As Tony Blair finally relinquishes power, much has been and will be written about the legacy of his ten years. In the fields of immigration and asylum, as in other fields, his reign presents a strange paradox. His government was responsible for bringing in the Human Rights Act 1998, which was designed to 'bring human rights home' and which has forced government to confront the impact of legislative, executive and judicial acts on the human rights of those affected. At the same time, his government has been responsible for serious encroachments on fundamental rights, a shift in the balance of power from individual liberty and towards state control; a similar shift as between the executive and the judiciary; entrenchment of xeno-racism and, in particular, erosion of the idea of universality of human rights.

Extending and curtailing human rights

One of the Blair government's first acts, in 1997, was to abolish the hated 'primary purpose' rule which kept thousands of foreign husbands apart from their British wives. Shortly after, cohabitees and same-sex partners were given the right to live in the UK. The Human Rights Act, which came into force in 2000, brought the European Convention of Human Rights, which protects the right to life, the right not to be tortured (or expelled to torture), rights to liberty, fair trial, family life, freedom of religion, freedom of assembly and association, into the law of the United Kingdom. The Act enables executive action to be challenged in UK courts on the basis that it violates one of the protected rights. The Act is a significant achievement. But the government has endeavoured to ensure that it is applied restrictively, on the basis that immigrants do not have the same rights as others. Thus, thousands of families have been broken up by the removal of the foreign partner - the government argues that the 'imperatives of immigration control' outweigh the families' rights.

Internment and control orders

The extent of the Blair government's encroachments on liberty through executive action was exemplified by the internment of foreign terrorist suspects introduced by the Anti-Terrorism, Crime and Security Act 2001 and declared unlawful by the House of Lords in December 2004. Internment was replaced by control orders under the 2004 Prevention of Terrorism Act, which can be imposed on anyone reasonably suspected of involvement in supporting terrorism (given a very broad definition by the Terrorism Act 2000). Control orders, or immigration bail conditions to similar effect, have been imposed against those suspected of support for resistance in Libya, Iraq, Chechnya and Afghanistan. Conditions include home curfews for twelve to sixteen hours a day, coupled with limits on movement outside the home to a specified area (frequently a mile or so radius), wearing an electronic tag, the surrender of passports, prohibition of all but security-cleared visitors, restrictions on people who can be met outside the home and on places of worship, ban on possession or use of a mobile phone or a computer, daily reporting to police, and allowing police and immigration officers to enter, search and seize items from the 'controlee's' home at any time, day or night. The cumulative impact of these conditions has driven 'controlees' to the brink of madness.

Other notable encroachments on rights:

* That biometrics such as fingerprints or iris imprints can be demanded of visa applicants; asylum seekers can be fingerprinted; and the 2007 UK Borders Bill introduces compulsory biometric ID cards for immigrants;

* Successive Acts since 1999 have given immigration officers equivalent arrest, search and seizure powers to police, including the power to use reasonable force, without any of the safeguards;

* Home Office officials have been given powers to compel banks, local authorities, employers and others to pass on information about immigrants;

* Since 2005, immigrants have needed permission to marry (unless they marry in an Anglican church), in a measure declared incompatible with rights to marry by the Court of Appeal in 2007;

* A raft of new criminal offences directed against those who arrive without documents, and those who refuse to cooperate in their own removal by getting new travel documents from their embassy (introduced in 2004);

* A massive increase in the use of detention, including so-called 'end to end' detention of asylum seekers from specified countries throughout the asylum process, has meant the opening of new centres including Oakington (1999) and Yarl's Wood (2001);

* Legal migrants including work permit holders, business people, refugees and students are to be made subject to conditions of residence and reporting under the UK Borders Bill.

Double standards in human rights

Internment was declared unlawful by the House of Lords in 2004 not because it breached rights to liberty but because it did so on a discriminatory basis. Only foreigners could be interned. As the Lords pointed out, there was no evidence that foreigners were more likely to be terrorists than British citizens. This was a very serious instance of discrimination, but by no means the only one. The past ten years have seen an entrenchment of segregation and marginalisation of asylum seekers, and the death of the idea of universal provision of fundamental rights on the basis of need rather than status.

Marginalisation and denial of rights of asylum seekers

* Immigrants were removed from entitlement to all mainstream means-tested benefits, and a Home Office agency, NASS (the National Asylum Support Service) was created in 1999 to provide basic asylum support;

* From 1999, destitute asylum seekers needing housing were forced into sink estates outside London and the south-east, and vouchers for essential needs replaced cash support;

* The government sought in 2002 to segregate asylum claimants into huge accommodation centres, away from towns, with on-site healthcare and education to prevent families' integration into local communities, which 'hindered removal';

* The Nationality, Immigration and Asylum Act 2002 deprived late and failed asylum seekers of all forms of support, leading to street destitution for thousands until the House of Lords ruled in 2005 that those at risk of street homelessless must be provided for;

* Amendments to the 2002 Act in 2004 meant that failed asylum-seeking families who did not leave could be broken up, with the children taken into care;

* Free NHS treatment was removed from failed asylum seekers (except in emergency cases) by regulations in 2004;

* Policies allowing those from war-torn countries temporary leave were abolished, leaving failed asylum seekers from Iraq, Afghanistan, Somalia and Zimbabwe in limbo and at risk of removal;

* AIDS patients and others with chronic illness began to be deported in the early 2000s, in the knowledge that they would die without the expensive treatment their condition required.

