The Equality and Human Rights Commission (EHRC) announced recently that it would be investigating the stop-and-search tactics used by UK Border Agency (UKBA) officers in London in a hunt for “illegal immigrants”, arguing that those who were searched were selected by “racial profiling”.
However, in response to criticisms of the UKBA’s tactics, the independent chief inspector of borders and immigration, John Vine, implied that he would not investigate these incidences as a priority. On the other hand, the immigration minister Mark Harper was quoted in The Independent as saying:
I absolutely refute the suggestion that we are targeting people because of their race, or we are doing racial profiling – we are doing nothing of the sort … I am confident having reviewed our operations that we are absolutely operating within the law.
The Independent Chief Inspector of Borders and Immigration (ICIBI) was created in 2008 to oversee the UK’s border control system. But its remit focuses on assessing the “efficiency and effectiveness” of the system, rather than ensuring that it operates in a non-discriminatory manner. Even though the ICIBI does exist as a regulatory body for the UKBA, it seems that the border control system still functions without sufficient oversight into whether it treats those who go through the system in a fair and ethical way.
Research by associate professor Marinella Marmo and myself (both from Flinders University in South Australia) has found that historically, the border control system has not had the same level of regulation as other government agencies, with individual officers operating with a high level of discretion.
While the police have had to conform to guidelines under the Police and Criminal Evidence Act 1984 since the Scarman Report in 1981, similar legislation does not exist for the UKBA. Technically, the UKBA is bound by the Race Relations Act 2000, but it is up to the Equality and Human Rights Commission to investigate breaches under this act and the Home Office is resistant to scrutiny from this agency.
Uncovering Home Office prejudice
The last time the UK border control system was investigated for racially discriminatory practices, the Home Office actively refused to co-operate with the Commission for Racial Equality (the predecessor to the EHRC) until forced by the High Court.
In 1979, The Guardian reported that border control officers at Heathrow and in South Asia had conducted gynaecological examinations on women seeking to enter the UK, as well as using x-rays to assess the age of children claiming to be dependants of recently settled migrants. A week later, the CRE announced that it would be investigating racial discrimination in the border control system. The Home Office argued that this investigation was unnecessary and outside the scope of the CRE.
Under Conservative home secretary Willie Whitelaw, the Home Office attempted to stop the investigation by arguing that the Commission was unable to investigate government agencies for racial discrimination under the Race Relations Act 1976. This led to a legal challenge eventually decided in the High Court in December 1980. In his decision, Justice Woolf stated, “I cannot accept that Parliament must be assumed to have intended, as the Home Office contends, that the field of immigration should be a no-go area for the commission.” He then concluded that “an inquiry into the control of immigration could be beneficial in promoting good relations between racial groups”.
After this decision, the Home Office submitted to the Commission that discrimination on the basis of nationality was necessary for the effective function of the border control system. It proposed that because people from certain countries were suspected to be more likely to evade controls, it was not racially discriminatory to profile these people and subject them to scrutiny. Our research uncovered one internal Home Office document that argued:
Migration is essentially a racial matter, and the only basis upon which the periodic migrations to which all peoples are subject can be regulated, is by numbers according to race.
The Commission eventually found in its 1985 report that these prejudices harboured by the Home Office resulted in racially discriminatory treatment, with the focus of the system’s scrutiny on certain ethnic minority groups. The Commission recommended the “continuous, objective review of immigration control procedures and practices to ensure that they are, and remained, fair in all aspects”. But it seems that, since then, the system has managed to continue to operate under a shadow of secrecy and with limited supervision over its practices. The EHRC’s recent announcement of an investigation and its resistance by the Home Office is the latest in a long history of the tension between the border control system and attempts to ensure that it functions fairly.