APPENDIX 9
Memorandum submitted by the Joint Council
for the Welfare of Immigrants
The Joint Council for the Welfare of Immigrants
is an independent, voluntary organisation working in the field
of immigration, asylum and nationality law and policy. Established
in 1967, JCWI actively lobbies and campaigns for changes in law
and practice and its mission is to eliminate discrimination in
this sphere. We are responding to this inquiry because a primary
application of the collection of biometric data and data-sharing
is the immigration control, of non EEA migrants.
THE APPLICATION
OF BIOMETRIC
DATA COLLECTION
AND DATA
SHARING TO
IMMIGRATION CONTROL
Until recently the collection of biometric data
has been restricted to pilot schemes applied to visa applicants
from the so-called "high risk" countries a list comprising
disproportionately poor countries from the global south such as
Eritrea DRC, Sudan, Nigeria, Zimbabwe, Ethiopia, Cameroon and
Ghana. By the end of 2006 this had extended to 42 posts. Currently
the commercial partnership enrolment of UK biometric visas is
being carried out but by the end of 2007 it is expected it will
be applied at 150 posts and the strategic plan for the National
Identity Scheme and Borders, Immigration and Identity Action Plan,
published December 2006 assure us that by the end of 2008 that
the collection of biometric data abroad will be extended to cover
all visa applicants intending to travel to the UK. This in effect
means half the countries in the world or all the non-EEA countries.
In addition by the end of 2008 biometric documents will be introduced
for non-EEA foreign nationals already in the UK who reapply to
stay here.
It is anticipated that biometric data collection
will be used not only to support the allocations of visas at overseas
posts and immigration control at borders but will also be used
to extend immigration control within the UK's borders. Biometric
data and data sharing will be applied so as to mediate immigration
control via access to public services. In the aforementioned strategic
plan at paragraph 19 it is stated that ID cards will be used to
facilitate access to many public services: "This will be
the case throughout the country, as the Scheme is UK-wide. Application,
enrolment and the storage of data in the NIR will be managed on
a UK-wide basis, in much the same way as passport applications
operate today. However, the devolved administrations will have
responsibility for how the ID card is used to gain access to those
public services which are their responsibility."
This was reiterated in the Borders and Immigration
enforcement strategy announced at the beginning of March 2007.
Measures being introduced include a "watch list" of
"illegal" migrants to alert government agencies if someone
applies for services to which they are not entitled. For example
there will be pilot schemes in three NHS trusts to be implemented
by April 2008 using data from the Immigration and Nationality
Directorate to ensure non-eligible migrants pay for non-urgent
health care where required to do so. Offering justification for
this approach the Home Secretary John Reid said most people who
came to the UK wanted to comply fully with immigration laws but
those who did not should not enjoy the same benefits and privileges.
"This new approach will make life in this country ever more
uncomfortable and constrained for those who come here illegally,"
the Home Secretary said.
JCWI'S CONCERNS
We are concerned that the proposed collection,
sharing and other uses of biometric data from disproportionate
numbers of the non-EEA population before the mass of the UK national
population is discriminatory and will conflict with the UK's obligations
under national treaties and conventions.
The Joint Committee on Human Rights has said
it considers the implementation of a compulsory scheme for non-UK
nationals before UK nationals raises questions of disproportionate
interference with private life under ECHR Article 8, as well as
of discrimination under Article 14, read in conjunction with Article
8. In addition:
"Further discrimination issues may arise,
under Articles 8 and 14 of the ECHR as well as in relation to
the UK's international human rights obligations of non-discrimination,
in particular under the International Covenant on Economic Social
and Cultural Rights (ICESCR) where essential services such as
healthcare became dependent on entry onto the Register, for certain
groups."
We believe that a culture of biometric data
collection, sharing and checking of associated biometric documentation
and registers, will inevitably result in, or amplify existing,
discrimination against visible minorities in the UK. Research
conducted in Europe has shown that that where such a culture of
registering personal information and providing supporting documentation
as proof of identity and lawful presence exists ethnic minorities
are disproportionately checked. 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).
Legal opinion sought by JCWI concurs with that
of the JCHR. In addition counsel advises that any power of public
officials to demand identification including in relation to provision
of public services, as mentioned by the national identity scheme
strategic plan above at paragraph 19 will have a potential discriminatory
impact not only on foreign nationals but also on ethnic minority
British citizens who may be wrongly judged to be foreign nationals
by officials. To deny health care or benefit because a foreign
national does not have such documentation, without regard to his
need, or to subject an ethnic minority British citizen to the
type of enquiry contemplated in these clauses will most certainly
fall foul of Articles 8 and 14 of the ECHR.
The Government has not acted ultra vires in
restricting non-urgent healthcare to overseas visitors. Nevertheless
additional opinion obtained by JCWI denial of non urgent health
care may in specific circumstances give rise to human rights breaches
associated with this denial under the ECHR, CEDAW and the UCRC.
This suggests that the collection and sharing of biometric data
by giving rise to disproportionate breaches of privacy and by
association discrimination, against foreign nationals may compound
other breaches of human rights. They further compound the problems
of risks to racial equality and effective monitoring associated
with the Department of Health's failure to carry out a Race Equality
Impact Analysis of the restriction of health services on which
both the JCHR and the CRE have expressed concern. It is our understanding
that the DoH is shortly to be the subject of a formal investigation
by the CRE for its alleged failure to carry out this and its other
statutory duties as a public body under the Race Relations Amendment
Act 2000. It is therefore of concern if the Home Office believes
the operation of the policy can be delegated to the devolved operations
without any direction as to the possible repercussions for race
equality.
In addition in the course of the debate about
identity cards and biometric data collection and sharing, very
little has been said by the Government about assessing the public
acceptability and impact on the public and third sectors and their
employees of having to check biometric documentation and information
and deny services to those who have been living and working irregularly
in the UK for many years and their children. The use, sharing
and checking of biometric data to deny services so as to control
immigration could also result in:
— individual employees code of
professional ethics being violated;
— increasing administration duties
for sectors which are already over-burdened;
— increasing destitution as services
are denied with a resulting strain on third sector resources and
advocacy;
— additional public health/acute
services burden as people are discouraged from reporting health
conditions in a timely way;
— increasing burden on public
resources if the use and sharing of data results in increased
detention and deportation;
— conflict in locations of public
service provision such as hospitals; and
— conflict with implementation
of progressive equality cultures by public sector and the third
sector.
April 2007
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