4. Memorandum from Liberty (The National
Council for Civil Liberties)
The Bill is the 'firmer, faster' vehicle for immigration
management. It is less clear that it also provides a 'fairer'
nationality, immigration and asylum system. Much of the detail
in the Bill is reserved for regulations and only when these regulations
are available will the provisions of the Bill become clear. The
following represents Liberty's central concerns and commentary
on a preliminary evaluation of the Bill.
Part 1: Nationality
A certain number of the changes in the Bill are welcome.
There are enhanced appeal rights for nationality refusals, (clauses
4,7) the invidious distinction between marital and non-marital
children has been abolished (clause 9) and stateless children
born in the UK can be granted British citizenship in five rather
than ten years (clause 8).
Liberty is concerned at the naturalisation requirements
for a 'sufficient knowledge' of language and 'life in the United
Kingdom', as these criteria can operate as barriers to citizenship
which are not imposed on those that acquire citizenship by being
born in the UK. Given the poor level of understanding of human
rights and constitutional issues of many of those already in Britain
perhaps more resources should be put in to citizenship education
for all instead of imposing tests on some. We are also particularly
concerned for those seeking citizenship who have limited education
or who suffer learning difficulties, perhaps associated with post-traumatic
stress disorders. The operation of these arrangements should be
carefully phased in so as to ensure wider, subsidized access to
Deprivation of citizenship
A major concern relates to the provisions dealing
with the deprivation of citizenship. Deprivation of citizenship
is a serious matter as citizenship is a fundamental, identity
right. In 1958 the US Supreme Court Justice, Earl Warren, stated,
"Citizenship is man's basic right for it is nothing less
than the right to have rights." The Bill has widened the
deprivation provisions, and although there are some safeguards,
and an appeal process to review such decisions, there are insufficient
protections for those vulnerable or subject to citizenship deprivation.
The current deprivation provisions (section 40),
which have not been used since 1973, state that the Secretary
of State may deprive a person who attained citizenship by registration
or naturalisation where the person acquired the citizenship by
fraud, false representation or concealment of a material fact,
for disloyalty towards Her Majesty or where the person was sentenced
in any country to imprisonment of at least 12 months within five
years of the date of registration or naturalisation (unless the
loss in this circumstance would leave the person stateless). These
broadly drafted provisions have been further widened under the
The Bill will allow the Secretary of State to deprive
a person of any of the types of British citizenship if the Secretary
of State thinks that the person 'has done anything seriously prejudicial
to the vital interests' of the UK or a British overseas territory
or thinks the person obtained registration or naturalization as
British citizens by means of fraud, false representation or concealment
of a material fact. The Secretary of State may not make an order
depriving the person of citizenship on the basis of their action
seriously prejudicial to the vital interests of the UK or a British
overseas territory, if the order would make the person stateless.
There is no such protection for persons whom the Secretary of
State thinks fraudulently obtained their citizenship via registration
or naturalization. There is an appeal right to an Adjudicator
and thereafter with leave to the Tribunal or Court of Appeal,
except where the Secretary of State certifies that the decision
'was taken wholly or partially in reliance on information which
in his opinion should not be made public on grounds relating to
national security, the interests of the relationship between the
UK and another country or another matter of a political kind'.
In this case the appeal will be to the Special Immigration Appeals
Commission established under the Special Immigration Appeals Commission
Act 1997 ("SIAC 1997").
It is difficult to understand the philosophical basis
for depriving a person of their citizenship in any circumstance.
It cannot be done to those who obtained their citizenship by birth
and it is discriminatory to allow this to happen to those who
acquire at a later stage in their lives. It might be argued that
the difference in approach is that the latter category of people
have some other country which they can go to or which they can
call their home but if so why do the provisions allow citizenship
to be removed from those who will as a result become stateless.
In Liberty's view, no deprivation decision should result in the
person becoming stateless and this should be made explicit in
the legislation. One safeguard that should be in place is contained
in the Australian citizenship deprivation arrangements which can
be invoked only after the person has been convicted of an immigration
or nationality fraud offence. This ensures the finding of fraud
is proved to the higher criminal standard and reserves deprivation
for the serious and exemplary cases.
