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RESEARCH PAPER 05/52 30 JUNE 2005

The Immigration, Asylum and Nationality Bill Bill 13 of 2005-06

The Immigration, Asylum and Nationality Bill, due to be debated on second reading in the House of Commons on Tuesday 5 July 2005, includes measures on appeals, illegal working and border agencies’ information to implement parts of the Government’s five-year strategy for asylum and immigration. It would remove the rights of appeal against refusal of nearly all types of visa, and limit appeal rights for people who are refused entry to the UK at the border. The rarely-used offence of employing illegal workers would be revised and supplemented by a new civil penalty allowing on-the-spot fines of up to £2,000. The Bill would allow fingerprinting of all visa applicants, and pave the way for the use of biometrics in passports and visas. Immigration officers, customs officers and the police would be given wider powers to obtain passenger, crew and freight information from airlines and shipping firms, and a duty to share this information. They would also be authorised to share information with the security services and foreign law-enforcement agencies.

Ross Young

SOCIAL AND GENERAL STATISTICS SECTION

HOUSE OF COMMONS LIBRARY

Arabella Thorp

HOME AFFAIRS SECTION

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Summary of main points The Immigration, Asylum and Nationality Bill [Bill 13 of 2005-06] is the fourth piece of primary legislation in this area since Labour came to power in 1997. It does not contain as many substantial changes as its predecessors, but nor does it seek to consolidate the existing mass of immigration legislation. It was presented on Wednesday 22 June 2005 and is due to be debated on second reading in the House of Commons on Tuesday 5 July 2005. Many of the Bill’s provisions are intended to implement aspects of the Government’s five-year strategy for immigration and asylum, Controlling our borders: Making migration work for Britain (February 2005). However, most of that paper’s proposals do not require primary legislation. For instance, a new points-based immigration system would probably be brought in by secondary legislation, and many of the changes needed to implement the proposed “new asylum model” of accelerated processing for all asylum applicants are simply administrative. The underlying theme of this Bill is immigration control. It would:

• reduce the circumstances under which appeals can be brought against negative decisions;

• make it easier to fine or prosecute employers of people who are not allowed to work; and

• increase border agencies’ powers to collect and share information, including measures to pave the way for fingerprints and biometric information in passports and visas.

It would also make some changes which, whilst not necessarily major in themselves, reflect changing policy or circumstances. These include provisions to:

• allow local authorities to provide support to failed asylum seekers (under contract with the Home Office);

• prepare for refugees to be granted limited rather than indefinite leave to remain the UK; and

• recast the system for setting fees and forms for immigration and nationality applications, downgrading the level at which these are prescribed.

The Government has provided Explanatory Notes [Bill 13-EN] as well as detailed Regulatory Impact Assessments on the illegal working and border control measures of the Bill.

CONTENTS

I Introduction 7

A. Labour’s immigration and asylum policy 7

B. Statistical background 10

II Appeals 14

A. Appeals against refusal of entry clearance 15

B. Appeals against refusal of leave to enter the UK 24

C. Appeals against refusal to extend or curtailing permission to stay 25

III Employing illegal workers 26

A. The existing offence 27

B. Convictions 28

C. New civil penalties 30

D. New offence 32

IV Border agencies’ information 33

A. Overview of border control developments 33

B. Passports 38

C. Visas 42

D. Carriers’ obligations 45

E. Fingerprinting for immigration purposes 50

F. Data sharing 51

G. Proliferation of databases 53

H. The Bill 56

V Other measures 60

A. ‘Hard cases’ support 60

B. Limited leave for refugees 62

C. Fees and forms 64

Statistical Appendix 67

RESEARCH PAPER 05/52

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I Introduction

A. Labour’s immigration and asylum policy

The policy of the Labour governments from 1997 onwards has been on the one hand to encourage legal migration to the UK and the integration of people who are allowed to stay here, but on the other hand to cut the numbers of asylum seekers and irregular migrants in the UK. For instance, the 1998 white paper Fairer, Faster and Firmer - A Modern Approach to Immigration and Asylum set out the following key policy objectives:

• welcome genuine visitors and students who wish to come to the UK; • support family life by admitting the spouses and minor dependent

children of those already settled in the UK; • ensure that asylum decisions are both swift and fair and fully meet the

UK’s obligations towards refugees under international law; • grant entry to those who qualify for periods of work in the UK; • maintain a fair, fast and effective entry clearance operation at UK posts

overseas; • give effect to the "free movement" provisions of European Community

law while retaining controls at frontiers, operated by a civilian Immigration Service;

• detect and remove those entering or remaining in the UK without authority and take firm action against those profiting from abuse of the immigration laws, including effective preventative measures; and

• grant applications for citizenship to those meeting the specified criteria.1 Secure Borders, Safe Haven, the 2002 white paper, took up many of the same themes:

We will develop our citizenship and nationality policy to create a supportive, safe and cohesive community. We will manage flows through legitimate entry routes, developing managed migration policies to attract the people we need to compete and prosper in the global economy in a manner consistent with our international commitment to eliminate world poverty and domestic commitment to achieve employment opportunities for all. We will develop our methods to counteract organised immigration crime and illegal working and crack down on those who undermine and abuse our system. And fundamental to our moral and humanitarian objectives we will develop a seamless asylum process which is clear from induction to integration or return.2

The implementation of these policies is reflected in a variety of measures:

1 Cm 4018, July 1998, para 2.3: http://www.archive.official-documents.co.uk/document/cm40/4018/4018.htm 2 CM 5387, February 2002, para 38: http://www.archive2.official-documents.co.uk/document/cm53/5387/cm5387.pdf


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• three pieces of primary legislation: the Immigration and Asylum Act 1999, the Nationality, Immigration and Asylum Act 2002 and the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004;

• dozens of regulations, orders and statements of changes to the Immigration Rules; • administrative and organisational changes; and • bilateral, international and European agreements.

The Government is now pursuing further change. The Home Office Strategic Plan 2004-08, Confident Communities in a Secure Britain,3 outlined how the Government was intending to take forward its policy on immigration and asylum. Some of the measures identified were:

• continuing to develop the approach to charging for applications; • targeting intelligence and information; and • implementing new electronic tracking systems and detection technologies.

Then seven months later, in February 2005, the Home Office published a more detailed “five year strategy for asylum and immigration”, entitled Controlling our borders: Making migration work for Britain.4 Its headline aim is to put in place “a fair but practical system of controls”,5 and its proposals were summarised in the accompanying press notice as follows:

On migration

• A transparent points system for those coming in to work or study. • Financial bonds for specific categories where there has been evidence of

abuse, to guarantee that migrants return home. • An end to chain migration - no immediate or automatic right for relatives

to bring in more relatives. • An end to appeals when applying from abroad to work or study. • Only skilled workers allowed to settle long-term in the UK and English

language tests for everyone who wants to stay permanently. • Fixed penalty fines for employers for each illegal worker they employ as

part of the drive against illegal working. On asylum

• Granting refugees temporary leave rather than permanent status to begin with, and keep the situation in their country under review.

3 Cm 6287, July 2004: http://www.homeoffice.gov.uk/docs3/strategicplan.pdf 4 Cm 6472: http://www.archive2.official-documents.co.uk/document/cm64/6472/6472.pdf 5 Home Office press notice, Controlling our borders: Making migration work for Britain. Charles Clarke

sets out five year Strategy for Immigration and Asylum, 7 February 2005: http://www.ind.homeoffice.gov.uk/ind/en/home/news/press_releases/controlling_our_borders.html


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• More detention of failed asylum seekers. • Fast-track processing of all unfounded asylum seekers, with electronic

tagging where necessary. • Strong border controls with fingerprinting of all visa applicants and

electronic checks on all those entering and leaving the country. • Removals of failed asylum seekers to exceed failed claims.

Few of these proposals require changes to primary legislation. Many could be introduced by amendments to the Immigration Rules or through regulations, including the new points system for workers and students coming to the UK and the changes to who is allowed to settle in the UK. Others – such as increased detention and removal of asylum seekers – may need only administrative changes. Immigration and asylum were major issues during the general election campaign in the spring of 2005. Labour’s manifesto promised all of the measures from its five-year plan listed above, plus ID cards for anyone staying more than three months and biometric ePassports and ID cards for UK citizens.6 Following Labour’s return to power, a new immigration and asylum bill was announced in the Queen’s Speech: “Further legislation will be introduced to tighten the immigration and asylum system in a way that is fair, flexible, and in the economic interests of the country.”7 The Immigration, Asylum and Nationality Bill [Bill 13 of 2005-06]8 was duly presented to the House of Commons on 22 June 2005, and is accompanied by Explanatory Notes9 and two partial Regulatory Impact Assessments from the Government.10 The Bill does not propose a complete overhaul of the immigration, asylum or nationality systems. Instead its provisions add to the existing legislation, and are largely intended to implement those aspects of the Government’s five-year immigration and asylum strategy which require primary legislation. It covers three main areas – appeals, employment of illegal workers and the provision and sharing of information including biometrics – as well as other measures relating to immigration searches, failed asylum seekers, refugees, fees and forms.

6 Labour party manifesto 2002, Britain: forward not back: http://www.labour.org.uk/fileadmin/manifesto_13042005_a3/flash/manifesto_2005.swf 7 HL Deb 17 May 2005 c6:

http://www.publications.parliament.uk/pa/ld199900/ldhansrd/pdvn/lds05/text/50517-01.htm#50517-01_head0

8 http://www.publications.parliament.uk/pa/cm200506/cmbills/013/2006013.htm 9 http://www.publications.parliament.uk/pa/cm200506/cmbills/013/en/06013x--.htm 10 Home Office Illegal Working Taskforce, Regulatory Impact Assessment for Immigration, Asylum and

Nationality Bill, 22 June 2005: http://www.homeoffice.gov.uk/docs4/Illegal_Working_RIA.pdf Home Office, Partial Regulatory Impact Assessment: Data Capture and sharing powers for the border

agencies, 22 June 2005: http://www.homeoffice.gov.uk/docs4/E_borders_RIA_Annex.pdf


10

Because immigration asylum and nationality are reserved matters, the Bill applies to the whole of the UK. Provisions relating to the police are restricted to reserved matters in Scotland. The Government has said that the whole Bill will be reviewed three years after introduction.11 B. Statistical background

The total number of passengers arriving at UK ports has risen over recent years, although this is largely accounted for by more British citizens travelling. As the chart below shows, in 1997, 78.6 million passengers arrived at UK airports and seaports. 16.2 million of these passengers were from other countries in the European Economic Area and 10.9 million from countries outside the EEA. In 2003, 90.7 million passengers arrived at UK ports (up by 15% compared to 1997), of which 15.1 million were from EEA states (down by 7%) and 12.2 million were from other countries overseas (up by 12%).

Passenger arrivals at ports of entry

51.5

57.158.8

60.9 61.1 62.163.4

16.2 15.8 15.6 15.3 14.2 14.6 15.1

10.9 11.5 12.0 13.0 12.8 12.6 12.2

0.0

10.0

20.0

30.0

40.0

50.0

60.0

70.0

1997 1998 1999 2000 2001 2002 2003

nu

mb

er o

f jo

urn

eys

(mill

ion

s)

British citizens Other EEA nationals Non-EEA nationals

In 2003, 12.2 million nationals of countries outside the European Economic Area arrived as passengers at UK ports of entry. 7.6 million (62%) of these passengers arrived as visitors. 2 8 million non-EEA nationals in 2003 were given leave to enter the UK after returning from a temporary absence abroad while a further 1.4 million were given leave as au pairs, refugees or other exceptional leave cases and their dependants, or were passengers in transit who were given temporary leave to enter. 319,000 passengers were given entry clearance as students, 119,000 as work permit holders, and 31,000 as a spouse

11 Home Office Illegal Working Taskforce, Regulatory Impact Assessment for Immigration, Asylum and

Nationality Bill, 22 June 2005, para 83: http://www.homeoffice.gov.uk/docs4/Illegal_Working_RIA.pdf


11

or a fiancée of a person resident or already settled in the UK. 3,000 non-EEA nationals were given clearance to enter the UK to pursue settlement here. More detail is given in the table below, and additional data relating to the number of passengers given leave to enter the UK by purpose of journey are provided in the Statistical Appendix. Passengers given leave to enter the United Kingdom by purpose of journey(1)

Visitors Students Work-permit Spouse or Accepted for

holders fiancee settlement(2)

1997 7,760 278 63 26 21998 8,040 266 68 32 21999 8,370 272 76 30 3

2000(5) 8,930 312 92 33 2

2001(5) 8,170 339 109 29 32002 7,850 369 120 30 32003 7,550 319 119 31 3

UK Others given Returning after Total

ancestry(3) leave to enter(4) temp absence1997 8 1,250 1,560 10,9481998 10 1,310 1,780 11,5091999 12 1,340 1,910 12,013

2000(5) 11 1,430 2,200 13,010

2001(5) 11 1,510 2,620 12,7912002 10 1,480 2,740 12,6022003 9 1,390 2,780 12,201

(1) Excludes EEA nationals

(2) Accepted for settlement on arrival: Excludes asylum-related cases given indefinite leave to enter;

these are included in ‘others given leave to enter’.

(3) Commonwealth citizens with a United Kingdom born grandparent who are taking or seeking employment.

(4) Includes ‘passengers in transit’, ‘au pairs’, and ‘refugees, exceptional leave cases and their dependants’

and 38,000 journeys made 2003 for which the category of admission is unknown.

(5) A change in procedures may have resulted in some under-recording for the fourth quarter of 2000

and the first quarter of 2001.

Source: Home Office Control of Immigration Statistics: United Kingdom 2003 (2004)

Passengers admitted by purpose of journey (thousands)


Not everyone who arrives at the border is allowed into the UK. As the following table shows, in 2003, 38,110 persons were refused entry at UK ports and subsequently removed, accounting for around one in every 1,600 passenger arrivals, or one in every 700 non-British passengers arriving at UK ports. 8% of those refused entry and removed were asylum seekers. A further 19,630 persons were removed as a result of enforcement action taken against them, usually while in the UK, of which 8,270 (or 42%) were asylum seekers:


12

Passenger arrivals at ports of entry and removals(1)(2), 1997 to 2003

British Other EEA Non-EEA Total(2) Total of whom: Total of whom:

citizens(2) nationals(4)(7) nationals(8) asylum seekers(5) asylum seekers(5)

1997 51.5 16.2 10.9 78.6 24,535 4,105 6,610 3,0601998 57.1 15.8 11.5 84.4 27,605 3,540 7,320 3,4501999 58.8 15.6 12.0 86.4 31,295 4,860 6,440 2,755

2000(6) 60.9 15.3 13.0 89.2 38,275 5,440 7,820 2,990

2001(6) 61.1 14.2 12.8 88.1 37,865 4,175 10,290 4,1302002 62.1 14.6 12.6 89.3 50,360 3,730 14,200 6,1152003 63.4 15.1 12.2 90.7 38,110 2,980 19,630 8,270

(1) International arrivals from outside the Common Travel area (i.e. excluding arrivals from the Irish Republic, Channel Islands and the Isle of Man).

(2) Including airside transfer/transit passengers of all nationalities who did not pass through immigration control.

(3) Not necessarily in the same year as arrival.

(4) Includes people granted leave to enter the UK in the year shown but who may have been temporarily admitted in previous years.

(5) Persons who had sought asylum at some point, excluding dependants.

(6) A change in procedures may have resulted in some under-recording for the fourth quarter of 2000 and the first quarter of 2001.

(7) Includes Swiss nationals up to quarter 2 2002.

(8) From 1 June 2002 the EEA conferred on Swiss nationals the same rights as those enjoyed by EEA nationals and their family members.


Persons removed as a

result of enforcement action

Passenger arrivals Persons refused entry at

port and removed(3) (number)number of journeys (millions)

The comparison between people who were refused entry at a port and removed, and those who were removed after getting into the UK, is shown in this chart:

Persons removed at port of entry and after enforcement action

24,535

27,605

31,295

38,275 37,865

50,360

38,110

6,610 7,320 6,4407,820

10,290

14,200

19,630

0

10,000

20,000

30,000

40,000

50,000

60,000

1997 1998 1999 2000 2001 2002 2003

nu

mb

er r

emo

ved

Persons removed at port Persons removed after enforcement action

Additional data regarding the number of persons removed from the UK after enforcement action had been taken are provided in the Statistical Appendix. There is a particular focus of attention on the numbers of asylum seekers in the UK. As the following chart shows, the number of asylum applications rose consistently between 1996 and 2000, from 29,640 principal applicants in 1996 to 80,315 in 2000. In 2001, the


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number of applications fell by 10% to 71,025 – the first yearly reduction in applications since 1996. In 2002, the number of applications rose again, to 84,130, an increase of 18% compared to 2001, while in 2003 asylum applications fell by 41% to 49,405, the lowest since 1998. In February 2003, the Home Secretary had announced his “firm commitment to reducing the number of asylum claims to 50 per cent of their level immediately before the 2002 [Immigration, Nationality and Asylum] Act received Royal Assent”. In October 2002 there were 8,770 asylum applications and by March 2005 the monthly total of applications had fallen to 2,165. According to provisional data, 88% of all initial asylum decisions made in 2004 were refusals while 3% of all initial asylum decisions made that year resulted in the granting of refugee status. Also in 2004, 8% of principal applicants were granted either humanitarian protection or discretionary leave to remain:

Applications for asylum in the UK: 1986 to 2005principal applicants only

4,266 4,256 3,998

11,640

26,205

44,840

24,60522,370

32,830

43,965

29,64032,500

46,015

71,160

80,315

71,025

84,130

49,405

8,940 8,605 8,465 7,0157,920

-

10,000

20,000

30,000

40,000

50,000

60,000

70,000

80,000

90,000

1986

1987

1988

1989

1990

1991

1992

1993

1994

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

Q1

2004

Q2

2004

Q3

2004

Q4

2005

Q1

Data relating to the number of principal applications for asylum, and decisions, are provided in the Statistical Appendix.


