The British government is fighting to keep secret a blacklist of 44 countries with the worst immigration record whose nationals are targeted for tougher discriminatory action when applying to come to Britain.
The Foreign Office has warned that some of the countries will be highly offended and regard their "naming and shaming" on a "rogues' gallery" list as a personal slight, and are likely to retaliate damaging Britain's diplomatic relations.
They claim that retaliatory action could include restricting visas for British travellers, including officials, that could "hinder our ability to function effectively overseas, damage business and reduce the projection of UK 'soft power'."
The Home Office has launched a two-day appeal hearing starting on Thursday against a ruling by the information commissioner for a partial disclosure of the list. After a secret country-by-country assessment by the FCO, he said that publication would not damage relations in every case.
His ruling came in response to a freedom of information campaign, by immigration detention activist, John O, who argued that keeping the list secret meant that those who faced discriminatory action by immigration officials could never know whether it was lawful or not.
The list was drawn up in February last year after John Vine, the independent inspector of the UK Border Agency, revealed that British entry clearance officers based in Abu Dhabi and Islamabad were discriminating against Pakistani visa applicants compared to those from the Gulf states by demanding far more documentation from them, such as land registry title deeds. He said their action did not comply with equalities legislation.
The Home Office responded by securing legal authorisation under equalities legislation to discriminate against nationalities the immigration authorities regard as "high-risk" and drawing up the list.
The powers mean Border Force officers can demand more documents, such as bank statements, subject applicants to more rigorous questioning and their sponsors to interviews, when they apply for a visa or arrive at British airports. Those from countries on the list who are asked to leave Britain have their deportations given a higher priority.
A Home Office statement to the information rights tribunal says that to get on the list, a country must have had more than 150 visa refusals or breaches of immigration law, with more than 50 of these for every 1,000 admissions in at least one of the preceding three months. A country can also be added to the list if there is specific intelligence that a significant number of its nationals have breached or about to breach the immigration rules.
In practice there are actually two lists. The first contains the 44 countries whose nationals can expect much more rigorous treatment of their visa applications. The second list is of 32 countries whose nationals face tougher action when they arrive in Britain and if they face deportation. They are updated quarterly and signed off by the immigration minister.
It is thought that the core of the lists probably centres on countries from the Indian sub-continent, such as Pakistan, and the Middle East.
The FCO's director of migration, Susan Simon, has told the tribunal that "although many countries will be aware of the security concerns posed by their nationals, some would be highly offended if the UK raised these concerns publicly. Many countries use visa and immigration policy as a foreign policy tool, reflecting their attitudes towards certain countries and the value of certain relationships. They expect us to do the same."
She said that even those that understood Britain's risk-based approach would react badly if it was publicised that they were on the list. She expected that the published list would attract widespread attention and feature in the international media.
The move would lead to retaliation such as similar measures to British travellers applying for visas, including officials, which could hinder the UK's ability to function effectively overseas.
Simon also warns that it risks diplomatic countermeasures and could become a bone of contention in diplomatic talks on top of the regular concerns they already raise with British ambassadors and ministers over visas as they lobby to be taken off the list.
She admits that the government was taken by surprise by the commissioner's ruling that there should ban partial disclosure of the list arguing that it could be "reversed engineered" to identify the countries that remained secret.
She also said that those who were publicly identified as part of a smaller blacklist or rogues' gallery of countries who have been named and shamed on the basis of poor relations with the UK would lead to presentational and reputation ramifications.
The FCO also claimed it would also risk overseas contracts for British companies and would "create or increase the perception that the UK is not open to visitors or business from those countries." Co-operation over deporting their nationals from Britain would also be put at risk.
Human rights lawyer, Shahram Taghavi, who is representing John O in Thursday's appeal, said the authorisation and the secret list "not only offends against the established fundamental human rights principle of not discriminating on the grounds of nationality or race, but also violates a cardinal principle of the rule of law, the principle that laws must be accessible to citizens.
"We will be arguing that the Home Office have not provided a single piece of evidence to support their allegation that disclosure of the list will damage international relations and inviting the tribunal to rule that, in any event, any risk of damage to international relations is wholly outweighed by the public interest of knowing which countries are on the list."
He added that while it was possible to argue that the countries involved probably already knew they were on such a list, it missed the point: "Our primary concern is for the innocent citizens of these countries who are unknowingly being discriminated against solely on the grounds of their nationality or race."
A government spokesperson defended the decision to keep the list secret: "The ability to more closely examine those who pose the highest risk is vital to ensuring the security of the border. We are appealing as we believe that maintaining the list's confidentiality is vital to ensure officers can undertake these thorough checks without compromising diplomatic relations."
They also denied the claim that it would make it harder for an individual to launch a discrimination claim in court..
"We expect our officers to treat individuals professionally regardless of their nationality and we take any allegation of discrimination seriously," they said. "The ability to differentiate between the risk posed by particular nationalities does not permit individual decisions to be made solely on the basis of a person's nationality."