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Entry clearance discrimination authorised


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Damian Green
Damien Green. By ukhomeoffice, on Flickr

Immigration Minister Damian Green has authorised discrimination by visa officers on the basis of nationality. This follows on from a finding last year by John Vine, Chief Inspector of the UK Border Agency, that visa officers were discriminating against Pakistani visa applicants. See recent coverage here on the blog. Essentially, very different criteria and standards were being applied by the same visa officers depending on whether they were deciding Pakistani cases or other cases at the regional hub in Abu Dhabi.

Rather than trying to eliminate the discrimination, treat all nationalities equally and create a level playing field, the response of the Government has been to institutionalise the discrimination through what is called a Ministerial Authorisation.

The announcement is here and the authorisation itself can be found here. However, what I cannot for the life of me find is the list of countries referred to in the authorisation. I assume as a result that no countries have yet been designated, or can anyone else do any better than me?

The announcement and authorisation state that the list of countries will be reviewed by UKBA quarterly based on certain criteria, and the list must be personally approved by the minister. Interestingly, the list of countries will not therefore be stated in the authorisation itself. UKBA have managed to get themselves into all sorts of trouble with this sort of delegated legislation strategy in the past (BAPIO, Pankina, English UK) so it is slightly surprising they are willing to risk it again. Unless they simply haven’t learned their lesson or, as I suspect, secretly LOVE immigration lawyers and enjoy creating work for us.

In the meantime, until that list of countries shows up — and perhaps even after it shows up — there is a strong argument to say that Pakistani entry clearance appeals should include a race discrimination ground. A discrimination finding in the tribunal will then lead to an award of damages by a county court.

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The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.


19 Responses

  1. I think FM is getting a little to excited here. It is important not to confuse the two concepts of race and nationality also. SSHD is permitted to discriminate on the basis of nationality, the imposition of visa controls on Jamaica, some time ago, is an example.

    Those visiting the UK from less developed countries are less likely to return and more likely to breach the controls, this is supported by evidence both anecdotal and statistical, to pretend otherwise is naive at best. Its fairly obvious that specific countries have been named, if not, what would the point of the order be ?

    The is a reason that the queue of overweight American tourists moves much quicker than visitors from counties such as Pakistan at the airport, and whilst it may be unpalatable, it is the world we live in, its time for everyone, including ‘immigration lawyers’ to wake up and smell the coffee.


    1. I do love the use of quotation marks around “”immigration lawyers””. It wouldn’t hurt to accept that we are in fact “lawyers” and we do in fact specialise in “immigration”.

    2. Fair point FM but if PO was referring to advocates more generally, not all are lawyers are they? Obviously POs are not lawyers but equally some appellant advocates are not lawyers either. I was surprised when I discovered RMJ advocates ere not lawyers as they were some of the best!

    3. It depends how you define ‘lawyer’. If you mean barristers and solicitors only, then it is true that some appellant representatives are not barristers or solicitors. There is no reason to define lawyer so narrowly, though, and it has no statutory meaning as far as I know. I just take it to mean ‘people who practice law’, which includes OISC advisers and POs.

    4. I’ve always taken it to mean someone who is a qualified solicitor or barrister. But I’d happily bring POs into it- that way I can put former Lawyer on my CV!

    5. Do I read right, or 4(2)(a) of the linked document authorises an ECO to refuse an entry clearance *for no reason other than nationality* of the applicant, provided his/her country is on The List?

      Surely that’s unlawful, no? Immigration Rules set a different standard of admission and should have precedence over a Minister’s authorisation.

    6. I think you are right. That really is a massively discriminatory power indeed. Will follow this up through other channels.

  2. That doesn’t sit well with UKBA’s usual tagline about “all cases are decided on their own merits.” I look forward to the next media quote being “all cases are decided on their own merits apart from the ones that are decided on the basis of generalised racial discrimination.”

    I also love, where love means have enormous distaste for, how circular this is. The Minister gets to designate a country for special attention, and those nationals get the special attention, and hey presto! more of those nationals are found to have some issue with their application, proving how right the Minister was all along. I think I’m having a logicgasm.

  3. Irony is this power comes from the Equality Act.

    I’m OK with the “risk-based approach”, as in many areas where resources are scarce, and have to be utilised in an effective & efficience way, especially during a recession.

    However I’m with FM on the legality and methodology being used. I also suspect it over-empowers ECOs and the quality of their decisions will no-doubt suffer as a result, in the named countries.

    As the HO continues to have its general “disregard to the rule of law”, although more from within than politically since May 2010, I hope Mr Green will not repeat this sort of mis-judgement.

    Still, more work for lawyers who specialise in immigration, and more damages (hopefully) for the victims.