14

II Appeals

Immigration and asylum appeals have been subject to a number of changes in recent years. For example, the Immigration and Asylum Act 1999 introduced the ‘one-stop’ appeal,12 the Nationality, Immigration and Asylum Act 2002 defined the specific ‘immigration decisions’ which attract an appeal right, and the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 introduced a new single-tier appeals system with limited access to the courts. The number of immigration and asylum-related appeals to adjudicators and the Immigration Appeals Tribunal has increased significantly over the last four years. The chart below shows the rise in appeals dealt with by adjudicators since 1997:

Immigration appeals dealt with by adjudicators, 1997 to 2004

34,96038,200

28,610 27,130

56,815

84,260

108,350 109,220

0

20,000

40,000

60,000

80,000

100,000

120,000

1997 1998 1999 2000 2001 2002 2003 2004

In 2001, adjudicators dealt with a total of 56,718 cases, of which 77% were asylum cases. By 2004, the number of cases dealt with had risen to 109,220 overall (an increase of 93%), although the proportion of asylum cases dealt with had fallen to 51%. 27% of cases dealt with in 2004 were related to immigration (e.g. settlement and work permits) while one-in-five appeals (21%) were concerned with (family) visitor visas. It remains the case that the vast majority of cases dealt with by the Immigration Appeals Tribunal (i.e. at the second stage of the appeals process) were from asylum seekers, either seeking leave to appeal or taking their case before a full hearing of the Tribunal. In 2004,

12 Appellants are expected to state all the reasons why they should be allowed to stay in the UK in one go,

otherwise they may not be able to raise them later.


15

a total of 48,490 cases were dealt with by the IAT, of which 30,519 (63%) were asylum-related cases seeking leave to appeal to the IAT, and a further 8,783 (18%) were asylum cases dealt with as full appeals to the Tribunal. A table showing the number of immigration appeals considered by both adjudicators and the Immigration Appeals Tribunal is provided in the Statistical Appendix. The costs of immigration appeals are now intended to be covered by immigration application fees.13 However, the Government is also seeking to limit the circumstances in which people can bring appeals. This Bill seeks to limit or remove the right of appeal against a number of immigration decisions, including against:

• refusal of entry clearance (with an exception for dependants and family visits by close relatives);

• refusal of leave to enter, either where people do not have prior entry clearance at all or because the purpose of their trip is not that specified in the entry clearance; and

• refusal to extend or to curtail existing permission to stay (this could however be raised at a subsequent appeal against a decision to remove the person).

These areas have been chosen “because the issues raised are less important”.14 A. Appeals against refusal of entry clearance

1. Current restrictions on entry clearance appeals

The Immigration Appeals Act 1969 and the Immigration Act 1971 granted rights of appeal against a wide range of immigration decisions, including refusal to grant entry certificates or visas. However, in 1993, the Asylum and Immigration Appeals Act 1993 removed appeal rights for rejected visitors and short-term students and for mandatory refusals (where an applicant did not possess either the requisite documents or the necessary age or nationality qualifications). Tony Blair, then Shadow Home Secretary, felt that this removed “a valuable and necessary constraint on those who exercise original jurisdiction”:

When a right of appeal is removed, what is removed is a valuable and necessary constraint on those who exercise original jurisdiction. That is true not merely of immigration officers but of anybody. The immigration officer who knows that his decision may be subject to appeal is likely to be a good deal more circumspect, careful and even- handed than the officer who knows that his power of decision is

13 Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 s42 14 Home Office, Controlling our borders: Making migration work for Britain, Cm 6472, para 33:

http://www.archive2.official-documents.co.uk/document/cm64/6472/6472.pdf


16

absolute. That is simply, I fear, a matter of human nature, quite apart from anything else.15

Then on 2 October 2000, following disquiet (particularly in the Asian and black communities) that family members were being refused visit visas and there was no appropriate remedy to address the refusals,16 the right of appeal against refusal of visit entry clearance for ‘family visitors’ was reinstated, under the Immigration and Asylum Act 1999. Originally fees of £500 for an oral hearing or £150 for an appeal without a hearing were charged,17 but in January 2001 these fees were reduced to £125 for an oral hearing and £50 for an appeal without a hearing.18 Then on 15 May 2002 the fees were abolished entirely.19 The current rules are set out in the Nationality, Immigration and Asylum Act 2002 and regulations made under it. “Refusal of entry clearance” is a general ground for appeal20 but this is subject to several exceptions. The following people cannot generally appeal against refusal of entry clearance:

• ‘non-family’ visitors (section 90); • short-term students and prospective students (section 90); and • anyone who is refused entry clearance because they do not have the requisite

documents or the necessary age or nationality qualifications, or because their application is not covered by the Immigration Rules (section 88).

People in the first two categories can however still appeal on race discrimination or human rights grounds. A person applying for entry clearance in order to visit a member of his family - in shorthand, a ‘family visitor’ - can generally appeal against refusal of entry clearance. This applies even if the applicant intends to do something else as well during the trip: legislation does not say that visiting a family member has to be the sole, main or primary purpose of the trip. “Member of the family” is defined in regulations:

(1) For the purposes of section 90(1) of the Nationality, Immigration and Asylum Act 2002, a “member of the applicant’s family” is any of the following persons—

15 HC Deb 2 November 2002 c43 16 Verity Gelsthorpe, Daniel Howard, Robert Thomas & Heaven Crawley, Family Visitor appeals: an

evaluation of the decision to appeal and disparities in success rates by appeal type, Home Office Online Report 26/03, p15

17 s60(5)(a) and Immigration Appeals (Family Visitor) (No 2) Regulations 2000, SI 2000/2446 18 Immigration Appeals (Family Visitor) (Amendment) Regulations 2001, SI 2001/52 19 Immigration Appeals (Family Visitor) Regulations 2002, SI 2002/1147 20 s82


17

(a) the applicant’s spouse, father, mother, son, daughter, grandfather, grandmother, grandson, granddaughter, brother, sister, uncle, aunt, nephew, niece or first cousin;

(b) the father, mother, brother or sister of the applicant’s spouse; (c) the spouse of the applicant’s son or daughter;

(d) the applicant’s stepfather, stepmother, stepson, stepdaughter, stepbrother or stepsister; or

(e) a person with whom the applicant has lived as a member of an unmarried couple for at least two of the three years before the day on which his application for entry clearance was made.

(2) In these Regulations, “first cousin” means, in relation to a person, the son

or daughter of his uncle or aunt.21 2. Entry clearance statistics

In 2003/04, entry clearance officers in visa processing centres around the world received 76,357 applications for settlement in the UK and 2.1 million non-settlement applications, of which 1.6 million were applications for visitor visas. Overall, 81% of settlement applications and 82% of non-settlement applications were approved. Detailed statistics regarding entry clearance applications by category, outcome and region for the year 2003/04 are provided in tables in the Statistical Appendix. 15% of the 2.2 million entry clearance applications received during 2003/04 were made in three visa offices in South Asia: 121,000 applications were received in Islamabad in Pakistan, while 113,500 applied in Mumbai (formerly Bombay) and 106,500 in New Delhi in India. Entry clearance: Total applications received,top 10 entry clearance posts, 2003/04

1 Islamabad, Pakistan 121,0982 Mumbai, India 113,5443 New Delhi, India 106,5894 Lagos, Nigeria 85,8775 Accra, Ghana 83,5806 Moscow, Russia 83,2007 Chennai, India 67,5998 Beijing, China 64,9129 New York, USA 52,89810 Istanbul, Turkey 51,231

Source: UK Visas

21 The Immigration Appeals (Family Visitor) Regulations 2003 SI 2003/518


18

The table below shows those entry clearance posts with the highest refusal rates for settlement and non-settlement applications in 2003/04. Entry clearance refusals by category:top 10 entry clearance posts, 2003/04

1 Kingston, Jamaica 42.6% 1 Kampala, Uganda 54.9%2 Lagos, Nigeria 42.3% 2 Accra, Ghana 53.7%3 Yaounde, Cameroon 38.8% 3 Ulaan Baatar, Mongolia 49.5%4 Tunis, Tunisia 37.5% 4 Kingston, Jamaica 43.8%5 Addis Ababa, Ethiopia 37.3% 5 Kathmandu, Nepal 41.1%6 Dakar, Senegal 35.7% 6 Yaounde, Cameroon 39.1%7 Tehran, Iran 34.0% 7 Harare, Zimbabwe 37.9%8 Kinshasa, Democ. Rep. Congo 33.4% 8 Rangoon, Myanmar 37.0%9 Casablanca, Morocco 32.9% 9 Tashkent, Uzbekistan 36.7%10 Dhaka, Bangladesh 31.7% 10 Banjul, Gambia 36.3%

Source: UK Visas

Settlement: refused Non-settlement: refused

In 2003, 21,000 principal applicants who had been refused entry clearance appealed to the immigration adjudicators, of which 11,000 (53%) were subsequently granted entry clearance. This ‘success’ rate (one-in-two) was considerably higher than for asylum and other immigration (i.e. non-entry clearance) appeals. One-third of non-asylum immigration decisions (33%) were overturned by adjudicators in 2003/04, while among asylum seekers the success rate at appeal was less than one-in-five (19%). Data on the outcome of appeals by broad category are provided in the table below, and additional data regarding appeals to immigration adjudicators and the Immigration Appeals Tribunal are provided in the Statistical Appendix.


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Outcome of appeals to immigration adjudicators, by broad category(1)

principal applicants

Total dealt with

number % number % number %All appeals1997 34,960 4,320 12.4% 25,850 73.9% 4,780 13.7%1998 38,200 5,200 13.6% 29,200 76.4% 3,700 9.7%1999 28,610 7,630 26.7% 17,350 60.6% 3,630 12.7%2000 27,130 5,960 22.0% 20,040 73.9% 1,120 4.1%2001 56,815 13,335 23.5% 42,160 74.2% 1,320 2.3%2002 84,260 21,910 26.0% 59,870 71.1% 2,480 2.9%2003 108,350 29,025 26.8% 76,330 70.4% 2,995 2.8%

Refusal of entry clearance(3)

1997 8,760 2,670 30.5% 4,110 46.9% 1,970 22.5%1998 7,600 2,200 28.9% 4,100 53.9% 1,200 15.8%1999 5,800 2,070 35.7% 3,280 56.6% 450 7.8%2000 6,650 2,360 35.5% 3,690 55.5% 600 9.0%2001 10,755 4,415 41.1% 5,910 55.0% 430 4.0%2002 16,295 6,980 42.8% 8,630 53.0% 685 4.2%2003 21,045 11,090 52.7% 9,070 43.1% 890 4.2%

Refusal of asylum1997 21,090 1,180 5.6% 18,150 86.1% 1,720 8.2%1998 25,300 2,400 9.5% 21,200 83.8% 1,800 7.1%1999 19,460 5,280 27.1% 11,130 57.2% 3,050 15.7%2000 19,400 3,340 17.2% 15,580 80.3% 480 2.5%2001 43,415 8,155 18.8% 34,440 79.3% 825 1.9%2002 64,405 13,875 21.5% 48,845 75.8% 1,685 2.6%2003 81,725 16,070 19.7% 63,810 78.1% 1,845 2.3%

Other non-asylum cases(4)

1997 5,150 480 9.3% 3,580 69.5% 1,100 21.4%1998 5,300 500 9.4% 3,900 73.6% 700 13.2%1999 3,350 280 8.4% 2,940 87.8% 130 3.9%2000 1,080 260 24.1% 770 71.3% 40 3.7%2001 2,640 765 29.0% 1,810 68.6% 65 2.5%2002 3,560 1,060 29.8% 2,395 67.3% 105 2.9%2003 5,580 1,865 33.4% 3,455 61.9% 260 4.7%

1) Figures for 1997, 1999, and 2000 rounded to the nearest 10, figures for 1998 rounded to the nearest 100

and figures for 2001 onwards are rounded to the nearest five

(2) Includes cases where the appellant withdrew the appeal because the Home Office had conceded the case,

as well as those where the appellant decided not to pursue the appeal further

(3) Including refusal of certificate of entitlement.

(4) After-entry into United Kingdom.

Data for 1999 onwards: Figures are estimates based on data supplied from the Department for Constitutional Affairs and the

Presenting Officers Unit in the Home Office


Allowed Dismissed Withdrawn (2)Outcome

A recent report gives figures supplied by the Immigration Advisory Service (IAS) for family visit and student entry clearance appeals allowed and dismissed by visa-issuing Post. The IAS said that, in appeals dealt with by their central London office in relation to


20

family visitors and students, they believed that the overwhelming majority were applying and being refused in the country of their nationality.

136. IAS has supplied me with data for family visit and student entry clearance appeals for two financial years, namely 2002-2003 and 2003-2004. This gives an overall success rate on appeal for IAS represented students of 38% in 2002/03 & 49% in 2003/04, and family visitors of 79% in 2002/03 & 83% in 2003/04. I examined success by nationality in this IAS sample. I excluded nationalities with less than 5 appeals in a year as unlikely to be statistically relevant. In relation to family visit appeals brought on behalf of Bangladeshi, Ghanaian and Indian appellants the success rate was over 90% in 2002/03. In 2003/04 there were six nationalities with more than five appeals with family visit success rates as follows:

Ghanaians 71%, Indians 79%, Bangladeshis 82%, Nigerians 83%, Algerians 88% and Filipinos 90%. In relation to student appeals in 2002/03 there was a very wide range of success rate. In relation to Zimbabweans and Poles it was only 9%, whereas Filipinos won in 71% and Sri Lankans in 66% of cases. In addition Nigerians, Kenyans and Nepalese all had success rates on student appeals above the IAS average. In 2003/04 the range of success rate for students went from 32% for Indians up to 88% for Nepalese. Chinese, Pakistanis and Sri Lankan students all had success rates above the IAS average of 49%.

137. Differences in refusal rates in different Posts may be justified by the quality of applications, but there should not be drastic differences in the percentages of appeals allowed and dismissed. A Post which had a high percentage of appeals allowed ought to be subject to investigation by UKvisas as I believe this would be an indication of poor decision-making. When a statistically relevant sample is available investigations should commence into the quality of decision-making at Posts which lose a high percentage of appeals. I believe that an appropriate initial marker for investigation would be where a Post has more than 24% of its decisions successfully appealed. If the IAS data transpires to be representative there is significant cause for concern in relation to the quality of decision-making in visit and student cases. It is also to be noted that three Posts with very high rates of refusal in non-settlement cases overall, namely Accra, Kathmandu and Beijing were also ones where their nationals had IAS success rates on appeal in student and visitor cases above the norm and well over 50%. This is suggestive of poor decision making at these Posts leading to high rates of refusal.22

3. Monitor for entry clearance refusals

From 1993 onwards, an independent monitor has submitted annual reports to Parliament about refusals of entry clearance in cases where there is no right of appeal.23 The current

22 Report by the Independent Monitor (Immigration And Asylum Act 1999) Fiona Lindsley, February 2005,

paras 136-7: http://www.fco.gov.uk/Files/kfile/IM%20report%202004.pdf


21

monitor, Fiona Lindsley of Hackney Community Law Centre, submitted her latest report in February 2005.24 The report identified a large increase in demand for visas, which has been met in part by “streamlined” processing, and an increase in the proportion of visa applications refused.25 The Independent Monitor also drew attention to the (in her view) unlawful denial of appeal rights to some family visitors and students:

Extrapolating from my file samples in 2002 and 2003 I calculate that 28,000 applicants have been wrongly denied rights of appeal in these two years… It is gravely concerning that 12% of those denied rights of appeal are not the applicants whom Parliament intended to be denied such a right. As mentioned above I urge Parliament to consider this when and if consideration is given to removing further rights of appeal...26

She listed the following parameters for how the right of appeal was being wrongly denied:

• Family visitors were being denied rights of appeal as the ECO failed to correctly recognise that the family member being visited was on the list of qualifying family members.

• Family visitors were being denied rights of appeal on the basis they were “not related as claimed” when this should be an issue within any appeal.

• Family visitors were being denied rights of appeal on the basis that the family member in the UK was not settled.

• Family visitors were being denied rights of appeal where they have a dual purpose to their visit to the UK.

