SIMPLIFYING IMMIGRATION LAW: AN INITIAL CONSULTATION Home Office Borders and Immigration Agency

Comments by Kathleen Marshall Scotland Commissioner for Children & Young People s 29 August 2007

What this is about The purpose of this initial consultation paper is to seek a range of views to inform a major overhaul of the legal framework within which the Border and Immigration Agency (BIA) operates. The current legal framework is very complex which reduces efficiency in decision making. The aim of the consultation is to seek views on simplifying the body of different immigration laws built up over the last few decades and to reduce complexity and consolidate existing legislation. (The UK Borders Bill was the 10th in a series of measures which have been overlaid on the 1971 Immigration Act.) There are also Immigration rules, guidance and instructions (secondary legislation) made under the 1971 Act. The new legal framework will be key to the transformation of the Border and Immigration Agency, and to the achievement of its strategic objectives. The simplification project aims to produce a single consistent and coherent framework of primary and secondary legislation along with whatever guidance/ instructions are strictly necessary. The focus is on the legal framework rather than a review of immigration policy. The new legal framework will be key to the transformation of the Border and Immigration Agency, and to the achievement of its strategic objectives. This is an initial consultation which will kickstart the process and inform the scoping, planning and early work of the simplification project. A fuller consultation will be produced later in 2007 - with a view to legislation in 2008. Relevant policies include: the review of the immigration service (2006) "Fair, effective, transparent and trusted: rebuilding confidence in our Immigration system" (Home Office July 2006) and follow up work; The UK Borders Bill (significant changes here include extended powers for immigration officers, automatic detention pending a decision to deport or during the deportation process); cross government enforcement strategy; Borders and visa strategy; establishment of the BIA; major reform of processes including a new approach to casework and points based system for managed immigration. Also relevant is the publication of proposals for biometric ID for non-EEA foreign nationals living in Britain. Key principles are defined to underpin the simplification process: Transparency - for staff within the BIA, for applicants and other stakeholders Efficiency - with a user friendly system within which decisions are made effectively and quicker Clarity and predictability - for applicants and sponsors reducing the need for advisers Plain English - avoiding technical jargon Public confidence - in a comprehensible system This should minimise: the need for further legislation; reliance on concessions outside the normal rules; the need for decision makers to exercise discretion; inconsistencies between different parts of the system; duplication (including parallel provisions in different areas for broadly comparable circumstances); and gaps in powers to resolve cases fairly, speedily and effectively.

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A further assumption is that a 3 tiered framework will be used in future: Overarching provision set out in a single piece of primary legislation; Flexibility under that level with shorter, sharper immigration rules - able to respond to changing circumstances and necessary secondary legislation; and Shorter, sharper and consistent operational guidance.

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CONTENTS
1 2 3 The Commissioner Role ............................................................................................. 5 s United Nations Convention on the Rights of the Child ................................................ 5
2.1 3.1 3.2 3.3 3.4 3.5 3.6 3.7 3.8 3.9 Reservation to the UN Convention .......................................................................................... 6 General Comments............................................................................................................... 7 Q1. Simplification Principles ................................................................................................... 8 Q2. Specific problems ........................................................................................................... 8 Q3. Concessions and discretion .............................................................................................. 9 Q4. Three tier structure......................................................................................................... 9 Q5. Comparative models ....................................................................................................... 9 Q6. Inclusion of Nationality...................................................................................................10 Q7. Distinctions between temporary and permanent residents ...................................................10 Q8. Other Comments...........................................................................................................10

Consultation questions................................................................................................. 7

