Complaint made by CAJ against Translink for facilitating discriminatory passport checks on cross-border busesSeptember 17, 2019
CAJ has submitted a breach of equality scheme complaint against Translink in response to the company facilitating discriminatory passport checks on its cross-border transport services. The complaint has been made by CAJ on behalf of 17 directly affected passengers.
Over recent months, concern has been building over the increasing number of passport and identity checks being carried out on cross-border transport routes within the Common Travel Area (CTA).
Officers from the Garda National Immigration Bureau (1) have resumed practices of stopping and boarding buses crossing the land border to conduct passport checks. Meanwhile, UK Home Office Immigration Officers have been conducting similar checks on passengers disembarking cross-border bus services or arriving at seaports and airports in Northern Ireland.
Witness and victim testimony indicates that these checks are frequently conducted on the basis of (at times quite blatant) racial profiling – the form of racial discrimination where the form of racial discrimination where persons are singled out on the basis of skin colour or other ethnic attributes.
The checks are contrary to both UK and Irish law, and stated government policy. UK law explicitly precludes passport checks being conducted within the CTA (2) and UK government ministers have given clear assurances that no such checks are to start taking place (3).
The Irish government has given similar assurances that it will not introduce a ‘hard border’ on the island of Ireland as a result of Brexit. Under current Irish Law (4), some persons are required to carry and produce passports when crossing the Irish land border, but this does not apply to Irish citizens or other EU citizens (5). However, there is no way of telling the difference between those who are subject to such duties and those who are not.
Úna Boyd, CAJ’s Immigration Project Coordinator, commented, “It seems that the hard border already exists for those who are targeted due to factors such as their skin colour or accent. The facilitation of passport controls on the island of Ireland also aids in introducing an element of a hard border at a time when a ‘no-deal’ Brexit seems possible and such a subject is a matter of extreme concern to many people.”
Translink – as a public authority in NI – is under a duty not to facilitate racial discrimination, and to ‘equality test’ the policy decisions it makes under its legally binding ‘equality scheme’. Equality testing involves a process of initially ‘equality screening’ policies to assess their impact. Where policies are likely to have adverse impacts, an Equality Impact Assessment (EQIA) and public consultation may follow (6).
Translink have confirmed in correspondence with CAJ (7) that they have undertaken none of these Equality Scheme processes on their openly stated policy of facilitating such passport checks on their buses (8). As a result, CAJ – along with the 17 complainants – decided there was clear grounds for submitting the breach of equality scheme complaint to Translink. The complaint was made to Translink on Monday 2 September 2019.
Úna Boyd explained, “Initially when we enquired about this policy, Translink told us they were ‘obliged’ to facilitate the boarding of their buses for such passport checks. However, when we asked Translink what these legal obligations were, they were unable to answer. It appears they now know there is no proper legal basis for such checks, or are still to check, long after the policy has been adopted.”
Under Translink’s equality scheme, they typically have to respond to complaints within one month (9).
In addition to submitting the equality scheme complaint to Translink, CAJ has also joined with its sister organisation, the Irish Council for Civil Liberties (ICCL), in writing to the Garda Commissioner, the Policing Authority, and the Irish government’s Minister for Justice and Equality to draw attention to its concerns about the discriminatory manner in which the passport checks are being carried out by the Garda National Immigration Bureau (10).
Liam Herrick, Executive Director of the ICCL, said, “The lack of legal basis for such cross border checks is of serious concern. Even more worrying are the allegations that members of An Garda Siochana may be engaging in racial profiling. This is a form of discrimination that would constitute a clear violation of An Garda Siochana’s human rights obligations and of their public sector duty to prevent discrimination. Such practices must be properly investigated and immediately prohibited.”
The End Deportations Campaign has been logging witness testimony of passport checks carried out on cross-border transport. You can report such instances through their online reporting tool: https://edbracistreporting.typeform.com/to/kl6yCY.
- The Garda National Immigration Bureau is a unit of Ireland’s national police force, An Garda Siochana, and is responsible for deportations, border control and investigations related to illegal immigration and trafficking in human beings.
- The statutory basis for powers of passport/immigration control in the UK is the Immigration Act 1971. This contains passport control powers, including powers of examination (questioning) and duties to produce passports/id cards on request. However, local journeys in the CTA, including on the land border are explicitly exempt from the use of such passport control. Section 1(3) of the Act provides that: “Arrival in and departure from the United Kingdom on a local journey from or to any of the Islands (that is to say, the Channel Islands and Isle of Man) or the Republic of Ireland shall not be subject to [immigration/passport] control under this Act…” Link: http://www.legislation.gov.uk/ukpga/1971/77/section/1
- For example, In April 2018, Northern Ireland Office Minister Ian Duncan told the UK Parliament that “… There can be no racial profiling at a border, whether it be routine, quixotic or even accidental … That cannot be the policy or the direction … There will be no checks whatever for journeys across the land border between Ireland and Northern Ireland, nor between Northern Ireland and Great Britain.”
- Section 11 of the Immigration Act 2004 is the statutory basis for passport control for those arriving into the Republic of Ireland, containing duties both to carry passports and provide them on request to an immigration officer. However, subsection 11(4) explicitly excludes journeys into the State over the land border (or elsewhere in the CTA) from both of these duties. An exemption is then made to this for ‘non nationals’ defined in the amended 2004 Act as persons who are neither Irish citizens nor persons exercising EU free movement rights.
- This at present includes British citizens, who remain EU citizens until at least the 31 October 2019 (after this date, due to Brexit, British citizens may be required by law to carry and produce their passports).
- More information here: https://www.equalityni.org/Employers-Service-Providers/Public-Authorities/Section75/Section-75/Screening
- This correspondence revealed that no equality screening, consultation or EQIA was undertaken or is planned in relation to the policy.
- See the statement given by Translink in this article: https://www.belfasttelegraph.co.uk/news/brexit/carry-your-passport-says-man-quizzed-on-belfast-to-dublin-bus-38093657.html.
- The Equality Scheme is available here: https://trn-prd-cdn-01.azureedge.net/mediacontainer/medialibraries/translink/publications-and-documents/nithc/reports/nithc-equality-scheme-(february-2013).pdf. See page 29-30 for the complaints procedure.
- An excerpt from this correspondence reads, “Given the increasing diversity of the Irish population, it is not possible to tell who is an Irish, British or other EU citizen by simply looking at people and making a decision based on their appearance. There is therefore no manner in which such checks, and concurrent decisions on who to examine, who is required to carry or furnish a passport or who to detain, can be undertaken without engaging in racial profiling, thereby rendering such checks by their nature discriminatory … It seems that the hard border already exists for those who are targeted due to factors such as their skin colour or accent … It is contrary to the obligations of An Garda Siochana under applicable human rights law and the public sector duty under S.42 of the Irish Human Rights and Equality Commission Act to engage in discriminatory practices. Targeting Irish or British citizens because they are members of ethnic minorities for passport checks would in our view constitute a discriminatory practice. In this context, we call on the Government and on the Garda Commissioner to fully examine whether such practices are taking place and, if they are, require the GNIB to end such practices immediately.”
Please direct media enquiries to Robyn Scott, Communications & Equality Coalition Coordinator on firstname.lastname@example.org or 028 9031 6000. CAJ Immigration Project Coordinator, Úna Boyd, is available for interview.