• Students were being classified as on a course of six months or less simply because a module of their course lasted less than six months.27

After an analysis of the various grounds which are used to refuse entry clearance, her report sets out a suggested new format for decision-making, and supports the recommendation of a National Audit Office report published in June 2004 for a more explicit consideration of quality issues in the performance measurement framework of UKvisas, the joint Foreign Office/Home Office unit which runs the UK’s visa service through British diplomatic posts overseas.28

23http://www.ukvisas.gov.uk/servlet/Front?pagename=OpenMarket/Xcelerate/ShowPage&c=Page&cid=10

06977150169 24 Report by the Independent Monitor (Immigration And Asylum Act 1999) Fiona Lindsley, February 2005:

http://www.fco.gov.uk/Files/kfile/IM%20report%202004.pdf 25 paras 15-19 26 paras 10 and 45 27 para 46 28 para 121


22

The Independent Monitor also recommends that applicants abroad have better access to good-quality, accurate advice and suggests other ways of improving quality control.29 She was not convinced that the quality control mechanisms promised by the Government to ensure that decisions were of appropriate standards when certain entry clearance appeals were removed in 1993 had been fully applied.30 These were:

• provision of information to applicants; • a more detailed notice of refusal; • that a refusal will not prejudice a future application; • that complaints made to what is now UKvisas would lead to a review if possible

by a more senior officer, and further information would be considered by a different ECO; and

• that there would be a daily review of all such refusals by an ECM.31 The Monitor clearly viewed the appeals process as providing an important check on entry clearance decisions and highlighting where there might be difficulties:

I was particularly struck by the statistics for success in “paper” family visit appeals – it is to be noted that 38% of these are successful. These appeals represent simply a judicial reconsideration of the same papers which were before the ECO. Even if further papers are submitted with the appeal these are reviewed by the Post before the matter is forwarded to the UK for the appeal. It is alarming that in the more than one third of cases the decisions are found to be wrong. Further research by the National Audit Office showed that 20% of a sample of appeals they analysed were allowed because the Adjudicator disagreed with the ECOs assessment of the evidence and credibility of the applicant.32

She pointed out that, as one applicant stated in a letter to the British High Commission in Lagos, “The import of the denial of the visa to a qualified person is that, one may in future resort to use of fake papers/claims in case one is desperate for a visa”, and that forgery detection is an extremely expensive process.33 4. National Audit Office report

In June 2004, the National Audit Office published a report into the UK’s entry clearance operation.34 Although finding that, in the large majority of cases, UKvisas provides a

29 paras 123-7 30 para 122 31 HL Deb 16 February 1993 cc1041-2 32 para 132 33 para 134 34 NAO, Visa Entry to the United Kingdom, The Entry Clearance Operation, HC 367 of 2003 – 2004: http://www.nao.org.uk/publications/nao_reports/03-04/0304367.pdf


23

high quality of service to applicants and sponsors, there were some concerns about quality. For instance, there was no single measure of the quality of decision-making:

17 UKvisas has limited information to measure the quality of its decision-making. Entry clearance decisions are made on the balance of probabilities. This makes it difficult for UKvisas to measure whether fair and firm decisions are being made on a consistent basis and, as such, there is no single measure of the accuracy of decisions. UKvisas has a Public Service Agreement target to measure the quality of decisions, based on the number of visa holders who are subsequently refused entry at ports. But from 2000 the system was changed (paragraph 3) and entry checks at ports no longer test the entry clearance decision to the same degree.

The NAO was also concerned that the large number of successful appeals might reflect the quality of initial decisions:

19 There are lessons to be learned from the high proportion of successful appeals. Over the last three years, 50 per cent of appeals by applicants intending to visit family members in the United Kingdom have led to the initial decision being overturned. The provision of additional evidence which was not available to the entry clearance officer, and the support of the sponsor were often influential in the decision being overturned. But, in some cases, adjudicators raised concerns over the robustness of the original decision. The refusal decision is reviewed again by an entry clearance manager when the appeal is received, and both the initial and adjudicator's decision are based on the balance of probabilities. However, a more rigorous quality review and enhanced staff training would help to prevent borderline refusals reaching appeal.

It recommended that UKvisas should introduce new ways of measuring the quality of its decision-making:

UKvisas should improve the range of its performance information, particularly on the quality of its decision-making. UKvisas should analyse variations between posts on the types of application, refusal rates, and the outcome of appeals. This would provide UKvisas with more information on the accuracy and consistency of decisions, the impact of seasonal demand and the implementation of streamlining initiatives.35

5. The Bill

Under Clause 4 of the Bill, everyone would lose the right to appeal against refusal of entry clearance, unless they are:

35 ibid Executive Summary


24

• visiting a member of the family or coming to the UK as a dependant in prescribed circumstances (and the refusal was not based on failure to meet one of the specified provisions of the Immigration Rules); or

• appealing on race relations or human rights grounds. Regulations are expected to set tight limits on the definition of “member of the family” and the circumstances in which dependants could appeal, and to specify for which ‘prescriptive’ provisions of the Immigration Rules there would be no appeal against refusal.36 The Government also intends to remove oral hearings for family visits and deal with all appeals on papers only, and is reviewing whether to charge for these appeals.37 Under this new provision, anyone who applies for entry clearance as, say, a work-permit holder, a student or an Innovator, but is refused, would not be able to appeal except on very limited grounds. This would remove one level of checks on many of the decisions of entry clearance officers. The work of the Independent Monitor for entry clearance refusals would be extended,38 but she cannot make recommendations in individual cases, act as an alternative appeal system, or seek to have decisions in specific cases overturned. People who are refused entry clearance can apply again with more evidence, but a fee will be charged for each application. The courts have held that access to the immigration appeals system is a fundamental or constitutional right akin to the right of access to the courts.39 Article 6 of the European Convention on Human Rights, on the right to a fair trial, establishes that “in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” However, the Government considers that, because a right of appeal on Convention grounds is expressly preserved by the Bill, the restriction or removal of other appeal rights would not be incompatible with the Convention.40 B. Appeals against refusal of leave to enter the UK

In UK immigration, there is a distinction between ‘entry clearance’ and ‘leave to enter’. Entry clearance is applied for at British diplomatic posts overseas before travelling to the

36 Home Office, Explanatory Notes on the Immigration, Asylum and Nationality Bill, [Bill 13-EN], June

2005 para 20 37 Home Office, Controlling our borders: Making migration work for Britain, Cm 6472, para 34:

http://www.archive2.official-documents.co.uk/document/cm64/6472/6472.pdf 38 Home Office, Controlling our borders: Making migration work for Britain, Cm 6472, para 33:

http://www.archive2.official-documents.co.uk/document/cm64/6472/6472.pdf 39 R v Secretary of State, ex parte Saleem [2001] 1 WLR 443 40 Home Office, Explanatory Notes on the Immigration, Asylum and Nationality Bill, [Bill 13-EN], June

2005, para 135


25

UK. The most common type of entry clearance is a visa. Entry clearance now automatically operates as ‘leave to enter’ the UK, but immigration officers may also grant people leave to enter when they arrive in the UK without entry clearance. At the moment, if a person is refused leave to enter the UK at the border, this may give rise to appeal rights, but these rights may depend on the person’s entry clearance (or lack of it). Visitors, short-term students and prospective students (and their families) cannot appeal against refusal of leave to enter the UK if they did not get entry clearance before travelling.41 This applies even to non-visa nationals - i.e. people who do not need to get a visa to visit the UK. Even people with entry clearance can be turned away at the border in certain circumstances. Entry clearance now operates as leave to enter the UK, but that leave can be cancelled by an Immigration Officer on the grounds that the purpose of the person’s trip is not the same as that specified in the entry clearance.42 These people can appeal against the decision - but only once they have left the UK.43 Clause 5 of the Bill would broaden the list of people who cannot appeal against refusal of leave to enter because they did not have prior entry clearance. Instead of being only visitors and some students without entry clearance who cannot appeal in these circumstances, it would apply to everyone who arrived in the UK without entry clearance. In addition, anyone who arrived with entry clearance but was nevertheless refused entry on the grounds that the purpose of their trip is not that specified in the entry clearance would be denied any right of appeal - even from outside the UK.44 In both cases, however, an appeal on race discrimination, human rights or asylum grounds would remain. C. Appeals against refusal to extend or curtailing permission to stay

Clause 1 of the Bill would remove the right of appeal against most decisions to refuse to vary leave to enter or remain, or to curtail leave (except decisions relating to refugees). However, clause 3 would allow this negative decision to be taken into account if the person later appeals against removal. This would mean, for instance, that a student who

41 Nationality, Immigration and Asylum Act 2002 s89 42 Immigration Act 1971 Schedule 2 para 2A(2A) 43 Nationality, Immigration and Asylum Act 2002 s92, as amended by the Asylum and Immigration

(Treatment of Claimants, etc) Act 2004, s 28 44 Schedule 1 to the Bill amends section 92 of the 2002 Act to remove the reference to decisions which

would no longer be appealable.


26

applies for an extension of leave to finish a course but is refused would have no right of appeal until his case has gone as far as removal. At the moment, if a person applies to extend or vary their leave, their existing leave is deemed to continue (under the same conditions) not only while the application is being considered but also during any appeal against a negative decision. This is important, as the decision and appeals process may extend well beyond the date when the person would otherwise have had to leave the country. Clause 9 would mean that leave is no longer automatically continued throughout the appeals process. Section 82 of the Nationality, Immigration and Asylum Act 2002 made a similar elision of appeal rights, by providing a right of appeal against the principal decision to remove someone by way of directions rather than against the “subsidiary” decision to give removal directions. This change is reflected in clause 40 of the Bill, which provides that a person’s leave would be invalidated as soon as they have been notified of a decision to remove them (rather than being cancelled only later when removal directions were given).

III Employing illegal workers

While research into legal migration can draw on data from several large-scale sample surveys, finding for example that approximately £1.09 of taxes was contributed by migrants for every pound received as government expenditure,45 it is difficult to estimate the number of illegal migrants in the UK or whether they have a positive or negative effect on the economy. Provisional estimates from a recent study commissioned by the Home Office are expected to show that there are between 450,000 and 500,000 illegal migrants in the UK, but not all of these people will be working in the UK illegally.46 An answer to a parliamentary question from the Shadow Home Secretary David Davis MP confirmed the commissioning of Government research into the extent of illegal migration, and outlined some of the difficulties in providing such estimates.

David Davis: To ask the Secretary of State for the Home Department when his Department intends to provide an estimate of the number of illegal immigrants in the United Kingdom. [182235] Mr. Browne [holding answer 5 July 2004]: There is currently no method for estimating the number of illegal immigrants in the UK. The Government have commissioned research into the methods used in other countries to estimate the size of their illegal populations in order to define methods appropriate for the UK. Work on this is ongoing.

45 Home Office RDS Occasional Paper 77 The migrant population in the UK: fiscal effects (2002), p.iii 46 Sunday Times 500,000 illegal migrants, says Home Office (17 April 2005)


27

The work required is challenging because, by definition, illegal migrants fall outside of official statistics and are therefore difficult to measure. People illegally present in the UK are also motivated to ensure they remain hidden, which is a challenge to conducting research.47

A comparative study of methodologies used in sizing the illegal migrant population in other countries was published by the Home Office in 2004.48 Although there is an existing offence of employing illegal workers, it results in very few convictions. The Bill would introduce a new ‘civil penalty’ for employing illegal workers. This would stand alongside a strengthened criminal offence of knowingly employing a person who does not have the right to work in the UK. This is intended to differentiate between negligent employers and those who deliberately flout the law. Corporate bodies could be subject to either civil or criminal sanctions.49 Some background on the existing law and the proposed changes is set out in the Regulatory Impact Assessment and Race Equality Impact Assessment for this part of the Bill, prepared by the Government’s ‘Illegal Working Taskforce’.50 The Government intends to consult employers on the proposals during the passage of the Bill, and will also seek to consult small business in detail on the implementation of any changes.51 A. The existing offence

The Asylum and Immigration Act 1996 introduced a new offence of employing persons subject to immigration control who are not entitled to work in the UK. The offence can be committed by individuals, companies, directors, managers and other officers, and is punishable by a fine. It is committed by employing persons who are subject to immigration control (broadly speaking this means anyone except British citizens, Commonwealth citizens with the right of abode, EEA nationals and their non-EEA family members, and the family members of exempt persons such as diplomats) if:

• they have not been granted leave to enter or remain in the UK (e.g. clandestine entrants and those on temporary admission); or

• their leave is not valid and subsisting (e.g. overstayers); or

47 HC Deb 12 July 2004, c983w 48 Home Office Sizing the illegally resident population in the UK (2004) http://www.homeoffice.gov.uk/rds/pdfs04/rdsolr5804.pdf 49 Home Office Illegal Working Taskforce, Regulatory Impact Assessment for Immigration, Asylum and

Nationality Bill, 22 June 2005, Annex A: http://www.homeoffice.gov.uk/docs4/Illegal_Working_RIA.pdf

50 22 June 2005: http://www.homeoffice.gov.uk/docs4/Illegal_Working_RIA.pdf 51 Home Office Illegal Working Taskforce, Regulatory Impact Assessment for Immigration, Asylum and



28

• their leave is subject to a condition precluding that employment (e.g. visitors, who are prohibited from any employment, or work permit holders who cannot change jobs without permission from the Home Office).

It is a ‘strict liability’ offence, so the prosecution does not need to prove that the employer knew the employee was ineligible to work. But nor does the employer have to prove that he believed the employee was entitled to work. A ‘statutory defence’ is available to employers who check and copy certain specified documents belonging to the employee. The documents which would meet the requirements of the statutory defence were changed on 1 May 2004, following a period of consultation.52 The defence is not available if the employer knows that a person who is working for him is not permitted to do the job in question.53 The maximum penalty on conviction is now a fine of £5,000 in the magistrates’ court or an unlimited fine in the Crown Court.54 There have not yet been any prosecutions in the Crown Court.55 B. Convictions

The number of persons proceeded against for offences relating to the employment of people subject to immigration control has remained low, at least relative to other kinds of criminal offence.

An answer to a parliamentary question from David Davis identified that of the two people proceeded against for employing illegal migrants in 2003, one was found guilty:

David Davis: To ask the Secretary of State for the Home Department how many prosecutions have been carried out against employers for employing illegal workers in each year since 1993. [203482] Mr. Browne: The latest available information on the number of persons proceeded against and those found guilty under section 8 of the Immigration and Asylum Act 1996 is shown in the table.

52 The Immigration (Restrictions on Employment) Order 2004, SI 2004/755. See Home Office,

Comprehensive guidance for United Kingdom employers on changes to the law on preventing illegal working, 2004:

http://www.ind.homeoffice.gov.uk/ind/en/home/0/preventing_illegal.Maincontent.0014.file.tmp/guidance_on_changes_to_law_on_preventing_illegal_working.pdf

53 Asylum and Immigration Act 1996 s8(3) 54 since 1 October 2004: Asylum and Immigration (Treatment of Claimants, etc) Act 2004, s 6(1). 55 Home Office Illegal Working Taskforce, Regulatory Impact Assessment for Immigration, Asylum and



29

Number of persons proceeded against and those found guilty of offences under section 8 of the Asylum and Immigration Act 1996, England and Wales 1997 to 2003

Offence description(86) Statute Year

Persons(86)

proceeded against

Persons(86)found guilty

Employing a person subject to immigration

Asylum and Immigration Act 1996

1997 (87)— (87)—

control who has attained the age of 16.

section 8 1998 1 1

1999 4 12000 10 42001 5 1

2002 2 1(88)2003 2 1

________________________________________________________________________________________ (86) Principal immigration offence (87) Not applicable (88) Provisional figures

Section 8 of the Asylum and Immigration Act 1996 first introduced the offence of employing illegal migrant workers and it came into force on 27 January 1997. No figures are therefore available for the years prior to this date.56

Some additional data were provided in the Illegal Working Taskforce’s Regulatory Impact Assessment on the Bill, which also found that prosecution rates for offences relating to the employment of illegal migrant workers “remain low”.57

56 HC Deb 10 January 2005, c308w 57 Home Office Illegal Working Taskforce, Regulatory Impact Assessment for the Immigration, Asylum

and Nationality Bill (22 June 2005), available online at : http://www.homeoffice.gov.uk/docs4/Illegal_Working_RIA.pdf


30

Successful section 8 prosecutions against illegalworking operations and illegal migrant workers detected

Successful Successful illegal workersprosecutions operations detected

1998 1 … …1999 1 … …2000 4 … …2001 1 … …2002 1 … …2003 1 390 1,7792004 8 1,098 3,332

Source: Home Office Illegal Working Taskforce, Regulatory Impact Assessment for Immigration, Asylum and Nationality Bill (2005) The report also found that the courts “continue to impose fines far below the maximum” [of £5,000]. The highest fine imposed following recent prosecutions was £2,050.58 C. New civil penalties

The Government considered whether it should simply enforce the existing law more rigorously, but concluded that a civil penalty scheme allowing on-the-spot fines would be more effective.59 The Bill therefore introduces a new system of civil penalties for employing illegal workers (clauses 11-16). It would apply in much the same circumstances as the current criminal offence, and is intended to catch those who are negligently rather than deliberately using illegal labour:

• there would be a defence if the employer checked, copied and retained specified documents;

• the defence would not apply if the employer knew that the employee was not allowed to do the work in question; and

• the burden of proof would be on the employer to show that he complied with the required checks etc. rather than on the Home Secretary to prove that the employer knew the employment was unlawful.60

The maximum penalty is likely to be £2,000 per illegal worker,61 although it will not be a fixed amount.62 This is less than the current maximum of £5,000 but more than the

58 ibid, pp.3-4 59 Home Office Illegal Working Taskforce, Regulatory Impact Assessment for Immigration, Asylum and

Nationality Bill, 22 June 2005: http://www.homeoffice.gov.uk/docs4/Illegal_Working_RIA.pdf 60 Home Office Illegal Working Taskforce, Regulatory Impact Assessment for Immigration, Asylum and

Nationality Bill, 22 June 2005, paras 21 and 35: http://www.homeoffice.gov.uk/docs4/Illegal_Working_RIA.pdf


31

average level of fine currently being imposed in the courts. It is also the same as the current maximum fine under the civil penalty scheme for transport companies who bring clandestine entrants into the UK,63 which generated a total of £7.6 million in 2003.64 The Government would consult on how mitigating factors - such as co-operation with the authorities - might reduce the penalty.65 The fine would be imposed by immigration officers on the spot,66 and because the money would go directly to the Treasury rather than the Home Office, the Illegal Working Taskforce felt that there would be no improper financial incentive to immigration officers to issue penalties.67 A previous civil penalty scheme, under the carriers’ liability legislation, was found by the courts to be unlawful, amongst other reasons because the penalty was fixed and there was no right of independent appeal.68 That legislation has been changed as a result,69 and the Government has apparently taken into account the criticisms of the court when formulating this new civil penalty scheme. The Explanatory Notes set out those factors the Government thinks should safeguard against incompatibility with Article 6 of the European Convention on Human Rights (right to a fair trial), including having a code of practice on setting the amount of the (flexible) penalty and having a right of appeal to the courts as well as to the Secretary of State.70 One new aspect of the proposed scheme is that employers would have a continuing requirement to check and copy documents. The details would be set in regulations,71 but the proposal is that:

• for UK and EEA nationals, and for people with Indefinite Leave to Remain in the UK, the requirements would have to be checked only at the point of recruitment (as at present); but

• for those with only limited leave the checks would have to be made every 12 months.72

61 Controlling our borders, para 61 62 Home Office, Explanatory Notes on the Immigration, Asylum and Nationality Bill, [Bill 13-EN], June

2005, para 138 63 Immigration and Asylum Act 1999 s32, and Carriers’ Liability Regulations 2002, SI 2002/2817 64 HC Deb 24 February 2004, c370w 65 Home Office Illegal Working Taskforce, Regulatory Impact Assessment for Immigration, Asylum and

Nationality Bill, 22 June 2005, para 44: http://www.homeoffice.gov.uk/docs4/Illegal_Working_RIA.pdf 66 Home Office Illegal Working Taskforce, Regulatory Impact Assessment for Immigration, Asylum and


Nationality Bill, 22 June 2005, para 81: http://www.homeoffice.gov.uk/docs4/Illegal_Working_RIA.pdf 68 International Transport Roth GmbH and ors v Secretary of State for the Home Department [2002]

EWCA Civ 158 69 see now Immigration and Asylum Act 1999 s32, and Carriers’ Liability Regulations 2002, SI 2002/2817 70 Home Office, Explanatory Notes on the Immigration, Asylum and Nationality Bill, [Bill 13-EN], June

2005, para 138 71 under clause 11(3), as elaborated on by clause 11(7) 72 Home Office, Explanatory Notes on the Immigration, Asylum and Nationality Bill, [Bill 13-EN], June

2005, para 137


32

This is intended to deter employers from continuing (knowingly or unknowingly) to employ a person after their leave has expired,73 and to give employers some of the responsibility for ensuring that migrants comply with the requirements of their leave.74 It would not operate retrospectively, so employers would not face new duties in respect of individuals they currently employ.75 Other advantages put forward by the Illegal Working Taskforce for the new civil penalties scheme are that it would cost considerably less than prosecutions and would result in an improved compliance rate.76 The civil penalty scheme will be reviewed once it has been in force for a year.77 D. New offence

In addition to the new civil penalty aimed at negligent employers, clauses 17-18 of the Bill would replace the existing criminal offence of employing an illegal worker with a new, strengthened offence of knowingly employing an illegal worker. The new offence is aimed at those who deliberately use illegal migrant labour.78 The main differences from the old offence are that under clause 17:

• the employer would have to know that the employee is subject to immigration control and prohibited from doing that work;

• the prosecution would have to prove this beyond reasonable doubt - it would no longer be a strict liability offence;

• the statutory defence (of having checked and copied documents) would be removed – it would now apply only to the civil penalty; and

• imprisonment would now be an option, on conviction in either the Crown Court or the magistrates’ courts.

