UK Policy Consultation & Briefing

ID Card Discrimination Campaign

Parliamentary Briefing
House of Commons Third Reading of the Identity Card Bill

Why JCWI is concerned about identity cards:

The JCWI (Joint Council for the Welfare of Immigrants) is an independent national organisation which has been providing legal representation to individuals and families affected by immigration, nationality and refugee law and policy since 1967. JCWI actively lobbies and campaigns for changes in law and practice and its mission is to eliminate discrimination in this sphere. Migration-related legislation such as the Identity Card Bill is therefore of central importance to us.

JCWI's general position on identity cards is that the scheme, if established, should be run on a voluntary basis. However as the scheme stands we are concerned about the

1. Risk of creating a general culture of suspicion toward black and ethnic minority communities. Research on the use of identity cards in Europe suggests that black and ethnic minority British nationals could be disproportionately targeted on the basis of race for identity checks by police, immigration officials or other public service officials, for example, those checking on entitlement to health services. Despite their broad expression of support for ID cards potential discriminatory police checks is an issue on which black and ethnic minorities have expressed concerns

2. Risk of conflict with the European Convention on Human Rights and other international convention law. This has already been outlined by the Joint Committee on Human Rights. Additionally legal opinion obtained by JCWI suggests the imposition of a compulsory scheme on 'foreign nationals' in advance of UK nationals, as is intended by the current bill, is fraught with difficulties arising from the complexity of the term 'foreign national'.

Risk of creating a general culture of suspicion toward black and ethnic minority communities

When independent researchers investigated other EU countries' experiences of ID card systems(1) , they concluded that "identity checks by police officers and other official agencies impact(s) disproportionately on ethnic minority groups". It is pertinent to the UK situation that in two of the three countries they studied, France and the Netherlands, carrying an ID card was voluntary at the time.
The researchers found that in Germany officers demanded ID from ethnic minority persons disproportionately. In the Netherlands immigration investigations of factories for illegal migrant workers resulted in ethnic minority Dutch nationals being escorted off the premises for checks. In France senior officers opined that laws requiring them to carry out identity checks for illegal immigrants had created more tension between themselves and ethnic minorities: this is borne out by Amnesty's 2003 and 2004 reports on France which show allegations of police brutality frequently follow disputes arising from identity checks, particularly in Paris.

So far the UK government has claimed police will not be able to demand production of identity cards that such research findings do not apply here: however it is completely voluntary to carry a card in France but discrimination still occurs. In addition the de jure safeguard the UK government is offering against police searches in clause 18 will not be available to foreign nationals, potentially voiding this protection, de facto, to black and ethnic minority UK nationals. And while the UK police may not be able to demand production of the ID card, the Bill makes it clear that public services officials will be able, and expected, to do so.

The Government published its statutory REIA (race equality impact assessment) of the Bill before Second Reading. However we do not believe it was appropriate for the REIA to advance an argument that because the ID card will help tackle fears of illegal migration, it will promote good community relations. As the Race Relations Amendment Act 2000 and the Commission for Racial Equality's guidance make clear, an REIA is not about showing how the alleged ill-will of any section of UK society toward minorities will be assuaged, but demonstrating objectively that minorities will not suffer detrimental effects from a particular policy measure. The REIA fails to demonstrate this.

We note that the Government plans to offer a more substantial Race Equality Impact Assessment before further legislation making the identity card compulsory for the general UK population is brought to the Commons. However, the identity card is likely to become compulsory for foreign nationals before then. Hence, the risk of discrimination against ethnic minorities will come into play at the same time as foreign nationals have to apply for the ID card and it is therefore urgent to make a full REIA and bring it to public scrutiny now.

Risk of conflict with ECHR and other international convention law.

The Joint Committee on Human Rights has said it considers the implementation of a compulsory scheme for non-UK nationals before UK nationals raises questions of disproportionate interference with private life under ECHR Article 8, as well as of discrimination under Article 14, read in conjunction with Article 8. In addition:

"Further discrimination issues may arise, under Articles 8 and 14 of the ECHR as well as in relation to the UK's international human rights obligations of non-discrimination, in particular under the International Covenant on Economic Social and Cultural Rights (ICESCR) where essential services such as healthcare became dependent on entry onto the Register, for certain groups(2)."

Legal opinion sought by JCWI concurs with that of the JCHR. In addition counsel advises that Clauses 15, 17 and 18 - covering the power of public officials to demand identification including in relation to provision of public services, will have a potential discriminatory impact not only on foreign nationals but also on ethnic minority British citizens. To deny health care or benefit because a foreign national does not have an ID card, without regard to his need, or to subject an ethnic minority British citizen to the type of enquiry contemplated in these clauses will most certainly fall foul of Articles 8 and 14 of the ECHR.

