Border Agency blacklists: coming to a country near you?
Imagine a secret government list of suspicions and allegations, fuelled by unsubstantiated rumours provided by anonymous citizens with undisclosed intentions. The information contained in the list would not be measured against any legal burden of proof or supported by any credible evidence, but would – simply by its existence – become “fact”. Imagine, then, if the government could rely upon such “facts” to identify and implicate individuals for illegal behaviour. Such a system would be reminiscent of McCarthyistic tactics to ferret out suspected communists and traitors in 1950s America.
Come September the UK Border Agency will begin operating its own secret list, designed to smoke out suspected illegal immigrants. The National Allegations Database (NAD) will record “tip-offs” proffered by members of the public, providing a basis for investigations by the Border Agency. The Border Agency already follows up allegations received from the public, but such leads are rarely fruitful; between 9th December 2011 and 29th March 2012, fewer than 4% of allegations received from the public contained sufficient genuine information to justify a visit by Border Agency officials.1 Yet The Home Affairs Committee has welcomed the establishment of the NAD and declared its hopes that somehow, by collating anonymous tip-offs, the Border Agency will be able to increase the amount of “actionable intelligence” that results from them.
It is difficult to see how centralizing sensitive and untested information in a national database might somehow improve the quality of that information. The Border Agency’s own data shows that not only are the overwhelming majority of allegations insufficient to warrant action, but almost half of all tip-offs received are simply false. Institutionalising that information will do nothing to improve its veracity or reliability.
If allegations are recorded and centralized in a database, they could become permanently associated with an individual, and could potentially be accessed and used by other government departments and agencies. Without clear safeguards in place to ensure that information is tested against minimum standards of proof before it is entered in the database, to require that disproven or disregarded information is permanently deleted from the database, and to guarantee information is accessible only by the Border Agency and for discreet purposes, the NAD presents serious risks to individuals’ rights to privacy, and in turn, their livelihood.
More concerning, however, is the implications of such a database for individuals’ rights to procedural fairness. One of the key concepts in procedural fairness is the need for reasonable suspicion before enforcement and arrest powers can be exercised. Reasonable suspicion is the standard that police must meet before arresting a suspect. It is also the standard that must be met by the Border Agency before they want to question someone about their immigration status.2 Reasonable suspicion must be more than a mere hunch, and cannot be related to an individual’s colour, nationality, or ethnic or national origin (otherwise, it would amount to profiling).
The establishment of the NAD will greatly water down this key safeguard against procedural fairness. Undoubtedly, many of the allegations provided to the Border Agency are no more than hunches, suspicions based upon an individual’s colour, nationality, and ethnicity. Allegations could potentially stem from neighbourly disputes or office rows, and may be born from discriminatory preconceptions or racist attitudes. And yet, as they are entered into the NAD, they will become “facts” to which Border Agency officials will be entitled to refer to establish reasonable suspicion. The NAD will herald in the defacto adoption of racial profiling as a Border Agency technique for identifying illegal immigrants, just as Arizona has institutionalized racial profiling of Mexican immigrants in its recent immigration law law SB-1070.3
Perhaps most frightening of all is what the NAD says about the British people. This initiative is a manifestation of the worst kind of populism, one which is taking hold throughout Europe: it casts illegal immigrants as scapegoats for the country's financial and societal woes, and invites the British people to participate in their eradication. By promoting the status of allegations to "facts", the NAD essentially puts increased power in the hands of those bigots and racists who falsify and fabricate those allegations. With more than 200 individuals already reporting their false or fabricated allegations to the Border Agency each day, there are serious questions to be asked about Britons’ willingness to scapegoat their neighbours, peers and colleagues. We would do well to recall the McCarthy era, and remind ourselves of Edward R. Murrow’s sage advice: “No one can terrorize a whole nation, unless we are all his accomplices.”
- 1. See Home Affairs Committee, The Work of the UK Border Agency December 2011 to March 2012, available at http://www.publications.parliament.uk/pa/cm201213/cmselect/cmhaff/71/711...
- 2. See Baljinder Singh v Hammond  1 All ER 829; UK Border Agency Enforcement Instructions and Guidance – Chapter 31, available at http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw/enf...
- 3. See Roberto Lovato, "Arizona's Immigrants Under Reasonable Suspicion," The Nation, 26 June 2012, available at http://www.thenation.com/article/168597/arizonas-immigrants-under-reason...