Parliamentary Briefing: Borders, Citizenship and Immigration Bill, February 2009

Who we are and what we do

The Equality and Human Rights Commission (EHRC) was established on 1 October 2007 and is working to eliminate discrimination, reduce inequality, protect human rights and to build good relations, ensuring that everyone has a fair chance to participate in society.

The Commission brings together the work of the three previous equality commissions, the Equal Opportunities Commission (EOC), the Commission for Racial Equality (CRE) and the Disability Rights Commission (DRC) and also takes on responsibility for the other aspects of equality: age, gender identity, sexual orientation and religion or belief, as well as human rights.

The Commission is a non-departmental public body (NDPB) established under the Equality Act 2006 and is accountable for its public funds, but independent of Government.

What the Bill does

The Bill proposes a limited number of separate additions or amendments to existing immigration, asylum and nationality laws. The changes proposed were foreshadowed last year as part of a wider agenda for change which has been talked of as the biggest shake up of immigration legislation for a generation.

Key areas

  • Introduces a new duty on the UK Border Agency (UKBA) to safeguard the welfare of children
  • Allows judicial review applications in immigration and nationality cases to be heard by the new Upper Tribunal instead of the High Court
  • Amends laws relating to children of British and non-British members of the armed forces

A more comprehensive Bill is now expected to be published as a draft in the autumn. The timing of the next General Election means that this Parliament will not have enough time to complete its consideration of the longer Bill. Proper commentary on this Bill is therefore difficult at this stage. Without the fuller, consolidating Bill, the implications of the proposals are not always fully apparent. In addition, some of the content of the changes is also left to secondary legislation or guidance. Until these are available, it may not be possible to fully tie down the equality, good relations or human rights consequences of the proposals as currently framed.

The equality impact assessment report provided by UKBA, available at the link below, offers limited assistance as it frequently refers to work to be done in the future on the possible equality implications, does not set out the evidence or the considerations made by the UKBA in arriving at conclusions about possible impacts and, on occasions fails to take into account the proper range of themes required for impact assessment.

 

UK Border Agency, Borders, citizenship and immigration bill

The Commission’s interest in the Bill

Significant equality, good relations and human rights issues are involved in the extent, the nature and the controls and requirements related to immigration, asylum and access to citizenship, benefits, employment and rights in the UK.

There is, however, much argument over where these impacts are to be found, how they should be balanced against each other and whether they are proportionate. These arguments will be at the heart of the debates in Parliament and more widely around the Bill.

Key points

Several changes proposed in the Bill represent positive steps in clearing up problems inherited from the past. These include:

  • Allowing those born overseas to British mothers to register as British, irrespective of when they were born. This removes a damaging anomaly which created gender discrimination into the route to citizenship.
  • Opportunities for children born to Armed Forces personnel to register as British whatever the nationality of their parents. Though there are limitations on this;
  • Providing for a duty upon the UKBA to safeguard and promote the welfare of children in the exercise of their functions, though there are limitations on this.

There are other proposed changes with implications for equality, good relations or human rights. It is important that the impacts of these proposals are assessed as part of the process of considering their appropriateness.

Use and disclosure of information

Part 1 of the Bill proposes extensions to the UKBA’s power to take, retain and share information on individuals. The need for this information needs to be balanced against human rights considerations and the need to ensure the security of the data acquired.

Investigations and detention

The extension of the Police and Criminal Evidence Act 1984 (PACE) requirements to relevant UKBA operations would be widely welcomed. This would extend the code of practice requirements set out on policing to the controlling functions exercised by the UKBA.

The proposal in the Bill is that the implementation of this provision is a matter for the Secretary of State rather than being set out as mandatory in the Bill itself. The human rights implications of leaving these requirements to discretionary powers need to be considered.

Inspection and oversight

Clauses 26 to 28 will consolidate the inspection and oversight regime for the UKBA by extending the jurisdiction of its Chief Inspector and of the Independent Police Complaints Commission.

This is related to Clauses 48 and 49 which would extend UKBA powers on finger printing and detention. The human rights implications of the extension of these oversight powers in the context of the capacity of the inspection regime to deliver proper oversight needs to be considered.

Acquisition of British citizenship by naturalisation

Clauses 37 to 39 will introduce ‘probationary citizenship’ and are affected by Clause 54(9) on commencement, which means that at this stage the full impact of the proposed change is not apparent. The change could have significant equality, good relations and human rights impacts that need to be fully assessed.

Common Travel Area

Clause 46 on the Common Travel Area embracing the UK and the Irish Republic may introduce possible passport controls for travellers between the two. The ways in which this might affect some ethnic groups should, for instance, be assessed.

Judicial review

Clause 50 will transfer responsibility for judicial review to a new Upper Tribunal instead of the High Court. This has potential human rights implications that need to be considered in the context of ensuring proper access to publicly accountable justice for those involved in an increasingly complex set of administrative procedures.

For further briefing on the Borders, Citizenship and Immigration Bill please contact:

Sarwar Khan
Parliamentary Affairs Officer
sarwar.khan@equalityhumanrights.com

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