Guardian piece

My my, one gets more comments on The Guardian website than on Free Movement! I’ve been busy in court all day (on a non immigration case) and get back to find that there were 87 comments on the short piece I’ve done for Liberty Central at The Guardian’s website.

I haven’t yet read beyond the first few comments, but having seen those and being familiar with the tone of responses to other liberal commentators there I imagine many will be negative.

At some point later today I’ll be logging on there and starting to do a few responses…

Filed under: Asylum, News

Nigeria ECOs blasted by inspectors

John Vine

A tad sensationalist, I know, but true enough, you will find. The Chief Inspector of UKBA, John Vine, just published his report on the UKBA visa operation at Abuja. The findings are that the operation is poor:

• The ’service’ represents poor value for money for customers. High fees are paid but refusal notices are repetitive, poorly written, unbalanced and poorly presented.
• The information available to potential visa applicants is confusing, can be inconsistent and needlessly has to be sourced from multiple websites. This leads to unnecessary refusals.
• The quality of information recording was found to be very poor indeed. The inspectors attempted to look at a sample of 100 files but by the time incorrectly referenced and lost files were eliminated, there were only 64 files in the sample.
• The quality of decision making was found to be poor on all the measures used. 11% of cases showed ‘wholly unreasonable’ judgment by ECOs and 31% of the sample were deficient in some way.
• Entry Clearance Manager oversight was inadequate, as was complaint handling. There is therefore little or no feedback to ECOs to improve standards.

The report is written in a very balanced and impartial manner and the conclusions are well supported and, when it comes down to it, incontrovertible. At the time of writing there is no UKBA response to the report, unlike for previous inspectorate reports. The silence is perhaps telling.

None of the above comes as news to immigration lawyers or to the unfortunate applicants who have had to apply to Abuja. However, I suspect that the most telling point made in the report is the criticism of poor value for money. It isn’t said anywhere in the report, but the idea of a ‘customer’ has yet to sink in at UKBA, despite the large fees now paid for the cursory examination applications get at the hands of ECOs. Perhaps these inspection reports will slowly begin to shift this attitude.

Filed under: News, OCIUKBA

Human Provenance Project again

The policy instruction to UKBA staff on the sinister sounding Human Provenance Project (who cooked this name up, for heaven’s sake?) has changed yet again. The link on my last post on this still works, but the document it links to has changed and now reads as follows:

Alterations have been made to the nationality swapping – Isotope analysis and DNA testing process. This process continues to operate.

The present instruction has been withdrawn whilst amendments are made.

Thanks to my normal source of geek rather than immigration news, The Register (‘Biting the hand that feeds IT’), I see that the journal Nature has published an editorial condemning the project. It looks like the project may resurface, though, perhaps with a re-worded section on the use to which test results may be put by UKBA. I very much doubt that playing with the wording will somehow render the unacceptable acceptable.

Filed under: News, Policy

More on alleged 6 year rule

Further to my earlier post on the alleged relaxing of asylum rules, see the Government response to media claims:

Asylum seekers – government response

09 October 2009

The government has responded to claims in the media that up to 40,000 asylum seekers will be allowed to stay in the United Kingdom because it would be too difficult to return them to their home countries.

Phil Woolas, [still] Border and Immigration Minister, said:

‘There is no amnesty.

‘Our guidelines were updated to provide case workers with a simple framework to judge cases, and to avoid long drawn out court battles.

‘No lawbreaker will be allowed to say, and each case is still decided on its individual merits.

‘The UK Border Agency continues to ramp up performance and is concluding several thousand cases a month.

‘Less than 40% of cases are being granted and I am confident that we will clear all of these cases by 2011.’

Filed under: News, Policy

Six year rule for asylum seekers?

The Daily Telegraph has claimed that there is a new policy that asylum seekers may be granted settlement after a wait of four to six (or possibly eight) years following a quiet change to immigration policies.

The policy is allegedly set out in a memo The Telegraph claims to have seen from Matthew Coates, a very senior figure at UKBA, which was signed off by still Immigration Minister Phil Woolas. It concerns Legacy cases and asylum seekers from countries such as Zimbabwe and Somalia to which it is almost impossible to enforce removals. The Telegraph reckons that Coates rejects the idea of an sort of formal amnesty but:

Instead, he recommends changing the current guidance to make it easier for immigration officials to allow the 40,000 to stay in the UK.

