On any basis I consider that the registrable facts in relation to an individual fall within the ambit of Article 8 ECHR so that the anti discrimination provisions contained in Article 14 will apply to parts of the registration scheme.

17. Will compulsory registration by foreign nationals amount to a breach of Article 14 ECHR or other international instruments?-

18. Compulsory registration by resident foreign nationals is due to take place before it applies to UK/EEA nationals. This is what the government proposes (see the Explanatory Note at paragraph 45 - above).

19. So far there is no definition of the composition of foreign nationals other than it excludes British citizens. Clearly the target is a whole class of foreign people residing in the UK.

20. There is no material difference between the British citizens and foreign nationals in so far as they are required to undergo compulsory registration. These groups will have to submit their registrable facts on to the Register.

21. However, the requirement imposed on foreign nationals to undergo compulsory registration will prima facie amount to discriminatory and less favourable treatment, on grounds of nationality, unless this condition is applied at the same time to all others.[7]

22. To require foreign nationals to undergo compulsory registration before extending the same requirement to all other similar placed residents in the UK (including British citizens and or EEA nationals resident in the UK) does in my view amount to less favourable treatment on grounds of nationality and may be unlawful.[8]

23. The object of the compulsory registration scheme is to demonstrate to all aliens and citizens who have the right to be in the UK that they belong to this society irrespective of their status. It also aims to help people prove their identities to access public health services and benefits and discourage those not entitled to these public services from trying to get them.[9] However, to limit compulsory registration to foreign nationals before it is applied to all residents in the UK may be a disproportionate and unjustifiable interference under Article 8 but more certainly it does constitute less favourable and discriminatory treatment on grounds of nationality under Article 14. Put simply foreign nationals are required to provide regristrable facts on the Register (compulsory registration) whereas British citizens are not required to do so in comparable circumstances.

24. It is anticipated that the government might seek to justify the differential treatment of foreign nationals as being in the interests of effective immigration control and in the prevention of crime and therefore serving the legitimate aims under Article 8.2.

25. For such a measure to be a proportionate response to an interference with Article 8, and to meet a pressing social need, the government will need to demonstrate that other measures less intrusive of Convention rights are not available. The test is could a less drastic means have been used to achieve the chosen end without infringing the primary right of the claimant?[10]

26. Compulsory registration by foreign nationals only would be unlikely to be justified as necessary for the reduction of crime, since it would be likely to amount to both a disproportionate and a discriminatory interference with Article 8 rights and or taken together with Article 14. The Joint Committee on Human Rights commented - "Where, for example, a move to compulsory registration was sought to be justified by the government in the interests of the prevention of crime, or the prevention of benefit fraud, it would need to be shown that there were relevant and sufficient reasons for the designation of a particular group for compulsory registration in support of this aim. We are not convinced that such justification could be made, under a phased programme of the type suggested in the Explanatory Notes. A scheme of compulsory registration that is sought to be justified as necessary for the prevention of crime, for example, would be difficult to justify as necessary and proportionate in response to this legitimate aim where only those persons under a particular age were required to register. Such a scheme would be equally difficult to justify as non-discriminatory in accordance with Article 14 ECHR. The government might seek to justify compulsory registration for groups of non-nationals as being in the interests of effective immigration control, and therefore serving the legitimate aim under Article 8.2 of maintaining the economic well-being of the country. However, in order for such a measure to be a proportionate interference with Article 8, and to meet a pressing social need, it would need to be shown that other measures less intrusive of Convention rights, including other documentation required to be held by those within the group concerned, could not serve this aim".[11]

27. The government will have to justify this difference of treatment between these groups on strong, rational and cogent grounds.

28. The Strasbourg Court has repeatedly stated that 'very weighty reasons would have to be put forward before the court regard a difference of treatment based exclusively on ground of nationality as compatible with the Convention'.[12]

29. For the moment no weighty reasons are discernible and none have been advanced justifying the proposed difference of treatment (i.e. compulsory registration) between foreign nationals and UK/EEA nationals resident in the UK.

30. To say that all residents in the UK will at some time in the future undergo the same registration process does not by itself appear good grounds for justification for the less favourable treatment of this group at this stage.

31. Discrimination on grounds of nationality may arise, under Articles 8 and 14 ECHR as well as in relation to the UK's international human rights obligations of non-discrimination[13].

32. In addition there are concerns how this scheme will affect those who are not British citizens.

33. Firstly, there are those who are not British citizens but lawfully settled in the UK (some with the right of abode). This group will fall under the early compulsory registration scheme. They are for all purposes no different than British citizens in material respects.[14] There is no obvious justification to compel this group to undergo compulsory registration before British citizens.

