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Memorandum by STEP, UNISON and Law Centre (
The Border, Citizenship and Immigration Bill has completed its passage through the House of Lords. It is due to go before the House of Commons on 2nd June 09 for debate.
Although immigration is a reserved matter in
This document has been endorsed by a number of
organisations in
The purpose of this briefing is to raise awareness of the content of the Bill and to outline general recommendations. More detailed information, case studies and detailed amendments can be provided on request.
Our recommendations can be summarised as follows:
- Immigration Officer powers should not be extended, but should they be, they must be accompanied by PACE safeguards and an oversight mechanism must be implemented; - The proposals relating to citizenship and naturalisation are damaging and should be removed; - The duty for the welfare of children should be
re-drafted to reflect international standards and must apply to any child who
comes into contact with - The Clause effectively removing the Common Travel Area should not be reinstated; - The definition of short-term holding facility should be reviewed.
Background
Immigration legislation is complex and has
developed in a piecemeal fashion. In July 2008,
This proposal has since been replaced by a two-track approach: this current Bill 'Borders, Citizenship and Immigration Bill', which has a much reduced scope than the 2008 Bill, and an Immigration Simplification Bill, which is due to be published at the end of the parliamentary session.
The Borders, Citizenship and Immigration Bill was introduced to the House of Lords in January 2009. Rigorous debate ensued and several changes were agreed by the Lords, which will further the protection of human rights. Nonetheless, we still have numerous concerns with the Bill in its current form.
Many residents of
Content
The Bill aims to do the following:
- Make structural changes to the UKBA through a 'merger' with HMRC. This will expand immigration powers considerably; - Extend the 'pathway to citizenship' by introducing an additional stage called 'probationary citizenship', increase naturalisation requirements and time lengths; introduce a 'community activity' requirement; - Amend the
Common Travel Area ( - Introduce a new statutory duty for the welfare of children.
Welcome proposals
The Bill contains some welcome provisions. The Bill will improve gender equality by removing the current discriminatory provision that prevents British mothers passing on their nationality to children born abroad prior to 1961.
The Bill also amends the Asylum and Immigration Act 2004 to enable the prosecution of traffickers of babies and very young children. This amendment is necessary to close a loophole that currently prevents traffickers from being prosecuted for non-sexual economic trafficking where the victim is too young to have been technically 'requested or induced' to undertake a particular activity.
Unfortunately, however, much of the Bill's content is a cause of concern.
Immigration Powers
a) General
The Bill provides for structural change to the United Kingdom Border Agency through an effective merger with Revenue and Customs. This will significantly expand the powers of Immigration Officers who will now have new or enhanced powers to: conduct physical searches; inspect premises without obtaining consent; search computer records; seize goods; impound aircraft and ships; arrest and detain; and require third parties to provide information and documents. Immigration Officers will therefore have increased access to 'police type' powers. We do not think that HMRC powers should simply be 'read across' to Immigration Officers: the government must set out its rationale.
The Northern Ireland Human Rights Commission has
recently highlighted a number of concerns with the current actions of Immigration Officers in
b) PACE Codes of Practice
Despite some House of Lords amendments, the Bill still does not make the application of PACE Codes of Practice mandatory to work conducted by Immigration Officers. Instead it provides powers for the Secretary of State to do so. It is essential that Immigration Officers who are operating police-type powers are subject to PACE safeguards and oversight.
Furthermore, it does not appear that the PACE Codes
of Practice can apply in all circumstances and may not apply to detention and
removal. This is a real concern, especially in relation to issues arising from
Operation Gull procedures where individuals may be detained in
The legislation needs to be amended to ensure that all immigration operations are subject
to PACE safeguards and that lines of accountability are clearly established.
- RECOMMENDATION: Extension of Immigration Officer powers must be accompanied with PACE safeguards and an oversight mechanism must be implemented.
Citizenship
a) General
The Bill will make it more difficult for migrants to obtain permanent residence or British citizenship by increasing the qualifying periods and by introducing more rigid qualifying criteria. [3] This is in line with the government's proposal of "earned citizenship".