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The Commissioner Role s

As ScotlandCommissioner of Children and Young People, I welcome the opportunity to s comment on Simplifying Immigration Law: An Initial Consultation. My office was established by the Commissioner for Children and Young People (Scotland) Act 2003. The general function of the Commissioner is to promote and safeguard the rights of 1 children and young people. Section 4 requires me to review law, policy and practice relating to the rights of children and young people with a view to assessing their adequacy and effectiveness. Specific regard must be had to any relevant provisions of the United Nations Convention on the Rights of the Child (UNCRC), especially those requiring that the best interests of the child be a primary consideration in decision-making, and that due account be taken of the views of affected children and young people. I must exercise this responsibility towards all children and young people who are under 18 years of age, or under 21 if they have been looked after by a local authority or in their care. Section 7 of the Act empowers me to carry out formal investigations with associated legal powers. No such investigation may relate to a matter reserved to Westminster, including those aspects of the lives of children that relate to immigration and nationality law. This submission is presented as an exercise of my duties under Section 4 of the Act. Section 16 of the Act defines children and young people. It does not refer to reserved or devolved matters and focuses on natural persons in Scotland, who are under the age of 18 years or, if they have at any time been in the care of, or looked after by a local authority or Northern Ireland authority, under the age of 21 years .

United Nations Convention on the Rights of the Child

The United Nations Convention on the Rights of the Child (UNCRC) was passed by the UN General Assembly in 1989 and ratified by the UK in 1991. Ratification commits the UK to bringing its law, policy and practice into line with the Convention. Whilst not directly enforceable in UK courts in the way that the European Convention on Human Rights now is, it should be noted that the European Court of Human Rights increasingly makes reference to the Convention on the Rights of the Child in its judgments, as a common standard amongst member states.2 Section 2 of the Human Rights Act obliges UK courts to take account of European jurisprudence in making their own decisions. The UNCRC sets out the fundamental human rights that all children around the world, without discrimination, are entitled to. It sets out minimum benchmarks in rights for children rather than best practice countries are thus encouraged to exceed the standards laid out in ; the Convention, but should not fall short of its basic requirements. While my responsibilities cover the whole spectrum of the rights of children in domestic and international law, Section 5 of the Act places particular emphasis on the rights set out in the UNCRC. When the UK ratified the UNCRC, it made promises to the children and young people in this country that it would make life better for them by respecting and promoting the standards set out in the Convention. The promises relevant to Simplifying Immigration Law: An Initial Consultation include the four basic principles of the UNCRC.

Commissioner for Children and Young People (Scotland) Act 2003 Section 4 2 For example, in A v United Kingdom, 23 September 1998, No. 100/1997/884/1096, para 22, and in the prior Commission report - Comm Rep 18.9.97, para 49.

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Non discrimination, i.e., the rights in the Convention would be respected, no matter what the race, colour, sex, ethnic origin, or status of the child or the childlegal s guardians (article 2); The best interests of the child would be at least a primary consideration in decisions made by legislative bodies or administrative authorities (article 3.1); Any institutions or services for children would conform to established and appropriate standards (article 3.3); The state would ensure, to the maximum extent possible, the survival and development of the child (article 6); and Every child would have an opportunity to express their views on any matter affecting the child; and the views of the child would be given weight appropriate to the child s age and maturity. If there were judicial or administrative proceedings affecting the child, the child would have a right to be heard, either directly or through a representative (Article 12).

Other relevant articles include: Article 1, which defines child including all those under the age of 18; as Article 4, which sets out the duty to translate rights into reality. This is unlimited as regards civil and political rights. As regards economic, social and cultural rights, these must be implemented to the maximum extent of available resources; Article 5, which requires respect for the rights and duties of parents to provide appropriate direction and guidance to their children; Article 9, the right not to be separated from parents against their will; Article 10, concerning the right to enter or leave a country for the purpose of family reunification; Article 16, the right to privacy; Article 19, which requires states to take action to protect children from abuse or neglect by parents or other carers; Article 20, Children deprived of their family environment shall be entitled to special protection and assistance form the State Article 22, Children seeking refugee status would receive appropriate protection and assistance to enable them to benefit from the rights set out in this Convention and other human rights documents; Article 24, Children would be able to access the highest attainable standard of health; Articles 34 and 35, Children would be protected from sexual abuse and trafficking; Article 37, which requires strict control of any deprivation of a childliberty - only as a s last resort and for the shortest appropriate period of time (Article 37); Article 39, which requires the provision of services to help a child recover from any abuse, neglect or exploitation.

