New Labour's immigration legislation

When Labour was in opposition it spoke out against the Tories' immigration legislation and committed itself to reversing these laws when it came to power. True, it was not very vocal in its opposition to racist legislation, and made only a limited number of commitments. New Labour could not, after all, afford to offend the readers of the "Daily Mail" and "Daily Express".

But the Immigration and Asylum Bill (IAB), presented to Parliament on 9 February, does nothing to reverse Tory legislation.

On the contrary, it builds upon the foundations of the Tories' racist legislation, giving it at least one extra turn of the screw in virtually every aspect of immigration and asylum law.

The Tories' Carriers' Liability Act of 1987 imposed penalties on shipping and airline companies which brought undocumented passengers to this country. The fine currently amounts to £2,000 for each undocumented passenger. The legislation was aimed at making it more difficult for asylum-seekers - who are usually unable to obtain the appropriate paperwork - to reach this country.

Airline staff in airports abroad were made into surrogate immigration officers.

Under the IAB carriers' liability is to be extended to lorry-drivers as well. Additional and separate penalties will also be introduced.

The Tories' Immigration and Asylum (Appeals) Act of 1993 removed the right of appeal against refusal to grant a visitor's visa. This left Entry Clearance Officers in British embassies abroad free to make decisions on the basis of prejudice and racist stereotyping, safe in the knowledge that they would not be called to account for their decisions.

Labour promised to restore the right of appeal for would-be visitors. In fact, the IAB restores a right of appeal for "family members", but not for any other category of persons (such as holiday-makers) refused a visitor's visa. Nor does the IAB define "family" - a concept which varies from one culture to another.

In an utterly unprecedented move the IAB also obliges appellants to pay a fee for the appeal in advance of the hearing. The fee is paid back only if the appeal is successful. This is clearly intended to deter family members refused a visa from pursuing their nominal appeal rights.

The IAB also allows the immigration authorities to demand payment of a bond, as a guarantee that entry conditions will not be breached. Jack Straw has suggested a figure of between £5,000 and £10,000. This is blatant discrimination against poorer people.

In the years following the Tories' legislation of 1993 the number of immigration "offenders" held in detention steadily increased. By the time the Tories fell from power the number of detainees - often held in prisons alongside of convicted criminals - had increased by more than 300%.

Labour tut-tutted about such an unprecedented use of detention. Yet last year's immigration White Paper proposed increased use of detention, especially of asylum-seekers who might face removal from the UK. The IAB goes even further.

The running of detention centres will continue to be contracted out to private security companies. "Detainee custody officers" will enjoy virtually the same powers as prison warders, but without being subject to the same degree of legal safeguards and public accountability.

Officers will be entitled to use "reasonable force" in exercising their functions, and resisting or obstructing a custody officer is to become a criminal offence. Taking anything into or out of a detention centre, in breach of detention centre rules, also becomes a criminal offence. "Prohibited items" at Campsfield House detention centre, listed in a Prisons Inspectorate report, include "large quantities of dried fruit" and "cleaning materials".

The IAB introduces a right for immigration detainees to apply for bail. But the right is so qualified as to be largely meaningless. The first bail hearing must be heard no sooner than the fifth day and no later than the ninth day after detention.

A second bail hearing must be heard no sooner than the 33rd day and no later than the 37th day after detention. There is no provision for Legal Aid for bail hearings, no provision for any bail hearing after the second one and no limitation on how long a person may be held in detention.

In 1994 the Tories issued a compendium of changes including a new set of criteria against which any application for asylum had to be judged. If no reasonable explanation was offered for a failure to meet the criteria, then the asylum application could be refused.

The IAB not only leaves the existing criteria untouched but adds new ones as well. Under the so-called "one-stop" appeal procedure no asylum application will be considered if it is lodged after an unsuccessful appeal to remain in the UK on other grounds. Nor will there be any right of appeal against refusal to consider the asylum application.

Persons resident in the UK for at least seven years will also no longer have a right of appeal against deportation. The appeal rights of overstayers and persons who have allegedly breached the conditions of their leave to remain are to be restricted. Finally, pursuit of what is deemed to be an appeal without merit will be subject to imposition of an undefined financial penalty!

The Tories' Asylum and Immigration Act of 1996 gave immigration officers increased powers of search and arrest, obliged employers to check the immigration status of job applicants, reduced the appeal rights of asylum-seekers, and denied most asylum-seekers the right to welfare benefits.

New Labour's IAB gives immigration officers increased powers of search and arrest, obliges employers to check the immigration status of job applicants, reduces the appeal rights of asylum-seekers, and denies all asylum-seekers the right to welfare benefits.

