Joint Committee On Human Rights Seventeenth Report


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).

Naturalisation requirements

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 language education.

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 Bill.

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.

Automatic bail

Liberty also believes that without automatic access to bail hearings, (clause 48[6]) 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 guidelines published.

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[5]). 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 there—say to deal with a family illness—this return may result in the revocation of the family's indefinite leave to remain.

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).

Appeal procedure

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:

    —  Under paragraph 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.

IAT Jurisdiction

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.

Appeals

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.

Offences

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 courts.

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.

Employment

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 seized.

April 2002


 
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