by Colin Yeo;
In 2016 the Home Office persuaded the Department for Education to start collecting nationality data from school children, even though all children in the United Kingdom are entitled to schooling, irrespective of nationality or immigration status. Activists such as the organisation Against Borders for Children immediately raised suspicions about this new requirement. They were concerned that the data would be shared with the Home Office for immigration enforcement purposes. Their fears were justified. The Department for Education later admitted that the details of individual children on the national pupil database in England and Wales – their names, recent addresses, school and earliest and latest attendance dates – had been passed to the Home Office eighteen times over four years. Unusually, in response to the outcry, the government reversed course, and in April 2018, the Department for Education announced that it would end the collection of nationality and country of birth data in schools.21
It may or may not surprise the public to know that the police have played a very limited role in the enforcement of immigration laws for decades. There are myriad immigration offences on the statute books, but prosecutions are rare and convictions even rarer.22 This approach was a matter of conscious policy on the part of the police. Former senior police officer and Liberal Democrat peer Brian Paddick has written of everyday immigration enforcement by the police that ‘Such was the damage these arrests were causing to police relations with the black community that a policy decision was made that the police would no longer actively seek to enforce immigration law but would assist immigration officers when they needed it.’23 But this was to change in 2012, with the launch of Operation Nexus in London.
Initially, Operation Nexus was a joint working arrangement between the police and the Home Office, aimed at suspected criminals and gang members who were also foreign nationals living either legally or illegally in the UK. The objective was to remove those individuals from British society by deporting them rather than bringing them to trial and imprisoning them. Deportation is a relatively straightforward process with a lower standard of proof than is required for a criminal case. The project evolved over time and was then rolled out nationally, with the result that immigration officers were embedded at police stations to interview not just alleged perpetrators of crimes but also victims.24 In response to a Freedom of Information request in April 2017, the Metropolitan Police confirmed that it passes on individuals’ personal details where there are concerns over immigration status, even when such people are the victims or witnesses of crime.
The tentacles of the hostile environment were now reaching beyond the government. A number of homeless charities, alleged to include St Mungo’s, Change, Grow, Live and Thames Reach, were drawn into running joint ‘sweep’ operations with immigration and local government officials and passing location information on rough sleepers to the Home Office.25 European nationals were specifically targeted in one operation, which was later ruled to be unlawful by the High Court,26 and hundreds of thousands of pounds in funding was provided to various religious and community groups to promote ‘self-deportation’ by destitute migrants.27
The general public was also encouraged to get involved. ‘I want everyone in the country to help with this,’ David Cameron said in a major speech on immigration in October 2011, ‘including by reporting suspected illegal immigrants to our Border Agency through the Crimestoppers phone line or the Border Agency website. Together I do believe we can reclaim our borders and send illegal immigrants home.’28 And now there is indeed an Immigration Enforcement Hotline, as well as an online reporting form that concerned citizens can use if they want to shop a neighbour, colleague, tenant or former lover. Citizen denunciations were once a feature of Soviet societies, but there are now around 50,000 such reports made every year by members of the public here in the UK. Yet their accuracy is questionable. An internal Home Office review commissioned by firm Deloitte in 2014 politely suggested that the ‘intelligence’ generated was ‘not the most efficient way for [Immigration Enforcement] to direct its activity’.29
Even Members of Parliament have been keen to get in on the action. In 2017, the Home Office recorded seventy denunciations from MPs concerning their own constituents, while in 2018, after a certain amount of public outcry, the number of MP tip-offs actually went up.30 Migrants, whether lawful or not, are constituents under the British parliamentary system, even if they do not necessarily have a right to vote in general elections. But with tightening immigration rules meaning more and more people are affected by visa problems, and cuts to legal aid effectively removing access to lawyers, immigration issues have grown in recent years to form a major part of many MPs’ constituency work. Normally, information from a constituent to their Member of Parliament would be considered confidential, for obvious reasons; as Conservative MP Nigel Evans puts it, ‘People need to have absolute knowledge that when they come to an MP for help they will be safe to talk without fear of retribution.’ Indeed, a constituent who seeks support from an MP would presumably be looking for assistance to resolve his or her position in the UK, rather than just staying below the radar. Being cued up for a dawn raid by the immigration authorities is hardly likely to help with that.
The hostile environment has been a disaster. The system encourages race discrimination; the financial costs of the red tape needed to set it up have been huge; the wrong people have been catastrophically affected; there has been no discernible decrease in unlawful immigration; and even where the ‘right’ people have been punished, the public have baulked at the dire consequences.
COLLATERAL DAMAGE
The intended victims of the hostile environment are publicly referred to as ‘illegal immigrants’. The reality is that all citizens and UK residents have been affected, albeit some more than others. The impact has been hardest felt by ethnic minorities, who have suffered additional racial discrimination as a result.