Finally, the Bill is a lost opportunity to remedy
the position and restore full citizenship rights to British Overseas
Citizens, or at the very least those British Overseas Citizens
who are de facto stateless. The abolition of the special
quota voucher scheme renders this omission still more unjust to
those who have no state or territory to which they are entitled
to enter and reside.
Part 2: Accommodation Centres
Liberty welcomes the introduction of accommodation
centres as an alternative to detention, but opposes them insofar
as they represent an alternative to living in the community. Given
the significant numbers of successful asylum applications, we
believe that the process of integration should begin on arrival
in the UK.
Part 4: Detention and Removal
Liberty deplores the use of detention for reasons
of administrative convenience, (clause 45) including the administrative
detention of young children who can be at risk when they are detained
in the same facility as traumatised and frustrated adults, to
whom they are not related.
Liberty also believes that without automatic access
to bail hearings, (clause 48) there inevitably will be many
people detained who do not fit the stated criteria for detention.
We are aware that many detainees are being kept in centres for
months or even years before their applications are finally determined.
Powers of Detainee Escorts
Liberty opposes the extension of powers of detainee
escorts (clause 46). Such escorts are not Government employees;
are subject to no complaints procedure and in recent civil litigation
the Home Office successfully resisted responsibility for the actions
of Group 4 at Campsfield House. Liberty believes that if detainee
escorts are to be given the power to search immigration detainees,
amendments must be made to apply PACE to their actions, an independent
complaints procedure established and their instructions and operational
Penalising the application for asylum
The Bill also provides (clause 51) that where a person
who has leave to enter or remain makes an application for asylum,
the Secretary of State or an immigration officer can thereafter
impose any of the variety of reporting, residence or occupation
restrictions currently reserved for those here without leave.
If the person breaches the restricting, she/he is liable to detention.
In Liberty's view this provision is indefensible. It effectively
penalizes the act of claiming asylum and will encourage persons
with leave to delay making an asylum claim, when it is in everyone's
interests to encourage prompt lodgment of such claims.
Revocation of Indefinite Leave
Liberty also has serious concerns about the provision
dealing with the revocation of indefinite leave to enter or remain
(clause 55). This section allows the Secretary of State to revoke
a person's indefinite leave if the person is (i) liable to deportation
but the Secretary of State thinks the person cannot be deported
for legal reasons; (ii) the Secretary of State thinks that the
leave was obtained by deception, that the person would be liable
to removal because of the deception but that the person cannot
be removed for practical reasons or (iii) if the person, or someone
of whom he is a dependant, ceases to be a refugee as a result
of voluntarily availing himself of the protection of the country
of nationality, re-acquiring lost nationality, acquiring nationality
of a country other than the UK and availing himself of its protection
or voluntarily establishing himself in a country in which he was
a refugee. In respect of the revocation of leave of refugees,
this exposes them to removal from the UK. The Secretary of State
can rely upon anything done before this provision was enforced
for revocations under (i) and (ii) but only on action after enactment
for refugee revocations.
In Liberty's view, this revocation provision will
cause grave injustice. It will have the effect of reducing to
penury those who cannot be removed because of the operation of
Articles 2 or 3 of the ECHR or because they are stateless. This
is a covert arrangement to avoid our international obligations
in this regard.
Our concern with the refugee revocation provision
is that it neglects to incorporate the protection in the Convention
on the Status of Refugees concerning cessation of refugee
status. The Convention states that the cessation provisions 'shall
not apply to a refugee ¼
who is able to invoke compelling reasons arising out of the previous
persecution for refusing to avail himself of the protection of
the country of nationality' (Article 1C). A common case example
illustrates the problems that can arise from refugee leave revocation.
It is the practice of the Home Office to grant refugee status
not just to the principal applicant but also to that person's
dependant partner and family. If, as happens, the family member
has no fears about returning to the home country and does return
theresay to deal with a family illnessthis return
may result in the revocation of the family's indefinite leave
Part 5: Immigration and Asylum Appeals
Liberty supports the efficient, fair and independent
processing of asylum appeals. Adjudicators and those who sit in
the Immigration Appeal Tribunal must be free from, and perceived
to be free from, Home Office influence, able to take decisions
on a case-by-case basis, uninfluenced by resource or other external
considerations (see the Council on Tribunals' Draft Framework
of Standards for Tribunals, October 2001, p1).
