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Immigration exception

Race law reform

What you need to know

 

Removal of immigration exception

Key points

 

  • This change will prohibit discrimination by immigration authorities on the grounds of ethnic or national origins when carrying out immigration functions.
     
  • This change will result in the removal of an unjustified exception which permits, for example, racial profiling by immigration authorities which can have a discriminatory and disproportionate impact on minority groups. Our recommendation is in line with the recommendations of international human rights monitoring bodies. 


Our recommendation

We recommend the removal of the immigration exception in the race equality legislation which permits discrimination on the grounds of ethnic or national origins in the carrying out of immigration functions.

Rationale for change

This change will result in the removal of an unjustified exception which permits, for example, immigration practices that can have a discriminatory and disproportionate impact on minority groups.

For example, currently, due to this exception, it would not be possible for a person of a particular ethnic or national origin who is singled out by immigration authorities for a more rigorous examination because of his/her ethnic or national origin to bring a race discrimination complaint.

We recognise that immigration is a reserved matter and remains the responsibility of the Westminster Parliament. However, it is also clear that immigration policies and practices can significantly impact on BME communities in Northern Ireland.

For example, research commissioned by the Northern Ireland Human Rights Commission (NIHRC) Our Hidden Borders: The UK Border Agency’s Powers of Detention (2009) raised specific concerns ‘particularly around what appeared to be the practice of racial profiling’, by the UK Border Agency and recommended that the practice of singling out particular nationalities and people visibly from a minority ethnic background should cease immediately.

Further, our recommendation is in line with the recommendations of international human rights monitoring bodies; in particular, the Advisory Committee on the Framework Convention for the Protection of National Minorities and the Committee on the Elimination of Racial Discrimination.

For example, the Advisory Committee on the Framework Convention for the Protection of National Minorities in 2011 highlighted “serious concerns of racial profiling targeting, in particular, persons belonging to some minority groups” at Northern Ireland ports and airports .

It was of the view that racial profiling and “stop and search” measures, including during controls at ports, airports and on the border with Ireland, “have a disproportionate and discriminatory impact on persons belonging to minority ethnic communities.”

In addition, the Committee on the Elimination of Racial Discrimination (CERD Committee) in its Concluding Observations on the UK in 2003, recommended that the UK consider re-formulating or repealing the immigration exception in order to ensure full compliance with the Convention.

The CERD Committee in its more recent recommendations in 2011 also expressed “deep concern” that the Equality Act 2010 permitted public officials to discriminate on grounds of nationality, ethnic and national origin, provided it is authorised by a Minister .

It expressed its concern at reports that a ministerial authorisation had come into force on 10 February 2011 which permitted the UK Border Agency to discriminate among nationalities in granting visas and when carrying out checks at airports and ports and points of entry of the State Party.

The CERD Committee recommended that the UK remove the exception based on ethnic and national origin in the exercise of immigration functions, as well as the discretionary powers granted to the UK Border Agency to discriminate at border posts among those entering the territory of the UK.

Further, the Joint Committee on Human Rights in Great Britain has made it clear that it did not consider that the UK Government had established a case for retaining the ethnicity and nationality immigration exception in its current form. 

It recognised that discrimination on the basis of nationality is an “unavoidable feature of immigration control”. However It stated that “the case law of the European Court of Human Rights, the House of Lords and other courts have established that pressing justification must be shown for the use of distinctions based on race, ethnicity or associated concepts such as national origin”.

It highlighted that the provisions of the UN Convention on the Elimination of Racial Discrimination (CERD) also required States to take steps to avoid the use of race-based distinctions.  In summary, it was of the view that given the range of immigration powers available and the ability of the government to authorise the use of distinctions based on nationality, it considered that there was insufficient justification for including an exception that permits discrimination based on ethnicity and national origins in the Equality Act 2010.
 
 

Narrowing of employment exception on foreign nationals in the public service

Key points

 

  • This change will narrow the exception relating to the employment of foreign nationals in the public service. This exception allows the Crown or a prescribed public body to restrict employment to people of a particular birth, nationality, descent or residence.
  • This change will ensure that unjustifiable and disproportionate restrictions on the employment of foreign nationals, particularly non-EU nationals, are removed.
     

Our recommendation

We recommend that the restriction on persons of a particular birth, nationality, descent or residence being employed in the service of the Crown or certain public bodes should be modified or removed.

Rationale for change

This change will narrow the exception that permits particular public bodies to restrict certain posts in the civil, diplomatic, armed or security and intelligence services to people of a particular birth, nationality, descent or residence. This exception particularly impacts on the employment of non-EU nationals in these areas, as fewer restrictions apply to EU nationals.

In general, we consider that all derogations from the general principle of equality of treatment should be applied narrowly and clearly shown to be a proportionate means of achieving a legitimate aim.

We support the views of the Joint Committee on Human Rights who made it clear that it considers that the re-enactment of existing restrictions on the employment of non-UK nationals in the public services represents a “missed opportunity to review these restrictions, to remove those that are no longer justified and to minimise the scope of those that remain.”

The impact of the exception has also been highlighted by the Joint Committee, in that it notes that “95% of civil service posts in the UK are available to Commonwealth, Irish or EEA nationals but other non-UK nationals are almost entirely excluded from those posts, even if there is no good operational reason for that”.  It expresses concern that as a result, “many members of long-standing minority communities in the UK are entirely banned from government employment, no matter how well qualified they are, and even if they are married to a UK national”.

 
< Context of proposals  < Race discrimination  < Addressing inequality

 

Our recommendation

We recommend that the restriction on persons of particular birth, nationality, descent or residence being employed in the service of the Crown or certain public bodes should be modified or removed.

This exception permits particular public bodies to restrict certain posts in the civil, diplomatic, armed or security and intelligence services to people of a particular birth, nationality, descent or residence. This exception particularly impacts on the employment of non-EU nationals in these areas, as fewer restrictions apply to EU nationals.

In general, we consider that all derogations from the general principle of equality of treatment should be applied narrowly and clearly shown to be proportionate means of achieving a legitimate aim.

We support the views of the Joint Committee on Human Rights who has made it clear that it considers that the re-enactment of existing restrictions on the employment of non-UK nationals in the public services represents a “missed opportunity to review these restrictions, to remove those that are no longer justified and to minimise the scope of those that remain.” [8]


The impact of the exception has also been highlighted by the Joint Committee, in that it notes that “95% of civil service posts in the UK are available to Commonwealth, Irish or EEA nationals but other non-UK nationals are almost entirely excluded from those posts, even if there is no good operational reason for that”.It expresses concern that as a result, “many members of long-standing minority communities in the UK are entirely banned from government employment, no matter how well qualified they are, and even if they are married to a UK national”.

In summary we recommend the removal of unjustifiable and disproportionate restrictions on the employment of foreign nationals, particularly non-EU nationals, in the civil, diplomatic, armed or security and intelligence services.


 

 
 
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