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By Misha Nayak-Oliver

The UK Government’s Home Office artificial intelligence program, which uses a digital ‘streaming tool’ to sift visa applications, is to be discontinued from 7 August 2020.

How does this visa entry system work? The Home Office’s algorithm creates three channels, scans applications, and directs them into a fast lane (Green), a slow lane (Yellow), or a full digital pat-down (Red). The Home Office admitted that the department retains a secretive list of suspect nationalities that automatically gives people from certain countries a “Red” score. People who receive a Red score are less likely to have their visa approved.

“People from rich white countries get Speedy Boarding; poorer people of colour get pushed to the back of the queue” explained technology campaign group Foxglove, which together with the Joint Council for the Welfare of Immigrants (JCWI), launched the successful legal challenge against the Home Office. Foxglove explained that the worry is that “a computer program is affecting people’s right to come here to work, study, or see loved ones”. Foxglove and JCWI argued that the streaming program was directly discriminatory on the grounds of race, and therefore breaches the Equality Act 2010.

The use and design of digital technologies can exacerbate and compound existing intersectional inequities, which exist along racial, ethnic and national origin grounds. Artificial intelligence systems that classify, differentiate, rank, and categorise are at their core “systems of discrimination”, writes E. Tendayi Achiume, the UN Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance.

“The Home Office’s own independent review of the Windrush scandal, found that it was oblivious to the racist assumptions and systems it operates. This streaming tool took decades of institutionally racist practices, such as targeting particular nationalities for immigration raids, and turned them into software. The immigration system needs to be rebuilt from the ground up to monitor for such bias and to root it out” said Chai Patel, Legal Policy Director of JCWI.

In the Home Office letter its solicitors refer to the redesign of a new streaming visa program. The Home Office is to “carefully to consider and assess” the points raised in the legal challenge, “including, issues around unconscious bias and the use of nationality generally in the streaming tool.” While the Home Secretary, Priti Patel is putting in place an interim process for visa applications, and Equality Impact Assessments and Data Protection Impact Assessments, the Home Office’s redesigned streaming program should adopt an equality-based and ethical approach to digital technologies.

International human rights law is not the only tool that can tackle racism, intolerance, discrimination and other forms of harmful exclusion and differentiation on the basis of race, colour, descent, or national or ethnic origin. However, a structural and intersectional approach to implementing international human rights law can help the UK Government meet its obligations and protect rights.

“Any human rights analysis of digital technologies must first grapple with the social, economic and political forces that shape their design and use”, writes Achiume, “technology is never neutral – it reflects the values and interests of those who influence its design and use”.

This means that the Home Office, Home Secretary, and relevant entities in the private sector must include experts on the political and socio-economic dimensions of racial discrimination at all stages of decision-making when it designs and uses technology. Here, “experts” include affected racial and ethnic minority communities.

The UK has agreed to the international human rights treaty, the International Convention on the Elimination of All Forms of Racial Discrimination. The Committee on the Elimination of Racial Discrimination has said that this treaty applies to multiple and intersecting forms of discrimination. The UK has voluntarily agreed to the legal obligation to prohibit or condemn direct and indirect forms of discrimination. You can find these obligations in the following international human rights agreements: the Convention on the Elimination of All Forms of Discrimination against Women (Article 1), the International Covenant on Economic, Social and Cultural Rights (Article 2(2)), the Convention on the Rights of Persons with Disabilities (Article 2) and the International Covenant on Civil and Political Rights (Article 4(1)).

Any use and redesign of the new visa entry screening system should follow the UK’s obligations under international human rights law and follow relevant guidance. The UK Government should address not only explicit racism and intolerance but also, indirect and structural forms of racial discrimination that result from the design and use of such technologies.