The maximum penalty for this offence would be two years’ imprisonment and/or an unlimited fine (in the Crown Court) or 12 months’ imprisonment and/or a £5,000 fine (in the magistrates’ courts).

73 Home Office Illegal Working Taskforce, Regulatory Impact Assessment for Immigration, Asylum and

Nationality Bill, 22 June 2005, para 20: http://www.homeoffice.gov.uk/docs4/Illegal_Working_RIA.pdf 74 ibid para 34 75 Home Office Illegal Working Taskforce, Regulatory Impact Assessment for Immigration, Asylum and


Nationality Bill, 22 June 2005, paras 28-29: http://www.homeoffice.gov.uk/docs4/Illegal_Working_RIA.pdf

77 Home Office Illegal Working Taskforce, Regulatory Impact Assessment for Immigration, Asylum and Nationality Bill, 22 June 2005, para 83: http://www.homeoffice.gov.uk/docs4/Illegal_Working_RIA.pdf

78 Home Office Illegal Working Taskforce, Regulatory Impact Assessment for Immigration, Asylum and Nationality Bill, 22 June 2005, para 32: http://www.homeoffice.gov.uk/docs4/Illegal_Working_RIA.pdf


33

IV Border agencies’ information

The third part of the Bill, headed ‘Information’, concerns the powers of the border agencies to collect and share information, including fingerprint and biometric data, contained in passports, visas and carriers’ databases. The proposed measures include:

• a new power to require people to provide biometric information on arrival in the UK;

• more powers to require people to have their fingerprints taken for immigration purposes;

• allowing UK ID cards to be used as travel documents; • new powers for the border agencies (immigration, police and revenue and

customs) to obtain personal information about passengers, crew and freight from carriers;

• a new provision compelling the border agencies to share the information they hold amongst themselves and allowing them to share it with security services and foreign law enforcement agencies; and

• allowing police officers, customs officers and also private-sector contractors to carry out searches for people whom an immigration officer might want to examine.

Many of these provisions are intended to contribute to the Government’s goal of increased co-operation and more use of technology amongst the UK’s border agencies. They are driven by the Government’s concerns about serious and organised crime, terrorism and illegal immigration. The UK is by no means alone in its interest in using biometrics and increased data sharing for immigration control – indeed, the Government has suggested it has been forced into this position by developments in the United States and the EU in particular. Developments in the acquisition and sharing of personal data for immigration purposes can also be seen in the context of the increasing number of databases of personal information held in the UK. A. Overview of border control developments

1. UK

The 2004 White Paper One Step Ahead - a 21st century strategy to defeat organised crime79 identified a need for the UK’s border agencies (the UK Immigration Service, National Ports Police and HM Revenue and Customs) to work together more effectively 79 Cm 6167, March 2004: http://www.homeoffice.gov.uk/docs3/whitepaper_consultation_intro.html


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“to enhance border security in the wake of prevailing levels of threat to UK homeland security”.80 It does not propose a single border agency. A new Border Management Programme has been set up to coordinate strategy, and one of the main areas this is looking at is data capture and sharing. In parallel with this is the Government’s e-Borders Programme, intended to provide the border agencies with enhanced information about passengers and their movements and allow to them to communicate this information through new technology, processes and procedures:

We will use new technology to create a fully integrated control before entry to the UK, at our borders and insider the UK. We will fingerprint everyone when they apply for a visa. Through the e-Borders programme (described at Annex 1) these fingerprints as well as information in travel documents and airline booking information will be checked against UK databases of those who present a known immigration or security threat. […] The e-Borders technology will also mean that people’s departure from the country is recorded.81

The Programme is described in Annex 1 to Controlling our borders.82 A central aim is to collect arrivals and departure information routinely and comprehensively, together with immigration status and other passenger details, on a database which can be checked and “profiled” by entry clearance officers and border agencies. Profiling involves running a series of pre-defined profiles against the data received, looking for elements which “tell a story” that may point towards a suspect individual.83 Information would be retained “for a reasonable time” so that it can be used as an investigative tool.84 Two projects are already being rolled out under the e-Borders programme:

• Project Semaphore (2004-2008): capturing passenger information on ten routes to the UK and matching this against “watch lists” from the UK intelligence services, police and revenue and customs; scoring Passenger Name Records (PNR) against risk profiles; and monitoring movements into and out of the UK by passengers on selected airlines and routes. A report on its operation is due in the autumn of 2005.85

80 Home Office, Partial Regulatory Impact Assessment: Data capture and sharing powers for the Border

Agencies, June 2005, para 21: http://www.homeoffice.gov.uk/docs4/E_borders_RIA_Annex.pdf 81 Home Office, Controlling our borders: Making migration work for Britain, Cm 6472, February 2005,

paras 62-3: http://www.archive2.official-documents.co.uk/document/cm64/6472/6472.pdf 82 Home Office, Controlling our borders: Making migration work for Britain, Cm 6472, February 2005: http://www.archive2.official-documents.co.uk/document/cm64/6472/6472.pdf 83 Home Office, Race Equality Impact Assessment: Data capture and sharing powers for the Border

Agencies, June 2005: http://www.homeoffice.gov.uk/docs4/E_borders_RIA_Annex.pdf 84 Home Office, Partial Regulatory Impact Assessment: Data capture and sharing powers for the Border

Agencies, June 2005, para 24: http://www.homeoffice.gov.uk/docs4/E_borders_RIA_Annex.pdf 85 Home Office, Partial Regulatory Impact Assessment: Data capture and sharing powers for the Border

Agencies, June 2005, para 59: http://www.homeoffice.gov.uk/docs4/E_borders_RIA_Annex.pdf


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• Project IRIS (2005 onwards): introducing an Iris Recognition System with biometrically-controlled automatic gates to allow passengers who have enrolled their iris pattern data to go through immigration control simply by looking into a camera.86

A new ‘e-Borders Operations Centre’ is envisaged eventually to operate and enforce this system.87 For the time being a Joint Border Operations Centre will be staffed by representatives of the police, customs, immigration service and visa service.88 There is also a separate HM Revenue and Customs e-Frontiers Progamme, under which electronic information from carriers about freight can be matched against risk profiles and other information databases before arrival. This is being trialled at the ports of Dover, Harwich and Immingham.89 An overarching objective of the Government is to “export our border”90 - in other words to stop people travelling to the UK in the first place instead of having to remove them once they have arrived. Measures reflecting this include:

• ‘juxtaposed’ UK immigration controls at ports in France and Belgium; • deployment of a network of ‘airline liaison officers’ to work with carriers overseas

to prevent undocumented passengers reaching the UK; and • increasing use of pre-entry controls and intelligence.

The Government is considering whether to charge passengers a fee to cover the costs of e-Borders technology and processing.91 2. EU

It is illuminating to compare UK developments on border controls with those in the EU. Even those measures which the UK has chosen not to be bound by have some impact on policy and practice in the UK.

86 Home Office, Controlling our borders: Making migration work for Britain, Cm 6472, February 2005,

Annex 1: http://www.archive2.official-documents.co.uk/document/cm64/6472/6472.pdf. See also: http://www.ind.homeoffice.gov.uk/ind/en/home/applying/iris.html 87 Home Office, Partial Regulatory Impact Assessment: Data capture and sharing powers for the Border

Agencies, June 2005, para 13: http://www.homeoffice.gov.uk/docs4/E_borders_RIA_Annex.pdf 88 Home Office, Controlling our borders: Making migration work for Britain, Cm 6472, February 2005,

Annex 1: http://www.archive2.official-documents.co.uk/document/cm64/6472/6472.pdf 89 HM Revenue and Customs, Spring Departmental Report 2005, Cm 6542 June 2005 p19 90 Home Office, Partial Regulatory Impact Assessment: Data capture and sharing powers for the Border

Agencies, Annex C “Immigration Service powers to acquire passenger and crew data”, June 2005: http://www.homeoffice.gov.uk/docs4/E_borders_RIA_Annex.pdf 91 Home Office, Partial Regulatory Impact Assessment: Data capture and sharing powers for the Border

Agencies, June 2005, para 38: http://www.homeoffice.gov.uk/docs4/E_borders_RIA_Annex.pdf


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A communication from the European Commission in May 2002 on the integrated management of external borders (the UK does not take part in this) explains that Member States currently have a wide variety of mechanisms for dealing with border control:

12. Who guards the borders of the Member States of the European Union?

Article 6 of the Schengen Convention provides that checks in accordance with uniform principles are carried out “within the scope of national powers and national law and taking account of the interests of all Contracting Parties”. The result is that each Member State is free to entrust checks and surveillance at external borders to the authorities of its choice, according to its own national structures. These missions are entrusted in certain states to a single body and in other states to several bodies reporting to different government departments. Coordination between these various services is done either at central national level or at regional level, as recommended by the “EU Schengen Catalogue (Recommendations and Best Practice)”.

13. The nature of the missions entrusted by the Member States to the various national authorities present at external borders entails a wide range of activities. Each national service of a Member State does not always have an exact counterpart in another Member State engaging in the same tasks and exercising the same powers of enforcement, prevention or investigation. […]92

A common manual on external borders comprises a set of operational instructions on the conditions for entering the Schengen area and detailed procedures and rules for carrying out checks.93 A recent EC Regulation establishes a European Border Control Agency.94 The Commission and the Council have also mooted the idea of a unified European Corps of Border Guards,95 though this idea is still a long way off. The House of Lords Select Committee on the European Union has published a report on this, entitled Proposals for a European Border Guard,96 which was debated in the House of Lords on 8 January 2004.97

92 Towards Integrated Management of the External Borders of the Member States of the European Union

COM (2002) 233, 7 May 2002, paras 12-13: http://www.statewatch.org/news/2002/may/COM233.7-5-02.doc

93 see http://europa.eu.int/comm/justice_home/doc_centre/freetravel/acquis/doc_freetravel_acquis_en.htm 94 Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for the

Management of Operational Cooperation at the External Borders of the Member States of the European Union http://europa.eu.int/eur-lex/lex/LexUriServ/LexUriServ.do?uri=CELEX:32004R2007:EN:HTML

95 European Commission Communication, Towards Integrated Management of the External Borders of the Member States of the European Union COM (2002) 233, 7 May 2002; European Council Plan for the management of the external borders of the Member States, Council document 10019/02, 14 June 2002

96 29th Report, Session 2002–03, HL Paper 133 97 HL Deb 8 Jan 2004 cc351-68


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The European Commission has proposed a new regulation establishing a Community Code on the rules governing the movement of persons across borders.98 According to the European Parliament’s Daily Notebook for 23 June 2005:

The regulation includes several rules to ensure stricter and more effective controls at external borders (art. 6). All individuals - EU citizens and third country nationals - will undergo minimum checks of their identity and their documents. “On a non-systematic basis”, border guards may consult national and European databases to “ensure that a person does not represent a real (...) danger to internal security.”99

One of the results of removing internal borders in the Schengen area is the need for increased cooperation and coordination between police, intelligence, immigration and customs services within the area, for example to alert each other to people refused admission (as well as people wanted for arrest, etc. and stolen objects including identity documents). The main tool for this is the ‘Schengen Information System’ (SIS), a complex database that enables the law-enforcement, judicial and consular authorities of EU Member States to exchange data on certain categories of persons and on lost or stolen goods. It went online in March 1995. At the moment the SIS is simply a reporting system to which those national authorities of (now) 13 of the Member States have access. However, it is soon to be replaced by two new databases: the second generation ‘SIS II’ and a new Visa Information System (VIS). A contract for these systems to be developed together was signed in September 2004, as they will share a common platform and a centralised architecture. The ten new Member States and the UK and Ireland will participate (though the UK and Ireland will not have access to the immigration data in SIS II or VIS),100 and access will be extended to Europol, Eurojust and national prosecutors. Biometric identification data (photographs and fingerprints) will be included in both databases, with a search facility to allow fingerprints or photographs from crime scenes or suspects to be checked against SIS II. Alerts (whether on individuals or stolen objects) may be linked together. There would be new provisions on the exchange of police and criminal law data with third countries and international organisations. A Statewatch analysis suggests that the new functionalities will allow SIS II to be used as an investigative tool, enabling speculative searches (so-

98 COM(2004)0391: http://europa.eu.int/eur-

lex/lex/LexUriServ/site/en/com/2004/com2004_0391en01.pdf . The status of this document can be tracked at: http://europa.eu.int/prelex/detail_dossier_real.cfm?CL=en&DosId=191191

99 European Parliament Daily Notebook, 23 June 2005: http://www2.europarl.eu.int/omk/sipade2?PUBREF=-//EP//TEXT+PRESS+DN-20050623-

1+0+DOC+XML+V0//EN&LEVEL=2&NAV=S 100 see Council Decision of 29 May 2000 concerning the request of the United Kingdom of Great Britain

and Northern Ireland to take part in some of the provisions of the Schengen acquis (2000/365/EC): http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=EN&numdoc=32000D0365&model=guichett


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called ‘fishing expeditions’) in which people registered on the SIS will form a key suspect population.101 At the end of May 2005, having already awarded the tender to set up SIS II, the European Commission proposed substantive legislation on SIS II. It consists of:

• an EC Regulation on the immigration law aspects of the SIS102 • an EU Decision covering the use of SIS for policing and criminal law data;103 and • another EC Regulation governing the access to SIS data by vehicle registration

authorities.104 Professor Steve Peers of the University of Essex is deeply critical:

Given this non-existent democratic scrutiny, dubious financial accountability, unjustified extensions of access to data and ambiguous provisions on data protection and the grounds for people to be banned from the entire Schengen area, these proposals represent another step in the construction of a European ‘surveillance society’.105

People can ask to see the information held on them in the SIS, but the authorities are given wide-ranging discretion to refuse such requests.106 One of the concerns is that the broad powers to register people as ‘illegal aliens’ to be refused entry (art 96) - which do not require them to have committed any criminal offence – are unevenly applied and mean that thousands of people are effectively excluded from Western Europe.107 B. Passports

There is a growing international consensus that passports should contain biometric information. A biometric identifier is an electronic record of a person’s unique physical characteristic such as facial features, iris pattern or fingerprints.108 It can be contained in a chip in, say, a passport or ID card, and/or in a database of personal information and has three potential uses in such contexts:

101 Ben Hayes, SIS II: fait accompli? Construction of EU’s Big Brother database underway, May 2005: http://www.statewatch.org/news/2005/may/sisII-analysis-may05.pdf 102 COM (2005) 236 final 103 COM (2005) 230 final 104 COM (2005) 237 final 105 Steve Peers, Statewatch analysis: The SIS II proposals, June 2005:

http://www.statewatch.org/news/2005/jun/sisII-proposals-june05.pdf 106 Schengen Convention (OJ 2000 L 239) article 109: http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=EN&numdoc=42

000A0922(02)&model=guichett 107 see Statewatch news, Three-quarters of a million “illegal aliens” banned from Schengen area, April

2005: http://www.statewatch.org/news/2005/apr/08SISart96.htm 108 For more information see Library Standard Note SN/SC/3325, Biometrics: electronic identification


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• ensuring a unique identity by checking to prevent duplicate applications • verifying that the person presenting the document is the person to whom it is

issued; and • checking the identity on the card against a ‘watch list’ of a selection of facial, iris

or fingerprint images.109 The International Civil Aviation Organization (ICAO) began research on biometric passports in 1995, and has now developed a set of international recommendations for the development and specification of globally interoperable biometric standards. These simply require the inclusion of a digital (or digitised) photograph embedded on a chip in the passport.110 Other biometric data are optional, and there is no requirement for databases of biometric information behind the passports. The USA-PATRIOT Act, passed in response to the events of September 11 2001, signalled new requirements for biometric information to be provided by those seeking to go to the US. In particular, countries wishing to stay in the visa waiver programme will have to start issuing biometric passports in line with the ICAO recommendations (i.e. with a digital photograph embedded on a chip).111 Following international pressure, the deadline for this has recently been extended to October 2006.112 The EU has decided to standardise all EU passports, so that all Member States’ passports issued after August 2006 contain not only a digitalised facial image of the holder but also - in a late addition to the draft regulation - mandatory fingerprints from February 2008.113 This goes beyond requirements of the US and the ICAO. The UK is not bound by this Regulation, though it wanted to take part.114

109 Annabella Wolloshin, The biometrics behind the Bill: an overview of the technology and identity cards,

Justice Journal 2005 vol 2 no 1 p72 at 73 110 Available on the ICAO website (www.icao.int/mrtd) in the Download Center section. 111 Enhanced Border Security and Visa Entry Reform Act 2002, ss303 and 307. For more information see

the US State Department website: http://travel.state.gov/visa/temp/without/without_1990.html 112 US Department of State press release, DHS to require digital photos in passports for visa waiver

travellers, 15 June 2005 113 Council Regulation (EC) No 2252/2004 of 13 December 2004 on standards for security features and

biometrics in passports and travel documents issued by Member States: http://europa.eu.int/eur-lex/lex/LexUriServ/site/en/oj/2004/l_385/l_38520041229en00010006.pdf 114 see unilateral statement from the United Kingdom, doc. No. 15918/04, 9 December 2004: “The United

Kingdom recalls that, under the Protocols on the position of the United Kingdom and Ireland and on integrating the Schengen acquis into the framework of the European Union, it has the right to take part in the adoption of this measure. It regrets that it has been denied that right. The adoption of this measure is without prejudice to the United Kingdom’s legal position, and its right to take such legal steps in accordance with that position as it considers necessary”.


