This is a revised version of the article posted on the IRR website on 5 December 2008.

The government’s proposals to strengthen border controls are set to further dehumanise immigration law and make a merry mess of the path to citizenship.

The Queen’s Speech at the state opening of parliament on 3 December referred briefly to a proposed Bill to ‘strengthen border controls, by bringing together customs and immigration powers … [and] ensure that newcomers to the United Kingdom earn the right to stay’. A sketch of what the Borders, Immigration and Citizenship (BIC) Bill is likely to contain is on the UK Parliament website.

Two bills

The speech made no reference to the government’s much trailed and long-awaited consolidation of immigration legislation which is intended to replace the 1971 Immigration Act and nine other pieces of primary immigration legislation. But that project continues, under the provisionally entitled Immigration Simplification Bill. Between them, the two Bills will cover all the topics covered in the partial draft Immigration and Citizenship Bill, published on the Home Office website in July 2008.

The project is 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’. The July 2008 draft brought together 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. It ran to 214 clauses and three schedules, and dozens of regulation-making powers to 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) remained to be covered.

This draft has now been split into two proposed pieces of legislation. The Borders, Immigration and Citizenship Bill will strengthen the new UK Border Agency (UKBA) by integrating customs and immigration functions, following a proposal announced in July 2007 and partially implemented in April 2008. Since then, the Home Office website has carried news items which juxtapose the increased seizures of class A drugs, the increase in the speed of asylum determination and the extension of the visa regime to cover a larger proportion of the world’s population, thus consolidating the official identification of people from outside the magic European Economic Area as somehow as inherently noxious as class A drugs – whether requiring protection as asylum claimants or offering skills and energy as economic migrants.

Borders, Immigration and Citizenship Bill

The Bill had not been published at the time of going to press, but border control provisions which are likely to fall within the BIC Bill include the controversial powers of detention (on arrival and for removal), still not subject to any statutory time limit, as well as an extension of carriers’ liability in the ‘authority to carry scheme’ which will require real-time immigration checks by carriers on intending passengers. The proposals in July 2008 also contained a dramatic extension of UKBA officials’ powers to examine anyone in-country to check their status and entitlement to be here – an extension of powers which marks the arrival of a fully-fledged immigration police, with none of the structures of accountability surrounding the police themselves.

Opaque ‘earned citizenship’ provisions

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 qualifying periods for naturalisation, 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 fulfils 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.

Removal of rights of appeal

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.

Expectations of Immigration Simplification Bill

The Immigration Simplification Bill, which will consolidate immigration law, has not been published, but the draft published in July contained some very objectionable features, including:

• 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 trend of government policy on immigration. It will spell the end to the exercise of immigration control with a human face.