By Laura Devine, Laura Devine Solicitors, London


Bordering on the extreme

The UK Borders Bill published on 26 January 2007 is one more step in the government's ongoing determination to reform UK immigration law.



That the Bill is intended to implement key elements of last year's Immigration and Nationality Directorate review does little to convince its critics that it is anything more than yet another example of piecemeal legislation. While even the most sceptical Briton would not dismiss the need for certain reform with more effective immigration control, the government's sixth immigration Bill in less than ten years only serves to highlight the need for a consolidated body of law and clear codes of practice. Unfortunately, as always, the debates on proposed legislation have so far focused on the risks of unlawful immigration rather than the benefits of migration.



The second reading of the Bill in the House of Lords took place on 13 June and the Bill now looks set for a minimum of four days debate in grand committee rather than on the floor of the House, a decision causing controversy with those concerned that the dissenting voice of just one member would be sufficient to block much-needed amendments. While the immigration debate rages, the proposals continue to receive intense scrutiny from stakeholder and advisory groups and look likely to be the subject of continued media and public debate.



The Bill focuses on tightening border security and expanding the domestic power of immigration officers. The intention is to equip the new Border and Immigration Agency with powers to deter, detect and ultimately remove those breaking the rules, and at the same time to encourage those overseas nationals legally in the UK to abide by the rules. While it may be argued that the key objective is border control, the Bill scarcely heralds an era of transparent and proportionate measures of protection.



The key provisions are:

l New powers to deport foreign nationals on conviction of certain offences (including drugs or terrorism) or those sentenced to a term of imprisonment in the UK;

l New powers to impose residence requirements and requirements to report for those with limited leave to enter or remain in the UK;

l Power to require certain persons under immigration control to provide biometric information;

l An increase in the powers of immigration officers to detain and search people;

l Changes to the system of appeals in cases where people want to continue to work in the UK, eventually extending to all applications under the points-based system; and

l New powers to prosecute those smuggling and trafficking human beings to the UK.



Why the concern?

While the importance of increased powers to prosecute those involved with smuggling and human trafficking are widely accepted, a number of organisations, including Amnesty International and the Refugee Children's Consortium, have raised concerns as to whether many of the Bill's proposals have any place in a democratic society. The Bill appears to fall far short of the introduction of a simplistic, fair and proportionate system of immigration control, which is heralded as the objective.



Certain clauses reveal a distinct and real possibility of emotional and financial detriment to those at risk of adverse immigration decisions under the system, particularly vulnerable children of those families seeking asylum and protection in the UK.



Deportation and restriction (clauses 31-38)

The Bill provides for the automatic deportation of foreign nationals who receive custodial sentences of at least 12 months, or who are involved in the commission of offences in respect of children, terrorism or drugs, with limited exception in respect of a breach of the overseas national's human rights.



It will be much harder to challenge the deportation of a person convicted and sentenced to more than 12 months in prison. It appears that the secretary of state's responsibility actively to consider the circumstances of individual cases highlighted for deportation will diminish, including situations where an overseas national has no subsisting connection to his country of origin, and where the circumstances leading up to the crime warrant consideration to avoid automatic deportation being neither fair nor rational.



What is needed is improved administrative procedures, rather than further legislation introducing mandatory deportation. Decisions on deportation require the rational consideration of the interests of the public and all the circumstances of the individual and family.



Detention and enforcement (clauses 1-4)

The Bill will provide immigration officers with greater powers, including a power for designated officers to arrest individuals at port, including British nationals, and to detain them for up to three hours. Such a power to detain and search anyone on suspicion of an offence is wide and raises concerns over how its use will be monitored.



Debate on the Bill has shed no light on the training for officers, and it has been argued that it proposes open-ended powers with a lack of accountability. Much has been made of what more than appears to be a significant extension of the powers of immigration officers to act like police officers without equivalent mechanisms of control and accountability.



Biometrics (clauses 5-15)

The Bill proposes a requirement that all non-European Economic Area (EEA) foreign nationals (without permanent residence) remaining in the UK for more than three months must apply for a biometric identity document. This will involve recording external characteristics such as fingerprints and features of the iris. Concern has arisen in respect of the potential sharing and passing on of such information. The use for which it may be accessed is entirely open and is potentially intrusive. The wider sharing of biometric information may give rise to a detrimental effect on the wider community and community relations.



Reporting and residency conditions (clause 16)

'Catch-all' proposals allowing the secretary of state extremely wide powers to impose reporting and residence conditions on non-EEA nationals in the UK with limited leave to remain, are onerous. The Bill provides no restriction on the type of conditions that may be set and goes far beyond the scope of the current conditions in the Immigration Act 1971. It is unclear how these provisions will be limited to circumstances of clear need, and their exercise appears unchecked under the Bill.



Restrictions on evidence in points-based appeals (clause 19)

Clause 19 adds a new exception to the general rule that the tribunal can consider any evidence relevant to the substance of the decision in the case of points-based appeals. This means that evidence arising after the date of decision cannot be considered. As the government rolls out the points-based system, this becomes a significant factor. The upshot will be to force applicants to seek the assistance of MPs or pursue the lengthy and expensive solution of judicial review.



Home Officer Minister Joan Ryan concluded recent debates on the Bill by saying 'it focuses on strengthening our borders and is not simply a case of providing immigration officers at port with extra powers, as it involves removing the incentives to enter the UK illegally in the first place'.



While the government continues to resist amendments, it may be more accurate to say that the UK Borders Bill removes the incentive to enter the UK at all.



Antonia Grant assisted in drafting this article