Select Committee on European Communities Minutes of Evidence

Examination of Witnesses (Questions 300 - 317)



Lord Lester of Herne Hill

  300.  It may well be that the Immigration Advisory Service does not have any expertise in some of these areas, but are you able to help us on whether the natural, historical, geographical frontiers argument is really a cogent one or not? In other words, if we were to go into Schengen and not to seek to control at the border, but to do what is done throughout the mainland Europe and exercise controls within each country, are you in a position (other than purely anecdotal) to tell us whether that form of regulation has been as effective as what we now have in combating illegal immigration?
  (Mr Best)  The danger is that you might get three different answers here. Lord Lester is absolutely right. It is very much an off-the-cuff response.

  301.  You do not have to answer my question. If you do not know, it is much better that we do not take up your time on it.
  (Mr Best)  We do not know. Our concern obviously about further internal checks is if as a consequence of external borders this could lead to difficulties of discrimination or perceived discrimination.

  302.  I am not asking you about that. I appreciate that point and we will come back to that, but in terms of effectiveness of protecting illegal immigration.
  (Mr Best)  I would have grave doubts on the figures we have seen, as to whether the present border controls are an effective means of controlling illegal immigration. That is my view. I do not know if that is shared by my colleagues.

Lord Lester of Herne Hill:  Thank you very much. That is very helpful.

Lord Inglewood

  303.  My question slightly arises from a point which was made by Lord Lester and the Chairman earlier. The cases you handle. What proportion of the whole, in very general terms, relates to people who basically come from Commonwealth countries, compared to those who basically come from the rest of Europe, North Africa, or elsewhere?
  (Mr Mckee)  My Lord, I think a very large proportion of our clients do come from Commonwealth countries.

  304.  That is what I suspected.
  (Mr Mckee)  Particularly the ones who are not asylum seekers and who have non-asylum problems. Among asylum seekers as well there is also quite a large proportion of Commonwealth citizens. Of course, we get asylum seekers from all over the world and perhaps a larger proportion from non-Commonwealth countries.

  305.  Is it fair to say that the experience which you are drawing on in responding to our questions is essentially derived from what I might call a Commonwealth base?
  (Mr Best)  That is a perfectly fair observation, if I may say so, my Lord. Of course, that is true but it also is a reflection of the current immigration rules, that effectively since 1971, with a few exceptions, the only way in which one has been able to come to this country for permanent settlement has been if there is an existing sponsor here and you are actually joining a member of your family or spouse, fiance or whoever it might be, and because of the historic links and because of the population already in this country, it is, therefore, inevitable that most of those applications are coming from Commonwealth countries.


  306.  Could I ask you a question about identity cards because a number of people have suggested to us that one of the results if we do join Schengen is that we ought to have a system of national identity cards. Do you have any views on that? Have you read a paper called, "Identity Cards Revisited", which was produced by the Institute of Public Policy Research, which is a fairly thorough job, and they do not terribly like the idea? Do you have any views? In your work would it really make any difference?
  (Mr Mckee)  I think the situation at the moment is that immigrants do get questioned about their immigration status at the various points of contact with government or local government departments and this does cause them problems, but to introduce a system of national identity cards would be a very different thing altogether and our view is that, whereas in continental countries for many years citizens have been required to carry identity cards and, therefore, immigrants arriving there will have to do the same and it does not seem so odd that they have to carry them as well. I agree it differs slightly from country to country. In Germany you do not have to carry your identity card with you but you must have it at home at least, but to suddenly impose it in this country at the present time I think inevitably, things being as they are, it would lead to perceptions, whether justified or not, that the police were stopping black people in the streets asking them to produce their identity cards to a greater extent than the white population.

Chairman:  So this is really an aspect of the immigrant when he is inside this country, whether it would subject him to more pressure and differentiation from the rest of society.

Lord Lester of Herne Hill

  307.  I do not know whether the view of the Immigration Advisory Service is that that would be a rational response but am I not right in thinking that there would be enormous advantages in terms of race relations in this country if there were something like the German situation in which an identity card could be kept on your person or at home and would clear up your identity very simply for everybody in this country without any discrimination? The problem that has been focused on about perception is whether the police would themselves be discriminatory in applying a simple requirement of that kind. That applies, does it not, equally to any requirement, whether it is a requirement to drive at less than 30 miles an hour in a built-up area or a requirement to have your motor car insured or have a road disk displayed? All of these in the hands of an official acting in bad faith can be used against black people in a discriminatory and outrageous way but it is not an argument for not having requirements of that kind. It is an argument for training and encouraging the police to act properly in accordance with the law and having quality controls if they do not?
  (Mr Mckee)  My Lord, we have experience among our own clients where they have called the police to the scene of a crime, a burglary or whatever, and the person happens to be black and the policeman says, "By the way, what is your immigration status?", that person having reported the crime, and sometimes it does indeed turn out that that person is not here legally.

