In his report late last year on the entry clearance operation based in Abu Dhabi, the ‘hub’ for processing claims from Pakistan and several Gulf states, the Chief Inspector of UKBA, John Vine, made a stark finding of racial discrimination by Entry Clearance Officers against Pakistani applicants for entry clearance:

“6.17 We therefore reviewed our findings from our file sampling and established inconsistent approaches were taken as regards the weight attached to evidence, depending on the nationality of the customer. We found that customers from Gulf Cooperation Council countries, who provided limited evidence to support their applications, were granted entry clearance, whereas customers from Pakistan were also being refused for not providing enough information, even when such evidence was not stipulated as a requirement in the guidance provided by UK Border Agency. For example, Pakistan customers were refused because they had not provided:

• land registry title deeds to properties

• accommodation reports from council housing departments; and

• evidence of family, economic and social ties to Pakistan.

6.18 We are therefore concerned that the UK Border Agency may be discriminating against those customers applying in Pakistan for entry clearance to the UK.”

This is a finding of discrimination. It is differential treatment of the same category of applicant for reasons of nationality. It appears to be direct discrimination rather than indirect. UKBA may claim there are reasons for it associated with risk profiles and the like, but if so then they should be upfront about it, accept that there is discrimination and apply for a Ministerial Exemption as required by the law. They should also be open about what evidence their risk profiles are based on and why it is they think all Pakistanis are inherently dodgier than say all nationals of Bahrain.

The UKBA response is interesting. There is no denial that discrimination on the basis of nationality (which is race discrimination) was taking place. A review by the end of 2010 is promised and possible changes to the Immigration Rules suggested as a solution, but no further public announcements have been made as far as I am aware.

Pakistanis themselves and their families here in the UK have known or suspected racial discrimination for years. At least they now know that they were right all along.

But why has this been tolerated for so long? Immigration lawyers have made efforts to litigate the issue, but with very limited success. In the case of SK (Proof of indirect racial discrimination) India [2006] UKAIT 00067 the tribunal rejected claims of direct racial discrimination on the basis that the particular applicant should have been refused no matter what his nationality. Arguably this misses the point about whether his application was treated differently (i.e. whether different criteria were applied) and the fact that the grant of the visa is a separate issue to whether the discrimination claim is made out. It is only less favourable treatment that is required for direct discrimination, not actual proven detriment. The tribunal’s approach is akin to requiring a job applicant in an employment tribunal race case to prove that they would have gotten the job in question as opposed merely to proving that they were ruled out on grounds of race.

The tribunal also in SK rejected the claim of indirect discrimination, holding that statistical evidence of a massive disparity in applications and success rate between India and other countries was insufficient. Arguably the disparity was so great that there must have been indirect discrimination, for example in failing to advertise the availability of the visa and in applying evidential requirements imposed.

The problem with proving discrimination previously has been threefold. Firstly, the tribunal’s approach has been unhelpful and there was no attempt, for example, to put UKBA to proof to show that there was no discrimination when the circumstantial evidence such as the statistics strongly suggested that there was. Directions could have been made for production of internal guidance on evidence and assessment of evidence at different entry clearance posts, for example. Oral evidence could have been required through witness summons. The fact is, though, that the facts in SK were very weak indeed and it was a very poor test case (although that perhaps raises the issue of why this case was reported rather than others).

Secondly, a related point, it has so far proven impossible to gather the kind of evidence that would satisfy the tribunal because that evidence is completely unobtainable to an ordinary litigant. File sampling methods or the kind of statistical disclosure that occurs in employment tribunal cases are simply not part of normal tribunal practice.

A third criticism can also perhaps be brought, against immigration lawyers. Why haven’t we been pushing this issue harder and litigating it into the higher courts? Why have we let UKBA get away with this?

There has been too much tolerance for defaulting behaviour by UKBA. Had findings of discrimination been made before, the resulting compensation claims would have enforced change. That opportunity was lost and the discrimination continued, sadly.

That can now change, at least. All appeals against refusals of entry clearance from Pakistan ought to include as a ground of appeal a reference to s.84(1)(b), discrimination by a public authority. It does not of itself lead to grant of a visa but it does lead to a claim for compensation. Which then leads to change.