Liberty s response to the UK Border Agency s consultation: Earning the Right to Stay: A New Points Test for Citizenship

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1 Liberty s response to the UK Border Agency s consultation: Earning the Right to Stay: A New Points Test for Citizenship October 2009

2 About Liberty Liberty (The National Council for Civil Liberties) is one of the UK s leading civil liberties and human rights organisations. Liberty works to promote human rights and protect civil liberties through a combination of test case litigation, lobbying, campaigning and research. Liberty Policy Liberty provides policy responses to Government consultations on all issues which have implications for human rights and civil liberties. We also submit evidence to Select Committees, Inquiries and other policy fora, and undertake independent, funded research. Liberty s policy papers are available at Contact Isabella Sankey Anita Coles Director of Policy Policy Officer Direct Line Direct Line: bellas@liberty-human-rights.org.uk anitac@liberty-human-rights.org.uk 2

3 Introduction 1. There is no fundamental human right to claim citizenship in the country of one s choice. Yet, a person born in a country to parents who are its citizens, in most cases, automatically inherits citizenship. There is no need for the child to swear allegiance, learn particular values and ideals or pass a complicated test to become a citizen. This is rightly so. Yet migrants who have made a conscious choice to come to the country, sometimes at great personal risk and sacrifice, are required to do something more. They are expected at the very least, to have made the country their home for a number of years and to demonstrate their allegiance to it. The Government s consultation on Earned Citizenship puts it as British citizenship is a privilege that must be earned and that newcomers to the UK must earn their right to citizenship by proving their commitment to the community and the country. While it is reasonable to expect that potential citizens demonstrate their commitment to becoming a citizen, it is essential that the hurdles put in their path are reasonable, fair and non-discriminatory. The proposals in this consultation do not meet this basic test of British values. 2. We have three fundamental concerns about this rather incoherent Home Office paper: Its language and motivation seems more about playing catch up with anti-migrant sentiment than with offering any clear and positive modern notion of British citizenship in a shrinking interconnected world. Its conflation of citizenship with post-entry immigration control risks alienating long-term friendly residents and newcomers alike. Further, attempts to make long-term residence contingent on a change of nationality are more likely to make citizenship a flag of convenience than a statement of loyalty or values. Because of its confusion between citizenship and immigration, it risks defining people as worthy and unworthy of British nationality on the basis of wealth and privilege rather than commitment to making a life in this country. It is one thing to determine immigration policy on the basis of economic requirements for skilled workers or affluent investors. However once people have lived in this country for a 3

4 number of years, complied with its laws and put down ties, it is distasteful to say the least, to make the acquisition of citizenship contingent on net financial worth. If continued residence and/or other benefits are to become more and more dependent upon citizenship, distaste fast becomes immorality and illegality. Migrants are human beings not pawns on a chess board. National Governments retain considerable discretion and control at the time and point of entry. However leaving people in long periods of limbo or attempting to renege on legitimate expectations years after the event, is a recipe for multiple violations of fundamental rights and freedoms. 3. It follows that we are extremely concerned by proposals for a points based system of citizenship in which a person deemed most appropriate for citizenship is one who earns more than a certain amount per annum, works in a designated profession, lives in a certain area or gains a UK qualification within a limited period of time. The tone of the whole consultation assumes that every migrant in the UK will want to move to citizenship, but they will only be allowed this privilege if they comply with undefined responsibilities and UK values. This tone is in line with much political rhetoric of recent years that suggest that rights more generally are reserved for British citizens. There is a worrying trend in political discourse to imply that fundamental rights do not belong to all, and that foreign nationals resident in the UK should have a diluted standard of protection. The consultation document starts with discussion about smuggling and immigration crime, illegal immigrants and criminals, the need to fundamentally break the automatic link between temporary residence and permanent settlement and measures taken to raise the bar for foreign workers to give British workers a fair chance of applying for jobs. It goes on to talk about points being deducted for not integrating into the British way of life and where an active disregard for UK values is demonstrated. We will come back to examining what this could possibly mean later, but we first note the worrying the language of suspicion and mistrust. With the rise of far-right parties and the inevitable tensions in the community that accompanies a recession, we call on the Government to promote discourse that encourages solidarity rather than fuelling the flames of fear and division. 4