  308.  I think you may have misunderstood. I quite appreciate that. What I am saying is that the vice you are talking about is in discriminatory behaviour by public officials but not in the requirement to have an identity card, which may well serve to help migrants and ethnic minority community members because there will then be something which applies to everyone, to you and to me and to everyone in this country, and what we must do is make sure the rules are fairly applied, but that does not argue, does it, against having an identity card per se?
  (Mr Mckee)  I certainly agree, my Lord, that having something which actually states quite unequivocally who you are and what your status is would clear up any problem.

  309.  That is my point.
  (Mr Mckee)  It is really just the initial stage, if people think that they are being asked in particular to produce identification more so than other members of the public.
  (Mr Best)  And if I may add briefly, it is also a question of the frequency. No doubt the Government does not share my cynical view about the effectiveness of border controls in detecting illegal immigration. That is no doubt one of the reasons why it firmly wishes to retain it. I suspect, therefore, the argument would be that if you maintained effective border controls the need to have intrusive internal checks which would follow on identity cards is less than it otherwise might be. Therefore, there is less opportunity for a perception, however ill-conceived, that it is being used in a racially discriminatory way.


  310.  It is not actually a point which arises at the point of entry. It is more a question of the EC articles and you do not have any strong views about it one way or the other?
  (Mr Best)  No, my Lord.

Earl of Dundee

  311.  Just following on from the various last few points, as you have explained very fluently to us, you have concerns that we in Britain have special problems which may not be shared by European colleagues who are members of Schengen, but it could be the case, therefore, that however much over a period of years we analyse our methodology and see how, for example, people come in from all sorts of places, that there may be a temptation for officials to do the wrong thing. Nevertheless they adjust and adopt good practice and train their officials and deal with these problems, and it could still follow from that that, however good they get at doing this, over a long period of time one might still say Britain is so different that, regardless of evolving methodology from our friends, we still have a problem and we must not opt in and join them. So my question, having said that to you, is this: how much confidence have you in evolving methodology for our Schengen partners, and if so, to what extent is your Department keeping in touch with that in forming your own views?
  (Mr Best)  Let me say, before I see if my colleagues wish to add anything, that we are members of the European Council on Refugees and Exiles. My colleague Ms Elliman attends their meetings regularly, but as Lord Dholakia indicated earlier in this session, there are, at least to our knowledge, no other comparable organisations in other European countries to ourselves. Therefore, there are, sadly, very few organisations with which we can communicate. We do try to communicate with them but we are also under constraints from our funding, which is jurisdictionally based within this country. On our remit for our grant-in-aid, the parameters are to give assistance to those with rights of appeal and it is not to establish multilevel contacts with other organisations in other countries, although I think that could be very beneficial. I do not think we are able to say how far we could take forward the view that was expressed by Lord Dholakia in trying to persuade other European Union countries that organisations like ourselves are a good thing to have in order to try to safeguard any injustice given to those who are seeking entry clearance or having immigration problems within the country.
  (Ms Elliman)  There is also the point, relating to our independence, that other than in a forum like this we are not an organisation that necessarily gets to change policies, although we can hopefully provide information. Also, if I understand your question right, I think it is quite an important thing that maybe we were trying to bring across, which is that, yes, there is a scheme and a methodology in the United Kingdom and I think there is a different scheme and a different methodology in all European countries and there has to be a point at which both the NGOs and the governments come together and decide the extent to which those schemes are going to be integrated. If we are going to go into Schengen then that is absolutely vital because otherwise the concerns that we have raised and I think similar concerns in other countries are never going to be resolved and you will end up with a very mixed bag of different ideas and different ideas about things like appeals, about whether there is going to be judicial remedies, about where those are going to go, about whether your government is going to fund organisations like ourselves and about how you interpret jurisprudence, how you interpret the 1951 Convention and so on and so forth.
  (Mr Best)  And, of course, basic things like whether it is an inquisitorial or an accusatorial judicial system in any event. There are very considerable differences which exist, as Lord Lester knows only too well.


