Immigration lawyers raised concerns about the new Electronic Travel Authorization (ETA) impacting business travelers to the UK.
Sophie Barrett-Brown of Laura Devine Immigration acknowledged that the ETA is new and that very few visitors to the UK have used it.
However, she revealed that their firm had already received much feedback about possibly encountering issues with ETA applications.
Barrett-Brown told the UK Parliament’s Justice and Home Office Affairs Committee meeting on 12 March 2024, “There are concerns about the impact it may have on the ease of business travel.”
The new system requires all non-visa travelers to apply and receive their ETA before traveling to the UK.
Business travelers have brought up uncertainties about whether their ETA applications will be approved or denied.
Individuals whose ETA application has been rejected should consider applying for a UK visa.
“There are a lot of difficulties with the visitor visa route that I think will become more pronounced as a result of this, and that needs to be considered,” Barrett-Brown said.
Applying for a UK visa is a more complex process. It is more expensive and takes longer, taking at least three weeks to receive a decision.
This may be a nuisance for non-visa business travelers who are accustomed to visiting the UK without travel permissions.
Possible biases on ETA refusals
To apply for an ETA, applicants need only complete a form, submit a recent passport photo, answer security-related questions, and pay the fee online.
The system will automatically cross-reference the applicant’s details against multiple security databases to determine ETA eligibility.
Applicants with no criminal record or immigration breaches may receive their ETA within hours.
However, some applications may take at least three days or more to process and arrive at a decision.
This happens when the automated system denies an application, requiring a manual review by a human caseworker.
Barrett-Brown shared, “There are concerns with any automated system about various forms of bias that may be built into that technology.”
She relayed that there are also concerns about how human caseworkers will decide on grants and refusals, even with set guidance from the Home Office.
This is crucial for business travelers because past refusals may affect future UK ETA or visa application decisions.
Potentially rigid and confusing security questions
Barrett-Brown said that the business travelers’ concerns about refusals have more to do with suitability than identity.
This can be problematic depending on how the ETA’s automated system is programmed.
Christi Hufford Jackson, an immigration lawyer at Laura Devine who specializes in United States (US) immigration, highlighted the inflexibility and “very black and white” nature of the Electronic System for Travel Authorization (ESTA).
The ESTA is the US’s pre-approved travel permission, similar to the UK ETA.
Hufford Jackson shared some examples of rigid and possibly confusing questions on the ESTA application.
These relate to countries the applicants have visited, overstaying during the pandemic, or criminal past.
“Many people will think they had a conviction when they were 20, but it is spent and irrelevant, so they do not need to declare it, when in fact they do,” she explained.
She recommended that the ETA security questions be clear and that there be space to clarify answers to these questions.
Additionally, Hufford Jacson suggested the process “should not be fully automated” since “it filters out people who should not be filtered out.”
No right to appeal ETA refusals
Applicants who erroneously checked the wrong box in their ETA application cannot withdraw, amend, or correct it.
Hufford Jackson shared that it is one of the common mistakes the firm encounters with the ESTA application.
Despite pop-up warnings, she disclosed that many applicants still mistakenly check the wrong box.
With the ETA, applicants can only appeal an automated decision. However, refusals are made by human caseworkers after manually reviewing the application.
This means there is no right to appeal ETA refusals. Applicants can only “challenge that by making a visa application and tackling whatever the issues were in [the ETA application].” Barret-Brown said.
She added, “Ultimately, the potential recourse of judicial review takes a long time and is also an expensive process.”
Clarity on the basis for ETA refusals
In the Justice and Home Affairs Committee meeting, Barret-Brown pointed out the “significant problem with the lack of transparency.”
“We have concerns about to what extent there will be clarity in any event about what the reasons for refusal are,” Barret-Brown said.
She explained that the current ETA guidance for caseworkers does not direct them to give a full explanation of the reasons for refusal.
Hufford Jackson noted the same difficulty and inconsistency in determining reasons for ESTA denials.
In a separate meeting with the committee, former UK Border Control Director Tony Smith also called for more clarity on how the ETA system works.
He asked for a more specific outline of the ETA system’s risk framework, which determines how it grants or rejects travel permissions.
Smith, now the chair of the International Border Management and Technologies Association (IBMATA), also stressed that technology can still make mistakes.
He emphasized the need for human intervention and a parallel system in case it is disrupted or tampered with.