5 Points based test for citizenship 4. The proposal to extend the Points Based System currently in place in respect of visas for economic migrants to citizenship builds on the new structure for probationary citizenship introduced by the recent Borders, Citizenship and Immigration Act The Immigration Minister, Phil Woolas, said when the Bill was in the House of Commons: The Bill provides a beautiful tapestry on which the next proposals will be embroidered. There is a beautiful and symmetric logic to what we are doing 1 That logic is to require the requisite number of points for citizenship to be met at the probationary citizenship stage. This means that if a migrant wishes to stay for more than five years in the UK he or she will need to achieve the requisite number of citizenship points or leave the UK. Yet, the language of probationary citizenship is illogical as the person then has to wait another three years (which can be reduced by two years if certain voluntary work is performed) before either moving to citizenship or indefinite leave to remain. So despite remaining on probationary citizenship for three years a person who wishes to remain in the UK may choose not to become a citizen (or citizenship may be denied) at the end of that period. 5. The consultation states that a points based system for citizenship 2 would give greater control of the numbers of people settling permanently in the UK. It goes on to say that the points system for citizenship would give flexibility to raise or lower the threshold for settlement, depending on the current interests of the country and economy. While it makes sense to set limits on economic migration according to the economic needs of the country, the same cannot be said for determining citizenship. The notion of lowering or raising the bar for residency and citizenship raises questions over consistency and legitimate expectations. A migrant who comes to the UK, often because they are actively encouraged to come for work purposes, should be able to have some certainty as to whether and when they might be able to move to permanent settlement, so they can make plans for their future. If the Government 1 See House of Commons debates, Hansard, 14 July 2009, column 178, available at: 2 Discussion in the media, including from government officials, has referred to this as the Australian points based system. Australia s points based system applies only to the grant of visas, it does not apply to citizenship, which requires a person to have spent a certain number of years in the country and to sit a citizenship test. 5

6 simply says that circumstances may change at any time this can seriously interfere with a person s private and family life and raises real concerns about legitimate expectations. 3 We are very concerned by what is implied by the first question of the consultation, which asks if respondents agree that the Government should operate a flexible system that allows us to control the number of migrants progressing to probationary citizenship. This suggests the Government intends to put a cap on the number of migrants settled in the UK being able to access citizenship. We disagree with an arbitrary limit that prohibits people moving to citizenship who have been granted immigration status, have made the UK their home and can demonstrate commitment to the UK. Why should a person be precluded from citizenship and the benefits and duties it entails on the basis that the number of people applying for citizenship that year has been exceeded? This seems to be what is proposed based on this question. It is one thing to cap the number of immigrants who come into the country, but once a person is in the UK and has made it their home; such arbitrary caps unduly interfere with their personal life and do nothing to promote community cohesion. 6. The consultation goes on to consider how a points based system would work in practice. It states that the Government is considering awarding points based on a person s earning potential; whether the person has special artistic, scientific or literary merit; if the person works in a shortage occupation (whatever that is at the relevant time); if the person speaks English above the existing requirements; and for having lived in part of the UK determined to be in need of further immigration, such as Scotland. Figure 2, page 18 of the consultation, gives an example of the number of points a person would need to get in order to progress to probationary citizenship. It provides that a person on work visa would need 20 points to progress to probationary citizenship, 10 could be gained through knowledge of English but another 10 would need to come from other attributes. Yet a person who earns less than 23,999 would receive no points, and a person who earns between 24,000-34,999 would receive only 5 points. So, a person who earns less than 35,000 per annum, living in London, working in a non-shortage occupation who hasn t undertaken a degree in the UK, will not be deemed eligible for citizenship or allowed to continue to remain in the UK. This would inevitably apply to many nurses, social 3 See the High Court s 2008 ruling that held changes to immigration rules after a person had been admitted on certain grounds breached the doctrine of legitimate expectations: R (on the application of HSMP Forum Ltd) v Secretary of State for the Home Department [2008] EWHC 664 (Admin). 6

