13 February 2007



Dear Ms Littleboy


UK Borders Bill


We should like to submit the following for consideration by the Public Bill Committee as well as the briefing on Second Reading which I enclose. I hope that it will be possible for us to give oral evidence to the Committee in due course.


We applaud increased efficiency and speed in dealing with asylum claims and simplification of the immigration system but not at the expense of accountability or fairness to the applicant" he said. "In its paper "Fair, effective, transparent and trusted: Rebuilding confidence in our immigration system" of July 2006 the Home Office has set out its plans many of which we support but with the need for safeguards."


Increased reliance on technology, such as biometric testing, put a greater need for independent oversight of procedures to ensure that injustice is not done. We welcome the idea of a unified inspectorate so long as it has the resources to look closely into the workings of IND and deal with legitimate complaints as well as having the power to offer redress for maladministration. An essential part of oversight of the system is recourse to appeal to an independent judiciary. The failings of the system when this is not available are pointed out in successive reports from the Independent Monitor which itemise the injustices of wrong decisions by entry clearance officers.


The same failing is true when decisions are subject to appeals that can be exercised only when the appellant is out of the UK ("non-suspensive appeals") used in many asylum cases and now proposed for so-called automatic deportation cases. The Government has legislated already to take away rights of appeal from those who come to work and study when they introduce the new Points Based System. Further restrictions on the admission of evidence are proposed in the UK Borders Bill. These moves to restrict or abolish rights of appeal are wholly contrary to the assertion of the Government that they want a fairer system - there will be more abuse but it will be by Government not by applicants.


IAS supports the Home Secretary's first objective to strengthen borders with the need to track who comes in and out of this country to maintain effective immigration controls and for many years we have called for the reintroduction of embarkation controls: we regret that the Government has delayed so long in taking heed or our advice that these controls will not be in place fully until 2014.


We note the Government's desire to 'export our borders' by checking overseas people's eligibility to come to the UK before they travel but this must be applied fairly with those refused entry clearance having a full right of appeal against arbitrary decisions - which the Government has already taken powers in the Immigration, Asylum & Nationality Act 2006 to remove. We are fearful that the "rigorous risk assessment" will lead to discrimination against nationals of certain countries in a collective sense - just as the Independent Monitor has identified the stereotyping of young Bangladeshi males as being refused by virtue of those characteristics.


We support the second objective to fast-track asylum decisions, remove those whose claims fail and integrate those who need our protection but Government action is far from achieving these aims. First, the Government claims to have reduced the numbers of unfounded asylum seekers yet that would indicate an increase in recognition rate of those who claim which has not happened. Moreover, despite it being an essential element of the New Asylum Model that all asylum seekers should have legal representation this remains a lottery.


The 450,000 so-called "legacy" cases will take five years to consider - the Government should offer leave to remain for those who have been waiting for five years or more, just as they did for families with children.


Recent actions of Government have made it more difficult for asylum seekers to integrate - such as refusing to grant indefinite leave to remain to recognised refugees until after up to five years, refusing English language courses and work to those asylum seekers who are still in the UK because, through no fault of their own, they cannot be removed (because they are undocumented or there is civil war or risk of human rights abuses in their countries): such persons are in a state of legal limbo with no status and they should be given at least one year's leave to remain renewable depending on the situation in their country of origin.


We are deeply concerned that the provisions for so-called "automatic deportation" (which is a misnomer) will lead to long, indefinite detention of those who cannot be removed in the foreseeable future which is likely to be challenged under Article 5 of ECHR and is wrong in principle. There should be a limit to the amount of time (no more than six months) a person can be held in immigration detention when there is no foreseeable prospect of removing that person.


Even if the UK is successful in challenging the case law on removing a person who is a threat to national security this will apply to only a few people. Where human life is at stake the Government should be wary of accepting assurances from foreign governments about fair treatment of their returned nationals, especially in the light of recent cases.


Removal of the requirement of the Home Secretary to consider the individual circumstances of those whom he seeks to deport will lead to injustice and judicial challenge. Refusing to allow in-country appeals to those from countries where there is "an assessment that there is no 'general' risk of persecution" will not ensure justice in individual cases.


