Liberty s response to the Home Affairs Committee call for written evidence on the Draft Immigration & Citizenship Bill September 2008
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 www.liberty-human-rights.org.uk/resources/policy-papers/index.shtml Contact Gareth Crossman Director of Policy Direct Line: 020 7378 3654 Email: GarethC@liberty-human-rights.org.uk Isabella Sankey Policy Assistant Direct Line 020 7378 5254 Email: Bellas@liberty-human-rights.org.uk
Introduction 1. Liberty is delighted to have the opportunity to respond to the Home Affairs Committee call for evidence on the partial draft Immigration & Citizenship Bill. The explanatory notes to this draft Bill state that it is intended to consolidate, simplify and repeal a total of 10 immigration and asylum related pieces of legislation. Liberty welcomes this idea. Immigration law in the UK has been enacted in a piecemeal way, with, in recent times, annual reforms in this area. The law governing immigration is, as a result, highly inaccessible and confusing for those using in the system. 2. While we endorse the intention to simplify the law in this area, we have concerns that this draft Bill retains an unnecessarily complex framework for immigration and citizenship. Further, the draft Bill goes well beyond a straightforward consolidation exercise and we welcome this opportunity to provide evidence on the concerns we have about the substantive reforms proposed. 3. At the outset it is worth noting that we are uneasy about the political tone surrounding this draft Bill. In particular the emphasis given to the need for migrants to prove their worth the implication being that they are an automatically less deserving or less trustworthy group than those born into British citizenship. The draft Bill, for example, creates a probationary citizenship category. This terminology implies mistrust and suspicion yet the category itself is nothing more than temporary permission by another name. Probationary citizenship bestows none of the recognised entitlements of citizenship and instead adds further complexity to the system. 4. We also note at the outset that this is a partial draft Bill and that a number of additional topics will be included in the final Bill, including: powers of arrest, entry, search; data sharing; biometrics; asylum support and access to public funds. We will examine these proposals once the full Bill has been published.
Immigration Permission (Part 1) 5. Part 1 of the draft Bill replaces current concepts of leave to enter, leave to remain and entry clearance with a single concept of immigration permission. Several types of permission have been created, including temporary and permanent permission (replacing indefinite leave to remain or enter), probationary citizenship permission, protection permission and refugee permission. We understand however that there will still be categories of people who will be allowed to be in the UK but who will not have formal permission. This seems to confuse the aim of the plain English simplification project. Conditions 6. Clause 10 sets out conditions that may be placed on those with temporary permission and replaces the reporting and residence conditions that were introduced by the UK Borders Act (2007). Liberty raised concerns about reporting conditions at the time, namely, the lack of restriction on the types of conditions that can be imposed; the purpose for which they can be imposed; and their duration. Such conditions can potentially be used in addition (or even instead of) the control order regime and it is easy to see how the restrictions could become punitive in themselves, potentially raising human rights concerns under Articles 8 and 11. The potential for unfairness and arbitrariness is compounded by clause 11 which gives the Secretary of State a wide discretion to change, cancel or vary the conditions of someone s immigration permission. 7. Our concerns regarding the scope of immigration conditions are compounded by the introduction of severe sanctions for breach under this draft Bill. Failure to immediately disclose a change of address to the Home Office could provide grounds for expulsion (with no right to appeal) (Clause 37(4)(d)); future exclusion from the UK for an (as yet) unspecified time; and may constitute a criminal offence (attracting a potential sentence of up to 51 weeks) under Clause 99. Cancellation of Permission
8. Clause 13 of the draft Bill introduces a new concept of automatic cancellation of permission. Examples include where: (i) a person has remained outside the UK for a continuous period of 2 years or more (ii) an expulsion order is made against the person (iii) a person becomes subject to an international travel ban (iv) a person s permission has been extended pending a decision on an appeal or application for further permission and that person leaves the UK. Automatic cancellation does not attract the right of appeal. Clause 14 grants the Secretary of State a discretionary power to cancel immigration permission. The grounds for such cancellation are to be set out in the Immigration Rules as so we reserve further comment until the rules are published. We do however raise concerns at the power of automatic cancellation introduced here. We consistently advise against blanket rules and mandatory sanctions in the immigration context. It is far better to allow for an element of discretion in decision-making so as to avoid unfair and disproportionate outcomes. Powers of Examination (Part 2) 9. Clauses 25-28 include broadly drafted powers that go far beyond the traditional scope of border control. Clause 25 extends the categories of persons that may be examined for immigration purposes. In addition to the current powers to examine those arriving in the UK, clause 25 permits examination of anyone who has ever entered the UK (whether recently or some time previously), those who are abroad and seeking to enter and those making an application for permission at any stage. This extends powers of examination to several new categories including anyone in the UK (whether a British citizen or not) who has ever left the UK at any time. The official will determine whether the person requires permission, whether the person has permission and if so, whether permission should be cancelled. No reasonable cause or suspicion is required for examination to be exercised. Article 8. The explanatory notes do not make clear why the category of persons able to be examined for immigration purposes needs to be extended beyond those arriving in the UK. Furthermore, the draft Bill does not define what is meant by examine and this should be clarified when the full bill is published.