7 care workers, nursing home attendants, and so many others doing vital work in the public and voluntary sectors. Are such people less deserving citizens than bankers, and hedge-fund managers? If citizenship is meant to reflect allegiance to a country, a desire to form part of the community and a commitment to the laws and obligations owed to society, how can tying it to wealth ever be justified? It is offensive not only to would be citizens, but to the vast majority of people in this country who earn much less than 35,000, to suggest that a citizens worth can be judged in this way. And indeed, why is a person with a degree (and specifically only one gained in the UK in the preceding five years) more worthy of citizenship than those without? Does the Government believe that non-university educated people should not be entitled to British citizenship? 7. We fundamentally disagree with the introduction of a points based system for citizenship at all. However, if such an offensive and discriminatory system is to be introduced, the list of attributes used to adjudge a person s worth must be expanded. The length of time a person has been in the UK, the roots they have put down, including any family they may have in the UK, their commitment to make the UK their home in the future are all just some of the many attributes that indicate more about a person s commitment to the UK than the amount of money they earn each year. However, all of this turns on individual circumstances and does not fit easily into a points based structure which demonstrates the inherent weakness with such a system. 8. Conversely paragraph 2.11 of the consultation states that the Government is considering deducting points or applying penalties for not integrating into the British way of life, for criminal or anti-social behaviour, or in circumstances where an active disregard for UK values is demonstrated. No information is given as to what this means. What is the British way of life? What are UK values? It certainly doesn t feel instinctively British for the Government to attempt to proscribe rather than reflect the peoples values. What we do know is that people from many cultures, faiths and walks of life and with many and varied lifestyles make up the population of the UK. For the most part they rub along together well within a framework of rights, freedoms and the rule of law which sets out the limits of both tolerance and cohesion. This is one of the great defining features of the UK and should be celebrated. We should not be seeking to deny citizenship to a person for failing to integrate into a single undefined British way of life. 7

8 9. Further, demonstrating a disregard for UK values is a meaningless concept without defining what those UK values are. It is hardly a UK value to put disproportionate limits on a person s freedom of expression. Such an approach was explicitly mooted by the Immigration Minister, Phil Woolas MP, in a radio interview given in August after this consultation was launched. Mr Woolas, in the context of discussing anti-war demonstrators, explicitly agreed with the statement that a wouldbe citizen should not be able to exercise the same right to freedom of expression and peaceful assembly as a citizen. 4 Indeed the Minister (quite wrongly) stated that freedom of speech is guaranteed by law for the citizen it is of course guaranteed by the Human Rights Act 1998 to all people within the jurisdiction, be they citizen or not. 10. The UK Borders Act 2007 introduced provisions to ensure automatic deportation of foreign nationals sentenced to 12 months or more or convicted of specified crimes. This Act allows for no discretion and applies to all foreign nationals regardless of the length of time in which they have lived in the UK. The consultation states that the Government now intends to go further, so that a person convicted of any crime and sentenced to less than 12 months imprisonment will normally be refused any application for probationary citizenship, permanent residence or citizenship. Blanket rules concerning automatic removal can, in practice, lead to disproportionate and unjust penalties. While we agree that those settling in the UK should respect the criminal law, we believe that decisions concerning deportation following conviction should take into account the relevant circumstances of each case. We are also concerned by the proposal that a person who commits a minor crime who is not sentenced to imprisonment will normally be unable to obtain citizenship until their convictions are spent. Even minor convictions can take years to become spent a person who receives a fine will need to wait five years before the conviction becomes spent. 5 Is there really any good reason why a person who is convicted and fined for a minor motoring offence should have to wait up to 13 years in order to be eligible for citizenship? 4 See the Radio 4 Today Programme, 3 August 2009, available to listen to at: 5 See section 6 of the Rehabilitation of Offenders Act