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The LSE’s Identity Project Report (June 2005) sets out what other countries including Denmark, Germany, Ireland, the US and New Zealand are doing on biometric passports, and mentions the data protection problems raised in Germany and Greece.115 The UK Passport Service (UKPS) is aiming to introduce biometric information into passports as part of a wider strategy which includes:

• using ‘biometric’ (e.g. facial photograph, fingerprints and/or iris scan), ‘attributed’ (e.g. place and date of birth and parents’ details) and ‘biographical’ information (e.g. address history);

• using Omnibase, which provides secure access to passport information for British embassies and High Commissions as well as “other government departments”, to detect and prevent fraudulent applications and the abuse of issued passports; and

• increased data-sharing with public- and private-sector organisations to combat identity fraud and optimise identity authentication processes.116

UKPS suggests that it is bringing in these measures under international pressure:

The International Civil Aviation Organisation (ICAO) has agreed that in future passports should, at a minimum, include a facial biometric relating to the passport holder. The threat of terrorism has also prompted the United States to require those countries that wish to participate in the Visa Waiver Program to have in place a programme to put biometric chips in their passports by October 2005. […] These circumstances have forced many of the visa waiver countries (including the UK) to accelerate plans to put chips carrying data and a facial image biometric in their passports [...] The recently established European Union standards for passports require EU Member States to include in their passports both a facial image and fingerprints scans, as well as various other security features. […] The move towards additional biometrics are driven by European and international standards for passports, and by the potential introduction of identity cards in the future.117

However, as noted above, the UK is not actually bound by the EU measures on passports, and the US requirements are only for an embedded photograph, not fingerprint or iris data. A Home Office press statement of 24 March 2005 set out the next stages of introducing ‘biometric ePassports’:

115http://www.lse.ac.uk/collections/pressAndInformationOffice/newsAndEvents/archives/2005/ID_Card_up

date.htm 116 UK Passport Service, Corporate and Business Plans 2005-2010, p3 117 ibid pp12-13 and 37


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• from the end of 2005, all new passports will have a chip containing a scanned

image of the passport photograph; • from late 2006 all first-time adult passport applicants will have to present

themselves in person to prove their identity; and • from 2007 onwards other applicants will have to enrol in person to get a new

passport.118 The scanned photograph does not require applicants to present themselves in person for a facial scan, but this meets the minimum requirements of the current ICAO guidelines. The average cost of a passport will nearly double as a result of these measures (from £35.60 in 2004/05 to £67.93 in 2006/07).119 The Home Office soon wants to move towards using true biometric information such as fingerprints and iris scans. The Government has commissioned a series of reports and trials on the use of biometrics to support improved identity authentication and help prevent identity fraud. In a feasibility study for UKPS, the DVLA and the Home Office, the National Physical Laboratory concluded that “in principle, fingerprint or iris recognition can provide the identification performance required for unique identification over the entire UK adult population” but “the practicalities of deploying either iris or fingerprint recognition in such a scheme are far from straightforward”.120 A UKPS Biometrics Enrolment Trial was carried out by Atos Origin (an international information technology services company) in 2004 and the results were published in May 2005 to coincide with the relaunch of the Identity Cards Bill.121 It looked at the processes around enrolling biometric data (facial, iris and fingerprint details) and at verifying it against the enrolled data, but was not a test of the biometric technology itself. The self-selected volunteers who took part in the trial felt that biometrics would help with passport security, preventing identity fraud and preventing illegal immigration, and are not an infringement of their civil liberties. The study - which used a one-off hardware and software solution - found that the majority of participants successfully enrolled on all three biometrics, but with a lower success rate for disabled people. Iris enrolment was the most problematic, showing higher success rates for Asian and White than for Black participants and less success with the over 60s than with younger volunteers. Of the three biometrics tested, the lowest verification success rate occurred with the face (69% for

118 Home Office press release UKPS001/2005, UK Passport Service: Improving passport security and

tackling ID fraud, 24 March 2005 119 UK Passport Service, Corporate and Business Plans 2005-2010, p30 120 National Physical Laboratory, Feasibility study on the use of biometrics in an entitlement scheme for

UKPS, DVLA and the Home Office, February 2003, p3, http://www.homeoffice.gov.uk/docs2/feasibility_study031111_v2.pdf

121 Atos Origin, UK Passport Service Biometrics Enrolment Trial: Report, May 2005


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non-disabled participants, 48% for disabled). Iris and fingerprint verification proved more successful, but again the success rate was higher for younger participants than it was for older.122 A study of the likely benefits and implementation options for additional biometrics is due to be completed by the end of June 2005, and an evaluation of the pilot of a facial recognition system by the end of October 2005.123 Later in the decade all passport applicants may be required to enrol their fingerprints and possibly iris biometrics.124 There has already been much discussion about the relative merits of different forms of biometric information in the context of the current Identity Cards Bill [Bill 9 of 2005-06].125 Annabella Wolloshin provides a useful overview in an article in the Justice Journal.126 She indicates that each biometric identifier has its own inherent weaknesses which mean that biometrics may need to be combined to provide an adequate method of authentication - although this causes its own problems. Also some biometrics appear to be more suitable for checking a unique identity and others are better for checking the identity on a card against a watch list. Finally suggests she that performance issues including accuracy, ‘enrolment’ and the scale of implementation are critical to the success of any scheme. The International Biometric Group, a consulting and technology services firm in the biometric security industry has a series of reports of technology, accuracy, performance and privacy relating to biometrics on its website.127 C. Visas

The UK intends to fingerprint all visa applicants - whether successful or not - by 2008.128 This follows fingerprinting trials in selected visa posts over the last two years:

Following the success of the Colombo fingerprinting trial in 2003, we began seven more fingerprinting operations during the course of 2004. Visa applicants in Djibouti, Eritrea, Ethiopia, Kenya, Rwanda, Tanzania and Uganda now have to give two electronic fingerprint impressions when making their application. The fingerprint images are stored on and checked against the Home Office’s Immigration and Asylum Fingerprint Database. Matching fingerprint information provided by these operations has been used as evidence in securing successful

122 Op. cit., pp7-8 123 UK Passport Service, Corporate and Business Plans 2005-2010, p25 124 UK Passport Service, Corporate and Business Plans 2005-2010, p19 125 See Library Research Paper 05/43, The Identity Cards Bill, pp32-33 and 51-52 126 Annabella Wolloshin, The biometrics behind the Bill: an overview of the technology and identity cards,

Justice Journal 2005 vol 2 no 1 p72 127 http://www.biometricgroup.com/reports/public/reports_and_research.html 128 Home Office, Controlling our borders: Making migration work for Britain, Cm 6472, February 2005: http://www.archive2.official-documents.co.uk/document/cm64/6472/6472.pdf


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prosecutions against immigration offenders in the UK. It has also been used to cancel visas and refuse applications in our overseas posts.

The UK is committed by EU regulations to introducing biometrics into the worldwide visa operation, probably by the end of 2007. This will involve extending UKvisas’ current fingerprinting operations to all posts that issue visas and also possibly using other biometrics such as facial images and iris scans in the future.

The cost of introducing biometrics capture into the UKVisas worldwide operation is an estimated £77 million. A programme management team within UKVisas has been established and has begun work on planning and implementation.129

The Home Office Immigration and Nationality Directorate also intends to set up a database containing the biometric information of all entry clearance applicants, and may include the information on a chip on the entry clearance itself, similar to the way biometric passports will operate.130 UKvisas already has its own database - the Central Reference System (CRS) - which stores visa application data from all Posts which use the PROVISO computer system. The CRS is available to Immigration Service and IND staff in the UK, while risk assessment units overseas have access to the IND Casework Information Database which includes data on immigration offenders and people claiming asylum.131 The Home Office refers to the visa fingerprinting requirements as being ‘in line with an EU agreement’132 - and in this case the UK is bound by the EU regulation establishing a common format for visas.133 This currently requires visas all to include a photograph. However, the UK is not taking part in the accompanying European Visa Information System (VIS) which is planned alongside the revised Schengen Information System (SIS II). The VIS would contain biometric data from every visa application to every EU member state, whether the application is accepted or rejected. The VIS Decision was adopted by the Council in June 2004 despite dissent from the European Parliament.134

129 UKvisas Annual Report 2005 130 Home Office, Partial Regulatory Impact Assessment: Checking biometric data on arrival, June 2005,

para 4: http://www.homeoffice.gov.uk/docs4/E_borders_RIA_Annex.pdf 131 UKvisas Annual Report 2005 p14: http://www.fco.gov.uk/Files/kfile/annual_report_2005%20no%20page%20numbers.pdf 132 Home Office, Controlling our borders: Making migration work for Britain, Cm 6472, February 2005,

para 51: http://www.archive2.official-documents.co.uk/document/cm64/6472/6472.pdf 133 Council Regulation 1683/95 as amended - see http://europa.eu.int/scadplus/leg/en/lvb/l14009.htm 134 Council Decision No 2004/512/EC of 8 June 2004 establishing the Visa Information System (VIS):

http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=EN&numdoc=32004D0512&model=guichett


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The Commission wants to amend the regulation on visa formats to include a requirement for biometric data in visas. Digitised photographs would be used for one-to-one checks at the border and fingerprints would be for one-to-many searches in “background checks” on visas. A proposal is working its way through the legislative process to bring forward from 2007 to 2005 the cut-off date for the integration of the photograph and to request the Member States to harmonise the integration of the biometric features in the visa in order to ensure interoperability:

The Commission proposal provides for the compulsory integration into the visa of a picture taken face-on as the main biometric feature to ensure interoperability. A second biometric feature should be added, namely finger prints which are the best means of identifying individuals. The selection of the most suitable biometric features was based both on the work of the ICAO (International Civil Aviation Organisation), which played a pioneering role in the setting of international standards in the matter and the feasibility study on the visa information system (VIS). The first biometric feature, namely the high resolution electronic portrait, is available already as it must be printed on visas from 2007 onwards. With regard to the second feature, the proposal limits the number of finger prints to be integrated in the visa to two.135

However, the proposal appears to have run into difficulties over “collision problems” for the reader if there are chips on both a visa sticker and the passport, or in several visa stickers. One of the options would be to store the biometric information not on a chip in the visa itself but only in national visa information databases and the VIS (to which the UK will not have access).136 The USA already uses biometric identifiers (a digital photo and two electronic fingerprints) in its visas:

In the Enhanced Border Security and Visa Entry Reform Act of 2002, the U.S. Congress mandated the use of biometrics in U.S. visas. This law requires that Embassies and Consulates abroad must now issue to international visitors, "only machine-readable, tamper-resistent visas and other travel and entry documents that use biometric identifiers.137

These biometrics are first matched against a database of “known criminals and suspected terrorists”,138 and then checked at the border under the US-VISIT programme:

135 EUROPA summary of legislation, Uniform format for visas:

http://europa.eu.int/scadplus/leg/en/lvb/l14009.htm#AMENDINGACT 136 See Note from Presidency to the Visa Working Group, doc no. 16257/04, 22 December 2004: http://www.statewatch.org/news/2005/jan/bio-visas-16257.pdf 137 http://travel.state.gov/visa/immigrants/info/info_1336.html 138 US Department of Homeland Security, US-VISIT - How does US-VISIT work?


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Foreign visitors traveling to the U.S. have their two index fingers scanned and a digital photograph taken to match and authenticate their travel documents at the port of entry. Visas are required for most students, business travelers (depending on their length of stay) and millions of other visitors, regardless of where they live. Starting September 30, 2004, US-VISIT entry and exit procedures will be expanded to include visitors traveling under the Visa Waiver Program arriving at or departing from airports and seaports. US-VISIT does not apply to U.S. citizens.139

Arrangements for introducing biometric embarkation checks are also underway.140 The current plan is to keep the data for up to 100 years, but that is being reviewed.141

D. Carriers’ obligations

1. UK

Each of the UK’s border agencies - immigration, customs and the police - has its own powers to require carriers to provide information on passengers travelling to (and in some cases from) the UK. There are varying powers to require crew and freight data. Immigration officers have the power to require carriers to provide passenger and crew data through orders made under Schedule 2 paragraphs 27 and 27B of the Immigration Act 1971. The powers depend on where the ship or aircraft has got to:

• ships and aircraft arriving in the UK: a passenger list showing the names and nationality or citizenship of passengers arriving on board the ship or aircraft; and particulars of members of the crew of the ship or aircraft;

• ships or aircraft which have arrived, or are expected to arrive, in the United Kingdom; or which have left, or are expected to leave, the United Kingdom: passenger information (full name, gender, date of birth, nationality, type of travel document held by the passenger and its number, visa/entry clearance expiry date if applicable)142 relating to particular ships or aircraft or all of the carrier’s ships or aircraft, whether about all the passengers on board or particular passengers.

http://www.dhs.gov/dhspublic/interapp/editorial/editorial_0525.xml 139 US Department of Homeland Security, US -VISIT - Who is required to enrol? http://www.dhs.gov/dhspublic/interapp/editorial/editorial_0527.xml 140 US Department of Homeland Security, US-VISIT - How does US-VISIT work? http://www.dhs.gov/dhspublic/interapp/editorial/editorial_0525.xml 141 US Department of Homeland Security, US-VISIT FAQs: Information Collection and Use:

http://www.dhs.gov/dhspublic/interapp/editorial/editorial_0445.xml 142 Immigration (Passenger Information) Order 2000, SI 2000/912


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The form and manner in which the information must be provided is set out in Immigration (Form and Manner of Passenger Information) Direction 2000. The powers also relate to trains arriving through the Channel Tunnel.143 The separate responsibilities of HM Revenue and Customs (HMRC) regarding border security are set out in the HMRC 2005 Spring Report, as is its strategy in this area for the coming year.144 (The department was created in April 2005, following the merger of the Inland Revenue and HM Customs & Excise.145) It has particular powers to obtain information from carriers about all passengers arriving in the UK and about passengers travelling from the UK to non-EU countries. Powers to require information on outbound EU journeys were disapplied “as part of the Single Market provisions”.146 It also collects information on freight movements in and out of the UK. At the moment police are able to obtain passenger information from carriers for counter-terrorism purposes.147 The information they can obtain is set out in secondary legislation:

1 The following information about passengers or crew, namely— (a) the person’s—

(i) full name, (ii) gender, (iii) date and place of birth,

(iv) home address, and (v) nationality; and

(b) where the person has a travel document— (i) the type of document,

(ii) its number, (iii) its country of issue, and (iv) its expiry date. 2 The number of items that a passenger has placed in the hold of an aircraft. 3 The following information about any vehicle belonging to passengers or crew, namely, its registration number. 4 The following information about goods carried on a vehicle, namely— (a) a brief description of them, (b) the address from which the goods were collected,

143 Channel Tunnel (International Arrangements) Order 1993, Channel Tunnel (Miscellaneous Provisions)

Order 1994 and Channel Tunnel (International Arrangements) (Amendment) Order 2000 144 HM Revenue and Customs, Spring Departmental Report 2005, Cm 6542 June 2005 p19. 145 The background to the merger is examined in Library Research paper 04/90, 6 December 2004. 146 Home Office, Partial Regulatory Impact Assessment: Data capture and sharing powers for the Border

Agencies, June 2005, Annex B, ‘Enhanced powers to enable HM Revenue and Customs to obtain information on passengers travelling from the UK to another EU country, and in respect of all international journeys in advance of arrival in the UK’

147 Terrorism Act 2000 Sch 7


47

(c) the address to which the goods are to be delivered, and (d) the registration number of that vehicle. 5 The following information about goods which are not carried on a vehicle, namely— (a) a brief description of them, (b) the method of payment for the carriage of the goods, and (c) the name or number of any container in which the goods are placed.148