  312.  One of the questions we have been examining with other witnesses is the Schengen Information System. I do not know if you have any views about the possible value of that in your work, whether you feel there would be advantages for us in joining that system or not?
  (Mr Best)  I think in general concept any information system which is fairly applied and assists immigration control is something to be welcomed. I expressed my concern right at the very beginning that Schengen appears to be concentrating more on deterring criminal activity and identifying international crime and the dangers of translating that concept into the question of immigration control and, therefore, the almost labelling of people who are seeking entry into a particular country as being potentially those who might be on a list of those who have committed criminal offences or something of that nature. I think also there is the problem of there being different views in different countries about the undesirability or otherwise of particular individuals and I quoted the case of Mr Ocalan that was on the news this morning. That is one aspect. I think another aspect is the question of how transparent that is going to be and how far what we would regard as data protection legislation in this country might apply to that, and I know you have had considerable evidence on that, so I will not amplify it. All I can say is that we would endorse the concerns that have already been expressed to you in evidence, particularly by Statewatch, about the absence of proper monitoring of whether the system is being applied fairly and the great danger that exists in any computerised system of misapplication and, indeed, misinformation as well as wrong identification of individuals. This, I think, is a very great problem unless it is subject to the very closest scrutiny.

  313.  I do not want to put words into your mouth but you have introduced an interesting concept, that the danger of the SIS might be to blur the distinction between those undergoing perfectly natural formalities on transferring from one frontier to another and the detection of crime, which is a quite different and more serious matter?
  (Mr Best)  It seems inevitable that where, as was given in evidence in a way that we could not possibly purport to give evidence—it was very interesting reading Mr Bunyan's evidence to you about the number of vehicles that had been stolen and listed and the individuals who are suspected of or have actually been convicted of criminal offences and such like—if you are having a system which is designed for the attempt to control international criminal activity also applying to the control of immigration, it seems to us that the nexus is almost inevitable, the dangers of labelling one with the other.

Lord Lester of Herne Hill

  314.  I fully understand and, indeed, share your concerns about civil liberties implications of the Schengen Information System and the need for adequate controls and judicial remedies. I understand all of that. What I do not understand is the argument that says that the Schengen Information System may lead to stereotyping—I think that is how you are really putting it—of would-be migrants as being criminals, as being engaged in criminal activity, so can I explore that. I want to ask you a couple of questions about that. Surely at the moment it is right, is it not, that immigration controls in this country involve looking at databases, sometimes computerised, sometimes manual, to check whether a would-be migrant is a criminal and that is a necessary part of having an immigration control system? I see Mr Best nodding. If that is right, then looked at from the point of view of the immigration service and the police in dealing with a serious social mischief of illegal immigration, which is a criminal law offence, there is nothing wrong, is there, in having the best possible information system across Europe to enable the police to detect crime, including illegal immigration when related to crime? What is needed, though, is data protection safeguards of a stringent kind to ensure the system is not abused, but it is not an objection to having the Schengen Information System, is it, that it will lead to would-be migrants being in some way assumed to be criminals? It does not change the current position without our being in Schengen from that point of view?
  (Mr Best)  There can be no possible objection if the only reason for objection to giving immigration status is the basis of criminality, but where there are other bases I think there is a danger. If, for example, those who overstay in a particular country are to be put on the same database without having committed a criminal offence—other than the criminal offence to overstay—then it is a dangerous concept to lump those people in with those who might be suspected or who have committed some form of international crime. Also, I think there is a danger that again a system like that to be wholly fair in concept must presuppose a question of a common criminal justice system as well. There will still be offences in particular countries which are not recognised as offences in other countries. If the basis of immigration control, the undesirability of granting entry to an individual, is based upon the criteria of what other countries have, then that may be something which is perfectly valid, but it has to be embraced, it seems to me, with eyes wide open for those countries that are seeking to do so.

  315.  That is not a good point, is it, because country X will only exclude under the Schengen criteria if the conduct of the would-be immigrant, entrant, is contrary either to Schengen common rules or national rules which are compatible with Schengen? There will not be any question of, as it were, someone being refused entry to the United Kingdom because they have committed an offence against the Greek legal order that would not be recognised as an offence anywhere except in Greece?
  (Mr Best)  If that is going to be something that can be rigidly applied, then, of course, that lessens the objection. My concern is, as I say, about the whole question of how that information comes to be there, the validity of that information, its provenance. All these are matters which it seems to me—and I must preface my remarks by saying I am largely ignorant of the actual workings of the Schengen process— are ones that have to be fully investigated in order to be able to have confidence in the reliance on such a thing.


  316.  I think we accept that, but am I right in reading you as feeling rather leery of the civil liberties implications of the Schengen system?
  (Mr Best)  Yes.

  317.  You have a number of uneasinesses which are present in your mind?
  (Mr Best)  Yes, and I am strengthened by, I believe, the fact of not being alone in that concern.

Chairman:  Mr Best, we have kept you for an hour and a quarter. I think we probably ought to let you go. Thank you very much for the interesting information you have given us and for answering our questions so fully.

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