Liberty is concerned at the proposed limitations
in the Rules concerning Adjudicator powers to adjourn hearings.
There are already ample mechanisms for the IAA to deal with what
are perceived to be delaying tactics and there is no evidence
to suggest that adjournments are being granted unnecessarily:
31 of the Immigration and Asylum Appeals (Procedure) Rules 2000,
the appellate authority is under a duty not to adjourn an appeal
hearing 'unless it is satisfied that refusing the adjournment
would prevent the just disposal of the appeal'. This provision
is clearly strong enough to prevent unnecessary adjournments.
The Home Office already has strong certification
powers under Part IV of the 1999 Act to prevent asylum applicants
from pursuing unfounded appeals to the IAT.
Liberty also supports the retention of the IAT's
factual jurisdiction. In a jurisdiction concerning fundamental
human rights, factual questions are often complex and important,
with grave consequences for the individual asylum seeker. The
limitation of leave to points of law (paragraph 79) threatens
this fact jurisdiction of the Tribunal. Currently Rule 18(7) of
the 2000 Procedure Rules sets out a reasonable hurdle for obtaining
leave to appeal to the IAT. In practice, it is fairly difficult
to obtain leave to appeal on matters turning simply on an adjudicator's
view of the evidence. After leave to appeal is granted, the IAT
exercises its factual jurisdiction very sparingly. However, scope
exists for the IAT to intervene in cases which raise difficult,
grave or other important factual issues. In this way, the IAT
can give general guidance on country of origin conditions.
Liberty is also concerned at the way in which the
Bill seeks to limit repeat appeals. We support the notion of 'one-stop'
appeals, but problems can arise in limited cases, due to illness
of the applicant, the negligence of legal representatives or the
vagaries of postal delivery or receipt, particularly where there
are multiple occupants at the address. Where the repeat appeal
is certified, the basis of certification should be open to assessment
by Adjudicators or the Tribunal, not reserved to expensive judicial
review proceedings. Further, Liberty opposes the certification
of repeat appeals for persons who have left the UK since their
earlier right of appeal arose (paragraph 74(6]).
Part 6: Immigration Procedure
Biometric data and Scanners
Liberty is very concerned at the real civil liberties
implications associated with the use of biometric registration
and scanners. Our concerns relate to the right to privacy and
data protection, the breadth of identifying physical data able
to be utilized and the need for adequate safeguards to protect
the rights of the individuals and to ensure that the data may
not be used for purposes which do not relate to immigration. These
safeguards are not enshrined in the Bill. It will be essential
to obtain expert assistance for a code of practice governing the
implementation of these provisions.
Disclosure of information
Liberty is also very concerned at the wide-ranging
provisions enabling the Secretary of State to seek information
on persons from local authorities, Inland Revenue, financial institutions
and employers. Any such request for information infringes a person's
right to privacy. There must be safeguards to ensure that confidentiality
is preserved so far as possible and that only persons qualified
to give and receive such information are able to do so; that the
information sought is particularized, so that the Home Office
does not just 'fish' for information in government data files;
that individuals concerned are informed when information relating
to them is disclosed and is given the opportunity to challenge
the accuracy of the information.
The offence of assisting unlawful immigration to
a member state is so broadly drafted that it proscribes the humanitarian
assistance that is frequently and appropriately given to asylum
claimants. The lack of precision in this provision will create
difficulties in the adjudication of cases before the criminal
The provisions dealing with assisting entry in breach
of a deportation order or trafficking in prostitution should be
considered in the light of the EU Directive on Mutual Recognition
of Expulsions and EU legislation under discussion concerning trafficking
in prostitution and domestic slavery.
These provisions are potentially discriminatory and
create unnecessary paperwork for employers.
Power of Entry
Liberty is concerned at the wide ranging powers granted
under these provisions which can be used without warrant or notice,
involve the use of force and breach confidentiality in the information