10. Clause 28(3) creates a power, which the Government has consistently pledged to resist. Under this clause, anyone who may be examined under clauses 25(1) and 26(1) must produce a valid identity document if required to do so by the Secretary of State. Failure to produce an identity card or otherwise prove identity is a criminal offence (under clause 101) and can lead to detention until the requirement has been satisfied (under clause 53). Currently, the police are allowed to ask for identity documents if there is a reasonable suspicion that a person has committed an offence 1. Immigration officials also have the power to question people regarding their immigration status if they have a reasonable suspicion that a person is an immigration offender. Clause 28(3) dramatically changes this premise allowing identity documents to be demanded of anyone that has at any time entered the UK by anyone authorised by the Secretary of State. No suspicion of criminality or immigration offending is required. 11. Liberty has profound concerns about the interference with the right to respect for private life (protected under Article 8) created by clauses 25-28. While immigration control has been recognised as a legitimate aim capable of restricting Article 8 rights, these powers go far beyond what can reasonably be considered necessary for immigration control purposes. Liberty is concerned that this power will give a blank cheque to authorised persons to ask those who do not look like EEA citizens to establish their status. We are, concerned that it will be predominantly black and minority ethnic people who may be required, arbitrarily, to submit to examination or prove their status. We believe that the catchall remit of this power is disproportionate and that its enactment would not only damage community relations but would represent a fundamental shift in the relationship between the State and those present in the UK. 12. Clauses 25-28 also extend the category of persons who can exercise examination powers. Currently exercisable by immigration officials the new power will be delegated by the Secretary of State to officials in the UK Border Agency. This extension continues a worrying trend which 1 Under section 24 of the Police & Criminal Evidence Act (1984)
extends powers traditionally reserved for the police. The UK Borders Bill (2007) extended certain powers to designated immigration officials. This draft Bill seems to be going even further with no mention made of how such individuals might be trained or held accountable for complaints and grievances. Citizenship & Earning the Right to Stay (Part 3) 13. Clause 34 sets out the new timeline for naturalisation of migrants as British Citizens. It is an unnecessarily complex clause. Under the new timeline, the default qualifying period for applicants with permission to be here in their own right and dependant relatives of British citizens is 8 years. The default qualifying period for partners of British citizens, bereaved partners of British citizens and victims of domestic violence by a British citizen partner is 5 years. The power is reserved, for the Secretary of State, through regulations, to amend the length of the 8 or 5 year default qualifying periods. 14. While there is no right to citizenship status under human rights law, Liberty is concerned that the extended periods for naturalisation proposed under this Bill will mean that migrant workers, refugees and asylum seekers will remain vulnerable for longer periods. Longer periods in limbo will mean reduced access to mainstream benefits and services and those allowed to work may be made further vulnerable to employers for a longer period, possibly working longer hours or accepting lower pay for fear of having immigration permission revoked. Extending the naturalisation process will arguably hinder community cohesion. Those processing through the system will now spend longer being scrutinised by various agencies, including the Border & Immigration Agency, the police, employers, voluntary organisations (see below) and others. This prolonged journey combined with further tests and possible penalties (considered below) may well perpetuate feelings of exclusion within migrant communities. 15. Clause 34 introduces the new concept of an activity condition for migrants. Under this clause an applicant for citizenship can reduce their qualifying period by 2 years if the Secretary of State considers that (a)
A has participated otherwise than for payment in prescribed activities, or (b) is exempt from participation in such activities. Clause 35 provides for regulations to be made which define the prescribed activities which can reduce the length of the qualifying period and prescribe categories of persons exempt from carrying out the prescribed activities. Under the regulations the Secretary of State can amend the length of the 2 year discount period and even set it at zero so that prescribed activities have no effect on the default qualifying period. 