34. Secondly, there are those with long residence in the UK; some have lawful residence others do not.

35. There is a group of foreign nationals who do not have a right to reside in the UK (overstayers e.g. students who have completed their courses and remained without leave) but have been in the UK for a number of years. They have made their homes here. This group is largely benign[15], industrious, tax paying, prepared to undertake menial jobs, contributed in different ways to the community and have a stakehold in society. Successive governments have beneficially endured their subterranean existence. Compulsory registration, boasting an inclusive approach, will alienate and exclude this group further.

36. This particular group has limited opportunity to regularise their position under the Immigration Rules but fear to do so because there is no guarantee that they will obtain regularisation prematurely or otherwise.[16] Experience shows that their fears are well founded since the Immigration Rules confer no entitlement on this group to indefinite leave to remain. Indefinite leave to remain is at best a matter of discretion vested in the SoS . The conditions for indefinite leave to remain are difficult to meet. Their position in the UK will become untenable.[17] To meet this particular problem created by the introduction of a compulsory registration scheme the government may at the same wish to announce some amnesty so as to bring this group into the inclusive scheme.[18]

37. Thirdly, there is a class of British nationals without a right of abode (i.e. British Overseas citizens, British Dependent Territories citizen etc) and some with a right of abode.[19] Again there is no justification in requiring this group to undergo compulsory registration before British citizens/EEA nationals.

38. Fourthly, citizens of the European Union will also require undergoing compulsory registration. Their position in the UK is more complex.

39. Does the scheme potentially infringe EU law?

40. Article 18 EC confers on every citizen of the Union the right to move and reside freely in the territory of the Member States, subject to the limitations and conditions laid down by the Treaty and by the rules of secondary law.[20]

41. It is doubted whether EU workers could be required to undergo compulsory registration before British citizens[21]. EU nationals have the right to enter and reside in the UK - 'the exercise of the right of residence of citizens of the Union can be subordinated to the legitimate interests of the Member States. However, those limitations and conditions must be applied in compliance with the limits imposed by Community law and in accordance with the general principles of that law, in particular the principle of proportionality. That means that national measures adopted on that subject must be necessary and appropriate to attain the objective pursued. Compulsory registration may breach the principle of proportionality particularly if the EU national is required to undergo compulsory registration whereas the British citizen is not.

42. Thus any difference of treatment between EU nationals and British citizens in respect of undergoing compulsory registration will most certainly fall foul of the Treaty of the EU.[22]

43. According to settled case-law, the prohibition of discrimination 'requires that comparable situations must not be treated differently and that different situations must not be treated in the same way.

44. All that the EU worker or work seeker or an EU self sufficient person is required to produce on entry into the UK is a valid identity card or passport.[23] The same documents would be enough to obtain a residence permit.

45. A person who is required to register under clause 6 but fails to do so will be subject to a fine of up to 2,500; this fine will be repeated each time he fails to register if the SoS repeats this request.

46. Clause 9 also imposes a structure of fines; an individual entered on the register under clause 6 and who forgets to renew his card is likely to face a fine of 1,000; fine of up to 1,000 for failing to attend at a specified time and place to have their photographs, fingerprints etc.

47. Civil penalties suggest that the procedure used to establish the offence under clause 6 may not attract the guarantees and safeguards set out in Article 6.3 and 6.3 ECHR. As the name suggest the procedure is more likely to be a civil procedure involving a lighter burden in proving the offence.[24]

48. The civil penalties imposed on those EU nationals who fail to register when required to do so or for not providing further information when required by the SoS and the repeat penalty imposed on them each time the SoS requires them to make an application but they fail to do may also offend EU law for the same reasons given above - i.e. the measures may be considered disproportionate and discriminatory.

49. The same may be said in respect of the fines which may be imposed on foreign nationals.

50. Conclusion:-

51. To apply the compulsory registration scheme to foreign nationals before applying it to British nationals or EEA nationals may be incompatible with Article 14 taken together with Article 8 ECHR and such discrimination is not objectively justifiable.

52. To apply the compulsory registration scheme and the sanctions for non compliance to EEA nationals may offend EU law (Articles 12, 17 and 18 TEU and the secondary legislation).

53. To apply the compulsory registration scheme to EEA nationals before extending the same to British citizens will fall foul of the anti discrimination provisions.

54. Clauses 15, 17 & 18:-

55. Where a person has an ID card by reason of compulsory registration then his access to public services (health and benefits) will be conditional on his producing the card. No card means no services irrespective of need.

56. Under clause 15, access to public services for this group, including services available free of charge, or to benefits, may become conditional on production of an ID card, where provision to this effect is made in regulations by the Secretary of State.