He suggests they could be allowed to stay here after having been here for as little as four years, in the most difficult cases, or around six to eight years – rather than 10 to 12 years as the rules stated.

He adds: “We do not believe the rule itself needs amendment. We do, however, need to make some amendments to the underpinning operational guidance to give caseworkers the necessary latitude to deal with this cohort.”

A rather incoherent article has followed the story in The Daily Mail but it really only confuses the issue. It is an appalling piece of writing.

There has been no formal change to Immigration Rule 395C, which lists compassionate circumstances to be considered in removal cases. However, there was a change in the summer to the Enforcement Guidance and Instructions on rule 395C (chapter 53.1.2), which now includes the following examples of cases that should be considered sympathetically:

• An initial application or an ‘in-time’ application for further leave (an application made before the individuals leave to enter/remain had expired) was submitted some time ago. A significant delay in such cases considered as being between 3-5 years.
• ‘Family’ cases where delay by UKBA has contributed to a significant period of residence (for the purposes of this guidance, ‘family’ cases means parent as defined in the Immigration Rules and children who are emotionally and financially dependent on the parent, and under the age of 18 at the date of the decision). Following an individual assessment of the prospect of enforcing removal, and where other relevant factors apply, a 3 year period of residence may be considered significant, but a more usual example would be 4-6 years. Family units may be also be exceptionally considered where the dependent child has experienced a delay of 4-6 years whilst under the age of 18.
• Any other case where delay by UKBA has contributed to a significant period of residence, Following an individual assessment of the prospect of enforcing removal, and where other relevant factors apply, 4-6 years may be considered significant, but a more usual example would be a period of residence of 6-8 years.

These passages are probably the source of the story (or perhaps reflect the implementation of the Coates memo) but they do not seem to bear out the spin given in The Telegraph and The Mail, neither of which mentions that the guidance applies to family cases where there has been significant delay. However, it does explain the occasional strangely liberal, compassionate looking decisions that lawyers may have seen recently.

Filed under: Legacy, News, Policy

Plug pulled on Provenance Project

It looks like UKBA have suspended the isotope analysis testing programme ominously called The Human Provenance Project. A revised policy instruction has been placed on the UKBA website simply saying that it has been ‘temporarily suspended’. It is doubtful whether it will be resurrected, though, as this is Government-speak for ‘permanently shelved’.

It was difficult to credit that the Government had decided to go ahead with this in the first place. My last post on this focussed on the ridiculous claims made for the science behind the project. The project was simply incapable of producing the results claimed for it by UKBA. This is presumably why it has been abandoned.

I did not previously dwell on the principle of the thing. The idea of subjecting human beings to this kind of laboratory analysis to determine their ‘true’ origins was highly offensive. Sadly, I doubt that had much to do with the decision to pull the plug. Asylum seekers will continue to be viewed as sub-human test subjects.

Filed under: News, Policy

The Human Provenance Project

It sounds like the title of a dystopian science fiction film, and it is every bit as bad as it sounds. The first I heard of it was on 14th September 2009 after this letter was circulated to UKBA stakeholders. I had a little rant about it at the time in another forum, complaining there was something unpleasantly eugenicist about it, lamenting the daft liberal arts graduates who approved it who understand neither science nor statistics and suggesting they start measuring skull size and penis length for good measure.

Free Movement is a proud graduate in, er, history, incidentally.

The Human Provenance Project involves taking tissue samples from asylum claimants, including children. This is only done by ‘consent’, but the policy document that UKBA has published makes it quite clear that failure to give consent will count against a claimant:

If an asylum applicant refused to provide samples for the isotope analysis and DNA testing the case owner could draw a negative inference as to the applicant’s credibility and if appropriate apply Section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. Section 8 states that where an asylum applicant has behaved in way that is designed or likely to conceal information or mislead the UK Border Agency; it could be seen as damaging the applicant’s credibility.

Bold claims are made in the policy document. The tissue samples ‘voluntarily’ handed over will be subject to isotope analysis. The science is held out as the miracle solution to disputed nationality cases:

Isotope analysis is based on a forensic technique which was pioneered during the ‘Adam Torso’ case – a police case in which a child’s torso was found in the Thames too mutilated to offer any kind of identification… In this case the child’s body was traced to a small Nigerian town in an area about 100 x 50 km wide.

