In an earlier post I highlighted the new Ministerial Authorisation permitting race discrimination by immigration officials. This followed on from the exposure of discrimination against Pakistanis purely on the basis of their nationality by the Chief Inspector of UKBA. At that time I asked whether anyone else had been able to find the list of countries referred to in the authorisation itself. I received no positive replies, and it transpires that in fact the list is a secret list which will not be disclosed, even in response to a Freedom of Information request.

The justification for non publication is as follows (source):

“The public interest in favour of disclosure under this section is considered to be outweighed by the public interest against disclosure. Such disclosure could adversely affect bilateral and multilateral relations and UK Border Agency efforts to tackle organised immigration crime. If a country were identified as being on the lists, this could lead to a negative reaction, which could potentially impact on its willingness to engage with the UK on migration or other issues. A country not on the lists could see it as a signal that it need not engage with the UK on proactive measures to tackle migration issues.

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The public interest in favour of disclosure under this section is considered to be outweighed by the public interest against disclosure. If the lists were published, organised criminal groups could seek to make greater use in their criminal operations of nationalities – or of false documentation for nationalities – not on the lists as they might thereby receive lesser scrutiny from the UK Border Agency. They would also be able to identify changes in the risk assessment over time from changes to the lists produced every quarter.”

Section 29 of the Equality Act 2010 prohibits discrimination by public authorities. Schedule 3, paragraph 17 of the Act allows for the Minister to personally authorise discrimination ‘with respect to a particular case or class of case’. To put it mildly, there is a strong argument that one of these authorisations must be published.

Firstly, they always have been in the past, although they were a pain to track down. It is difficult to see what has changed, other than that ECOs were caught red handed discriminating against Pakistanis purely because of their nationality.

Secondly, the scheme of the Equality Act and the amended Race Relations Act before it was to prohibit discrimination unless it was specifically authorised in order to minimise occurrences of discrimination and expose it to public scrutiny. A secret list of countries which allows a person to be discriminated against purely on the basis of their nationality or race without them knowing about it clearly contravenes that basic principle.

Thirdly, by their nature laws must be public. It is the essence of democracy. It is what separates us from Kafka and the old Communist Bloc. The whole idea of a secret law is entirely paradoxical. This is made clear by the Supreme Court in the recent Lumba case and there are precedents elsewhere. See the rousing judgment of Lord Steyn in the case of R (on the application of Anufrijeva) v Secretary of State for the Home Department [2004] 1 AC 604, for example. That case concerned delayed notification of a decision to asylum seekers regarding their entitlement to benefits.

“26. The arguments for the Home Secretary ignore fundamental principles of our law. Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical rule. It is simply an application of the right of access to justice. That is a fundamental and constitutional principle of our legal system: Raymond v Honey [1983] 1 AC 1, 10G per Lord Wilberforce; R v Secretary of State for the Home Department, Ex p Leech, [1994] QB 198, 209D; R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115.

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28. This view is reinforced by the constitutional principle requiring the rule of law to be observed. That principle too requires that a constitutional state must accord to individuals the right to know of a decision before their rights can be adversely affected. The antithesis of such a state was described by Kafka: a state where the rights of individuals are overridden by hole in the corner decisions or knocks on doors in the early hours. That is not our system. I accept, of course, that there must be exceptions to this approach, notably in the criminal field, e.g. arrests and search warrants, where notification is not possible.”

Arguably the secret list approach is far worse, as it is not a mere policy that is kept secret but a statutory list made under statutory powers. And the instructions given to UKBA staff do not exactly make things better. These explicitly state that ECOs must not (source):

• Disclose the contents of the list. It is restricted for operational reasons.
• Make reference to the list when justifying entry clearance decisions.
• Refer to the list on any databases, refusal notices or correspondence.
• Use the list as a justification for limiting the duration of visas or number of entries allowed.

So, the list must be used, but its use must not be disclosed to those it is used against. Presumably, immigration officials will need to think of some sort of reason to refuse an application. This places them in an invidious position, where they have to make reasons up. Of course, if there was a legitimate reason to refuse the application in the first place, the discrimination would not be necessary. And this is the real problem with the approach of UKBA to discrimination.

Discrimination is the exact antithesis of ‘intelligence-led’ immigration control, which is purportedly very much in vogue. It is helpful if we start with the proposition that being, for example, Pakistani does not make one, by virtue of holding that nationality, more prone to be deceptive and untrustworthy and therefore likely to break immigration laws. It may be the case that being very poor, having no ties to the home country or some other characteristics might make one more likely to be an immigration offender – but that applies irrespective of nationality. As John Vine implied in his report, the lack of scrutiny given to applications from potential immigration offenders from Bahrain and other Gulf states was just as puzzling as the additional requirements imposed on Pakistanis purely because of their nationality. Why were accommodation requirements effectively waived for those nationalities but applied with unusual rigour for Pakistanis?

Indirect discrimination occurs through the imposition of a provision, criterion or practice on another that would put that other at a disadvantage and where it cannot be shown to be a proportionate means of achieving a legitimate aim (s.19 EA 2010). Surely UKBA can argue that maintaining immigration control is a legitimate aim and it is possible for UKBA to find a proportionate means of achieving that aim?

Instead, we have a secret authorisation for blanket discrimination against unknown nationalities where a person can have an application refused or their leave curtailed purely because of their nationality (see para 4(2)(a) of the authorisation) but must not be informed of this fact. If the application would be refused for legitimate reasons then there would be no discrimination going on – so it must be only outright, full-on discrimination purely on the basis of nationality that is envisaged by authorisation.

One way or another, this will end up in court, we can be sure of that. To speed that process, it is worthwhile including race discrimination as a ground of appeal where there is any suspicion that the appellant may be on the secret list. It will be interesting to see how UKBA plan to keep the discrimination secret from the courts and tribunal as well.