Sunday, 14 December 2008

Asylum changes in the draft Immigration and Citizenship Bill

Points taken from "Immigration monster unleashed" by Emma Ginn for the IRR.

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.

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.


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