2.1

Reservation to the UN Convention When it ratified the Convention in December 1991, the Government made a reservation in relation to the right to stay in the UK. The effect of this is that the UK has not agreed to be bound by the Convention insofar as it is qualified by the terms of that reservation. The reservation says: United Kingdom reserves the right to apply such legislation, in so far as it The relates to the entry into, stay in and departure from the United Kingdom of those who do not have the right under the law of the United Kingdom to enter and remain in the United Kingdom, and to the acquisition and possession of citizenship, as it may deem necessary from time to time.

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In its initial report to the UN Committee on the Rights of the Child, and subsequent discussions with Committee members, the UK Government explained that this reservation did not detract from its duties towards refugee children under Article 223. The Government believed its immigration and nationality laws were compliant with the Convention; the reservation was designed merely to avoid any interpretation of the very generally-worded terms of the Convention in a direction that might bring it into a perceived conflict with immigration and nationality law. Discussions in relation to both the first and second reports to the UN indicate that the reservation was directed more towards Articles 9 (separation from parents) and 10 (family reunification)4. I acknowledge the reservation entered by the UK to its ratification of the UNCRC. However, I consider that this does not completely exclude consideration of the best interests of the children who are subject to immigration control. If the UK Government is now saying that it does, then it should openly declare this. UK immigration law is subject to the Convention rights set out in the Human Rights Act 1998. This is reflected in the text of paragraph 3 of Schedule 3 of the Nationality, Immigration and Asylum Act 2002, which prohibits any action against asylum seekers that breaches the Convention rights or rights under the Community treaties.

3
3.1

Consultation questions
General Comments

The Government would welcome comments on any aspects of the simplification agenda - from the overall process to the identification of specific issues which a revised legal framework might address. Comment Simplification is certainly a good thing if it helps to increase accessibility. Clarity and more consistency will be beneficial especially regarding appeal rights. The current system is pitted with inefficiencies we need however to ensure that reform does not just mean tighter controls and faster throughput. We need to ensure that speed does not get in the way of a fair system - it is important to keep in mind that there are devastating consequences following an incorrect immigration decision. We must also be careful to ensure that simplification is not at the expense of accountability and transparency - thus making it difficult to hold the BIA to account. The principles (which the consultation seeks views on) focus solely on ways to simplify the system without actually commenting on whether this would ultimately be fair or in the best interests of those going through the system. Further consideration of the simplification process must include a focus on the rights of those people in the system. It is essential that the rights of children are taken into account even if they are not the main focus of the legal framework. While an application may be processed in the name of the parent, the effect on the children is significant. I would finally like to raise concerns around the language used within the consultation paper. Para 2.1 of the consultation paper (which refers to the reform programme), speaks of denying the privileges of Britain to those here illegally .

UN Committee on the Rights of the Child, Initial Report by the UK, Paras. 526 et seq. Committee Report SR 204, paras. 1823. 4 UKSecond Report, para. 7.31. s Simplifying Immigration Law: An Initial Consultation Response

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It is worth distinguishing between privileges and rights, Rights cannot be denied it is the obligation of States to promote universal respect for, and observance of, human rights. Basic human rights do not have to be earned nor can they be taken away. This also applies to children. It is in the spirit of the United Nations Convention of the Rights of the Child that my response is framed. 3.2 Q1. Simplification Principles Comment I am happy to support the maximise principles. The principles of transparency, efficiency, clarity and predictability, plain English and public confidence are all important as there is currently a lack of faith in the process. While it is important that the general public has confidence in the system, it is equally important that applicants can be sure that it will be fair. Unless families who come to the UK have confidence in a system that assesses their applications fairly and assures their safety, the system will not work. Efficiency must also be measured in terms of making the best possible decision, not just by the speed in which they are done. On occasion applications will be complex and it may be time consuming and expensive to assess the claims of people who may have undergone seriously traumatic experiences. It is important that people have enough time to fully tell their story that the proper support is put in place to ensure that people are able to get a and fair assessment. With regard to minimisation, agree that the law should be clear enough to limit the need I to have recourse to equitable principles, but I would not want them to be excluded completely. In addition to the current principles, there should be a principle of respect for the rights of applicants and their families. In para 1.5. of the consultation paper, the point is made that regulatory impact and race equality impact assessments will be prepared to support these later stages of the consultation process. It may also be useful to consider the rights of children and young people in this process. A useful way of doing this is by using a Children s Rights Impact Assessments (CRIAs). CRIAs provide a way of looking at decisions, policies or legislation and identifying and measuring their effect on children and young people and their rights. They allow the effect to be predicted, monitored and, if necessary, avoided or mitigated. My office has developed a CRIA model which I am happy to share with you. In taking forward our model, one of our goals has been to embed childrenrights in decision s and policy making. As such we have been encouraging decision and policy makers to carry out their own childrenrights impact assessments. s The UNCRC guarantees children the right to have their views taken into account in any decision that affects them. It also guarantees that the best interests of children will be at least a primary consideration. 3.3 Q2. Specific problems Comment We currently have a very complicated system of rules, regulations and operational instructions.

