Immigration controls and human rights implications

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QUESTION TO BE ASKED OF HER MAJESTY'S ATTORNEY GENERAL ON TUESDAY, 16th MARCH 2004 BY SENATOR P.V.F. LE CLAIRE

Question

What is the Island's legal position, particularly in light of human rights considerations, in imposing immigration controls such as work permits on people already established in the Island?

Answer

1. It is not legally permissible to introduce a direct immigration controlinconsistent with the provisionsof the Immigration Acts 1971 and 1988asextended to theIslandby the Immigration (Jersey)Order 1993, unless the latter Order were withdrawn and repealed. Such a repeal would be likely to involve Jersey withdrawing from the CommonTravelArea,whichitmightbethought would have far reachingconsequences.
2. Measures such as a work permitschememay have an indirecteffecton immigration. It is open to Jersey to introduce a new licensing schemewhich would require all persons,including British citizens, whodonot have recognised connections with the Island, toobtain a licence in orderto take employmentinthe Island.
3. Although the European Convention on Human Rights does not confer a right to work, human rights considerations will berelevant to anyschemeproposed.Generalisations should be made only with caution because the answerinany particular case will dependonthe detail of the scheme in question. It is possibleto design a work permitschemewhich is Conventioncompliant and it is equally conceivable that someschemes would not be compliant. It is likely that any scheme would need to be forward looking rather than retrospective. However, the principle is that no controls could be introduced which interfered withtheright to respect for private and familylife or any otherConvention rights, such as the right to property, (in contracts ofemploymentfor instance), unlessthe interference responds to a legitimate aimunder one of the qualifications in the Articles of the Convention, and is proportionate. Once a schemehasbeen introduced, it may be that where a very shortperiodof residence in the Island is involved orwhere the applicable criteria for employment have been clearly set out in advanceof or on the person's arrival here, it mightbepossible, absent otherhuman rights considerations, toargue that thepersonconcernedcannot justify theapplication for a permitby reliance on such period ofresidence as heor she has.

I t might be hard to justify an interference with the right to respect for family life of those resident in the

Island before any scheme is introduced.