To be fair, the document does state that the Adam Torso case involved bone testing, and that even UKBA thinks that taking bone samples might be a little intrusive. What is not stated is that instead UKBA seem to be relying on a very different form of isotope analysis to that used in the Adam Torso case, which is far less accurate and cannot possibly help determine nationality with any useful degree of accuracy.

This first started to emerge in the blogosphere but is now hitting the mainstream media. There are also items about it here, here and here worth reading.

One would hope that even arts graduate immigration and other judges wouldn’t give any test results the time of day given all this adverse scientist reaction. One also has to wonder (a) how much money UKBA has spent on this and (b) what idiots thought it was a good idea and then what idiots approved it. And what subjects they studied at university.

I’ll end by noting how dishonest the policy document is. It very clearly seeks to suggest that the test results are far more accurate than they actually are. In nearly ten years of doing this work I can’t remember seeing clearer proof of UKBA deceit. This kind of debacle does the organisation no favours, to put it mildly.

Filed under: News, Policy

Change of tune

I’m sorry to harp on about this and will return to some substantive legal blogging next week (there’s been a fairly lengthy change to the rules that I haven’t even looked at yet, for starters).

I can’t help noticing that UKBA have rather changed their tune, and certainly their tone, with the latest press release on fining employers. See my previous post on this for the rather rabid language previously being slavered by them. Now compare to the latest one:

Chief Immigration Officer Jack Davis, said:

‘We continue to offer advice to employers with foreign nationals among their staff and genuine employers have nothing to be concerned about by contacting us for help.

‘However, those who persist in using illegal labour to cut costs will be penalised and we will concentrate our efforts on them to reduce the incentive for illegal migration to this region.’

A tough new civil penalty system was brought in last year to provide a fast and effective way of tackling bosses who fail to carry out proper checks on workers from outside Europe. A fine of up to £10,000 per worker can be imposed for every illegal worker found at a business.

Not quite so strident now! One of the enormous ironies that seems to have escaped Chris Grayling and others (‘BS should be treated exactly the same as any other employer’ etc) is that she is the first private individual to be fined in this way. UKBA have never previously pursued this course, and I imagine probably will not in future. Although that won’t prevent Middle England as a whole from asking some awkward questions of those beneath their stairs. It’s going to be a tough time for foreign looking cleaners, I imagine.

Filed under: News

Should she go?

I’m sitting on the fence on this one. One the one hand it would be a tragedy if someone of Baroness Scotland’s talents and background were sacked over a silly law like this one. On the other, her departure might serve to prove just how silly that law really is. As for whether the civil penalty scheme is to be likened to the Congestion Charge, I draw your attention to the following official line from UKBA in a press release as recent as 17 September 2009:

Jane Farleigh, the UK Border Agency’s regional director for Wales and the South West, said:

‘The message is clear for employers – we will not tolerate illegal working. It is a crime that not only undercuts local business but also has a serious impact on communities, taking jobs from those who are genuinely allowed to work.

‘There are simple ways of checking a foreign national’s right to work and there is no excuse for not checking the identity of those applying for jobs.

‘We support and encourage employers to comply with the rules, but when they fail to do so it is right that we crack down on them.’

A tough new civil penalty system was brought in last year to provide a fast and effective way of tackling employers who fail to carry out proper checks on workers from outside Europe.

A fine of up to £10,000 per worker can be imposed for every illegal worker found at a business.

“Crack down” using a “tough” scheme to “tackle” defaulting employers. It gets better, though, in another press release the same day about a different employer:

Mabs Uddin, a UK Border Agency Inspector, said:

‘These arrests show our commitment to operations targeting businesses which employ illegal workers. It is a crime that not only undercuts local business, but also has a serious impact on local communities; taking jobs from those who are genuinely allowed to work.

‘We will act on any information received and if appropriate visit the place concerned to make arrests. We will not tolerate illegal working in East London.’

The workers were employed by Dila Ltd. who made clothes which were sold under the high street retailer Jane Norman’s brand. However, there is no suggestion Jane Norman were involved in the employment of these individuals.

Now employing illegal workers is a “crime” and a social evil that takes British jobs from British workers (which is economic nonsense, of course – here is no finite number of jobs in the economy). How about yet another press release also from 17 September 2009?