If you are white, male, middle-aged and middle-class then you are less likely to be getting married, opening a bank account for the first time, seeking NHS treatment, moving between jobs or buying your first home. Being asked to prove that you have the right to be in Britain will be a minor annoyance at most. No, you are more likely to be asked to prove your immigration status if you are black or minority ethnic, young, poor or female. And if you are black or minority ethnic, being asked to prove your right to be in Britain turns from the inconsequential bother of the white man into a sinister question of whether or not you belong.
To make matters worse, the design of the hostile environment encourages over-zealous over-enforcement. There are penalties for failure to implement these immigration laws, no prizes for applying them correctly and no sanctions for being over-enthusiastic. As academic Paul Daly has written of the Right to Rent scheme, the danger is that this approach encourages a ‘systemic overenforcement by landlords who have difficulty in understanding the laws they are required to enforce and who, quite rationally, err on the side of caution’.31 Right from the conception of the scheme, the fear has been that this caution would manifest itself as racial discrimination, with some landlords being reluctant to rent to black and minority ethnic tenants for fear of being fined if they turn out to be illegal.
It was reportedly then Prime Minister David Cameron himself who insisted that the hostile environment be extended to landlords. Eric Pickles, who was Communities Secretary at the time, has supported the story, telling journalist May Bulman that he thought the idea was ‘illconceived – utterly wrong’.32 Pickles hit the nail on the head: ‘If you’re a landlord, how the heck do you know what various documents look like? And wouldn’t you say to yourself, “Well heck look, this person’s got dark skin or a funny sounding surname, the safest thing is not to rent to them?”’ Pickles aired his concerns directly with Cameron at a ministerial meeting. A forensic dissection of the development of the Right to Rent policy by Wendy Williams, published as part of her ‘Windrush Lessons Learned Review’ report in March 2020, showed that it was not just Pickles w
ho was concerned. Other ministers, Liberal Democrats and Conservatives alike, expressed concern, and Grant Shapps MP, then housing minister, submitted a paper that stated the Right to Rent proposal was ‘strongly not recommended’.33
The vast majority of landlords are private individuals with limited resources and little to no understanding of equalities duties. Recruiting landlords as in-country border guards would self-evidently risk race discrimination occurring on the ground, while tenants would have no effective avenue of complaint. However, this was either not obvious to all, or otherwise it was considered a price worth paying. Cameron’s response at the key ministerial meeting was apparently to slam his red folder on the table and storm out of the room. The Prime Minister eventually got his way and the proposal became law, subject only to a requirement tagged on by the Liberal Democrats that the scheme be trialled in a pilot test.
The pilot began in the West Midlands in December 2014. The Home Office commissioned research into the risk of discrimination, and while the researchers found minority ethnic tenants were no less likely to be offered a tenancy, the research team did find that minority ethnic tenants were more likely to be asked for their immigration papers, and that some landlords displayed potentially discriminatory behaviour or attitudes.34 The same research revealed that British citizens without a passport, older people without photo ID and younger people on low incomes were also at risk of being prejudiced by the scheme, as were lawful migrants and ‘any foreigners’. Even before the evaluation was finished, though, David Cameron inadvertently revealed it for a sham by announcing shortly after his general election victory in May 2015 that the scheme would be rolled out nationally.35 Independent research by the Joint Council for the Welfare of Immigrants (JCWI) later showed that the predicted prejudicial impact was real. The charity conducted a mystery shopping exercise, with the results showing significant discrimination against a lawful settled migrant compared to a British citizen.36
The issue ended up in the High Court in 2018. Mr Justice Martin Spencer considered the evidence from JCWI, housing charities Shelter and Crisis, the Residential Landlords Association, the Chief Inspector of Borders and Immigration and others, and concluded that the scheme was inherently discriminatory on the basis of race and nationality. Not only did it merely provide the occasion or opportunity for race discrimination, he said, but it actually caused landlords to act in a discriminatory way when otherwise they would not. ‘As I have found,’ he concluded, ‘the measures have a disproportionately discriminatory effect and I would assume and hope that those legislators who voted in favour of the Scheme would be aghast to learn of its discriminatory effect.’37 Rather than taking this on board, though, the government chose to appeal the decision; the outcome is awaited at the time of writing.
THE WRONG VICTIMS
If a policy depriving residents of jobs, homes and money is going to be introduced, one would hope that it would at the very least be implemented using the best available data, with strong failsafe mechanisms in place to reverse any potential errors. It would, you would have thought, be a disaster if innocent individuals ended up being forced into penury and out of the country as a result of incorrect information. That is, of course, precisely what happened.