16. While Liberty is relieved that the draft Bill is not seeking to introduce compulsory volunteering (as was hinted at in the Green Paper which preceded the draft Bill 2 ) we have deep concerns about a proposal for formal volunteering to speed up the naturalisation process a process that this draft Bill proposes to extend. Liberty does not believe that migrants should be expected to do more than those born into British citizenship. An incentive of this kind is wrong in principle and will be discriminatory and exploitative in practice. While the draft Bill does not reveal the types of activities that will be prescribed however the government consultation which preceded the draft Bill suggested that activities such as volunteering with a recognised organisation; serving on community bodies and fundraising for schools and charities would be considered. This type of volunteering will necessarily ignore the ways in which many migrants already volunteer their services to the community, for example with informal childcare arrangements or teaching English. Managing local impacts 17. The Home Affairs Committee call for written evidence asks for views on the governments proposals for managing any local impacts including the simplification of legislation on access to benefits and services. While these provisions are not included in the partial draft Bill the foregoing Green Paper proposed that migrants will be required to contribute to a transitional fund with those likely to put the most pressure on public services such as children and the elderly required to contribute more. This proposal is discriminatory and unjustified. It will disproportionately 2 The Path to Citizenship: Next Steps in Reforming the Immigration System
impact the most vulnerable who may have less ability to pay and it may well fall foul of Article 1 Protocol 1 of the HRA (which protects the right to property covering issues of taxation) when taken together with the right to enjoy rights without discrimination (including on the basis of a person s national origin) under Article 14. Liberty is concerned that a levy on migrants may, in some circumstances, interfere with the right to family reunification protected by Article 8 of the HRA. The Government has, further, failed to make any practical case for an additional levy on migrants. The Green Paper was itself clear that on average migrants pay more tax than non-migrants and consume fewer public services 3. Migration may well place temporary pressures on different localities making a dedicated fund a logical proposal. However there is no reason why this fund cannot be established from general tax revenue to which migrants already make a bigger contribution. Effect of Criminal Convictions 18. Clause 34 further introduces extended qualifying periods when an applicant, or a connected person, is convicted of a prescribed offence. Again the prescribed offences, and the amount of time by which the qualifying period will increase will be set out in Regulations. 19. Without information concerning which offences will be prescribed and the extended period for naturalisation that will be incurred it is difficult to comment in detail on this part of the clause. It is however possible to note that the proposal continues two worrying trends. 20. The first is the imposition of an immigration sanction against the innocent, when a family member or a connected person is convicted of a criminal offence. This principle was seen in the Criminal Justice & Immigration Act (2007) which created special immigration status for those sentenced to over 2 years imprisonment or in receipt of a shorter sentence for a specified offence. The power allows for restrictions to be 3 At page 33. Page 10 of the Green Paper states Evidence suggests migrants have a positive impact ton GDP per head directly through their own output and indirectly through raising the productivity of others. On average the foreign born are more likely to earn more that the UK born and more likely to be in employment as a proportion of the population.
imposed on foreigners and their family members. Liberty expressed concerns at the time about the imposition of conditions on the innocent and we raise similar concerns about the current proposal for the naturalisation process to be extended for those connected to a convicted person. We have significant concerns about the imposition of conditions on the innocent and on children in any circumstances. The UN Convention on the Rights of the Child (UNCRC) makes specific provision to ensure that children are not disadvantaged as a consequence of the actions of their parents. Article 2.2 of the Convention states that States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members. It is unfortunate that this measure is being considered at the same time as the Government has announced the positive step of removing the reservation on the UNCRC for non-national children. 21. The second trend seen here is the introduction of a blanket mandatory sanction for migrants. We raised concerns when this principle was adopted in the UK Borders Act 2007 (UKBA), with the introduction of automatic deportation for all foreign criminals sentenced to a period of custody of over 12 months. In proportionality terms, prolonging the naturalisation process is, of course, preferable to automatic deportation. As the European Court of Human Rights has recognised in several cases, deportation following conviction for people who have developed strong family and personal ties is disproportionate and can violate Article 8 rights 4. However, while the current proposal may have a less intrusive impact, the principle is deeply flawed as individual circumstances will not be considered and assessments of fairness cannot be made. This is especially the case when, as is proposed here, the sanction effectively amounts to a double punishment. In light of the above, Liberty would urge that any blanket extension of the naturalisation period for those convicted of a prescribed offence should not be excessive. 4 Lamguindaz v UK (1993) 17 EHRR 213