Furthermore, unless a migrant completes specified voluntary work (referred to in the Bill as a meeting an 'activity condition') s/he can expect an additional two years qualifying period. This proposed activity requirement could have a discriminatory effect on groups who are unable to undertake such activity e.g. people who have caring responsibilities, who are in full-time work or who have disabilities.
The Bill effectively requires migrants to naturalise by creating a powerful disincentive for migrants to opt for permanent residency (currently known as Indefinite Leave to Remain) by extending the qualifying periods by two years. This policy will have a discriminatory impact on persons whose nationalities preclude them from holding more than one nationality.[4]
Both of these policies will increase insecurity for
migrants as it will take them longer to obtain settled status. It is difficult
to see how the proposals are consistent with the government's stated aim to
promote integration especially when coupled with the increasingly prohibitive
application fees.[5]
Annex A provides some reactions of
b) probationary citizenship
The Bill introduces the concept of 'probationary citizenship' into legislation as an additional stage in the naturalisation process.
The concept is illogical as it applies to migrants who do not intend to become citizens. Furthermore, this new stage does not bring with it the recognised entitlements of citizenship and provides no scope for the principle of reciprocity where increased legal duties are accompanied by enhanced rights. There is no evidence that probationary or 'earned' citizenship is conducive to promoting integration; indeed the increased insecurity of migrants during the probationary stage may well have the opposite effect.
These citizenship proposals could emphasize differences between citizens and non-citizens and thus impede integration and community cohesion. These proposals appear part of a worrying trend to move away from 'human rights', which apply to everyone, to 'citizen rights' where access to rights are limited to citizens alone.
c) transitional arrangements
The House of Lords introduced an amendment to introduce transitional protection for applicants who have applied for Indefinite Leave to Remain within 12 months of the Bill becoming law.
It is essential that these arrangements are not reversed in the House of Commons. The transitional arrangements will ensure that the legitimate expectations of immigrants, migrant workers and their families remain upheld.
If the new citizenship proposals are introduced,
the transitional period should apply to all
migrants who are in the
d) qualifying immigration status
Any time period spent in the
Discretionary Leave is not included as a qualifying immigration status. Persons with a grant of Discretionary Leave should not be precluded from naturalising as British Citizens. Furthermore, the lack of reference to Discretionary Leave may suggest that its legislative basis is being abolished. Discretionary Leave forms an essential component of the immigration system and should be retained as it offers a vital form of protection for many vulnerable applicants such as children and victims of trafficking.
RECOMMENDATION: The proposals relating to citizenship and naturalisation are damaging and should be removed.
Common Travel Area
The Lords voted against the government's proposal to amend the Common
Travel Area (
Since its advent in the 1920s the Common Travel Area has only been
suspended during World War II. Even at the height of the 'troubles' in
The rationale given by the Government for the need to abolish the
However, the government has indicated that it will seek to reintroduce
the
Given the benefits the Common Travel Area has brought to both the
RECOMMENDATION: The Common Travel Area should not be revoked
Welfare of children
The Bill introduces a new statutory duty regarding
the welfare of the children. The proposal introduces a new statutory duty that
aims to safeguard and promote the welfare of children in the
Although the proposed duty contains some welcome features - namely reflecting the duty outlined in the Children Act 1989 - the provisions of this Clause still fall short of international children's rights standards. Unfortunately, the legislation continues to operate a welfare standard[7] rather than the best interests standard outlined in the United Nations Convention on the Rights of the Child (UNCRC).
The current wording of the duty fails to reflect
the fact that the
It follows that the duty should adopt the language of the Convention and should make specific reference to Article 2 UNCRC (non-discrimination); Article 6 (ensuring the survival and development of the child to the maximum extent); furthermore Article 3 (the "best interest" principle) should be reflected in the primary legislation; it is insufficient to leave this principle in the Code of Practice as is currently the case.
The proposed duty provides an opportunity to legislate against the detention of children for the purpose of immigration controls, which runs contrary to international standards.