Suspects' rights removed

Where the foreigner has committed an offence, or is suspected of terrorism, his or her rights are given even shorter shrift.

* Even those with over 20 years' residence, with parents, siblings, children and grandchildren here, face deportation under the new rules creating a presumption in favour of deportation;

* Despite continuing allegations of incommunicado detention and torture, deportations of suspected terrorists to Algeria continue, and the government is seeking to deport terror suspects to torturing states including Libya, Jordan and Egypt under memoranda of understanding which provide 'diplomatic assurances' against torture;

* The government is seeking to persuade the European Court of Human Rights to remove the ban against expulsion to a real risk of torture;

* Active complicity in 'extraordinary rendition' (ie illegal removal of terror suspects to torturing states) has been established;

* A 1972 ban on inhuman and degrading treatment of prisoners was lifted for suspected 'insurgents' in army custody in Iraq.

Executive v judiciary

As the Blair government has passed tougher and tougher laws restricting the rights of asylum seekers and other groups seen as undesirable, it has tried to insulate the laws from the scrutiny of the judges, who have frequently condemned the executive for abuse of power. The most egregious example of this was the attempt in 2004 to remove the normal rights of appeal and judicial review from immigrants and asylum claimants, leaving them with no legal remedy against legal errors by adjudicators. A coalition of refugee groups, lawyers and senior judges defeated the attempt, but the government has weakened legal protections in other ways.

Weakening legal protection

* Claims deemed 'clearly unfounded' by Home Office officials cannot be appealed until after the claimant's return home (Nationality, Immigration and Asylum Act 2002);

* Statutory presumptions such as the presumption of safety in countries of transit ('third safe countries') and in specified countries of origin ('the white list', abolished when Labour came to power and brought back in 2002), the presumption of adverse credibility (brought in in 2004, which deems conduct such as a late asylum claim or travel on false documents as damaging credibility) mean fewer legal challenges and less scope for judicial intervention and discretion;

* The presumption in favour of deportation, introduced in 2006 following the 'foreign criminals' tabloid-generated outcry, has been followed by provision for mandatory deportation of foreign criminals in the 2007 UK Borders Bill;

* Suspected terrorists are not allowed to see much of the evidence against them, and judges have been warned not to interfere with the government's assessment of the needs of national security;

* Under the Human Rights Act, passed in 1998, judges cannot strike down laws which contravene basic human rights, but can only declare them incompatible with human rights, leaving the government with the choice to revise the legislation or not;

* Changes in legal aid rules have driven many solicitors out of business or away from publicly funded immigration work.

Entrenching xeno-racism

The Blair government was the first to acknowledge the reality of 'institutional racism' with the ground-breaking Macpherson inquiry into the death of Stephen Lawrence. But in parallel with that recognition and the extension of anti-racist legislation to public bodies in 2000, the policies of segregation and marginalisation of asylum seekers, and Blair's fixation with detaining, refusing and removing them en masse and as fast as possible, have been a major ingredient in the legitimation of anti-asylum seeker racism. The policy of 'managed migration' has seen a large increase in legal economic migration (frequently at the expense of the south, as in the recruitment of doctors and nurses from sub-Saharan Africa), but simultaneously, asylum claimants with hugely valuable skills and qualifications have been banned from working, as part of the deterrent policy to stop them coming, and their resultant, reluctant dependency on asylum support has fed back in to media and popular racism, which, in turn, has fuelled yet more state racism.

The attitude of enlightened superiority which has been a hallmark of Blair's attitude to the disastrous and brutal intervention in Iraq is also evident in his government's moves to restrict British citizenship to those sharing 'British' values. The 2002 Nationality, Immigration and Asylum Act introduced new requirements (knowledge of language and life in Britain) as a condition of acquiring citizenship and allowed citizenship to be removed from the unworthy.

The hope that the Blair government would set its face against popular racism, and would seek to educate the country about why people need refuge from persecution - or simply a chance to earn a livelihood - has gradually turned into disillusion and then to anger, as Blair sought instead to prove his toughness through inhuman policies towards asylum seekers and radical encroachments on civil liberties in his anti-terrorism policies. As Blair leaves office, he leaves a country more divided - by race, class and status - than he found it.


20 June 2007

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FOOTNOTE

Frances Webber is a leading human rights lawyer at Garden Court Chambers.