Expulsion Orders & Removal from the UK (Part 4) 22. Clause 37 introduces the new expulsion order which is intended to replace two distinct systems currently in operation, namely administrative removal and deportation. 23. Under Clause 37(2)(b) the Secretary of State is required to make an expulsion order in relation to a person who is a foreign criminal under section 51 unless an exception applies. Under clause 37(2)(a) the Secretary of State will have the power to make an expulsion order against different categories of non-british citizens including those who have temporary permission and have breached a condition subject to which the permission was granted. Both of these provisions maintain the position established in UKBA 5. 24. Clause 37(2)(c) however extends powers established under UKBA. Under section 7 of that Act failure to comply with registration requirements can lead to the cancellation or variation of leave to enter or remain. It does not allow the cancellation of permission for family members. This draft Bill changes that situation by creating a power to expel non-british citizens who are family members of a person against whom an expulsion order has been made. Someone could, therefore, be automatically expelled from the UK if a family member failed to adhere to a reporting condition 6. The expulsion power created under the UKBA is already overbroad and raises proportionality concerns. This is especially so as the reporting conditions may in themselves raise Article 8 and Article 11 (The Right to Free Association) HRA issues. Liberty is 5 Liberty had profound concerns about the introduction of automatic deportation for foreign criminals and their family members a reform that was driven by the exposure of administrative errors rather than any gap in the law. Liberty s briefing on the proposal can be accessed at: http://www.liberty-human-rights.org.uk/pdfs/policy07/borders-bill-2nd-readinglords.pdf 6 Furthermore, under the clause 37(9) there is no time limit on when the expulsion order can be made by the Secretary of State. Somebody who inadvertently breaches their reporting conditions during the first few weeks of their permission period would therefore have the threat of expulsion hanging over them for the rest of the period. Similarly, a person who cannot be deported (for example if one of the exceptions applied) would have the threat of deportation hanging over them for the duration of their temporary permission period during which the liability to deportation could change.
concerned at an already overbroad power being extended to cover those not directly at fault. 25. Our concerns are exacerbated by the fact that that the new single expulsion order provides for future exclusion from the UK for a period of time (not yet specified) and there is no right of appeal once an expulsion order has been made. Currently those who have faced administrative removal are able to reapply for permission to enter the UK. If the single expulsion applies across the board, inappropriate re-entry bans will apply, for example, to failed asylum seekers who have been returned to a country whose human rights situation may then deteriorate. Blanket reentry bans are not appropriate for all those that may be removed from the UK and at the very least an appeal right should be provided. Powers to Detain and Immigration Bail (Part 5) 26. Clause 53 provides the power to detain a person who is liable to examination under clauses 25 and 26 until all relevant matters have been decided (see paragraph 10 above). 27. Clauses 54 & 56 allow the Secretary of State to require the captain of a ship, aircraft or train to prevent a person from disembarking in the UK and allows the captain to detain the person in custody on board. Liberty understands that it can be convenient to give non-policing bodies police powers (examples include the extension of traditional powers to immigration officials and community accreditation schemes). However, useful does not necessarily mean appropriate. Specific justification should be provided justifying extension. The last few years have seen a continual legislative roll out of powers tratidionally the preserve of the police. This has frequently been to bodies without proper training.or accountability. In this case it is not clear that there is a real problem that needs addressing. We expect that police are present at all points of disembarkation in the UK and, unlike pilots and captains, are far better positioned to exercise such powers. 28. Clause 55 provides for the detention of a person against whom an expulsion order has or may be made, until that order is made or the
person departs from the UK. Clause 55(4) places a duty on the Secretary of State to detain a person against whom an expulsion order has been made if the expulsion order has been made under clause 37(2)(b) 7 unless in the circumstances the Secretary of State thinks it inappropriate. Liberty believes that the detention of asylum seekers for mere administrative convenience violates the right to liberty as protected under Article 5 of the HRA 8. Depriving any individual of their liberty can only be legitimately justified when it is necessary rather than convenient. Despite this clause 55 gives a wide discretion to the Secretary of State including the power to detain individuals if the Secretary of State thinks that a person is someone in relation to whom an expulsion order may be made. We are also particularly concerned by Article 55(4) which effectively reverses the presumption of liberty, requiring detention rather than making it a measure of last resort. 