The third objective of the Home Secretary is to Ensure and enforce compliance with our immigration laws, removing the most harmful people first and denying the privileges of Britain to those here illegally, yet all the evidence points to the Home Office trying to remove those most easily available, not the most harmful, such as those who comply with Home Office requirements to report regularly. We suspect that this is behind the proposal in the Borders Bill to impose reporting and residence restrictions on anyone with leave to remain. This will lead to injustice as the Home Office pick on anyone who can be removed just in order to meet the self-imposed target set by the Prime Minister.


We welcome Objective 4: "We will boost Britain's economy by bringing the right skills here from around the world, and ensuring that this country is easy to visit legally" but, in order to meet the legitimate needs of Britain's economy, this must not be too prescriptive. The best indicator of the need from overseas labour is from employers who cannot fill their vacancies from within the UK or the EEA - market forces.


A Government which interferes with market forces in the economy does so at the peril of the economy and the danger that certain industries will not be able to compete competitively internationally. UK Plc cannot be treated like a command economy of the former Soviet bloc.


Britain needs low skilled workers for the hospitality, catering and tourism industry which is such an important part of the economy as well as for the less attractive jobs such a meat de-boning, mushroom picking etc. It is short-sighted and not in Britain's best interests to expect all low skilled labour to come from within the EEA and to make special schemes, such as the Seasonal Agricultural Workers Scheme, available only to Bulgarians and Romanians. As their own standards of living and wages rise within the EU so they will no longer be content to work at jobs lower than their skills indicate or for lower wages.


The ensuing gap will need to be filled from the traditional sources of the Indian sub-continent etc. Moreover, the UK enjoys much of its international influence through the community of the Commonwealth and the legacy of countries' close association with Britain through its history of global involvement and empire. It will be a failure of Britain's foreign policy if we turn our backs on Commonwealth citizens as we appear to be doing in favour of EU nationals - the recent situation facing Indian doctors is an example.


It is wrong in principle never to admit to permanent settlement those who come as low skilled but then develop their skills and then they and their employers may wish them to stay even if the majority wish to return home. It is wrong in principle, as pointed out by the Prime Minister in 1992, to remove rights of appeal: a local administrative review will not be able to deal effectively with complexities over allegations of use of fraudulent documents etc. This will lead to more expensive challenges by way of judicial review. We welcome simplification but not at the expense of justice.


IAS has urged for some time the need to establish an executive agency at IND removing it from the perception if not the reality of direct Ministerial interference which cost two Ministers their jobs. We welcome a shadow agency going live from April. We welcome a root and branch overhaul. We want to see entry clearance officers recruited from a wider base than just the Home Office and Foreign & Commonwealth Office - university leavers and others would come with no existing baggage of prejudice towards applicants. We welcome a long overdue consolidation Bill of the existing confusing and complex legislation to be announced in the next Queen's Speech.


Public confidence in the system will be engendered only when [1] statistics give an accurate picture of who is entering and leaving the UK every year [2] the law and rules are sufficiently comprehensible and simplified for there to be a well-informed public debate about these issues and [3] there is full accountability not just to an independent regulator but to an independent judiciary. A Migration Advisory Committee may assist this if it is well informed, flexible and non-prescriptive and its views are taken on board by the Government - it should have a statutory basis for it to be effective. We recognise that enforcement and removal of those who have no legal right to remain is part of building confidence but it should not assume a greater importance than that of seeing that immigration meets to needs of Britain's economic and social life. We are concerned at the prospect of "a new model for managing enforcement work, exploring options for commissioning, contracting out and outsourcing for expanded activity" as to the implications for accountability and the powers of any contractors the absence of which could damage public confidence. Although, clearly, technology has an important part to play in immigration operations, enforcement and embarkation controls the history of IND and technology has not been felicitous - we caution about putting too much reliance on technology which could prove faulty: any systems must be subject to safeguards such as the Data Protection Act and appeals against inaccurate entry especially where information is to be shared with other agencies.


We fully endorse the principle "To rebuild confidence, we need to change IND's culture. We need a single, unified organisation which is viewed by the public, and those who use our services, as fair, effective, transparent and trusted."


Yours sincerely

Keith Best

Chief Executive