Immigration Control via Public and Private Sector Agencies
By Fidelma O’Hagan
In 2012, as Secretary of State for the Home Department, Theresa May announced that she was going to create a “really hostile environment for illegal immigrants.” Following this statement, the Immigration Act 2014 and Immigration Act 2016 were introduced as vehicles for creating such an environment via a number of measures, one being the significant extension of immigration control duties into the public and private sector.
This creeping extension is creating a society where non-state agents are increasingly being forced to make decisions about a person’s entitlement to services, some of which are essential, based on their perceived immigration status. The legislative provisions impact on diverse aspects of life, from a drive to the park with the kids to visiting a doctor when ill. They raise real concerns on many grounds not least the increased risk of racial discrimination including racial profiling (the form of racial discrimination whereby persons are singled out on the basis of skin colour or other ethnic indicators) against BME individuals and entire communities, as well as increased suspicion and criminalisation of those communities and the negative impact this will have on social cohesion in NI.
The UK Government has repeatedly referred to there being a frictionless, seamless border in a post-Brexit NI and that free movement within the Common Travel Area (CTA) will be maintained. The government’s Northern Ireland and Ireland Position Paper sets out that one of the ways in which the CTA will be protected will be via the use of third party non-State agents across society to carry out immigration control functions:
(I)t is important to note that immigration controls are not, and never have been, solely about the ability to prevent and control entry at the UK’s physical border. Along with many other Member States, controlling access to the labour market and social security have long formed an integral part of the UK’s immigration system.
After Brexit, NI will be the only part of the UK which will share a physical border with the EU. There is therefore a real concern that in order to satisfy the EU referendum anti-immigration lobby and the Conservative Party manifesto pledge to reduce and control immigration, NI will become one large border. Whilst immigration control may not happen routinely as one crosses from the South into the North of Ireland, it is envisaged that such control will take place internally, across the whole of NI via individuals working within the private and public sector. To consider the current and potential impact in NI of existing legislative and policy provisions, we set out below sections contained in the 2014 and 2016 acts regarding access to services.
Banks and building societies
Under s40 of the 2014 Immigration Act, a bank or building society “must not” open an account for someone defined as a “disqualified person”, i.e. who is in the UK but does not have the necessary immigration permission to be here.
Section 45 and schedule 7 of the 2016 Immigration Act amend the 2014 Act and impose a requirement on these institutions to carry out periodic immigration checks in relation to existing current accounts. The Home Office, which must be notified of the results, may then apply for an order to freeze an account or require the institution to close any accounts it holds for the customer.
2016 Regulations require that from the 1st January 2018 these checks must be carried out on a quarterly basis against a Home Office database via Cifas, a third party anti-fraud organisation. The Explanatory Memorandum states that “in the majority of cases” the Home Office will instruct the institution to close all relevant accounts, as opposed to a freezing order being sought, and that the institution must report to the Home Office on the steps taken to close the account. This involves the sharing of personal data between the institution and the Home Office.
Home Office Guidance states that where a check in relation to a new account shows that some but not all of the personal information matches that which is held by Cifas, the institution “can make further enquiries of the applicant and they could still refuse the application based on their commercial risk tolerance and policies.” Where the individual provides documentary evidence which contradicts the Home Office data provided to Cifas and demonstrates they are in fact lawfully in the UK, including via the production of a British passport, the Guidance states:
(Where) there is documentary evidence that contradicts the data held by Cifas and the bank or building society believes there has been an error: If a customer has documentary evidence (such as a passport or a Biometric Residence Permit) that appears to contradict the Home Office data and shows that the customer is lawfully present in the UK – then the bank or building society may contact the Home Office to confirm if the data held by Cifas is correct. This course of action should only be taken in exceptional circumstances when there is a definite reason to believe an error has occurred. There is no requirement to make this check and the default position should be to refuse the application”(emphasis added)
Further to the reasons set out above as to why immigrations duties should not be extended to non-state agents, there are particular concerns regarding these provisions:
- Determining a person’s immigration status can be a complex process and one in which the Home Office has a proven track record of making mistakes. One’s ‘right’ to remain in the UK is all too often established after a lengthy appeal process which challenges the Home Office initial status decision. The 2016 report of the Independent Chief Inspector of Borders and Immigration into the effect of a number of provisions contained in the 2014 Act found that of the 169 cases within the Cifas database which were examined, 10% were incorrectly identified as individuals who were not entitled to a bank or building society This is therefore further independent evidence that information provided by the Home Office is quite simply wrong.
- The Financial Services Authority monitors and enforces compliance with these provisions and there is therefore also concern that a chilling effect will result in institutions erring on the side of caution, refusing to open or continue to operate accounts for fear of falling foul of these provisions.
- It is anticipated that members of the BME community in NI will be disproportionately impacted. That racial profiling will be used by individual staff to either refuse to open an account, decide to close an account and to exercise the questionable discretion referred to in the Home Office Guidance against the person concerned and give no weight to documentary evidence produced to counter a refusal.
- There is a real risk that not being able to access their accounts, individuals and families will be left destitute.