Immigration officers are to be given broad powers to arrest suspects without a warrant, to enter and search premises without a warrant, to search persons held in custody, and to use reasonable force when exercising the powers granted to them by the IAB.

Immigration officers are to be provided with "powers of search, entry and seizure in respect of immigration offences equivalent to those the police already have."

The government wants to reduce the "dependency" of immigration officers on the police. In fact, immigration officers will end up with broader powers than the police - the police, under the law can use reasonable force only under certain circumstances, whereas immigration officers will be able to use reasonable force when exercising any of their enforcement powers.

And immigration officers are even less accountable than the police.

The IAB leaves untouched the obligation on employers to check the immigration status of job applicants. In 1996 Labour condemned this as contrary to good race relations and promised to scrap the requirement. Now all that Jack Straw intends doing to is to issue a "code of practice" on how these measures should be applied in a non-discriminatory manner.

How a piece of legislation based upon racism and discrimination can be applied in a non-discriminatory manner remains to be seen.

The reduced appeal rights for asylum-seekers introduced by the Tories' 1996 legislation are likewise left untouched.

Asylum-seekers who arrived here through what is deemed to be a safe third country (e.g. another European country), for example, will still have no right of appeal in the UK before their removal to the third country.

Other asylum-seekers (those whose claims were "certified" by the Secretary of State) were also left with reduced appeal rights by the Tories' 1996 legislation.

Under the "one-stop" appeal procedure created by the IAB all asylum-seekers will find their appeal rights are reduced to those previously restricted only to "certified" asylum claims. Some asylum-seekers, as already noted, will have no right of appeal at all.

In 1996 the Tories restricted entitlement to welfare benefits to those asylum-seekers who applied for asylum on arrival. Since 1996 no "in-country" asylum-seeker has had any access to welfare benefits.

Now, under the most widely publicised measures of New Labour's legislation, all asylum-seekers will lose the right to claim welfare benefits.

A new "support" system for asylum-seekers is to be created. Asylum-seekers are to be concentrated in "clusters" around the country. Only one offer of accommodation is to be made to an asylum-seeker. No consideration is to be given to the asylum-seeker's own preferences when the offer is made. If the offer is not accepted, the asylum-seeker is abandoned to fend for himself.

There will be no financial assistance provided for asylum-seekers (except, possibly, for minor items of expenditure). Vouchers and assistance in kind are to be provided. Even this poverty-level support will be provided only if the asylum-seeker can demonstrate that he is unable to obtain assistance from elsewhere, such as friends or relatives in the UK.

An asylum-seeker who makes false representations in order to gain access to these "benefits" can be imprisoned for up to three months. An asylum-seeker who makes dishonest representations - "dishonest" is a different legal category from "false" - can be imprisoned for up to seven years.

An asylum-seeker who delays or obstructs a person responsible for administering the new "support" system is liable to a fine. An asylum-seeker who submits misrepresentations in order to obtain assistance under the "support" system can be ordered to repay the monetary value of the "support" provided.

When the Tories tried to starve asylum-seekers out of the country in 1996 they made the mistake of leaving open loopholes in other pieces of legislation (such as the National Assistance Act of 1948) through which asylum-seekers could be given support and assistance.

New Labour makes no such mistakes.

The IAB amends all other pieces of legislation to ensure that no asylum-seeker can benefit from their provisions.

As the Immigration Law Practitioners Association comments on the new "support" system: "This will create an apartheid system of parallel and inferior welfare and housing provision for all asylum-seekers. Such social exclusion is wrong in principle.

In terms of race relations and social cohesion the proposals are a recipe for disaster. They deliver the message Ôthese people are undesirable' and will inflame the worst strands of popular prejudice."

The IAB even reverses earlier steps taken by Labour in the aftermath of the 1997 General Election, including the abolition of the "primary purpose rule". Under this rule a marriage between a British person and a non-British person did not give the latter the right to remain if the primary purpose of the marriage was to obtain leave to remain here.

The rule is now effectively being reintroduced through the concept of a "sham marriage", defined by the IAB as one "entered into for the purpose of avoiding the effect of one or more provisions of immigration law." A marriage registrar who suspects a pending marriage may be sham is obliged to report it.

The IAB is a viciously bigoted and punitive piece of legislation. For asylum-seekers it will spell complete disaster. The labour movement must oppose the Bill tooth and nail. We should demand of Labour MPs that they continue to oppose what they opposed when in opposition, and that they should vote against the Bill.

The message from the trade unions must be that we want no truck with New Labour authoritarianism.