Immigration monster unleashed

The provisions of the draft Immigration and Citizenship Bill included in the Queen's Speech further dehumanise immigration law and make a merry mess of the path to citizenship.

• Posted on Dec 4, 2008

By Frances Webber, published by Institute of Race Relations (IRR) 04/12/08
http://www.irr.org.uk/2008/december/ha000004.html

The provisions of the draft Immigration and Citizenship Bill included in the Queen's Speech further dehumanise immigration law and make a merry mess of the path to citizenship.

A project to replace the mess of immigration legislation by a 'simplified, clear and coherent legal framework' to control borders, manage migration and 'reform the path to citizenship' was announced in the Queen's Speech at the opening of the 2008-9 parliamentary session. A partial draft of the Borders, Immigration and Citizenship Bill was published for consultation in July 2008, and forms the basis of the legislation. The draft Bill brings together in one place provisions on permission to enter and stay in the UK, and expulsion; criteria for naturalisation as a British citizen; powers of examination and detention; immigration offences; carriers' liability; employers' liability for undocumented workers; and provision for appeals. So far, there are 214 clauses and three schedules, and dozens of regulation-making powers which will provide the detail - and important topics such as immigration officers' powers of search and seizure, data sharing, biometric registration, asylum support, and the system of appeal and review of immigration decisions (other than first-instance appeals) remain to be covered. When it is complete, the Bill is set to be a monster.

A monster in more ways than one. In the course of 'simplification', rights are lost, and the powers of immigration police, and the scope for criminalisation of those crossing their path, enhanced.

Earned citizenship

The most highly publicised aspects of the Bill refer to the 'earned citizenship' provisions, which are also the most opaque in the draft. Candidates for citizenship are divided into four categories - family members of British citizens, partners (including spouses) of British citizens, those whose relationship with a British citizen has ended through bereavement or domestic violence, and the rest. Each category of candidate has different residence conditions, which are fiendishly complicated, involving mathematical formulae where X = the normal qualifying period for naturalisation; Y = a period by which the normal qualifying period may be reduced if the candidate fulfills an 'activity condition', which we gather is volunteering for a 'prescribed activity', and Z = an additional period (whose duration is to be prescribed), to be added to the normal qualifying period (whether the full period or this period reduced on account of volunteer activity) if the candidate (or a family member) has committed a criminal offence. During the specified residence period the candidate will be on 'probationary citizenship permission', but the requirements for obtaining such 'probationary permission' are left to the (as yet unpublished) immigration rules, which the Home Office can change more or less at will, and frequently does. The Bill thus introduces opacity, uncertainty and a high degree of fairly untrammeled ministerial discretion into naturalisation law.

What is clear is that the minimum periods of stay in the UK before being eligible for citizenship have all been increased from the current statutory periods (three years for spouses of British citizens and five years for everyone else). Some candidates will have to wait for eight years, and even those who volunteer for 'prescribed activity' have a qualifying period of six years if they do not have a British partner or family member. Additionally, the proposal suggests that unemployment and relationship breakdown will lead not only to refusal of citizenship, but also to removal. It will be far more difficult to get permanent stay in the country without citizenship - the alternatives will generally be either to qualify for citizenship, or be booted out. While waiting for citizenship, candidates will not be able to apply for benefits or social housing.

Levy on migrants

Other proposals in the Queen's Speech are not yet reflected in the draft Bill on the Home Office website. They include a levy on all new migrants, to help pay for the public services for which demand is increased by migration. But aren't these precisely the services from which, as migrants, they are excluded? And even if they include local schools and health services to which access is not prohibited, don't their taxes and national insurance, and the VAT they pay on their purchases, go to fund these public services just as that of British tax-payers? And doesn't the UK economy benefit from not having had to train and educate the foreign nationals who staff many of those self-same public services? The levy, of which there is no mention in the draft Bill which went out for consultation in July, sounds like a populist piece of politics brought on partly by the credit crunch.

Removing higher appeal right

Another issue flagged up by immigration minister Phil Woolas is the removal of rights of appeal beyond the Asylum and Immigration Tribunal, a deeply controversial issue. An earlier attempt to remove higher court appeal and review rights in 2004 was defeated when Law Lords voiced their opposition. A consultation paper, 'Immigration Appeals', published in August, once again seeks to remove or severely restrict higher court scrutiny, this time by transferring judicial review powers to the upper tier of the Tribunal, while severely limiting recourse to the Court of Appeal. The proposal has already provoked strong opposition on constitutional grounds and in the name of access to justice, and if it is included in the draft Bill, there will be strong resistance.

Other objectionable features of the draft legislation, not referred to in the Queen's Speech, include:

* New powers for immigration officers to stop people in the street and demand to see proof of entitlement to be here;

* New powers for immigration officers (or 'Border Agency officials') to examine passengers leaving the country to ascertain whether they have committed any immigration offences in the UK, and if so, to stop them coming back;

* Still no statutory limitation on the length of immigration detention;

* No limitation of the power to detain children, even though for the first time the Bill contains a duty to have regard to the welfare of children when exercising immigration functions;

* Commonwealth citizens with the right of abode will lose it and be given 'immigration permission' (IP) instead. This leaves them open to the possibility of expulsion;

* The exemption from deportation of certain long-resident Commonwealth citizens has gone;

* The merging of deportation and administrative removal means that breach of any of these conditions can lead to expulsion for an unlimited period (with no right of appeal) as well as to criminal prosecution;

* Anyone assaulting, obstructing or resisting anyone exercising functions under the Act commits a criminal offence - a new level of criminalisation;

* New statutory limitations mean that the Asylum and Immigration Tribunal will no longer have the power to allow appeals if they think the Home Office decision is too harsh, if the decision was correct as a matter of law.

Faced with elderly relatives or sick or vulnerable family members refused permission to join, or just visit, loving families in the UK, unless it can identify a legal flaw in the decision, the Tribunal will be unable to intervene. This last provision typifies the draft Bill. It spells an end to the exercise of immigration control with a human face.

Footnote: The Institute of Race Relations is precluded from expressing a corporate view: any opinions expressed are therefore those of the authors.
© Institute of Race Relations 2008
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