The current duty has limited territorial
application as it only applies to children who are in the
RECOMMENDATION: The duty should be re-drafted to reflect international
standards and must apply to any child who comes into contact with
Short-term holding facilities
This Bill would allow for immigration detention in police cells and prisons for up to 7 days by amending the definition of short-term holding facilities. Immigration detainees should not be held with detainees who are held under criminal powers as this is contrary to international standards. [10]
RECOMMENDATION: The definition of short-term holding facility should be reviewed.
Conclusion
As outlined above, the proposals contained in this
Bill could have significant negative effects on residents in
We seek to challenge the government on its
proposals, which will diminish the protection of human rights throughout the
ANNEX A
RESPONSES TO THE Migrant workers in
Romyll Guinanao, a Filipino migrant worker in
"I understand that the Government needs to do what is right for the country... but it doesn't seem fair. We came here on the understanding that we could settle after five years and now the Government is moving the goal post. How could this help us integrate?! Sometimes I think that the Government has just found another way of making us pay taxes for longer. It's ok for us to pay but we won't be entitled to any support if we need it!"
There is a general anxiety that increased restrictions and compulsory voluntary work could stigmatise migrant communities and fuel racism. One worker has expressed her concern that becoming a "probationary citizen" would make her feel part of a criminal process.
These citizenship proposals will only emphasize differences between citizens and non-citizens and thus will impede integration and community cohesion.
Ricky Gallo, a migrant worker nurse from
"I think this bill is making it harder for us to get involved in anything, not the other way round! You have to work and make sure nothing goes wrong with your work.. because everything depends on you keeping that job. And then, you never know what will happen next. You always feel like they could send you home, so you don't really want to get involved in anything, because it doesn't feel like this is definitely going to be 'home' until you've got some kind of settled status." Flora Alafante who is a Filipino nurse in a nursing home in Craigavon explained some of the difficulties she would experience: "I work in a nursing home and could not believe my ears when I heard that migrant workers could be asked to do voluntary work to 'earn' their citizenship. It made me feel really angry. Surely my work qualifies for community service! And I don't see I could do voluntary work when I already work long hours with changing shifts!" APPENDIX 1: ENDORSING ORGANISATIONS
Law Centre (NI) UNISON South Tyrone Empowerment Programme (STEP) Rural Community Network
( Irish Congress of Trade Unions (ICTU) Children's Law Centre Committee on the Administration of Justice (CAJ)
June 2009 [1]http://www.nihrc.org/dms/data/NIHRC/attachments/dd/files/109/Our_Hidden_Borders_immigration_report_(April_2009).pdf [2] For more information about Operation Gull see NIHRC Hidden Border report and Law Centre (NI) briefing paper: http://www.lawcentreni.org/Policy/Briefing%20papers/Gull.htm [3] Under current provisions, a migrant worker can apply for permanent status (currently known as Indefinite Leave to Remain) after 5 years and for British citizenship after a further year. Under the proposals it will take at least 8 years to obtain permanent status. It will still take at least 6 years to obtain British citizenship but will take at least 8 years for applicants who do not undertake the 'activity condition'. [4] The 'choice' between adopting British citizenship or facing
continued insecurity may hinder freedom of movement by requiring applicants to
renounce their nationality. The right to leave and return to one's own country
is enshrined in Article 14(2) ICCPR. This proposal is incompatible with UNHRC
guidance, which maintains that repatriation may be the best long-term solution
for most refugees. Countries which prohibit dual nationality include [5] Fees for 2009/10 include: Indefinite Leave to Remain £820-£1020, British citizenship £640. [6] See 1951 Convention on Refugees and 1954 Convention on Stateless Persons [7] This approach was criticised in the Northern Ireland NGO
Alternative Report [8] Announced September 2008 at the UN Committee's examination of the UK Government [9] States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties. [10] For example, UNCHR's Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers, published in Feb 1999 states: "Separate detention facilities should be used to accommodate asylum seekers. The use of prisons should not be used" |