Updates, commentary, training and advice on immigration and asylum law

Secret race discrimination


Older content is locked

A great deal of time and effort goes into producing the information on Free Movement, become a member of Free Movement to get unlimited access to all articles, and much, much more


By becoming a member of Free Movement, you not only support the hard-work that goes into maintaining the website, but get access to premium features;

  • Single login for personal use
  • FREE downloads of Free Movement ebooks
  • Access to all Free Movement blog content
  • Access to all our online training materials
  • Access to our busy forums
  • Downloadable CPD certificates

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.

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.

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.

Relevant articles chosen for you
Picture of Free Movement

Free Movement

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.


16 Responses

  1. Entry Clearance discrimination should be a ‘non-topic’ as long as the immigration rules are then enforced in the same way. It is sensible to ‘risk assess’ and act upon those assessments.

    If false/fraudulent applications are common from ‘country A’ then it makes sense to scrutinise applications from those countries more thoroughly than ‘rich, affluent country B’ or ‘well behaved country C’. The rules are the same for all of them but financial and staff resources are limited.

    It is no different from low Police levels in a quiet rural area compared to high levels in rough high crime areas. The law is the same and miscreants should be treated the same if found irrespective of where a crime is committed.

    What matters more is that the staff do their job properly, efficiently and accurately. Failure to process applications properly based on who the applicant is or where he or she comes from is real discrimination and is unacceptable.

    1. I think a better analogy is with police doing disproportionately more stop and searches on ethnic minorities, and I don’t believe that any entire country is well behaved. Brits were found to be the number one immigration offenders in Australia, for example, but I suspect don’t get anywhere near the attention that non-white immigrants receive there. The same probably applies over here.

      I agree that what matters is that staff do their job properly, but to my mind that means applying the same standards to every application, not discriminating against some nationalities purely on the basis of nationality.

    1. Equal chances, maybe (though I think that the market for forged documentation is a touch more brisk in Pakistan than Bahrain, even with recent events in the Gulf). Equal motivation? I think not. ‘Hmmm, I’m a rich Gulf national – I think what I need to convince the visa bod to give me a visa is a forged document, possibly a bank statement, as I obviously will find it difficult to show that I can maintain and accomodate myself in the UK without one…’.

    2. Rich Gulf nationals might well quite properly succeed in their applications – but why should poor Gulf nationals not have to show adequate accommodation and meet all the normal immigration checks? Similarly, why should rich Pakistanis have to go through all the rigmarole of additional unnecessary checks and not be treated in the same way as rich Gulf nationals?

  2. Great article.
    Apart from the ‘state within a state’ which this seems to describe, people making entry clearance applications are throwing away hundreds if not thousands of pounds in visa fees, lawyer’s expenses, time, effort and emotion, not knowing their applications are literally being binned because of their nationality. They could at least be warned not to bother.

  3. UKBA at its finest. The motivation is not pleasant but the effect is that there are no EC refusals without a right of appeal now. The applicant can exercise this this appeal right irrespective of it being offered and is then obliged to put forward all grounds.

    The three monthly review means that, even if UKBA discloses that a particular nationality is not on the list, delays in tribunal listing mean that it may be by the time the next appellant argues the same ground.

    Ken Clarke will chin Damian when his tribunals are falling over under the weight of appeals not anticipated.

    Trebles all round.

    1. Ah, frog in a kettle… ALL visa refusals have limited rights of appeal (on human rights and race relations grounds). Unlike any decisions taken incountry, these ‘residual’ rights of appeal are clearly set out in the notice of immigration decision that the unsuccessful applicant receives.
      This is not a new thing. Whether the authorisation will lead to more appeals on race/discrimination grounds is moot. But I don’t think that IJs will give them much credence. So it’ll be a JR case.

      More trebles all round

    2. el Capitan,

      Thanks for drawing the limited rights of appeal aspect to my attention. Of course, the limited rights of appeal have always been there but 19(d) has rendered 19(b) of the Race Relations Act 1976 pretty much ineffective. ECOs have always been able to discriminate on the basis of nationality.

      I don’t think that I made my point very well. What the ‘secret’ authorisation has introduced and, by extension, how it has improved appeal rights, is whether the correct discrimination has been exercised. The IJ needs to know whether a particular nationality is on the list to determine this.