29. Clause 57 broadly replicates the power created in section 2 UKBA allowing a designated official to detain a person that they believe could be arrested without warrant under section 24 of PACE. Clause 57 extends the power from ports to international railway stations. Liberty raised concerns about extension of powers to designated immigration officials under the UKBA. Clause 58 however goes even further providing a power for a person to be forcibly removed from a ship, aircraft or train under the authority of the Secretary of State. We repeat the concerns raised at paragraph 28. Police powers, particularly those necessarily involving force should not be extended without clear justification. We note that the draft Bill contains no mention of accountability processes for those exercising the extended powers. 30. Clause 59 provides that those detained may be detained in such places that the Secretary of State may direct. Liberty is uneasy about this power. Short term holding facilities have already been established for such detentions where at least some degree of accountability and oversight can be exercised. 7 Expulsion orders must be made under clause 37(2)(b) in relation to a person who is a foreign criminal under clause 51. 8 As we argued when we intervened in Saadi v UK (Application no 13229/03)
Immigration Bail 31. Clause 62 provides the power to grant immigration bail. Factors to be taken into account in consideration of bail include only those that weigh against the grant of bail and exclude all relevant factors that may weigh in favour of bail such as duration of detention, history of torture, impact of detention on individual and their family, physical and mental heath. Subclause (6)(b) and (7) prescribe that convictions outside of the UK must be taken into account when considering the granting of immigration bail. Liberty has concerns about what has been included and excluded in the list of considerations. In particular, given the political background for many of those claiming asylum in the UK, it is alarming that consideration is not given to the safety of any foreign convictions. 32. Clause 62(2)(c) requires the Secretary of State to consent to an AIT decision to grant bail to those facing imminent removal despite the fact that the AIT already consider whether removal is imminent when making the bail determination. This sub clause is not only therefore unnecessary but it is an inappropriate extension of the Secretary of State s powers: directly challenging the role and mandate of the judiciary. The discretion afforded to the Secretary of State may potentially leave her open to inappropriate political repercussions should it emerge that a person granted bail failed to comply with certain bail conditions. It would also arguably lead to an increase in the number of people detained, as it is often the case that removals intended to be imminent are in fact quite the reverse. Clause 68 follows in a similar vein, allowing the Secretary of State to amend or add to the conditions of immigration bail granted by the AIT. Again, Liberty is concerned by this unjustified encroachment on the AIT s remit. 33. Clauses 62(11) and 64 introduce the concept of financial security (or a bail bond ) as a condition of immigration bail. From a human rights perspective, bail bonds are preferable to detention - involving less of an interference with a person s right to liberty. In theory provision for a bail bond already exists however the surety is only promised and does not need to be deposited. In the vast majority of cases these in immigration detention will be unable to pay a bail bond. The introduction of bail
bonds is likely to mean that more detainees are held (often for periods of over 12 months) while there is still no prospect of deportation. Liberty does not believe that bail bonds are viable on principle and our scepticism is reinforced by the administrative difficulties such a system would present. Offences (Part 7) 34. The partial draft Bill replicates a number of criminal offences already in existence. As a result of extended powers created elsewhere in the draft Bill, Part 7 also criminalizes new areas of behaviour. An example is Clause 99. While this clause essentially replaces existing law making it an offence to knowingly breach a condition of immigration permission, the extension of conditions that can be imposed under Clause 10 of the draft Bill extends the potential impact of Clause 99 (see paragraph 6). 35. Liberty has significant concerns about clauses 101 and 102, which follow a similar thread. These clauses replace sections 24(1)(d) and 26 of the Immigration Act (1971) however, extended powers of examination under Clauses 25-28 of the draft Bill result in a major extension of criminal behaviour. As discussed at paragraphs 9 & 10 above, under clause 101 anyone who has entered the UK, applied to enter the UK or who is seeking to arrive in the UK commits a criminal offence (liable to imprisonment of up to 12 months) for failing to submit to an examination under clause 26 or failing to produce identity documents under clause 28. As with the creation of any new criminal offences, Liberty believes that principles of necessity and proportionality should govern. We maintain that the extension of examination powers in the draft Bill is unjustified, let alone the criminalisation of failure to comply with such powers. 36. Clause 121 makes it an offence to resist or obstruct, without any reasonable excuse any person exercising a function conferred by or by virtue of the provisions in the draft Bill. The 2007 UK Borders Act made it an offence to assault an immigration official. Liberty did not take particular issue with the recognition that immigration officials, like police, undertake difficult duties which can place them in physical danger.