In addition our opinion draws attention to the specific problems arising out of attempts to define the term foreign national

1. Firstly, there are those who are not British citizens but lawfully settled in the UK (some with the right of abode). This group will fall under the early compulsory registration scheme. They are for all purposes no different than British citizens in material respects(3). There is no obvious justification to compel this group to undergo compulsory registration before British citizens.

2. Secondly, there are those with long residence in the UK; some have lawful residence others do not.

3. There is a group of foreign nationals who do not have a right to reside in the UK (overstayers e.g. students who have completed their courses and remained without leave) but have been in the UK for a number of years. They have made their homes here. This group is largely benign(4) , industrious, tax paying, prepared to undertake menial jobs, has contributed in different ways to the community and has a stake hold in society. Compulsory registration, boasting an inclusive approach, will alienate and exclude this group further.

4. This particular group has limited opportunity to regularise their position under the Immigration Rules but fear to do so because there is no guarantee that they will obtain regularisation prematurely or otherwise(5). Experience shows that their fears are well founded since the Immigration Rules confer no entitlement on this group to indefinite leave to remain. Indefinite leave to remain is at best a matter of discretion. The conditions for indefinite leave to remain are difficult to meet. Their position in the UK will become untenable(6). To meet this particular problem created by the introduction of a compulsory registration scheme the government may at the same wish to announce some amnesty so as to bring this group into the inclusive scheme(7). Thirdly, there is a class of British nationals without a right of abode (i.e. British Overseas citizens, British Dependent Territories citizen etc) and some with a right of abode(8). Again there is no justification in requiring this group to undergo compulsory registration before British citizens/EEA nationals.

5. Fourthly, citizens of the European Union will also require undergoing compulsory It is doubted whether EU workers could be required to undergo compulsory registration before British citizens(9) . EU nationals have the right to enter and reside in the UK - 'the exercise of the right of residence of citizens of the Union can be subordinated to the legitimate interests of the Member States. However, those limitations and conditions must be applied in compliance with the limits imposed by Community law and in accordance with the general principles of that law, in particular the principle of proportionality. That means that national measures adopted on that subject must be necessary and appropriate to attain the objective pursued. Compulsory registration may breach the principle of proportionality particularly if the EU national is required to undergo compulsory registration whereas the British citizen is not.

6. Thus any difference of treatment between EU nationals and British citizens in respect of undergoing compulsory registration will most certainly fall foul of the Treaty of the EU(10).

Calls to action:

JCWI urges MPs

• to vote against the Bill as it presently stands given the Home Office's failure to conduct sufficient human rights and race equality impact analyses
• to reiterate the Joint Human Rights Committee's demand for more human rights analysis of the Identity Card Bill before it is passed into law and registration is made compulsory for any group
• to reiterate JCWI's demand for a complete and substantive race equality impact analysis of this Bill before it is passed into law

For more information about this briefing please contact Rhian Beynon, Communications Officer, JCWI on 020 7 553 7464, or Tauhid Pasha, Legal and Policy Director on 020 7 608 7304

Notes:

(1) Adrian Beck and Kate Broadhurst: Policing the community: the impact of national identity cards in the European Union, Journal of Ethnic and Migration Studies, Vol.24, No. 3, 413-431, July 1998

(2)Paragraph 25, Fifth Report of the Joint Committee on Human Rights, Wednesday 26 January 2005

(3)Settled means ordinarily resident in the UK without being subject under the immigration laws t o any restriction on the period for which he may return: section 33(2A) Immigration Act 1971.

(4)Most overstayers are law abiding; if they are arrested for any criminal offence they are likely to be detained and removed by the Immigration Service.

(5)Paragraphs 276A-276D HC 395 refers to them.

(6)The CRE were concerned that this would entrench an underclass, undermining community cohesion: paragraph 66 of Race Equality Impact Assessment.

(7)See paragraph 66 of Home Office Identity Cards Bill Race Equality Impact Assessment "The impact on those who have been living and working illegally in the UK for many years has also been raised. The CRE were concerned that this would entrench an underclass, undermining community cohesion".

(8)Some British nationals are freely admitted to the UK: see para 16-17 HC 395.

(9)Article 4 of Council Directive 68/360/EEC stipulates the type of document which the UK may demand from a worker before issuing a residence permit; Article 7.2 of Regulation (EEC) 1612/68 guarantees a worker enjoying the same social advantages as national worker; and the 13th recital to Council Directive 20000/43/EC expressly excludes differences based on nationality from the scope of this Directive.

(10)EU workers are to be treated in the same way as national workers: Articles 12, 17, 18, and 39 TEU.