The Good Food Company was told that it faces a fine of up to £40,000 for employing illegal workers, unless it can prove that the correct right-to-work checks were carried out.

UK Border Agency’s area director Gareth Redmond said:

‘We’re committed to removing people who have no right to be in the UK – and to taking tough action against rogue employers who use and exploit illegal workers.

‘So we’ve brought in heavy fines of up to £10,000 per illegal worker to hit those who don’t play by the rules where it hurts.

‘Today’s operation should serve as a warning for those who break the law.’

Anyone who suspects that illegal workers are being employed at a business in the London area should contact Crimestoppers on 0800 555 111. Anonymity can be assured.

You probably start to get the picture. These cases are far more serious than that of Baroness Scotland as the employment was on a far bigger scale and sounds a lot less innocent. Yet I can’t resist continuing a little further in the same vein. Try this quote from a press release from 11 September 2009:

The operation was led by Immigration Officer Dave Butler, of the Essex and Herts Local Immigration Team, who said:

‘We are working hard to pull the plug on the illegal jobs which lure illegal immigrants to come to the UK in the first place.

‘Illegal working is unfair on honest employers who recruit staff with the right to work in the UK and who pay them a proper salary.

‘Employers who don’t play by the rules will get struck off our register, lose the right to recruit staff from outside Europe, face on the spot fines and could potentially end up in jail.’

Or this one, again from 11 September 2009:

All three car washes were issued with on-the-spot penalty notices for employing illegal workers and may each now face a fine of up to £10,000. To avoid this, they must prove to the UK Border Agency that they carried out the correct right-to-work checks for employing workers from outside the European Union.

Rachel Challis from the UK Border Agency’s Boston-based local immigration team said:

‘We are working hard to pull the plug on the illegal jobs which lure illegal immigrants to come to the UK in the first place.

‘Illegal working is unfair on honest employers who recruit staff with the right to work in the UK, and who pay them a proper salary.

‘Employers who don’t play by the rules will get struck off our register, lose the right to recruit staff from outside Europe, face on-the-spot fines and potentially end up in jail.’

A tough new civil penalty system was brought in last year to provide a fast and effective way of tackling bosses who fail to carry out proper checks on workers from outside Europe.

The message here (in amusingly identical language allegedly from separate human beings) isn’t quite that the Home Office considers civil penalties for employers to be equivalent to a Congestion Charge fine or parking ticket. Baroness Scotland is not from a political background and clearly lacks the political nouse not to say something like this. That is not a good reason to sack her, though – otherwise we’ll only be left with professional political hacks who have continually practised the Dark Arts since their student union days.

Filed under: News

Baroness Scotland

The media coverage on this story has been interesting. The Telegraph is running a short story that is actually quite sympathetic to employers who break the law. Many seem to be revelling in the fact that Baroness Scotland helped to pass the law she may or may not have broken.

The history is that criminal sanctions against employers who employ illegal workers were introduced in 1996. The law was complex as it required employers to take and retain copies of certain documents or combinations of documents. If an employee turned out to be illegal but the documents had been copied and retained, the employer would be in the clear. The idea was that employers could not be expected to work out whether a given person did or did not have permission to work in the UK or whether documents were forged but could be expected to copy and keep specified documents.

There were very few prosecutions indeed. The law was reformed and made even more complicated in 2002 and again in 2004. There were still very few, if any, prosecutions.

Eventually, in 2006, the Home Office instead went for the civil penalty scheme we have today. The rules are similar, except it is no longer a criminal matter. There is simply a fine if UKBA find out that an employer has employed an illegal worker and has not copied and kept the right documents. There is a criminal offence of knowingly employing an illegal worker but I have not heard of any prosecutions at all.

In addition, UKBA now publish lists of employers who have been fined as some sort of alleged ‘naming and shaming’ exercise.

The entire thing has an air of unreality about it. It is all very well expecting large employers with human resources departments and training budgets to comply with these sorts of rules. It is entirely ridiculous to expect the same of chip shops or those wanting a cleaner. It would be daft if Baroness Scotland lost her job over such an easy mistake to have made – but that is exactly the scheme that UKBA have introduced and hundreds of others have been fined for exactly the same mistake. Baroness Scotland probably did not herself fully understand the law she piloted through the Lords, and she now appears to have been hoist by her own petard.

Filed under: News