Oliver Letwin, who as a Cabinet minister sat on the hostile environment ministerial committee, later told journalist Amelia Gentleman, ‘We assumed that the one thing that the Home Office would know is whether someone was here lawfully.’38 In reality, however, Home Office data on the immigration status of residents of the United Kingdom is often wrong. Officials in the department probably already knew that their information was unreliable, but public confirmation was provided in 2013, when a contract was awarded to the private company Capita to track down 174,000 suspected unlawful residents on the Home Office database. Capita was to be paid according to its results and therefore felt incentivised to scare people into leaving the country. As soon as the company started sending out threatening text messages, though, it became clear that lawful residents, and even British citizens, were somehow included on the database.39 Capita dismissed the number of complaints it subsequently received as ‘negligible’, but that was not how those wrongly targeted felt. Furthermore, in 2016 it emerged that hostile environment bank account checks were throwing up incorrect results as much as 10 per cent of the time. In these cases, people were wrongly being refused permission to open a bank account. Officials admitted that relevant changes to a person’s status might not be entered on the appropriate database ‘until some months after the event, and that data was often entered in the wrong field, commonly as free text’.40 Incredibly, this did not prevent the government from implementing the next stage of its banking checks, where the existing bank accounts of those believed to be in the UK illegally would be closed.
As well as getting the facts wrong on multiple cases it does know about, there are also many people living in the United Kingdom of whom the Home Office is not aware. The vast majority of them are lawful residents and many of them are British citizens, they just do not have documents yet – perhaps because they did not really need them until the hostile environment was launched. There is no population database or register for the United Kingdom and nor is there a central register of British citizens. There are plenty such citizens who have never applied for a passport, for example. The most recent census showed that 17 per cent of UK residents (about ten million people), the majority of whom are likely to be British citizens, do not have passports. There is simply no reason for the Home Office even to know of the existence of these people and, traditionally, it would be considered none of the government’s business to know about them.
There are also plenty of foreign nationals living in the UK who are unknown to the Home Office. Some have been resident for decades and were granted status many years ago, before Home Office computer records began, while others are unknown because the department has no record of EU citizens who have not yet applied for UK residence under the post-Brexit EU Settlement Scheme. Either way, these people (who have not done anything wrong) are all potential victims of the hostile environment. One of the fundamental flaws in the whole conception of the hostile environment scheme is that, even though it is intended to affect unlawful residents, it is actually aimed at undocumented residents.
This leads us to the most prominent victims of the hostile environment: the Windrush generation. Broadly speaking, this is a label coined by campaigner Patrick Vernon to describe lawful long-term residents from Commonwealth countries. Many either migrated to the UK themselves when they were in effect considered British citizens or are the children of those who did so.41 Typically, they are lawfully resident because they were granted ‘Indefinite Leave to Remain’ status many years ago, sometimes automatically by law and sometimes in the form of a stamp in a long-expired passport. For decades, the only challenges made to their right to be here were from outright racists. But as the hostile environment geared up from 2012 onwards, such challenges started to come in thick and fast from an ever-wider range of people, businesses and institutions. We saw what happened to Mr Baker earlier, when he was dismissed by his company for being unable to prove his right of residence. Unfortunately, he was not alone.
Back in 2014, Fiona Bawdon researched and wrote a report entitled ‘Chasing Status’ for the Legal Action Group.42 The report highlighted the plight of thousands of long-term UK residents who find themselves unable to prove their immigration status, despite having lived in the country legally for most of their lives. Bawdon called these residents ‘surprised Brits’, because they felt British, and many thought they actually were British citizens, and yet they had been caught out by the new hostile environment laws. Based on twelve interviews with long-term residents, one of the cases included was that of Aubrey, who arrived in the UK from Jamaica as a boy in 1973. A working single father then aged fifty-six, Aubrey had been suspended from his job without pay. He needed to make an expensive immigration application to obtain new proof of his status, but the a
pplication would take up to six months, during which time he would be without pay or welfare benefits. Lasith, another interviewee, had arrived from Sri Lanka in 1964, aged ten, to join his parents. He had lived, worked and raised his own five children here, all entirely lawfully. Yet, after being fired from his job for failing to produce proof of his right of residence, he received a letter from the Home Office telling him he had twenty-eight days to leave the country. Bawdon estimated at the time that there were over 10,000 such cases and she proposed several reforms to ease the situation of those affected, including setting up a special unit to process their cases. The Guardian ran an article about the report but the Home Office response was dismissive.43 There were no plans to set up any such special unit, a spokesman said, and ‘it is up to anyone who does not have an established immigration status to regularise their position, however long they have been here’.
At the time, there was no other interest outside the immigration law and campaigning community. The ‘Chasing Status’ report seemed to have sunk without trace. After the Brexit referendum in 2016, though, the media found a new appetite for stories critical of the Home Office, following a string of articles about generally white, middle-class EU migrants who were facing difficulties proving their permanent residence. Guardian journalist Amelia Gentleman soon started to investigate the cases of destitute black and Asian residents. Realising that the people she was meeting must be just the tip of the iceberg, Gentleman began to unearth a shocking series of similar examples.44 As Bawdon had shown and predicted two years before, lawful residents were finding themselves turfed out of jobs and homes, denied life-saving NHS care and threatened with deportation to countries they barely knew. Their claims to be living lawfully were falling on deaf ears, with immigration officials demanding written evidence from ‘official’ sources of their residence for every single year of the multiple decades they had lived in the UK.