      This puts UKBA in a difficult position. Do they disclose that a country is or isn’t on the list or do they keep the secret, well, um, er, secret? To deliberately over-dramatise, think Churchill’s dilemma over radar and Coventry. UKBA is double bu99ered on this because of the quarterly review. It can be brought up time and time again.

      I do take issue with FM’s view “…that really is proper discrimination on the basis of nationality, aka race discrimination…” Race and nationality are not the same thing. There may be coincidence on a Venn diagram but that is as far as it goes. The absurdity is evident when considering British Citizens. Were race and nationality to be the same thing, racial discrimination could not occur in most of the matters that the Race Relations Act addresses. In fact, the RRA differenciates them clearly:

      “(1)In this Act, unless the context otherwise requires—

      “racial grounds” means any of the following grounds, namely colour, race, nationality or ethnic or national origins;
      “racial group” means a group of persons defined by reference to colour, race, nationality or ethnic or national origins, and references to a person’s racial group refer to any racial group into which he falls.

      (2)The fact that a racial group comprises two or more distinct racial groups does not prevent it from constituting a particular racial group for the purposes of this Act.”

      Consider a couple of Australian children with a naturalised Tulu father and an Inuit mother and one can see that some racial groups can be quite small.

      The real thing is that UKBA continues to be dishonest. The silly position that it has put itself into is that an injustice can be brought before an IJ, perhaps improperly, and he or she will have to decide what to do with it. Prior to this authorisation, the injustices could be ‘disappeared’.

    3. Wasn’t intending to be condescending. I don’t think that there has been a recent (last 5 years?) RRA appeal that’s been lost by the HO in EC cases. I don’t see that this has any real relevance to an appeal anyway – what it appears to me to be is simply a technical wheeze to get the ICI off the back of the visa folk. IJs don’t actually need to know that a nationality is on the ‘secret list’, as the reasons that the application has been refused are all set out in the refusal notice. Unless you think that ECOs will suddenly start refusing folk on the basis of their nationality.

      I think that the point is that the UKBA approach is risk based, rather than nationality based. I think that there is a wealth of evidence in place (change of circumstances after arrival, eg ‘asylum claims’, ‘illegal working’, ‘inappropriate’ benefits claims etc) to suggest that for instance there a much greater probability that a Pakistani national applying for a visa in Pakistan more likely to be an ‘immigration problem’ (however you want to define that) than an Emirati. You don’t see many Gulf nationals being apprehended working illegally in the UK; conversely, you do see many Pakistani nationals apprehended working illegally in the UK. I just do not see that it is the case that looking at Pakistani applications in more detail than Emirati applications is inherently a bad thing; quite the opposite. I understand the points about self-fulfilling prophecies, and that looking for abuse makes it more likely to be found; but come on…. ECOs have to be satisfied on the balance of probabilities that the applicant meets the requirements of the rules – in most cases, it seems perverse to me to refuse an Emirati for failing to meet the maintenance and accommodation requirements of the rules, when we know for a fact that the Gulf states’ handouts to their nationals are greater than our combined salaries! Given that, most, if not all, Emiratis de facto meet the maintenance and accommodation requirements of the visitor rules on balance. But I’m sure that UKBA would, however, refuse an Emirati student who failed to supply the relevant financial evidence with a PBS T4 application (though I stand to be corrected on that).

    4. “Wasn’t intending to be condescending.” I didn’t take it as being condescending. I did have some difficulty finding an EC refusal notice involving a limited right of appeal. Modesty prevents me from describing the precise nature of the difficulty.

      “…the reasons that the application has been refused are all set out in the refusal notice…” – FM has uncovered a snag here. The instruction to ECOs states that he may not “…Make reference to the list when justifying entry clearance decisions…” This implies that the list may justify a decision. This is trebles till he falls over material to FM.

      “Unless you think that ECOs will suddenly start refusing folk on the basis of their nationality.” Start? It is unlikely to appear in the reasons for refusal but it is most certainly in the ECO’s mind as you seek to justify in the rest of your post.

      I don’t really mind discrimination or prejudice in the system because I view myself as a mechanic rather than a campaigner for justice. The flip side is privilege and that is also rife among ECO’s decisions. A prospective father-in-law who is a prominent peer does wonders for processing times. Being a failed student seeking fresh entry clearance in the same capacity is helped no end by having a father who is in a government position of interest to our Defence attache.