9 Refugees will have to pass protection review? 11. We are extremely concerned by suggestions sprinkled throughout the consultation that there is a proposal that refugees granted refugee status will need to continue to prove they remain in need of protection. At paragraph 2.7, in discussing how migrants move from temporary residence to probationary citizenship, the consultation states refugees will need to have passed an active review confirming that they remaining need of protection. And again tucked away in Annex A it states that for those on the protection route to move to probationary citizenship we expect them to show that they are still in need of protection to qualify in circumstances where those who fail or are ineligible for probationary citizenship are expected to leave the UK. It is extremely concerning that without any real discussion or consultation, the Government is considering placing refugees on, effectively, a form of temporary protection. Currently, refugees and those granted humanitarian protection do not have their protection status reviewed unless there are questions concerning their conduct such that they may no longer be eligible for protection or, the Immigration Minister in consultation with the United Nations High Commissioner for Refugees, determines there has been a significant and non-temporary change in the refugee s country of origin. This consultation seems to be proposing, however, that all refuges would, after five years, need to prove they remained in need of protection. If they did not satisfactorily prove this they would be sent back to their country of origin. Temporary protection visas, which this seems to be in effect, were in place for a number of years in Australia before a public outcry and change of government forced their removal. The effect on refugees in not knowing if they would continue to be granted protection was well-documented. In denying certainty temporary protection condemns a refugee to a life of limbo thereby preventing them from being able to integrate into society. We call on the Government to clarify these passages in the consultation and if it indicates a shift from the current approach to granting leave to remain to refugees we would expect a full and open public debate on this issue, rather than hiding the intention away in a few throw-away lines in a consultation on citizenship. English language and knowledge of life in the UK 12. Minimum requirements for knowledge of the English language and of life in the UK have formed part of the application process for citizenship for a number of years. This consultation proposes increasing the difficulty of the testing process. 9

10 While we have no specific objection to requiring that applicants for citizenship demonstrate basic knowledge of how UK society and political systems work, we caution against making the test so difficult that many British-born citizens would fail it. This may be what the consultation is proposing as it states that in addition to a test of practical issues there will be a test on more challenging topics such as history, how the UK is governed, relations with Europe and the rest of the world, voting rights, community engagement. Many citizens would be hard pressed to answer challenging questions about the UK s relations with Europe and the world and there is a danger that in setting the bar too high only those people who are academically minded will meet the test thereby excluding a vast number of people who contribute in different but equally important ways to society. 13. We are also concerned by the proposal to raise the requirement for spouses (and civil partners etc) to learn English before being allowed entry into the country. When this was first introduced we expressed our concerns. 6 The consultation now states that the pre-application requirement (renamed from pre-entry, and applying to leave to enter or remain in the UK) will be that a person would need to have spent approximately hours in English language tuition. Under this system, partners of British citizens who fail the test at the end of their period of temporary residence would be required to leave the UK. As we have said before, while we agree that speaking English is vital for effective integration we are concerned these proposals may interfere with the right to family life protected by Article 8 of the HRA (right to a private and family life). Why should a person who has a genuine and loving relationship with a UK citizen but who does not have the time or resources to spend up to 50 hours of paid-for study, or indeed a person who is not good at learning languages, be forced to leave the UK or be refused entry, and thereby be separated from their partner? This policy will inevitably lead to families being broken up, does nothing to promote community cohesion, and is likely to be in breach of Articles 8 and 14 (non-discrimination) of the HRA. Anita Coles 6 Liberty s response to the Home Office Consultations: Marriage to Partners from Overseas and Marriage Visas: Pre-Entry English Requirement for Spouses, February 2008 available at: 10