After the Equality and Human Rights Commission announced last week that it would be investigating the spot checks in London on suspected ‘illegal immigrants’ by UKBA officers, I thought I’d just mention two articles by myself and Marinella Marmo on the last time that the Commission for Racial Equality (the predecessor to the EHRC) investigated racial discrimination by the Home Office within the immigration control system.
After the ‘virginity testing’ controversy broke in The Guardian in 1979, the CRE announced it would investigate racial discriminatory practices in the immigration control system. The Home Office retorted that immigration control was inherently discriminatory, with decisions made upon people’s nationality, and thus its racism was necessary to the function of the control system. It also argued that the Race Relations Act 1976 did not apply to government agencies and challenged the CRE in court. In December 1980, the High Court found that the Home Office did fall under the Race Relations Act and the CRE continued its investigation, although the Home Office still refused to co-operate in many areas. In 1985, the CRE finally released its report, outlining a number of criticisms, which were then rebuffed by the Thatcher Government.
Here is an excerpt from the first paper, which outlines the CRE’s findings from its 1980s investigation:
Strong critiques of the Home Office’s arguments were raised in the Commission for Racial Equality’s report Immigration Control Procedures, released in 1985. The CRE outlined in the report that in how immigration controls impacted upon ‘race relations’ in Britain, ‘[t]he most crucial question which arose in this respect was whether the procedures operated fairly to distinguish bogus applicants from the genuine, or whether they resulted in substantial numbers of genuine applicants being refused’ (CRE, 1985, 6). The CRE reported on the arguments put forward by the Home Office on the necessity of strict, and often discriminatory, nature of immigration control to detect the evasion of control,… with the CRE summarising the Home Office’s position:
The essential argument was that attempts by the unentitled to secure settlement by fraudulent means were sufficiently numerous and clever, and their consequences sufficiently serious, to justify causing “inconvenience” to genuine applicants in order to detect and frustrate attempted evasion. (CRE, 1985, 9)
The issue, the CRE stated, seemed to be one of balance, ‘between the objectives of detecting and preventing evasion and abuse on the one hand, and ensuring that genuine applicants and passengers meet the minimum delay and difficulty on the other’ (CRE, 1985, 10). However the CRE concluded that ‘the balance struck ha[d] been wrong’, where the efforts to detect ‘bogus’ migrants had been ‘excessive’ and ‘allowed in many circumstances to override the rights of the genuine’ (CRE, 1985, 10). For the CRE, ‘the emphasis on the detection of the fraudulent ha[d] gone much further than [was] justified by evidence of evasion’ and penalised an unacceptable number of genuine migrants (CRE, 1985, 11).
On the issue of profiling by national or ethnic group, the CRE found that the ‘groups most under suspicion of being likely to evade controls… included those from which there were already minority groups established in the United Kingdom’ and importantly, ‘[t]hey were very likely also to be black groups’ (CRE, 1985, 11). This was qualified by the CRE by noting that they did ‘not believe that immigration officials simply assess individuals on the basis of the group they belong to or on the grounds of their colour’, but the identification of certain nationalities as ‘pressure to emigrate’ countries, as well as emphasising the origins of previous attempts of evasion, which underlay ‘so much of the official thinking about the procedures and the instructions and guidance to staff’, had ‘tended to distort the operation of the controls to the disadvantage of some racial groups’ (CRE, 1985, 131). The CRE concluded that the Home Office’s arguments, as discussed throughout this chapter, had justified ‘closer attention being paid to some groups than to other’ and had resulted in ‘closer scrutiny of their motivation and incentives, while others intending to evade the controls [were] shielded by the protective colouring of their group’ (CRE, 1985, 131).
Overall, the findings of the CRE report were that the functions of the British immigration control system placed ‘too great an emphasis… on the operation of the procedures on the detection of bogus applicants’, weighed against ‘an unacceptable cost to genuine families and to race relations generally’ (CRE, 1985, 128). To counteract the discretionary powers held by immigration officers, the CRE recommended a mechanism be put in place for the ‘continuous, objective review of immigration control procedures and practices to ensure that they are, and remained, fair in all aspects’ (CRE, 1985, 132-133).