  4. FM, as ever, takes offense too quickly, how could I object to a person who pays the bills at home through working in the field of Immigration, I fall in to that category too (which for the sake of clarity I would add is as a hard working/underpaid public servant and not ‘Immigration lawyer’).

    It is an ‘Immigraiton lawyer’ tactic of conflating two issues, for example in this thread where nationality and race are inaccurately being used interchangeably to advance what is basically a weak and misleading argument.

    No case is decided entirely on its individual merits, for example, an asylum claim from a person from Somalia will be viewed in an objective context very differently from a person who came from the United States, background factors are relevant in decision making.

    In the bad old days when asylum decisions were knocked out, one by one, inside the croydon sausage machine, UKBA were (rightly) criticised for failing to taken in to account background factors.

    The suggestion that an “even playing field” should be applied is misconceived and simplistic. That more applications from less developed / poorer countries are refused does not mean necessarily that those applications are being treated unfairly, a more plausible explanation is they simply don’t meet the rules.

    Dog-whistle mantra such as “general racial discrimination” and other such hyperbole is neither helpful or constructive.


    1. Don’t worry, no offence taken at all.

      However, you might want to check the Race Relations Act 1976 section 1 read with section 3 for the definitions of ‘race discrimination’ and ‘racial grounds’. That has now in fact been superseded and the Equality Act 2010 is even clearer, if that is possible. See section 9, which provides at s.9(1) that ‘race includes… nationality’. To my mind at least, using ‘race’ and ‘nationality’ interchangeably on a blog about immigration law in the context of challenges based on the RRA 1976 or EA 2010 is not a weak nor a misleading argument. To be honest, I would hope that a “civil” “servant” (I know, cheap shot) at the Home Office responsible for dealing with immigration cases would know better.

      I for one do believe in a level playing field and I think it is truly appalling that the same ECO sitting in Abu Dhabi was deciding Pakistani cases under the same Immigration Rule but based on a completely different set of criteria and evidential requirements. I entirely understand the need for intelligence-led assessments but to follow such a massively generalised approach and to impose such radically different criteria is just plain wrong. A ministerial authorisation which endorses this approach and does not even go to the trouble of naming the nationalities that will be targeted is equally wrong.

  5. A lovely can of spaghetti-like creatures opens up here. I would have thought, after Prague Airport, that any different treatment eg demands for extra evidence, subjection to extra scrutiny etc is direct and legally unjustifiable discrimination on grounds of nationality unless authorised by the rules, by statute or by a ministerial authorisation. However, it is honoured in the breach rather than the observance given the different lists of required documents issued by posts, the uneven establishment of risk asssessment units etc. etc. In fact, this discriminationis an inevitability given that, from a control point of view, some countries are higher risk than others. What the discrimination legislation provides is a framework in which this can happen in a transparent way and I would not be opposed to the greater use of authorisations if the result was more acknowledgement that discrimination happens and examination of how decisions are reached. But that won’t happen if the authorisations are as broad and unspecific as this one seems to be.

    Agreed this seems to go counter to recent decisions such as BAPIO, Pankina and JCWI. How does it fit with the Tamil Information Centre case? Sorry, it’s a bit late in the week for me to start looking it up.

    1. It does seem at odds with the cases you mention, and I suspect UKBA is cruising for yet another legal bruising on this one. One has to wonder at the legal advice they are getting!

      I agree that if there is to be discrimination on the basis of race and nationality then it should certainly be in the open and be properly acknowledged. The secretive way in which this has been occurring so far is very damaging and pernicious.

  6. Although no specific list is mentioned as yet, 8(ii) seems to pretty much indicate the criteria by which most applicants will be judged.

    More disturbingly 8(ii)(a) apears to be giving ECOs a free hand in creating, or adding to those lists. Adverse decisions indeed…

  7. Unfortunately, as the comments from PO indicate, too many at UKBA react to “gut feel” and the headlines of the Daily Mail – and make their policies accordingly – rather than actually bothering to review and/or apply the law. Then they sneer at the lawyers who do just that. Thank goodness there are some decent HOPOs about who don’t behave with such arrogance.

    What irritates me more than anything, however, is the suffering that this policy will cause to pefectly innocent, decent, respectable families the length and breadth of the UK – not to mention the extra money they will have to shell out to appeal decisions – simply because they and their family members happen to be of a particular nationality or ethnic origin.

    1. I would not go so far, I have to say. It is understandable that a layman would think that using terms like ‘race’ and ‘nationality’ interchangeably is wrong, but I’d have expected better knowledge from a person claiming to be a PO. The problem here may well be lack of training at UKBA on race discrimination issues – which is perhaps our fault for not arguing it as forcefully as we should have in the past. Not that the tribunal has exactly been helpful in this regard, as discussed in the original post on discrimination. Many immigration lawyers probably aren’t that clued up either.