It must relate to a ship or aircraft which arrives or is expected to arrive in the UK or which leaves or is expected to leave the UK. The request has to be in writing and specify the information required. Immigration officers and designated customs officers are also given these powers. Carriers have a duty to check passengers’ documentation before they travel, or face a fine, under the (amended) carriers’ liability legislation.149 Carriers also provide other information to the Government on a voluntary basis. This includes PNR (Passenger Name Record) data from their reservation systems150 and API (Advance Passenger Information) data such as passport and visa details. Voluntary agreements with airlines on certain routes under which the airline copies passenger travel documents will be rolled out further from June 2005 following consultation with the airline industry.151 The consultation paper and associated documents are available on the Home Office website.152 A new Authority to Carry (ATC) scheme153 will require carriers to request a check against government databases before departure, to allow the Immigration Service to prevent specific categories of passenger (such as those subject to a Deportation Order or an EU Travel Ban)154 from travelling to the UK. Roll-out of this programme has begun,

148 Schedule 7 to the Terrorism Act 2000 (Information) Order 2002 SI 2002/1945 149 Immigration and Asylum Act 1999 s32, and Carriers’ Liability Regulations 2002, SI 2002/2817 150 Home Office, Partial Regulatory Impact Assessment: Data capture and sharing powers for the Border

Agencies, June 2005, Annex C, ‘Immigration Service powers to acquire passenger and crew data’: http://www.homeoffice.gov.uk/docs4/E_borders_RIA_Annex.pdf 151 Home Office, Controlling our borders: Making migration work for Britain, Cm 6472, February 2005,

para 54: http://www.archive2.official-documents.co.uk/document/cm64/6472/6472.pdf 152 Home Office, Consultation: Copying Passenger Documentation, A Voluntary System For Carriers, 20

January 2005: http://www.ind.homeoffice.gov.uk/ind/en/home/laws___policy/consultation_documents/current_consultations.html

153 Nationality, Immigration and Asylum Act 2002 s124 154 Home Office, Race Equality Impact Assessment: Data capture and sharing powers for the Border

Agencies, June 2005: http://www.homeoffice.gov.uk/docs4/E_borders_RIA_Annex.pdf


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and by April 2005 the Government was expecting to be screening six million passengers a year on ten “important” routes.155 2. Other countries

The USA was the first country to require carriers to pass on their PNR data to its authorities. The difficulties this caused other countries spurred the EU into action:

In the aftermath of the terrorist attacks of 11 September 2001, the United States passed legislation in November 2001, requiring that air carriers operating flights to, from or through the United States provide the United States’ Customs with electronic access to the data contained in their automated reservation and departure control systems, known as Passenger Name Records (PNR). Whilst recognising the legitimate security interests involved, the [European] Commission informed the US authorities as early as in June 2002 that these requirements could conflict with Community and Member States’ legislation on data protection and with some provisions of the Regulation on computerised reservation systems (CRSs). The US authorities postponed the entry into force of the new requirements, but finally refused to waive the imposition of penalties on non-complying airlines beyond 5 March 2003. Several major EU airlines have been providing access to their PNR since then.156

The European Commission obtained a number of concessions from the US, including reducing the time for which the information would be kept from 50 years to three and a half.157 It also decided to respond to the demands of the US (and potentially other countries) for transfer of PNR data by adopting a ‘global EU approach’ comprising:

• a legal framework for existing PNR transfers to the US; • complete, accurate and timely information for passengers about the uses made of

their PNR data in order to give their consent to its transfer; • replacing "pull" (direct access by US authorities to airlines' data bases) with a

"push" method of transfer, combined with appropriate filters; • the development of an EU position on the use of travellers' data, including PNR,

for aviation and border security; • the creation of a multilateral framework for PNR Data Transfer within the

International Civil Aviation Organisation (ICAO).158

155 Home Office, Controlling our borders: Making migration work for Britain, Cm 6472, February 2005,

para 62: http://www.archive2.official-documents.co.uk/document/cm64/6472/6472.pdf 156 Communication to the EP and the Council of 16 December 2003, Transfer of Air Passenger Name

Record (PNR) Data: A Global EU Approach, COM (2003) 826 final 157 See Statewatch Observatory on the exchange of data on passengers (PNR) with USA which tracks these

proceedings: http://www.statewatch.org/pnrobservatory.htm 158 Communication to the EP and the Council of 16 December 2003, Transfer of Air Passenger Name

Record (PNR) Data: A Global EU Approach, COM (2003) 826 final


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Within five months of publishing this Communication, and despite the dissent of the European Parliament, a Council Directive on the obligation of carriers to communicate passenger data was passed.159 It came into force on 5 September 2004, and the deadline for Member States to implement it is 5 September 2006. The UK has opted in and so is bound by the Directive. The Directive seeks to improve border controls and combat illegal immigration by requiring Member States to establish an obligation for carriers to supply to the relevant border authorities information concerning the passengers they will carry into the Member State, by the end of check-in. The passenger information required comprises:

• the number and type of travel document used; • nationality; • full names; • date of birth; • border crossing point of entry into the territory of the Member States; • code of transport; • departure and arrival time of the transportation; • total number of passengers carried on that transport; and • initial point of embarkation.

Sanctions of between 3,000 and 5,000 Euro per journey should be imposed on carriers who fail to comply. The UK has issued a Regulatory Impact Assessment on the implementation of this Directive, which concludes:

Whilst there are benefits from advance passenger information, this needs to be linked to a process that can effectively analyse that data and ensure that the full potential to government and carriers is realised. The Government is considering in more detail how the benefits associated with API can be fully realised in operating a modernised flexible border control. A separate RIA will be published following that consideration. The Government does not intend to seek to introduce an API requirement of carriers into the UK independent of the development of an advance passenger processing system.160

159 Directive 2004/82/EC:

http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=EN&numdoc=32004L0082&model=guichett. See the Statewatch Observatory : EU surveillance of passengers (PNR) for a history of this measure: http://www.statewatch.org/eu-pnrobservatory.htm

160 Home Office, Regulatory Impact Assessment: The Draft Council Directive on the Obligation of Carriers to Communicate Passenger Data: http://www.ind.homeoffice.gov.uk/ind/en/home/laws___policy/consultation_documents/closed_consultations.Maincontent.0033.file.tmp/RIA_obligation.pdf


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Canada has now also adopted legislation authorising its border authorities to obtain and collect API and PNR data on all passengers flying to Canada and imposing financial penalties on airlines which do not comply. The EU has obtained a temporary derogation (until 1 July 2005) in order to negotiate an international agreement with Canada. A bilateral agreement between the EC and Canada was duly drawn up and awaits authorisation by the Council of the EU.161 The list of PNR data which airlines are obliged to collect and transmit to the Canadian authorities is different from the list in the European Directive, and includes:

• payment information • billing address and contact telephone number • frequent flyer information • travel agent • seat number • ‘no show’ history • order at check-in.162

There are some moves towards developing international standards on the transmission of API and PNR data. A set of Revised Guidelines on API has been adopted by the World Customs Organisation (WCO), the International Air Transport Association (IATA) and the International Civil Aviation Organisation (ICAO), and the ICAO is developing a multilateral standard for the transmission of PNR data obtained from commercial airlines. E. Fingerprinting for immigration purposes

Under section 141 of the Immigration and Asylum Act 1999, certain people can be required to provide fingerprints to the immigration authorities. This need not be in connection with any criminal offence or investigation. The people who can be asked (by a notice in writing) to provide fingerprints are:

• people who fail to produce a valid passport or identification on arrival in the UK; • people on temporary admission whom an immigration officer suspects might

break their residence or reporting requirements; • people subject to removal or deportation; • people who have been arrested because they are liable to examination or removal; • asylum seekers; and • dependants of any of the above.

161 See Proposal for a Council Decision on the conclusion of an Agreement between the European

Community and the Government of Canada on the processing of Advance Passenger Information (API)/Passenger Name Record (PNR) data, COM (2005) 200 final, 19 May 2005:

http://europa.eu.int/prelex/detail_dossier_real.cfm?CL=en&DosId=192893 162 The full list is given in Annex II to the Agreement


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The notice will tell them to go to a specific place during a specific week. Children’s fingerprints may be taken under this provision, but if they are under 16 a parent, guardian or other person taking responsibility for them must be present and the decision must be authorised by a senior officer. It is current policy not to fingerprint children under the age of five because their fingerprints are not sufficiently defined for it to be possible to record them electronically.163 The 1999 Act sets out the period within which fingerprints must be destroyed. These detailed provisions on fingerprinting are set out in primary legislation, whereas detail about the collection of other kinds of biometric information including iris scans is contained in regulations.164 Asylum seekers’ fingerprint data are recorded in the Home Office’s Immigration Fingerprint Bureau (IFB) database and used to check that people are not making multiple applications in different identities. The asylum Application Registration Card (ARC), a credit-card-sized ‘smart card’ which must be presented by asylum seekers to access NASS support and as part of the reporting process, contains this fingerprint data in an updatable chip as well as the fingerprint reference number from the IFB and two digital images of the holder on the face of the card.165 Other countries also use fingerprinting outside the criminal context. For example, since 30 September 2004, all visitors to the United States have been face-scanned and fingerprinted at the border. These measures are part of an integrated information storage, matching and profiling system, the U.S. Visitor & Immigration Status Indication Technology System (US VISIT). F. Data sharing

In certain cases border agencies and other government departments are permitted to share information on a ‘case-by-case’ basis. The specific powers include:

163 see Home Office APU notice, Application Registration Card, para 3.2.2

http://www.ind.homeoffice.gov.uk/ind/en/home/laws___policy/policy_instructions/apis/application_registration.html

164 made under the Immigration and Asylum Act 1999 s144, as amended 165 A Home Office Asylum Policy Unit (APU) notice, Application Registration Card, gives a more detailed

description of the card and includes links to a picture of an ARC: http://www.ind.homeoffice.gov.uk/ind/en/home/laws___policy/policy_instructions/apis/application_regi

stration.html See also Home Office Asylum Policy Instruction (API), Fingerprinting: http://www.ind.homeoffice.gov.uk/ind/en/home/laws___policy/policy_instructions/apis/fingerprinting.h

tml


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• sections 20 and 21 of the Immigration and Asylum Act 1999 which give the police, customs officers and providers of asylum support a general power to provide the Home Secretary with information for use for immigration purposes, and conversely allows the Home Secretary to supply information to police and customs officers for their respective purposes;

• schedule 14 paragraphs 4(1) and (2) of the Terrorism Act 2000 which relates to sharing of information in connection with terrorist cash investigations;

• section 19 of the Anti-Terrorism, Crime and Security Act 2001 which allows tax and customs officers to disclose information to the intelligence services and to anyone else in connection with criminal investigations or proceedings; and

• sections 20 and 21 of the Commissioners for Revenue and Customs Act 2005 which sets out the terms on which revenue and customs information may be disclosed in the public interest or to a prosecuting authority.

In addition, the Data Protection Act 2005 allows information to be disclosed if one of the exemptions applies. The exemptions include:

• nationality security; • the prevention or detection of crime; • the apprehension or prosecution of offenders; and • the assessment or collection of any tax or duty or of any imposition of a similar

nature.166 Data sharing currently takes place only where there is prior knowledge that information will be of interest or relevant to the receiving agency, or in relation to specific requirements.167 The arrangements are apparently underpinned in many circumstances by Memoranda of Understanding, codes of practice or operational guidelines.168 Two examples of policy guidelines are those on disclosure of immigration169 and asylum170 information.

166 Data Protection Act 1998 part IV 167 Home Office, Partial Regulatory Impact Assessment: Data capture and sharing powers for the Border


Agencies, June 2005, para 67: http://www.homeoffice.gov.uk/docs4/E_borders_RIA_Annex.pdf 169 Home Office Immigration Directorates’ Instructions ch 24, Disclosure of information: http://www.ind.homeoffice.gov.uk/ind/en/home/laws___policy/policy_instructions/table_of_contents/ch

apter_24_-_disclosure.html, especially Chapter 24 Section 3, Disclosure of Personal Data to Outside Bodies, December 2004

170 Home Office Asylum Policy Instruction ‘Disclosure and confidentiality’: http://www.ind.homeoffice.gov.uk/ind/en/home/laws___policy/policy_instructions/apis/disclosure_and_

confidentiality.html


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G. Proliferation of databases

There has been some concern expressed at the apparent profusion of databases with overlapping responsibilities and content. Again this has arisen recently in the context of the current Identity Cards Bill [Bill 9 of 2005-06].171 As Professor Steve Peers has identified, “The key issues arising from any database are the types of data kept, the grounds for keeping the data, the persons who have access to the data (and on what grounds), and the data protection rights of individuals”.172 When considering the Government’s proposed introduction of a new National Identity Register (NIR), the Home Affairs Committee recommended that the Government tackle this profusion of databases:

186. We are concerned by the proliferation of large-scale databases and card systems, since we have seen little to suggest that they are being approached in a co-ordinated way. While we have not taken detailed evidence on current proposals, other than the Citizen Information Project, we have the impression that each government department is continuing with its own project in the hope that it is not going to be significantly affected by other projects. The format of registration on different databases should be coherent and consistent. 187. We believe that the Government must tackle this proliferation of databases, examining in each case whether the number, identifier or database is needed, what its relationship is to other existing or planned databases, how data will be shared or verified and other relevant issues. For this action to be effective, it must be co-ordinated at the highest levels of the Civil Service.173

The examples identified by the Committee included:

• the NHS Care Records Scheme which would provide all 50 million NHS patients with an individual electronic NHS Care Record, detailing key treatments and care;

• the introduction by the Department for Education and Skills of a Unique Learner Number;

• a database of all children in the Children Act 2004; and • the National Smart Card Project led by the Office of the Deputy Prime Minister

which, inter alia, provides a framework for local authority smart card implementation and development.

171 See Library Research Paper 05/43, The Identity Cards Bill, pp26-30 172 Steve Peers, Statewatch analysis: The SIS II proposals, June 2005:

http://www.statewatch.org/news/2005/jun/sisII-proposals-june05.pdf 173 Home Affairs Committee, Identity Cards, HC 130-I, pp48-49


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These initiatives are additional to existing databases such as those of the HM Revenue and Customs (then Inland Revenue), the UK Passport Service, and the Driver and Vehicle Licensing Agency.174 The Government is also considering the establishment of a registration database of “through-life” events such as births and deaths, as well as providing for electronic registration of such life events.175 In answer to a parliamentary question from Mark Fisher MP, the Home Office recently outlined the organisations and individuals that would be able to seek verification of identity using data stored on a future National Identity Register.

Mark Fisher: To ask the Secretary of State for the Home Department if he will list the bodies that will be entitled to access files of individuals stored on the identity card database. [1180] Mr. McNulty: No bodies will be entitled to access files of individuals stored on the National Identity Register (NIR) other than those responsible for the administration of the scheme and the National Identity Scheme Commissioner in support of his functions. The ID cards scheme verification service will confirm and in some cases provide information held on the Register to accredited organisations but only with the consent of the card holder, as set out in Clause 14 of the Bill. Clauses 15–17 of the Identity Cards Bill provide for Parliament to agree powers for specified public services to require identity checks. Parliament will have to agree the rules for identity checks on a service by service basis. Clause 19–23 of the Bill also allow for information held on the register to be provided without the card holders consent to the Director-General of the Security Service, the Chief of the Secret Intelligence Service, the Director of the Government Communications Headquarters, a Chief Officer of Police and Commissioners for Her Majesty's Revenue and Customs. Parliament can also agree via regulations for information to be provided without consent to a prescribed government department, to a prescribed Northern Ireland government department, a designated documents authority and other public authorities. This is subject to regulations set out in Clause 23. In all of these cases the Bill allows for information to be provided to specified organisations by the Secretary of State. This is not the same as giving these organisations access to the Register.176

174 ibid, p48 175 see http://www.gro.gov.uk/gro/content/aboutus/lookingahead/index.asp#0 176 HC Deb 6 June 2005, c242-3w


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The Home Office also confirmed that the National Identity Register would not be modelled on any existing biometric or non-biometric databases although the NIR may share some of the “features” used in databases used by, for example, the UK Passport Service or Driver and Vehicle Licensing Agency.

