UK Policy Consultation & Briefing

ID Card Discrimination Campaign

JCWI's Parliamentary Briefing to MPs on 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. In relation to this Bill we are concerned about the

1. Risk of creating a general culture of suspicion toward black and ethnic minority communities; and jeopardizing equality and social cohesion.

2. Risk of conflict with the ECHR and other international convention law, particularly given the complexity of the term "foreign national"

JCWI urges MPs attending the Second Reading to call for

1. measures in the new Bill to ensure that irregularities in immigration status discovered as a result of identity checks do not result in automatic administrative procedures, detention or deportation (as many non-EEA nationals may have grounds to remain under current rules despite irregular status and should have the opportunity to make a case);

2. a concession and/or additional procedures for non-EEA nationals with hitherto irregular immigration status which provide an opportunity to regularise status for example based on employment, self-employment or study; or human rights considerations;

3. effective and explicit non-discrimination measures to be included in the Bill, which provide a safeguard regardless of nationality against demands for production of an identity card and against the denial of public services;

4. more adequate human rights, race equality and regulatory impact analyses of the Bill to be carried out by all relevant Government departments before the bill is passed into law.

Risk of generating a general culture of suspicion toward black and ethnic minority communities; and jeopardizing equality and social cohesion:

The protection that will be available to British nationals against demands from police officers and other public service officials to produce an identity card will not be available to foreign nationals (see 18Cii of the Bill); who, it appears, will be required to join the register before British nationals.

JCWI questions how the formal legal protection built into the Bill for British nationals against production of an ID card, can be translated into effective practical protection for black and ethnic minorities, given that independent research on the use of identity cards in Europe suggests that black and ethnic minority communities are disproportionately targeted on the basis of race for identity checks (A Beck and K 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). In 2005 and for several years running, Amnesty's annual reports on France have shown that allegations of police brutality frequently follow disputes arising from identity checks, particularly in Paris.

Despite their broad expression of support for ID cards, potentially discriminatory police checking is an issue on which the majority of black persons in the UK polled have expressed concern to the Home Office.

The Government has published its statutory REIA (race equality impact assessment) of the previous identity card bill. 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 anxieties of a majority about immigration will be assuaged, but demonstrating objectively that minorities will not suffer detrimental effects from a particular policy measure. The REIA fails to demonstrate this.

Risk of conflict with ECHR and other international convention law, particularly given the complexity of the term "foreign national:

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. It may also risk breaching the UK's obligations of non-discrimination 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.

In addition JCWI's legal counsel advises that there could be potential breaches based on discrimination against ethnic minority British citizens. To deny health care or benefit because a foreign national does not have an ID card, without regard to his or her 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. Our legal opinion also draws attention to the specific problems arising out of attempts to define the term 'foreign national' as follows:

1. 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 to British citizens in material respects. There is no obvious justification to compel this group to undergo compulsory registration before British citizens.

2. There are those with long residence in the UK; some have lawful residence others do not. 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, may be in employment or business has contributed in different ways to the community and have a stake hold in society. Compulsory registration will alienate and exclude this group further given that at best indefinite leave to remain is a matter of discretion.

3. There are classes of British nationals without a right of abode (i.e. British Overseas citizens, British Subjects etc). Again there is no justification in requiring these groups to undergo compulsory registration before British citizens/EEA nationals.

4. EU nationals have the right to enter and reside in the UK. While the exercise of the right of residence of citizens of the Union can be subordinated to the legitimate interests of the Member States, 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. 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.