Sections 46 and 47 of the 2014 Immigration Act amended the Road Traffic (NI) Order 1981 to impose a duty on DVA staff to determine a person’s immigration status and, where it is considered that the person does not meet the immigration residency requirements, either refuse to issue a driving licence in accordance with article 13 of the Order, or revoke a licence already issued as per article 15.
With regards to the DVLA in Britain, the process for new driving licence applications is that the Home Office Information and Sanctions Directorate carries out data checks at DVLA’s request. For revocations, the Home Office provides the DVLA with a list of certain categories of migrants it considers are unlawfully present in the UK. In both cases, this again involves the sharing of personal data between the Home Office and the DVLA.
The 2016 Independent Chief Inspectors Report was also critical of the quality of data shared between these agencies in relation to both new licences and the revocation of existing ones. It found that of those cases inspected, ”the Home Office reported that in 2015 (1 January to 31 December), 259 revoked licences were reinstated.” The inspection found that Home Office records for the status of migrants in Britain were
incomplete, or had been completed incorrectly (with data placed in the wrong fields), or there were delays in updating records…….. the bulk data provided to DVLA in relation to immigration status is extracted automatically from Home Office data and therefore some individuals are being wrongly flagged to DVLA as present in the UK without leave.
As well as documented concerns regarding the quality of information and the potential for racial discrimination, a driving licence not only enables you to drive but can be used as a form of identification for accessing essential services in NI, for example NHS services. However, in terms of the mistakes that were identified by the Inspector, his Report held that “the Home Office did not appear to appreciate the seriousness of such errors for the individuals affected”.
In October 2017 s 1(2) (a) of the National Health Service (Charges to overseas Visitors) (Amendment) Regulations 2017 came into effect in England. This provision requires healthcare staff to check a patient’s immigration status in order to determine whether the patient must be charged up front for the cost of their treatment. This process involves staff being required to request and check identity documents (e.g. passport or Home Office issued biometrics card) sometimes in urgent circumstances, in order to determine the patient’s immigrations status. For those not eligible for free NHS treatment, a doctor must determine whether the treatment is immediately necessary (i.e. payment after treatment), urgent (i.e. full payment or deposit received before treatment starts) or non-urgent (i.e. charge in full before treatment starts).
There has been significant criticism of s(1) (2) (a) on a number of grounds:
- It provides scope for racial discrimination, including in the form of racial profiling, which will impact disproportionately on BME communities when they are most vulnerable in ill-health.
- It will deter ill people from seeking life-saving treatment due to a fear of being reported to the Home Office. Whilst a person with an infectious disease falls into one of the exemptions, this same concern applies here.
- It will impose immigration officer duties on NHS staff that will be responsible for policing access to healthcare.
- NHS staff, already under resourced, are not equipped to determine what can be the complex issue of a person’s immigration status. There is therefore a significant risk that mistakes will be made and people will be incorrectly refused treatment or make payments for treatment they are in fact entitled to free of charge.
- A&E treatment remains exempt from charges and there is real concern that this provision will lead to an increase in patients presenting at already over-stretched A&E departments.
- Whilst there have been processes in place for some time for certain categories of migrants to pay for NHS treatment and care, the introduction of a process whereby upfront payment is required before certain treatments are carried out, indicates a further step towards NHS privatisation.
There has been an outcry against the introduction of these measures across society, most notably amongst health care professionals, for example via the establishment of Docs Not Cops which campaigns on the basis that “health is a right and not a privilege”.
Prior to the collapse of the NI Assembly, there were no proposals at that time to introduce similar provisions in NI however that may of course change.
General duty to disclose
In July 2016, s55 of the 2016 Immigration Act, which amends s20 of the Immigration and Asylum Act 1999, came into effect. This provision imposes a far reaching duty on various public sector bodies in NI to disclose a ‘nationality document’ when requested to do so by the Home Office. Guidance defines this document as one “which establishes a person’s identity, nationality or citizenship, or indicates the place from which they embarked for the United Kingdom to where they are proposing to travel” and states that a request can only be made where there are reasonable grounds for believing that the public authority holds that document for the purpose of providing their services.
The NI public bodies bound by this duty are listed in schedule 9 of the 2016 Act and include the Health and Social Care Trusts, educational institutions, the Registrar General and the NI Housing executive.
In relation to Brexit and its impact on immigration control in NI, the UK NI Position Paper informs us that new legislation is coming down the tracks:
…… The UK will be setting out further detail on our wider plans for the future immigration system in the autumn.
It will come as no surprise that we can expect the introduction of further measures which will extend immigration control functions across public and private sector agencies in the UK. It is anticipated that the impact of such provisions will also be felt by EU citizens at the point of departure from the Union as they will no longer have an EU law right to reside in the UK and will become subject to immigration control. There is also a risk that unless the rights of Irish citizens living in NI who do not also hold British citizenship are specifically protected in UK law, those travelling into the NI from outside the CTA could be impacted by some immigration law restrictions on access to services.
Whilst it remains to be seen what the final outcome of the EU/UK Brexit negotiations will deliver, we can be certain that an exit from the EU will unquestionably see the implementation of existing provisions and the introduction of new ones which will result in greater internal immigration control within NI.