Mark Fisher: To ask the Secretary of State for the Home Department if he will list the existing (a) biometric databases and (b) non-biometric databases on which he will model his identity card database. [1203] Mr. McNulty: At present the requirements for the National Identity Register (NIR) are being established. The NIR may share features with solutions used for passport and driving licence but there are no databases, biometric or non-biometric, which can be taken as a direct model in which to base the NIR.177

A memorandum submitted to the Home Affairs Committee by the Office for National Statistics suggests that the NIR, since it, uniquely, is a record of “identity”, will function as an “authority file”, against which any of the other proposed databases can be verified. At the same time, these other databases are apparently to be used to confirm non-biometric details supplied to the NIR:

The starting point [of the NIR] will be information provided by individuals, which will be cross-checked against information held in other databases to establish a "biographical footprint". The record in the National Identity Register will then be linked to the individual via biometric information. Once an individual is authenticated through the identity cards system, it will be possible to flag the record in the CIP [Citizen Information Project] population register that corresponds with that name and address as having been "authenticated", thereby enhancing the robustness of the data in the population register.178

The NIR would be run by a new Executive Agency incorporating the UK Passport Service.179 Meanwhile, UKPS is introducing a ‘Personal Identification Project’ (PIP), which will involved the collection, sharing and mining of information from a variety of sources, including other government departments and the private sector, to prevent against fraud in passports. A trial involving access to private- and public-sector databases at one office, under contract with Equifax until 2007, has needed applicants’ consent,180 but changes to legislation would be required to allow this kind of sharing of information

177 HC Deb 6 June 2005, c242-3w 178 Home Affairs Committee, Identity Cards, 20 July 2004, HC 130-II, Ev 247. Since the Committee

reported the Home Office has said that “CIP is no longer actively exploring plans to develop a separate population register but rather will be exploring options to improve the quality and effectiveness of existing registers” (Government reply to the Fourth Report from the Home Affairs Committee session 2003-04 HC 130, Cm 6359, p22)

179 Explanatory Notes on the Identity Cards Bill [Bill 9-EN], para 235 180 UK Passport Service, Corporate and Business Plans 2005-2010, p8 and p34


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without consent. UKPS hopes to have the PIP in place in all offices by the end of October 2005.181 This links in with a UKPS initiative exploring whether it should store data about passport holders on a person-by-person basis rather than a passport-by-passport basis.182 H. The Bill

The third part of the Bill is concerned with what kinds of passenger and freight information can be demanded, by whom and for what purposes. These provisions are being brought forward now to ensure the necessary statutory framework is in place before the e-Borders contract (valued at about £400 million) is awarded in 2006.183 Much of the detail will however have to be specified in secondary legislation. 1. Providing biometric information at the border

Clause 23(1) prepares for the time when immigration officers will have devices to scan faces, irises or fingerprints to compare this information with people’s biometric passports or visas. It gives them the power to require people being examined on arrival or departure to undergo scanning in order to provide biometric information.184 The Bill does not make it clear whether this power would be applied to British citizens and citizens of other EEA countries as well as to non-EEA nationals. Paragraph 2 of Schedule 2 to the Immigration Act 1971, to which this new power relates, does allow examination of British citizens as it gives an immigration officer the power to “examine any persons who have arrived in the United Kingdom […] for the purpose of determining - (a) whether any of them is or is not [a British citizen]”. The Immigration Service is not at this stage proposing to implement a fully automated control. Instead it envisages one passport reader and one visa reader in each of the 47 major ports of entry. The costs would vary depending on whether the readers were networked so that they could be updated automatically, or stand-alone and updated by CD-ROM.185 The rest of the clause restates existing provisions about examination and detention of documents. 181 UK Passport Service, Corporate and Business Plans 2005-2010, p4 182 UK Passport Service, Corporate and Business Plans 2005-2010, p25 183 Home Office, Partial Regulatory Impact Assessment: Data capture and sharing powers for the Border

Agencies, June 2005, para 44: http://www.homeoffice.gov.uk/docs4/E_borders_RIA_Annex.pdf 184 The existing powers of examination already allow for people to be required (by a notice in writing) to

submit to ‘further examination’ but not if this prevents transit passengers or crew from joining their intended ship or aircraft.

185 Home Office, Partial Regulatory Impact Assessment: Checking biometric data on arrival, June 2005, paras 9-13: http://www.homeoffice.gov.uk/docs4/E_borders_RIA_Annex.pdf


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2. Fingerprinting for immigration purposes

Clause 24 would make asylum seekers and their dependants subject to a tighter deadline than other people for complying with a fingerprinting requirement. In particular, they could be required to attend for fingerprinting on a particular specified day, whereas other people would still be able to attend at any time during a given week. The fingerprinting requirement itself is not new. 3. UK ID cards as travel documents

Clause 25 would allow British citizens to use their ID cards (as proposed by the current Identity Cards Bill, Bill 9 of 2005-06) as travel documents. Already when EEA nationals arrives in the UK, they can produce either a passport or national identity card in order to be admitted.186 4. Passenger, crew and freight information

The Bill would extend the border agencies’ existing powers to obtain information from carriers about passengers, crew and freight. It would:

• provide extended order-making powers on the mandatory provision of information to immigration officers about flights and other services into and out of the UK, passenger names and nationality and crew information in advance of travel and the form and manner specified, e.g. electronically (clause 26);

• allow a police superintendent to require (in writing) passenger, crew and freight information from carriers in the form and manner directed in an Order (clauses 27-29) and

• give revenue and customs the power to require information from carriers before arrival in the UK instead of only on arrival (clause 30).

The Government also intends to amend the Immigration (Passenger Information) Order 2000 to allow immigration officers to request additional Advanced Passenger Information, including biometric data from travel documents, and additional reservation data to the extent that it is known to the carrier.187 The intention is that carriers will be required to provide the following:

• PNR (Passenger Name Record) or its equivalent from their reservation systems in respect of all passengers travelling to the UK, at the time of departure; and

186 Immigration (European Economic Area) Regulations 2000, SI 2000/2326, reg 12 187 Home Office, Partial Regulatory Impact Assessment: Data capture and sharing powers for the Border

Agencies, June 2005, Annex C, ‘Immigration Service powers to acquire passenger and crew data’: http://www.homeoffice.gov.uk/docs4/E_borders_RIA_Annex.pdf


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• API (Advance Passenger Information) in respect of all services travelling to and from the UK at the time of departure.188

If carriers collect and pass on embarkation data, there would be no need for immigration or other Government staff to do embarkation checks - resulting in an estimated saving of £183 million over 15 years. A Regulatory Impact Assessment sets out the estimated costs to carriers.189 According to the Regulatory Impact Assessment on the e-Borders provisions, the Government does not anticipate that the new API requirement would include any data that is not contained in the machine-readable zone of a travel document. Therefore if carriers buy electronic passport readers, the information could be provided instantly.190 No carrier would be compelled to provide any more PNR data than they gather routinely for their own commercial purposes.191 A key aim for the future is to provide a “single window” for the routine provision of data by carriers to the government, instead of the current system whereby carriers have to respond separately to individual requests for data from each of the border agencies.192 This information could then be analysed jointly by all the border agencies. It is anticipated that a new ‘e-Borders Operations Centre’ would operate and enforce the advance capture of passenger and crew data,193 but the Bill does not provide for this. However, the data sharing measures would mean that information provided by carriers to one of the border agencies could be accessed by any of the others. 5. Sharing information

Instead of creating a single border agency, each of the existing border agencies (immigration, revenue and customs and police) would still acquire data under its own autonomous powers. However, clause 31-34 would give them a duty to share that information with each other, and a power to share it with the security services and with foreign law enforcement agencies.

188 Home Office, Partial Regulatory Impact Assessment: Data capture and sharing powers for the Border


Agencies, June 2005, paras 29-50: http://www.homeoffice.gov.uk/docs4/E_borders_RIA_Annex.pdf 190 Home Office, Partial Regulatory Impact Assessment: Data capture and sharing powers for the Border

Agencies, June 2005, para 43: http://www.homeoffice.gov.uk/docs4/E_borders_RIA_Annex.pdf 191 Home Office, Race Equality Impact Assessment: Data capture and sharing powers for the Border

Agencies, June 2005: http://www.homeoffice.gov.uk/docs4/E_borders_RIA_Annex.pdf 192 Home Office, Partial Regulatory Impact Assessment: Data capture and sharing powers for the Border

Agencies, June 2005, Annex C : http://www.homeoffice.gov.uk/docs4/E_borders_RIA_Annex.pdf 193 Home Office, Partial Regulatory Impact Assessment: Data capture and sharing powers for the Border

Agencies, June 2005, Annex C, ‘Immigration Service powers to acquire passenger and crew data’: http://www.homeoffice.gov.uk/docs4/E_borders_RIA_Annex.pdf


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A statutory code of practice would have to be issued,194 and according to the Regulatory Impact Assessment, the code of practice would be supplemented by operational guidelines.195 In addition, these powers would have to be exercised within the framework of the data protection and freedom of information legislation. 6. Contracted-out searches

Immigration officers have the power to search a ship, aircraft, vehicle or other thing in the exercise of their powers under the Immigration Act 1971.196 This includes the power to search for passengers, transit passengers, members of the crew and other people whom they might want to examine in order to determine their nationality and immigration status.197 Clause 35 of the Bill would allow police officers, customs officers and also private contractors to carry out searches for people whom an immigration officer might want to examine. These “authorised persons” would be given many of the powers of immigration officers, including ancillary powers to search and detain people, and to use reasonable force. The Government’s Explanatory Notes suggest that this is a cost-saving measure triggered at least in part by the increasing use of ‘juxtaposed’ immigration controls where UK immigration control is exercised at ports abroad alongside the other country’s immigration controls:

Initial estimates are that to provide a contracted round-the clock searching operation at the port of Calais would cost in the region of £450,000 per annum. The cost of a similar sized operation using Immigration Service personnel is estimated to be in excess of £1.1 million.198

The Home Secretary can already arrange with the Commissioners of Customs and Excise to employ customs and excise officers as immigration officers.199 The powers of authorised persons would be at a level comparable to those of Community Support Officers, who are uniformed civilians.200

194 Clause 33 195 Home Office, Partial Regulatory Impact Assessment: Data capture and sharing powers for the Border

Agencies, June 2005, para 69: http://www.homeoffice.gov.uk/docs4/E_borders_RIA_Annex.pdf 196 Immigration Act 1971 Sch 2 para 1(4) and (5) 197 Immigration Act 1971 Sch 2 para 2(1) 198 Home Office, Explanatory Notes on the Immigration, Asylum and Nationality Bill, [Bill 13-EN], June

2005, para 127 199 Immigration Act 1971 Sch 2 para 1(1) 200 See Library Standard Note SN/HA/2718, Community Support Officers


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V Other measures

The fourth part of the Bill, entitled ‘Claimants and applicants’, contains several disparate measures including:

• allowing local authorities to provide ‘hard cases’ support, under contract with the Home Office, to failed asylum seekers who are prevented from returning home;

• provisions connected with the proposal that refugees should be granted temporary leave rather than indefinite leave to begin with; and

• a new system for setting the fees and forms for immigration and nationality applications.

A. ‘Hard cases’ support

Destitute failed asylum seekers who are prevented from returning home are in some cases eligible for accommodation under section 4 of the Immigration and Asylum Act 1999 (as amended), which is also known as ‘hard cases’ support.201 The latest quarterly asylum statistics published by the Home Office identified that the number of successful applications for section 4 support during the first quarter of 2005 was 8,045, more than three times the number of applications received during the previous quarter (2,340). 85% of all successful applications (6,830) were from Iraqi nationals. Other nationalities granted hard cases support during the first three months of 2005 included: Iranian (265), Eritrean (210), nationals of the Democratic Republic of Congo (115), and Somali (80).202 The latest Home Office quarterly asylum statistics was the first occasion on which data relating to section 4 support were published in that series. Not all those who successfully apply for section 4 support take up the offer. The total number of cases actually supported at the end of the first quarter of 2005 was 5,180, suggesting that just two-in-three successful applicants for section 4 support actually take up the offer.

201 See NASS policy bulletin 71, Section 4 of the Immigration and Asylum Act 1999: http://www.ind.homeoffice.gov.uk/ind/en/home/applying/national_asylum_support/stakeholders/policy_

bulletin.Maincontent.0033.file.tmp/Policy%20Bulletin%2071%20version%202[1].0.pdf 202 http://www.homeoffice.gov.uk/rds/pdfs05/asylumq105.pdf


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Successful applications for section 4 ('hard case') support

630 730

2,340

8,045

0

1,000

2,000

3,000

4,000

5,000

6,000

7,000

8,000

9,000

2004 Q2 2004 Q3 2004 Q4 2005 Q1

Data showing the number of section 4 supported asylum seekers by region was provided in answer to a recent parliamentary question from Clive Betts MP:

Mr. Betts: To ask the Secretary of State for the Home Department how many failed asylum seekers are receiving section 4 hard case support, broken down by region. [1314] Mr. McNulty: The information requested is given in the table.203

203 HC Deb 7 June 2005, c501w


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Number of people supported under section 4 of theImmigration and Asylum Act 1999 broken down by region

Number supported as Region at 1 April 2005(15)

East Midlands 440East of England 25Greater London 475North East 320North West 965Scotland 100South East 40South West 185Wales 155West Midlands 1,140Yorkshire and the Humber 1,335Total 5,180

(15) Numbers are provisional and rounded to nearest 5. As a consequence they may not sum due to rounding.

Section 4 accommodation is not part of the main asylum support system, although it is run through NASS (the National Asylum Support Service, part of the Home Office). NASS enters into contracts with suppliers to provide this accommodation - at the moment there are six suppliers. Local authorities cannot currently enter into contracts with NASS to provide this kind of support. Clause 37 of the Bill would allow local authorities to enter into contracts with NASS to provide section 4 accommodation to failed asylum seekers. This provision did not appear in the Government’s five-year immigration and asylum strategy. The arrangements would be broadly similar to those for mainstream asylum support under contract with a local authority – for instance, those accommodated by a local authority under section 4 could be evicted without a court order and would not have secure tenancies. Section 4 of the 1999 Act does not allow cash support to be given, as it refers only to “facilities for the accommodation of persons…” This has been interpreted as meaning full-board accommodation. However, only one of the current suppliers can offer accommodation on a full-board basis. The others are therefore contracted by NASS to provide food vouchers (either luncheon vouchers or vouchers for a particular local shop) instead of food. This is not the same as the old voucher scheme for all asylum seekers, which was run by the Home Office and provided vouchers redeemable at any of a list of shops. The Government has not said whether local authorities would provide full-board accommodation or food vouchers. B. Limited leave for refugees

Clause 38 of the Bill, on access to integration loans for refugees under the Immigration and Asylum (Treatment of Claimants, etc.) Act 2004, appears to be a minor amendment as all it does is leave out the word “indefinite”. But what it – along with parts of clause 1 -


63

signals is the Government’s intention to change the way refugee status is recognised in the UK. The substantive change would not require primary legislation. At the moment, people whose asylum claims are successful are immediately granted indefinite leave to enter or remain. This means that, even if the situation in their home country improves, they can stay in the UK indefinitely (unless their leave is actively revoked by the Home Office). The Government now intends to change this so that refugees are initially granted only temporary leave, and indefinite leave only if they are still in need of protection five years later:

We will bring the criteria for settlement nearer to those for citizenship by:

• […] • Granting refugees (those whose asylum applications are agreed)

temporary leave rather than permanent status to begin with, while we review whether the situation in their country has improved. If its has not improved after five years, we would grant them permanent status. Otherwise we would expect them to return. They may be joined by their immediate family and will be encouraged to find work and participate in local communities during their period of temporary leave. This will ensure that they make a full contribution to the UK while here, and that they have skills to benefit their country if they are able to return. A number of other European countries, including France, Germany, the Netherlands, Denmark and Norway grant refugees temporary leave to begin with rather than immediate settlement.204

Neither the 1951 Geneva Convention on the Status of Refugees nor the EU Directive on refugee status205 requires that refugees be given indefinite leave. Under clause 1 of the Bill, people who have their refugee status removed because the Home Office decides that they no longer need protection would be able to appeal against the decision. If they had by that time built up a life in the UK, they may be able to claim that removing them from the UK would be in breach of their rights under the European Convention on Human Rights.

204 Controlling our borders para 39 205 Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status

of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted:

http://europa.eu.int/eur-lex/lex/LexUriServ/site/en/oj/2004/l_304/l_30420040930en00120023.pdf


64

C. Fees and forms

1. Current provisions

Section 5 of the Immigration and Asylum Act 1999 allows fees to be set for immigration (not asylum) applications received and processed in the UK. Charging on a basic ‘cost recovery’ basis under this provision was introduced for various kinds of immigration application during 2003-04, including applications to extend a stay or to settle permanently, to ‘switch’ to another immigration category, or to have a leave stamp transferred to a new passport. Fees were calculated to recover the administrative costs (including staffing and overhead costs) of processing applications to the point of conveying a decision. The Government then decided to try and recover some of the other costs of immigration control through immigration application fees. Section 42 of the Asylum and Immigration (Treatment of Claimants, etc. Act 2004) paved the way for this, by allowing the Home Secretary (with the consent of the Treasury) to set fees which (a) exceed the administrative costs of determining the application and (b) reflect the likely benefits to the applicant if the application is successful. A Home Office consultation published in September 2004, Review of charges for immigration applications,206 set out various options for the kinds of costs that could be recovered and what increases to the fees would result. The consultation document, a summary of responses, and a number of associated documents (particularly on the subject of students) are published on the IND website.207 Following this consultation, it was decided that fees would be increased to cover the costs of handling and processing appeals and providing and running the appeals system. This was implemented on 1 April 2005, meaning a substantial increase for most applicants. Apart from students, who pay a slightly lower rate of £250 for postal applications, most applicants must now pay £335 for postal applications and £500 for the ‘premium’ service in person.208 There are exemptions for certain categories of applicant, including: EEA nationals and their families; children being supported by a local authority; and destitute victims of domestic violence. 206http://www.ind.homeoffice.gov.uk/ind/en/home/laws___policy/consultation_documents/closed_consultat

ions.Maincontent.0092.file.tmp/Central%20Consultation%20Document%20Final%200.12.pdf 207http://www.ind.homeoffice.gov.uk/ind/en/home/laws___policy/consultation_documents/closed_consultat

ions.html 208 Immigration (Leave to Remain) (Fees) Regulations 2005, SI 2005/627 and Immigration (Leave to

Remain) (Fees) (Amendment) Regulations 2005, SI 2005/654. See Home Office, Information about charges for General Casework Applications from 1 April 2005 :

http://www.ind.homeoffice.gov.uk/ind/en/home/applying/making_an_application/information_about.html


65

Other countries also charge for immigration applications made in-country. A summary of some other countries’ charges can be found in a study prepared for the Home Office in 2004.209 Up-to-date information can be found on individual governments’ websites, for instance Australia210 and the USA.211 Charging for visas and other entry clearance applications from abroad is separate from the in-country applications described above. These charges are authorised by the Consular Fees Act 1980. The current charges are considerably less than those for applications made in the UK, and can only cover the administrative costs of the application itself. They range from £36 (entry clearance for students, irrespective of length of stay) to £260 (for a spouse, fiancé(e) or child coming for settlement).212 Entry clearance officers have a discretion to waive these fees. Some of the people for whom visas should be granted without charge are set out in instructions from UK Visas, and include Cabinet ministers, destitute persons and nationals of Kyrgyzstan.213 Visa fees are set to change on 1 July 2005 so that, for instance, students will pay £85, which is the same as the new standard rate for ‘longer term validity visas’. Settlement visas will however remain £260.214 In addition to the charges to applicants for the immigration and entry clearance applications, section 122(1) of the Nationality, Immigration and Asylum Act 2002 allows fees to be charged for applications for ‘immigration employment documents’ including work permits. The current fees per application are:215