57. In respect of persons who are not compulsorily required to be entered on the Register, such a condition may not be imposed in relation to benefits or to services that are free of charge, but may be imposed in relation to other services.

58. Under clause 17 (1), public service providers, may ask for production of ID cards to access information in the Register "for the purposes of verifying registrable facts about an individual who has applied for the provision of the service." - i.e. address and former address, residential status and former residential status, and identifying physical characteristics without limiting the enquiry to that necessary for provision of the particular service. By way of example information on former residential status may be sought though this is not connected to the provision of health care service.

59. Any person or organisation, whether public or private, may require a person is subject to compulsory registration to produce an ID card, or to give consent for an identity check against the information held on the Register, as a condition of doing any thing in relation to that person (clause 18(2)(c)).

60. The kind of information which may be obtained under clause 14 includes personal information (name, date and place of birth, address and previous addresses); information on current and previous residential status in the UK; personal reference numbers; photograph; and signature. Fingerprints and biometric data are not to be provided, although if such data are submitted it will be confirmed whether they match the biometric data held on the Register.

61. The Joint Committee on Human Rights Fifth Report acknowledges that clause 14 is potentially highly intrusive of private life, in that it would be likely to result in verification checks of personal data by a wide range of private persons including, for example, potential employers.[25]

62. JWCI has previously expressed concern that the Department of Health consultation paper continually refers to "overseas visitors" as the affected class of people. For example, whether migrant workers are documented or not, the functioning of the UK's dynamic and flexible economy depends on their participation across a range of sectors (for example, hospitality and cleaning services). Proposals which seek to limit undocumented migrants' access to primary health care services could limit their fitness to participate in the workforce and will strike at UK businesses and the flexible economy. Even if the current proposals are not intended to be discriminatory nevertheless the settled communities may well experience them as such, if front-line staff make judgments about eligibility based on personal perceptions of race and nationality. Ultimately this strikes at the wider policy goal of community cohesion.[26]

 

63. The CRE has also voiced concerns that the government needs to consider that the proposed scheme does not lead to discrimination.[27] There are also fears that the police will interpret the legislation in such a way that will lead to discriminating against minority ethnic groups and that they will stop a disproportionately high number of Black and Asian People and demand sight of their ID cards even though the police have been given no new powers to do this.[28]

64. In these situation, described above, there is every reason to conclude that far reaching enquiries and practices, undertaken by public services (hospitals) and the police etc, will undoubtedly target foreign nationals and ethnic minorities and this will amount to an interference with individual rights of privacy under Article 8 by itself and or taken in conjunction with Article 14 (only foreign nationals, Blacks, Asians and ethnic minorities are required to submit to this type of examination and practice).[29]

65. There are serious concerns about the consequences of enquiries the above groups will be subjected to. Foreign nationals and ethnic minorities will in this instance be treated more sceptically than British citizens and or EEA nationals in this regard. The latter are more likely to be asked to produce ID cards and or stopped by the police. This sceptical treatment is based on perceived racial grounds. The reason for the differential treatment does not absolve the sceptical treatment. The discriminator may be acting on stereotyped assumptions about the racial characteristics which may or may not be true. The chance that the operation of the scheme would indeed be conducted in a racially discriminatory manner is self evidently high.[30] The scheme (stop and asking for ID cards; enquiring about personal information) will hit most those who are from ethnic backgrounds.[31]

66. Conclusions:-

67. Clauses 15, 17 and 18 cumulatively have a potential discriminatory impact not only on foreign nationals but on ethnic minorities British citizens.

68. To deny health care or benefit because a foreign national does not have an ID card, without regard to his need, or to subject an ethnic minority British citizen to this type of enquiry contemplated in these clauses will most certainly fall foul of Articles 8 and 14 ECHR.[32]

 

 

 



[1] Home Office Identity Cards Bill Regulatory Impact Assessment: section 3 at paragraph 75.

[2] S 1(5) defines what registrable facts are (identity, where he resides, etc)

[3] Biometric information falls within the scope of Article 8: generally see Mveigh, O'Neill and Evans-v-UK (1981) 5 EHRR 71. Any interference with this Article has to be justified under Article 8.2.

[4] Niemietz v Germany (1993) 16 EHRR 97, para. 29; Halford v UK (1997) 24 EHRR 52

[5] Friedl v Austria (1996) 21 EHRR 83, para 52, where the applicant was questioned about his identity and information stored in the authority's archives constituted an interference with Article 8 rights; X v UK App No 9702/82; see also Rotaru v Romania (2000) 8 BHRC 43, para. 44

[6] In R(S)-v-Chief Constable of S Yorkshire Police [2004] UKHL 39 [2004] 1 WLR 2196 [73] Baroness Hale of Richmond remarked that if the taking and use of information (fingerprints and DNA) is an interference, it is difficult to see why the retention, storage or keeping of that information is not also an interference (contrary to the view expressed by Lord Steyn).

