Examination of Witnesses (Questions 300
WEDNESDAY 3 FEBRUARY 1999
and MS GAIL
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
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.
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 evidenceit 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 likeif 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 stereotypingI think that is how you are really
putting itof 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 offenceother than the criminal offence to overstaythen
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
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 meand
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.