Are the simplification principles which are set out in the previous section the right ones?

What specific problems would you hope that the Simplification Project can resolve?

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Particular difficulties are caused by the interface between reserved immigration law and devolved child law. The approach that has been taken is that immigration law does not amend child law, but merely disapplies it in certain situations. For example, the Immigration and Asylum Act 1999 (IAA 1999) and the Nationality, Immigration and Asylum Act 2002 (NIAA 2002) set up the framework of the National Asylum Support Service scheme and restricted the application of section 22 of the Children (Scotland) Act 1995 for some children and families. The fact that it is done in this way makes it very difficult for practitioners or advisors in relation to children to access and understand the law, or even to engage in the debates leading up to the legal changes being made. It would be simpler, and more transparent, if the immigration rules actually amended the Children (Scotland) Act 1995 as this is, in fact, the effect that they have. 3.4 Q3. Concessions and discretion

What particular issues need to be addressed in reducing reliance on concessions and the exercise of discretion? Comment Over-reliance on concessions and discretion undermines faith in the system and leads to confusion. A fair system needs to be transparent. At the same time, it must be recognised that human life throws up combinations of circumstances that no legislator could ever have contemplated. We must leave room for justice, mercy and compassion in response to individual need. An appropriate measure of discretion can be reconciled with the principles of consistency and transparency if the principles upon which that discretion is exercised are themselves public and there is some monitoring of the numbers and types of cases in which this discretion is exercised. Immigration law already has to be applied in a way consistent with the Human Rights Act 1998. It would be consistent with the UKinternational obligations if decisions also had to s comply with the United Nations Convention on the Rights of the Child. The fact that the UK ratified the Convention subject to the reservation referred to in paragraph 2.1 above limits its obligation in law. In the interests of justice, mercy and compassion, I would earnestly suggest that this reservation be withdrawn. However, as indicated above, it is my understanding that the wording of the reservation does not completely exclude affected children from the application of the broader scope of the Convention. 3.5 Q4. Three tier structure

Do you agree with the proposed three tier structure of primary legislation, immigration rules and operational guidance? Comment I welcome the commitment to a single consolidated piece of primary legislation. This should be as comprehensive and simple to understand as possible. 3.6 Q5. Comparative models

Are there particular models for simplification, internationally or in other regulatory areas, which have been successful and could provide a model? No comment

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3.7

Q6. Inclusion of Nationality

Nationality law is largely separate from immigration law. The gateway from migration processes to citizenship is clearly part of this project. But should the technical details of nationality law be included in the present simplification process, or left alone? Or would it be better to consolidate nationality law separately? No comment 3.8 Q7. Distinctions between temporary and permanent residents

Can we use the simplification process to help make clearer the distinction between temporary residents in the UK, those seeking settlement, those settled here with no time limit on their stay and those who go on to become British citizens? Can we make clearer their respective obligations and rights, and how these different statuses need to be earned? No comment 3.9 Q8. Other Comments

Q8 Do you have any other comments on, or suggestions for, the process? Comment Given my comments at paragraphs 2 and 3.4 above, I would be keen to see a reference to the United Nations Convention on the Rights of the Child, even if the reservation is retained. If the UK Government is now saying that children affected by the immigration and asylum process are completely excluded from the protection of the Convention whilst they are within the UKborders, then it should say so. s

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