• seasonal agricultural workers: £12 • work permits: £153 • highly skilled migrants programme: £315

209 J. Clarke, J. Hogarth and J. Salt, Migration Policies and Trends: International Comparisons, April

2004: http://www.geog.ucl.ac.uk/mru/docs/HO_routes_final.pdf 210 Australian Department of Immigration and Multicultural and Indigenous Affairs: Charges (Fees) -

http://www.immi.gov.au/allforms/990i.htm#currentcharge 211 US Citizen and Immigration Services, Forms and Fees - http://uscis.gov/graphics/formsfee/forms/index.htm 212 Consular Fees (No 2) Order 1999 SI 1999/3132, Schedule, Part II (as amended). See: http://www.ukvisas.gov.uk/servlet/Front?pagename=OpenMarket/Xcelerate/ShowPage&c=Page&cid=1

006977150007 213 UK Visas, Diplomatic service procedures, entry clearance volume 1, general instructions, 7 March

2003, chapter 7 - fees: http://www.ukvisas.gov.uk/servlet/Front?pagename=OpenMarket/Xcelerate/ShowPage&c=Page&cid=1

035899049391 214 Consular Fees Order 2005, which will revoke and replace the Consular Fees (No 2) Order 1999. See

Written Ministerial Statement 8 June 2005 c c46-54WS, and UKvisas press notice, UK Visa Fees to Change from 1 July 2005, 8 June 2005:

http://www.ukvisas.gov.uk/servlet/Front?pagename=OpenMarket/Xcelerate/ShowPage&c=Page&cid=1006977150106&a=KArticle&aid=1115144891333

215 The Immigration Employment Document (Fees) Regulations 2003, SI 2003/541, as amended


66

These fees are usually paid by the employer. There are exemptions in respect of workers from Albania, Armenia, Bulgaria, Croatia, Moldova, Romania and Turkey because these countries have ratified the Council of Europe Social Charter or the Council of Europe Revised Social Charter. A different fee arrangement applies to applications for immigration employment documents for people employed as school teachers in England.216 Nationality applications are also subject to a fee. Section 41(2) of the British Nationality Act 1981 allows regulations to be made setting charges for applications under that Act. The current fee (as of 1 April 2005) for naturalisation of an adult or registration of a child as a British citizen is £200, plus £68 for the compulsory citizenship ceremony.217 2. The Bill

Clause 43 of the Bill would replace all the provisions for charging for immigration and nationality applications (including immigration employment documents), apart from those from abroad under the Consular Fees Act. It would provide a general power to charge for designated immigration and nationality services. The main difference would be that, whereas currently the services for which a fee is payable are set out in primary legislation with supplementary details including the amount of the fee in secondary legislation, the new power would allow the services themselves as well as the detail to be specified by secondary legislation. A similar ‘downgrading’ is proposed for the application forms and procedures for ‘leave to remain’ applications. At the moment these are set by regulations made under section 31A of the Immigration Act 1971. Clause 42 of the Bill would allow the Secretary of State to specify the procedures for any immigration-related applications or claims in the Immigration Rules (clause 42(1)) or otherwise (clause 42(2)). This would mean that forms were prescribed administratively rather than by regulations. Again, this provision would not relate to visa or other entry clearance application forms.

216 Immigration Employment Document (Fees) Regulations 2003 regulations 6 and 7 217 The British Nationality (Fees) Regulations 2003 SI 2003/3157, as amended by the British Nationality

(Fees) (Amendment) Regulations 2005, SI 2005/651

67

Statistical Appendix List of tables 1. Passengers given leave to enter the United Kingdom by purpose of journey, 1997-2003 2. Principal applications for asylum and initial decisions, 1986-2004 3. Persons subject to enforcement action and removed from the United Kingdom, 1997-2003 4. Entry clearance: Settlement and non-settlement applications, and outcome, by region

2003/04 5. Entry clearance: Visitor and Work Permit applications, and outcome, by region 2003/04 6. Entry clearance: Student and Working Holiday Maker applications, and outcome, by

region 2003/04 7. Immigration appeals considered by adjudicators and the Immigration Appeals Tribunal,

2001-04

68

Appendix 1: Passengers given leave to enter the United Kingdom by purpose of journey(1)

Visitors Students Work-permit Spouse or Accepted forholders fiancee settlement(2)

1997 7,760 278 63 26 21998 8,040 266 68 32 21999 8,370 272 76 30 3

2000(5) 8,930 312 92 33 22001(5) 8,170 339 109 29 3

2002 7,850 369 120 30 32003 7,550 319 119 31 3

UK Others given Returning after Totalancestry(3) leave to enter(4) temp absence

1997 8 1,250 1,560 10,9481998 10 1,310 1,780 11,5091999 12 1,340 1,910 12,0132000 11 1,430 2,200 13,0102001 11 1,510 2,620 12,7912002 10 1,480 2,740 12,6022003 9 1,390 2,780 12,201

(1) Excludes EEA nationals

(2) Accepted for settlement on arrival: Excludes asylum-related cases given indefinite leave to enter;

these are included in ‘others given leave to enter’.

(3) Commonwealth citizens with a United Kingdom born grandparent who are taking or seeking employment.

(4) Includes ‘passengers in transit’, ‘au pairs’, and ‘refugees, exceptional leave cases and their dependants’

and 38,000 journeys made 2003 for which the category of admission is unknown.

(5) A change in procedures may have resulted in some under-recording for the fourth quarter of 2000

and the first quarter of 2001.




69

Persons applying for

asylum

Number Number

% of all initial

decisions Number

% of all initial

decisions Number

% of all initial

decisions1986 4,266 348 12% 2,102 70% 533 18%1987 4,256 266 11% 1,531 63% 635 26%1988 3,998 628 23% 1,578 58% 496 18%1989 11,640 2,210 32% 3,860 55% 890 13%1990 26,205 920 23% 2,400 60% 705 18%1991 44,840 505 8% 2,190 36% 3,380 56%1992 24,605 1,115 3% 15,325 44% 18,465 53%1993 22,370 1,590 7% 11,125 48% 10,690 46%1994 32,830 825 4% 3,660 17% 16,500 79%1995 43,965 1,295 5% 4,410 16% 21,300 79%1996 29,640 2,240 6% 5,055 13% 31,670 81%1997 32,500 3,985 11% 3,115 9% 28,945 80%1998 46,015 5,345 17% 3,910 12% 22,315 71%1999 71,160 7,815 37% 2,465 12% 11,025 52%2000 80,315 10,605 12% 11,475 13% 67,910 75%2001 71,025 11,450 9% 20,190 17% 89,310 74%2002 84,130 8,270 10% 20,135 24% 55,130 64%2003 49,405 3,865 6% 7,210 11% 53,865 83%

2004 Q1 8,940 535 4% 1,270 8% 12,835 88%2004 Q2 7,920 355 3% 855 7% 10,470 89%2004 Q3 8,605 305 3% 815 7% 10,050 90%2004 Q4 8,465 320 4% 940 11% 7,170 85%2005 Q1 7,015 465 6% 750 1% 6,790 84%

Note: Decisions do not necessarily relate to applications made during the same period. Data does not include dependants

* From April 2003, exceptional leave to remain was replaced with humanitarian protection and discretionary leave

Sources: Home Office Asylum Statistics

Appendix 2: Principal applicants for asylum 1986-2004Initial decisions - cases considered under normal procedures

Decisions

Recognised as refugee and granted asylum

Not recognised as refugee but given

discretionary leave* Refused

70

Appendix 3: Persons subject to enforcement action and removed from the United Kingdom(1)

1997 1998 1999 2000 2001 2002 2003Enforcement ActionPersons against whom enforcement action initiated(8)

Illegal entry action 14,390 16,500 21,165 47,325 69,875 48,050 …

Deportation action(9) 5,600 4,580 1,785 2,525 625 235 …Administrative removal action 720 5,610 9,450 …

Total persons against whom enforcement action initiated(8) 20,000 21,080 22,950 50,570 76,110 57,735 …

of whom: principal asylum applicants(3)(4) 13,760 14,730 … 43,465 67,150 46,200 …of whom: non-asylum cases 6,240 6,350 … 7,105 8,960 11,535 …

Type of removalPersons refused entry at port and removed(2) 24,540 27,605 31,295 38,275 37,865 50,360 38,110

of whom: principal asylum applicants(3)(4) 4,100 3,540 4,860 5,440 4,175 3,730 2,980of whom: non-asylum cases(5) 20,430 24,065 26,435 32,835 33,690 46,630 35,130

Persons removed as a result of enforcement action(2)(6) 6,610 7,315 6,440 7,820 10,290 14,205 19,630

of whom: principal asylum applicants(3)(4) 3,060 3,450 2,755 2,990 4,130 6,115 8,270of whom: non-asylum cases 3,550 3,865 3,680 4,830 6,160 8,090 11,365

Principal asylum applicants leaving under AVRP(7) … … 50 550 980 895 1,755

Total persons removed(2)(4) 31,140 34,920 37,780 46,645 50,625 68,630 64,390

of whom: principal asylum applicants(3) 7,160 6,990 7,665 8,980 9,285 10,740 13,005of whom: dependents of principal asylum applicants(4) … … … … 1,495 3,170 4,890of whom: non-asylum cases(5) 23,980 27,930 30,120 37,665 39,850 54,720 46,495

(1) Under sections 3(6), 3(7) or 33(1) of the Immigration Act 1971, or under section 10 of the Immigration and Asylum Act 1999.

(2) Including persons departing ‘voluntarily’ after enforcement action had been initiated against them.

(3) Persons who had sought asylum at some stage, excluding dependants.

(4) Data on dependants of asylum applicants removed have only been collected since April 2001.

(5) Figures up to March 2001 may include a small number of dependants of port principal asylum applicants removed.

(6) Excludes Assisted Voluntary Returns.

(7) Persons leaving under Assisted Voluntary Return Programmes run by the International Organisation for Migration.

May include some on-entry cases and some cases where enforcement

(8) Illegal entrants detected and persons issued with a notice of intention to deport, recommended for deportation

by a court or proceeded against under Section 10.

(9) Deportation figures may be under-recorded in 1999 and 2000. 2001 figure may exclude some persons recommended

for deportation by a court.


Appendix 4: Entry clearance: Settlement and non-settlement applications, and outcome, by region, 2003/04

Received Receivednumber number % number % number number % number %

Australia and South Pacific 6,246 5,993 95.9% 4 0.1% 40,821 39,605 97.0% 321 0.8%Central Europe and former USSR 5,931 5,553 93.6% 330 5.6% 297,333 266,888 89.8% 22,433 7.5%Equatorial Africa 9,948 6,754 67.9% 3,149 31.7% 291,751 170,676 58.5% 111,118 38.1%Far East 1,681 1,553 92.4% 167 9.9% 169,415 145,509 85.9% 20,358 12.0%Latin America 1,640 1,525 93.0% 81 4.9% 26,804 24,170 90.2% 2,725 10.2%Middle East 1,826 1,643 90.0% 319 17.5% 213,990 194,412 90.9% 10,981 5.1%Near East and North Africa 3,146 2,636 83.8% 497 15.8% 101,056 85,976 85.1% 12,297 12.2%North America 4,771 4,568 95.7% 43 0.9% 109,376 105,660 96.6% 842 0.8%South Asia 24,917 18,526 74.4% 5,755 23.1% 474,456 362,411 76.4% 97,360 20.5%South East Asia 5,876 5,071 86.3% 715 12.2% 108,940 94,773 87.0% 9,998 9.2%Southern Africa 5,255 3,864 73.5% 457 8.7% 72,275 55,949 77.4% 14,492 20.1%Southern Europe 2,586 2,391 92.5% 552 21.3% 67,594 69,032 102.1% 5,164 7.6%UK Visas London ... ... ... ... ... 748 748 100.0% 0 0.0%West Indies and Atlantic 1,813 1,141 62.9% 528 29.1% 32,555 21,025 64.6% 11,848 36.4%Western Europe 721 644 89.3% 109 15.1% 142,948 129,336 90.5% 6,967 4.9%Total 76,357 61,862 81.0% 12,706 16.6% 2,150,062 1,766,170 82.1% 326,904 15.2%

Figures may not sum to 100%. Some applications may be received but not processed and may be carried forward to the next year, or withdrawn

Source: UK Visas

Settlement Non-settlementIssued Refused Issued Refused

Appendix 5: Entry clearance: Visitor and Work Permit applications, and outcome, by region, 2003/04


Australia and South Pacific 3,483 3,002 86.2% 209 6.0% 861 826 95.9% 1 0.1%Central Europe and former USSR 223,438 203,280 91.0% 16,237 7.3% 10,930 10,661 97.5% 184 1.7%Equatorial Africa 243,653 148,098 60.8% 89,502 36.7% 1,981 1,396 70.5% 542 27.4%Far East 106,828 97,408 91.2% 6,951 6.5% 3,353 2,727 81.3% 524 15.6%Latin America 17,999 16,526 91.8% 1,269 7.1% 1,112 1,095 98.5% 5 0.4%Middle East 177,322 166,607 94.0% 7,832 4.4% 1,225 1,174 95.8% 42 3.4%Near East and North Africa 87,016 72,727 83.6% 10,243 11.8% 926 868 93.7% 46 5.0%North America 73,908 70,647 95.6% 595 0.8% 3,246 3,198 98.5% 15 0.5%South Asia 363,297 292,490 80.5% 60,072 16.5% 22,027 18,533 84.1% 3,872 17.6%South East Asia 72,582 62,397 86.0% 6,451 8.9% 5,309 4,697 88.5% 396 7.5%Southern Africa 29,991 20,324 67.8% 9,177 30.6% 3,764 3,589 95.4% 98 2.6%Southern Europe 60,982 57,206 93.8% 3,223 5.3% 557 498 89.4% 25 4.5%UK Visas London ... ... ... ... ... ... ... ... ... ...West Indies and Atlantic 27,471 16,551 60.2% 10,852 39.5% 971 831 85.6% 93 9.6%Western Europe 116,882 103,919 88.9% 6,357 5.4% 1,749 1,712 97.9% 30 1.7%Total 1,604,852 1,331,182 82.9% 228,970 14.3% 58,011 51,805 89.3% 5,873 10.1%


Source: UK Visas

RefusedVisitor

IssuedWork Permit

Issued Refused

Appendix 6: Entry clearance: Students and Working Holiday Maker applications, and outcome, by region, 2003/04


Australia and South Pacific 587 514 87.6% 23 3.9% 25,947 24,996 96.3% 66 0.3%Central Europe and former USSR 27,817 21,590 77.6% 6,426 23.1% 145 110 75.9% 26 17.9%Equatorial Africa 33,011 13,328 40.4% 17,620 53.4% 2,729 1,883 69.0% 900 33.0%Far East 49,257 36,440 74.0% 12,353 25.1% 559 554 99.1% 10 1.8%Latin America 5,215 3,918 75.1% 1,281 24.6% 54 53 98.1% ... ...Middle East 11,782 10,667 90.5% 958 8.1% 83 47 56.6% 34 41.0%Near East and North Africa 7,567 5,994 79.2% 1,571 20.8% 43 34 79.1% 5 11.6%North America 2,671 2,529 94.7% 36 1.3% 5,588 5,389 96.4% 39 0.7%South Asia 58,199 29,211 50.2% 25,749 44.2% 12,338 2,257 18.3% 7,718 62.6%South East Asia 13,985 11,974 85.6% 1,674 12.0% 2,503 1,793 71.6% 318 12.7%Southern Africa 3,980 2,055 51.6% 1,783 44.8% 25,066 20,720 82.7% 2,141 8.5%Southern Europe 6,549 4,926 75.2% 1,611 24.6% 236 229 97.0% 6 2.5%UK Visas London ... ... ... ... ... ... ... ... ... ...West Indies and Atlantic 1,452 836 57.6% 592 40.8% 1,114 899 80.7% 309 27.7%Western Europe 2,958 2,556 86.4% 375 12.7% 995 858 86.2% 78 7.8%Total 225,030 146,538 65.1% 72,052 32.0% 77,400 59,822 77.3% 11,650 15.1%


Source: UK Visas

Students Working Holiday MakersRefused IssuedIssued Refused

Appendix 7: Immigration appeals considered by adjudicators and Immigration Appeals Tribunal, 2001-2004

Received Dealt with Received Dealt with Received Dealt with Received Dealt with2001 47,906 43,416 10,378 9,114 4,366 4,188 62,650 56,7182002 64,127 64,406 12,024 12,762 7,997 7,091 84,148 84,2592003 70,577 81,723 14,637 12,411 15,778 14,214 100,992 108,3482004 47,002 55,974 31,404 30,539 20,767 22,707 107,114 109,220

Received Dealt with Received Dealt with Received Dealt with2001 15,542 13,538 1,877 1,719 627 4662002 25,599 22,823 2,167 2,389 1,179 8092003 34,955 32,178 2,073 1,997 1,849 1,4792004 29,264 30,519 4,751 3,583 2,540 2,124

Received Dealt with Received Dealt with Received Dealt with Received Dealt with2001 3,861 3,190 427 545 129 132 22,463 19,5702002 6,919 5,563 598 799 170 202 36,632 32,5852003 11,843 9,451 871 808 471 382 52,062 46,2952004 9,467 8,783 1,317 754 3,579 2,727 50,918 48,490

Source: Department for Constitutional Affairs Judicial Statistics 2004 (2005)

Immigration Adjudicators (IAA)

Asylum cases

Asylum cases Immigration cases Visitors visa cases Total IAA cases

Immigration cases Visitors visa casesImmigration Appeals Tribunal (IAT) - applications for leave to appeal

Immigration Appeals Tribunal (IAT) - appeals to the TribunalAsylum cases Immigration cases Visitors visa cases Total IAT cases

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