[7] The Strasbourg Court has, for purposes of Article 14 ECHR, treated nationality as falling within the terms of this Article: A-v-SSHD [2004] UKHL 56 [2005] 2 WLR 87 [49]. Alternatively, the status of the foreign nationals suffices to engage this Article. Article 14 will only apply to rights which the UK is bound to protect. In this case the compulsory registration scheme in my view falls within the ambit of Article 8 (respect for family and private life) so that Article 14 may be relied on to establish discrimination.

[8] Sections 1(1)(a), (b), (1A), 3, 19B with a defence available under s 41 RRA 1976 (as amended). Furthermore, the UN Declaration on the Human Rights of Individuals who are not Nationals of the Country in which They Live 1985 allows differences in treatment of nationals and aliens only so long as they are not "incompatible with the international legal obligations of the state including those in the field of human rights". Article 12 of the UDHR stipulates that no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence. Article 26 of the International Covenant on Civil and Political Rights is similarly worded and so is the International Convention on the Elimination of all Forms of Racial Discrimination in article 12.

[9] The scheme will have greatest impact on illegal immigration and illegal working if it became compulsory to register with the scheme: see Home Office Identity Cards Bill Regulatory Impact Assessment at para 38.

[10] Evans-v-Amicus Healthcare [2004] EWCA Civ 727 [2004] 3 WLR 681 [65]. This test applies even where social policy is in play.

 

[11] Paragraph 25 of the Report.

[12] Gaygusuz-v-Austria (1996) 23 EHRR 364 at para 42.

[13] See the footnote 8 above.

[14] Settled means ordinarily resident in the UK without being subject under the immigration laws t o any restriction on the period for which he may return: section 33(2A) Immigration Act 1971.

[15] Most overstayers are law abiding; if they are arrested for any criminal offence they are likely to be detained and removed by the Immigration Service.

[16] Paragraphs 276A-276D HC 395 refers to them.

[17] The CRE were concerned that this would entrench an underclass, undermining community cohesion: paragraph 66 of Race Equality Impact Assessment.

[18] See paragraph 66 of Home Office Identity Cards Bill Race Equality Impact Assessment "The impact on those who have been living and working illegally in the UK for many years has also been raised. The CRE were concerned that this would entrench an underclass, undermining community cohesion".

[19] Some British nationals are freely admitted to the UK: see para 16-17 HC 395.

[20] S 7 of the Immigration Act 1988 permits EU workers to enter and remain in the UK without leave.

[21] Article 4 of Council Directive 68/360/EEC stipulates the type of document which the UK may demand from a worker before issuing a residence permit; Article 7.2 of Regulation (EEC) 1612/68 guarantees a worker enjoying the same social advantages as national worker; and the 13th recital to Council Directive 20000/43/EC expressly excludes differences based on nationality from the scope of this Directive.

[22] EU workers are to be treated in the same way as national workers: Articles 12, 17, 18, and 39 TEU.

[23] Article 3 of Council Directive 68/360/EEC.

[24] In deciding whether there is a criminal charge for the purposes of determining whether Art 6 .2 and 6.3 ECHR apply regard must be had to the classification of the proceedings, the nature of the offence and the severity of the penalty which might be imposed.

[25] Paragraph 32 of the Report.

[26] See JCWI response to the Consultation Paper to Exclude Overseas Visitors from Eligibility to Free NHS Primary Care Medical Services. A full reference to this document is helpful.

[27] Paragraph 65 the Home Office Identity Cards Bill Race Equality Impact Assessment.

[28] Paragraph 10 of the Partial Race Equality Impact Assessment.

[29] See Joint Committee On Human Rights Fifth Report at paragraphs 23-28

[30] Baroness Hale of Richmond said "It is worth remembering that good equal opportunities practice may not come naturally. Many will think it contrary to common sense to approach all applicants with an equally open mind, irrespective of the very good reasons there may be to suspect some of them more than others': R(European Roma Rights)-v-Prague Immigration Officer [2004] UKHL 55 [2005] 1 WLR 1 [90].

[31] I for one was stopped by a polite police officer in Inverness and asked if I had lost my passport as one was found which he 'swore looked like me'.

[32] In Savjani-v-IRC [1981] QB 458 at p 466 Lord Denning M.R. asked "Would it be right for the Inland Revenue to issue a circular saying that people born in England need not worry about full certificates - the revenue would take their word- but they would require them in the case of someone

coming from the sub-continent of India. It seems to me that such a circular would be the provision of a service. It would be discrimination in the provision of a service for the public."