The subject of this paper is; what human rights, if any, are engaged in the practice of ethnic profiling; the extent to which ethnic profiling is used by immigration officers in enforcement work at ports and places of work and residence: and finally the reasons that ethnic profiling is problematic not only from the viewpoint of human rights obligations but also from the perspective of effectiveness and efficiency.
The Northern Ireland Human Rights Commission uses domestic and international human rights standards as benchmarks against which to evaluate the desirability of government legislation and policy. One might be excused for believing that immigration enforcement is exempt from many of the protections and norms around ethnic profiling specifically and racial discrimination more broadly. For example, the Race Relations Act and its Northern Ireland equivalent the Race Relations (Amendment) Regulations (Northern Ireland) Order 2003, permits immigration officers to discriminate on the grounds of nationality and ethnic origin if a Ministerial Authorisation has been given. Certain provisions of the Human Rights Act 1998 such as Article 6 (the right to a fair trial) of the European Convention on Human Rights (ECHR) have been ruled not to apply in the field of immigration and the right to be free from arbitrary detention under Article 5 ECHR is qualified by Article 5 (1) (f): “the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition”. However, while human rights standards are broadly sympathetic to the perceived needs of states to control irregular migration they do demand that people, once within the territory of a state, are offered certain minimum protection and treatment.
The practice of ethnic profiling is not in keeping with international human rights standards. Article 2 (1)(a) of the International Convention on the Elimination of All Forms of Racial Discrimination states: “Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with his obligation”.
More recently the United Nations Human Rights Committee has ruled in Lecraft v Spain, a case involving a black American who had acquired Spanish citizenship in 1969. Rosalind Williams Lecraft was stopped for an identity check by the police on the basis that her racial features implied she was not Spanish. The police officer claimed his actions were necessary in order to control illegal immigration. The Human Rights Committee ruled that there had been a violation of Article 26 of the International Covenant on Civil and Political Rights (ICCPR) taken with Article 2 (1) of ICCPR. The Committee commented:
Moreover, the UK’s differential treatment on grounds of racial origin has amounted to a breach of Article 3 ECHR (the right to be free from torture and inhuman or degrading treatment or punishment) in the past. Following the UK’s refusal to allow British nationals to re-enter the UK having been expelled from their country of origin in East Africa, the European Commission observed:
The dynamics of immigration enforcement in Northern Ireland are unique to the rest of the UK for a number of reasons. It is of course unique because of its physical separation from the rest of the UK and because it is the only part of the UK to share a land border with another state, the Republic of Ireland. This part of the paper draws on the findings from an investigation carried out by the Northern Ireland Human Rights Commission into the detention powers of the UK Border Agency (UKBA). That investigation involved interviews with people detained as a result of ‘Operation Gull’ and enforcement visits to residences and places of work; interviews with immigration officers; and observation of their work at Belfast City airport and observation of internal briefings prior to and after enforcement visits. The investigation found that ethnicity was a determining factor in an immigration officer’s decision to engage in further investigation with an individual. In one case an enforcement visit was carried out to a local take-away on the basis that people of Middle Eastern origin were seen to be working there but no work permits were registered to that address. A presumption therefore appears to have been made that ethnic minorities are likely to be immigration offenders.
As part of the Commission’s investigation, investigators shadowed immigration officers conducting ‘Operation Gull’ at Belfast City Airport. At the end of the first day of shadowing no-one had been detained by immigration officers. One immigration officer complained that the day had not been much fun and when asked further to explain what he meant by ‘fun’ he replied that immigration enforcement was like being paid to clean a park and if by the end of the day the park was not clean “questions would be asked”. Such views were not uncharacteristic of those expressed by immigration officers – that certain profiles of people were not only undesirable but determined to deceive them and the immigration laws of the UK. Many expressed those profiles in terms of nationalities but the question must be asked how easily those conceptions held by immigration officers can be disentangled from ethnicity, particularly in the few seconds of initial contact between an immigration officer and disembarking passenger or on a reconnaissance visit.
While the UK Border Agency refutes any suggestion that it profiles on the basis of ethnicity, the Commission’s primary research cannot support that claim unequivocally. Comments from immigration officers certainly indicated that certain presumptions were made about nationality. One immigration officer confirmed that every Nigerian passport was checked for forgery. Another stated that he knew he would be routinely lied to and although there was nothing he could do about it “…I can let them know that I’m not a mug”.
Along with the human rights violations involved in the practice of ethnic profiling it is important to point out that it is in fact an ineffective way of law enforcement – whether that be criminal law or immigration law. The case cited above of the take away employing people looking of Middle Eastern origin in fact led to no arrests. All working on the premises had the necessary authorization to do so, yet a team of immigration officers and seconded police officers, having sought a warrant from a Lay Magistrate invested time and resources into this operation on such precarious grounds. Immigration enforcement activity at ports has also been shown to become a self-fulfilling prophecy when presumptions are made about certain ethnic or national groups. If only people of a certain ethnicity or nationality are targeted then they will inevitably become disproportionately represented in the statistics on immigration offenders.
Human rights standards and efficiency demand a proportionate and balanced approach to addressing irregular migration. Profiling on the basis of ethnicity is neither proportionate nor efficient. Currently, the UK Border Agency carries out its work without clear guidance on first, what constitutes ethnic profiling and second how to conduct their business without using it. Instead, we hear blanket denials from senior policy makers and officials of its use. When taken with legislation that in effect permits it and a lack of meaningful accountability in Northern Ireland when it is alleged, that denial raises serious cause for concern.