However, clause 121 goes well beyond such recognition. It is an extremely broad provision which criminalises behaviour at a threshold much lower than an assault (an offence relatively easily committed). Of particular concern is that this new offence criminalises behaviour (i) whether or not it was intentional and (ii) where the person carrying out a function under the Act may not be readily identifiable. We do of course understand the need for those enforcing immigration rules to have the necessary powers to do so. However, criminalising mere resistance or obstruction to any of the powers in the Bill is grossly disproportionate. This is especially so given the range of offences that already exist and the fact that the full range of powers to be contained in the draft Bill still remains to be seen. Carrier s Liability (Part 8) 37. Clauses 122-148 effectively replace corresponding provisions in the Immigration and Asylum Act 1999. Clause 149 however introduces an authority to carry scheme whereby carriers may be required to obtain authorisation from the Secretary of State in order to bring certain passengers to the UK. 38. This power constitutes a wholesale extension of immigration control powers to private individuals and companies. Sub clause 1 allows the Secretary of State to make regulations requiring a carrier who brings a person to the UK to pay a penalty if the carrier did not seek authority to carry the person when required to do so or if the carrier carried a person event though permission had been refused. 39. Liberty has grave concerns about the detrimental impact that such a scheme could have on those fleeing persecution. Responsibility and liability for immigration control should not be the prerogative of private companies and individuals who are untrained and unaccountable. We are also concerned about the potentially discriminatory impact of the proposed scheme. Clause 149(2)(b) provides that regulations must specify the description of passenger to which they apply and sub clause (3)(b) specifies that the matters by reference to which a description of passenger may be defined include nationality and the possession of specified documents. In 2001 the UK stationed
immigration officers at Prague Airport to screen all passengers travelling to the UK. The aim was to detect people who wanted to claim asylum in the UK and prevent them from travelling. The overwhelming number of passengers who were refused permission to enter the UK under this operation were of Roma 9 origin. Liberty, representing the European Roma Rights Centre and six individual Czech Roma, challenged the policy and in 2004 the House of Lords judged that the practice was inherently and systematically discriminatory against Roma. The framework for the authority to carry scheme, as set out in clause 149, appears to have the same fundamental flaws and will likely be open to challenge on discrimination grounds. Illegal Workers (Part 9) 40. The clauses contained in Part 9 effectively replace sections 15-26 of the Immigration, Asylum and Nationality Act (2006). While there are no changes of substance here, we take this opportunity to reiterate that Liberty believes asylum seekers should be entitled to work while awaiting the outcome of their application. In the absence of this reform we accept that penalties for employers employing illegal workers are necessary to prevent exploitation. We only hope that these penalties will not dissuade employers from employing those with seemingly complex immigration status. Simplifying the appeal process (Part 10) 41. The draft Bill contains some of the Government s proposed reforms to the immigration appeal process. Liberty notes that the UK Borders Agency is currently consulting more widely on this 10. Conscious of previous Government attempts to scrap the judicial review of immigration tribunal decisions as well as the ongoing problems with the quality of immigration decision-making at first instance, we intend to watch closely developments in this area. As regards the draft Bill we have two main observations regarding the erosion of appeal rights. 9 Roma were 400 times more likely to be refused entry than non-roma 10 Immigration Appeals: fair decisions, faster justice
42. Clauses 169 and 170 cover appeal rights for refugees and others with immigration permission. Under clause 169 appeal rights for those with immigration permission (but who are not refugees) are precluded if permission is cancelled after the person has entered the UK. Appeal rights in these cases are only permitted if immigration permission is cancelled on the person s arrival in the UK. Liberty is concerned about the restriction of appeal rights in this way. The statistics for successful appeals against initial immigration decision-making reveal starkly the importance of appeals in the immigration context. The lack of an appeal right in these cases is will undoubtedly lead to unfairness. This is especially so given the range of reasons for which immigration permission can be cancelled (including, for example, a one-off breach of a reporting condition). 43. Clause 171 provides for an in-country appeals when expulsion orders are made. Appeal against an expulsion order is however excluded when it is made against a person who (i) does not have permission (ii) has permission but the permission was obtained through deception (iii) has breached a permission condition or (iv) is a foreign criminal or is related to a foreign criminal. Liberty has grave concerns about the number of categories for which appeals are prohibited. It is unclear why the Government is seeking to scrap appeal rights in this way. Instead of simplifying or streamlining the appeal process, the erosion of appeal rights is more likely to encourage wider use of judicial review, simply transferring the administrative burden to the higher courts. Isabella Sankey, Liberty