      This is the same the world over. Obtaining a waiver in respect of a drugs conviction suddenly becomes a local matter if you are a prominent rock star in the US. (Some exceptions but I lay that at the door of the advisors)

      My objection is not that these things happen. It is that it they are denied and that justification is attempted in the face of the known facts.

      The Immigration Act 1971 was and is racist. It is supposed to be. See http://www.guardian.co.uk/politics/2002/jan/01/uk.race

      It cannot be fixed (if that is what is desired) by amendment. In any event, the world population has increased by some 80% since it was drafted. It is not ‘fit for purpose’ nor is the UKBA that administers it.

  4. Daniel, you’re spot on. As usual, freemovement has firmly grasped the wrong end of the wrong stick, and is busy wafting it dangerously around. The authorisation appears to me to be a means to an end – a toothless quango thinks that they have uncovered terrible practices, whereas it looks as if it’s sensible application of the immigration rules and the balance of probabilities. So UKBA sought cover under a ministerial authorisation, most likely for technical reasons. Can’t see it changing how applications are actually considered, but it will of course give freemovement and his/her friends at law the opportunity to run some expensive legal challenges through the UK courts. Trebles all round indeed….
    I can’t really see the arguments here about secret lists etc – don’t see how having a list of countries/nationalities that should have visa applications scrutinised more thoroughly is quite the same as a knock on the door in the middle of the night followed by a fall from a helicopter in a jungle. I guess that there will be replies quoting Sinclair Lewis titles.
    And I really don’t see that a visa officer would be interested in seeing an Emirati’s bank statement or details of all the houses that they own, as it’s a pretty safe assumption that they have the wherewithal to support themselves in the UK. Not sure that I’d wanna make the same assumption of a Pakistani farmer from the Punjab.

    1. Me? Wafting? Never! I wouldn’t call OCIUKBA a toothless quango, as UKBA take the reports seriously, and so do the media – those are the sort of teeth that count for something. It also looks to me like you haven’t read the report in question, as they did not make an excessively big deal of it in the report.

      Your comment highlights the problem at UKBA – the assumption that all in the Emirates are rich oil Sheikhs but all Pakistanis are poor farmers. That is obviously untrue and it is no basis for relaxing immigration controls for the first group but tightening it for the second. Decision making should be intelligent and fact-based and look at the individual circumstances of each applicant. That I agree with, blanket discrimination, either positive or negative, is as I said in the post the opposite of intelligence-led decision making.

      If you really do think that some nationalities are more likely to break immigration controls purely because of their nationality, as opposed to their individual circumstances (poor, no particular reason to travel, no family to return to, no English spoken, no ability to study, no skills with which to find work, whatever) then that really is proper discrimination on the basis of nationality, aka race discrimination.

    2. The ICI is toothless. The reports on EC work have not really had the desired splash in the media, not even really exciting the usual suspects of the lovely red-tops, which is why they have become more and more sensationalist. Look how this has brought out the best in UKBA – their responses are very defensive, as the reports become more outlandish. I don’t think that UKBA really takes them seriously, except as a thorn in the side. Reading their reports, it’s difficult to see that they have any real understanding of how UKBA goes about its business. But this is quite difficult for an outsider to see, as we don’t actually know the truth one way or another.
      And do you not think that the overwhelming majority of Emiratis are actually capable of maintaining and accommodating themselves in the UK? See my comment below regarding the handouts that they get from their national governments. The reverse is true in Pakistan – look at a simple measure, GDP per capita. Pakistan is around $2400 pa, UAE is around $42000 pa. Now, being a sensible chap, where do you think that UKBA should focus the limited resources it has at its disposal? Asking Emiratis to produce evidence of their funds, or asking Pakistanis to produce evidence of their funds?
      The bit about ‘relaxing immigration controls’ for Emiratis is not exactly correct, is it? I’m guessing that the ECOs are still making decisions based on the balance of probabilities, and I’m guessing the ECO will be satisfied that an Emirati can afford to maintain and accommodate themselves, without the need to see a piece of paper (eg a bank statement). The reverse would be true of a Pakistani application. It’s not really about discrimination, more about socio-economics and applying a smidgeon of common sense.