COVID-19 - Why the modest relaxation of the ‘hostile environment’ does not go far enough

Saturday 16 May 2020

By Emma Fitzsimons of the Garden Court Chambers Immigration Team.

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Modifications to the hostile environment brought about by COVID-19
COVID-19 has impacted our lives in an absolute and utterly unexpected way. Indeed, it is difficult to think of any aspect of modern life that isn’t touched by it. As put by Patrick Corocoran, Senior Programme Officer, Immigration & Visa Policies/Programmes at the Institute of Migration:

‘COVID-19 is having an unprecedented impact on global mobility. Border closures, travel restrictions and quarantines have significantly affected consular and immigration capacities of our 173 Member States.’

That includes the hostile environment, the various measures imposed by the Home Office which restrict and control migrants’ abilities to work, to study, to rent accommodation, to access welfare entitlements and to use the NHS. The majority of these restrictions are contained in the Immigration Acts of 2014 and 2016.

Compliance has been disrupted by public health advice to socially distance and stay at home.

However, the Coronavirus Act 2020 does not affect the hostile environment. Nothing in the Act changes the statutory regimes contained in the 2014 or 2016 Acts. Instead, the Home Office has opted to introduce a number of policy changes or amended their procedures for those who are affected by compliance issues.

This blog considers some of the practical issues that affect individuals and businesses, the changes introduced, as well as commenting on the need for greater action from the Home Office. 

Practical issues facing individuals and businesses

The right to work is governed by a number of statutory provisions, contained in the Immigration Act 1971, the Immigration, Asylum and Nationality Act 2002, and the Immigration Act 2016. In addition, there are a number of key policy documents published by the Home Office which employers must follow, including the Code of Practice and the Employer’s Guidance to Right to Work Checks. 

On 30 March 2020, the Home Office published some changes on their website to the ways in which employers can check documents. This relaxation of the process on a temporary basis is intended to make it easier for employers to carry out checks.

The guidance means that:

  • Checks can now be carried out over video calls;
  • Job applicants and existing workers can send scanned documents or photo of documents for checks using email or mobile app, rather than sending originals
  • Employers should use the Employer Checking Service if a prospective or existing employee cannot provide any of the accepting documents.

Employers therefore must still carry out right to work checks, by asking the worker to submit scanned or photos of their documents, and then follow up with a video call to check the digital document against the physical copy held by the worker. Employers need to make sure they make a record of the check and mark it as “adjusted check undertaken on [insert date] due to COVID-19.”

At some unknown and unspecified point in the future, the Home Office will inform employers when the temporary measures will end. After that date, employers will need to revert to the previous system and undertake retrospective checks for anyone that started or had a follow up check since 30 March 2020.

Similar changes have been introduced by way of policy changes to the right to rent, regulated by Part 3 of the Immigration Act 2014.  Again, on 30 March 2020, the Home Office introduced an adjusted process, whereby right to rent checks have been adjusted to reflect the difficulties faced by landlords and agencies.

The key points are:

  • Checks can now be carried out over video calls
  • Tenants can send scanned documents or photos of documents for checks using email or a mobile app, rather than sending originals
  • Landlords should use the Landlords Checking Service if a prospective or existing tenant cannot provide any of the existing documents.

Record keeping is again vital. Landlords need to record when and how an adjusted check was undertaken, and retrospective checks will need to be conducted within 8 weeks of reversion to the previous regime.

For students and universities, the Home Office published new guidance on 20 April 2020, which contains some concessions for the Tier 4 PBS route. This document is much more substantial and fleshed out, as compared to piecemeal updates on working and renting.

It contains one important concession for universities in respect of making right to study checks. Where it is no longer practical or safe for a student to submit specified documents in person, or where sponsor sites are closed due to Covid-19 social distancing measures, it is acceptable for a digital copy such as a photograph to be provided and kept on file

In respect of NHS charging, as a result of the National Health Service (Charges to Overseas Visitors) (Amendment) Regulations 2020 which came into force on 29 January 2020, COVID-19 is a condition for which no charge for testing or treatment applies to overseas visitors.

Comment – time to reflect on the society we want to rebuild

Some adjustment to right to rent, work and study checks is both necessary and welcome. Individuals and businesses should not be faced with unsafe or unworkable burdens at this time. Public health has to be the priority of any government, and the slight shift in the temporary procedures to reflect social distancing is positive. However, the changes are very modest. Although the Home Office announcements refer to ‘flexibility’, the bottom line is that compliance is still required. 

The fundamental point remains, the hostile environment itself needs to be abolished. COVID-19 has exposed much of the inhumanity in the system. Many commentators have pointed out that overnight, it was possible to house the homeless and release a substantial amount of people from immigration detainees. Colleagues in the immigration, public and housing teams have posted already on those important issues.

It reinforces that these policies are the result of choices, which we need to seriously examine and reflect upon.  

The Home Office’s decision not to scrap right to rent, work or study checks in favour of temporary policy adjustments is deliberate. When business returns to usual, employers, landlords and universities will be expected to revert to the extant procedures. That is despite the fact, that there are substantial concerns that the hostile environment is discriminatory. Even in the recent challenge to the right to rent, R (JCWI) v SSHD [2020] EWCA Civ 542, the Court of Appeal accepted that although the right to rent could result in racial discrimination, it was capable of being operated by landlords in a proportionate way in all cases, and was justified. Whether that will survive in the Supreme Court remains to be seen. 

The inclusion of COVID-19 as one of the diseases for which migrants will not be charged is entirely sensible. It represents an acknowledgement that, at least for now, public health has to trump immigration control; that irregular or insecure immigration status should not deter any person from obtaining the care and testing they need. COVID-19 has exposed how intertwined our lives are and underscores the need to seriously reflect on the need to scrap charging. Yet, the Immigration Health Surcharge has been increased from £400 to £624

There is already a groundswell of opinion building that charging is ineffective. The Royal College of Paediatrics and Child Health published a paper in the BMJ Paediatrics Open on 22 April 2020, that NHS charging is “unworkable,” and that it adversely impacts children and pregnant women. The research paper follows an open letter earlier in April from the BMA, the Royal Colleges and Doctors of the World to both the Home Secretary and the Health Secretary calling for the suspension of the NHS Charging Regulations.

To date, the Home Secretary has obliquely indicated that the immigration health surcharge may be reviewed, but only for foreign doctors and nurses working within the NHS.

Encouragingly, there have been two developments which engender hope for real policy change. Last week, the High Court ruled that the ‘no recourse to public funds’ policy for migrants en route to settlement is unlawful, in which Amanda Weston QC of Garden Court Chambers acted for the intervener, Public Law Project. More detail on this important case is available here.

Outside the courtroom, there has been some small movement towards acknowledging the vast contribution migrants play in our communities. Many are performing vital work as key workers, placing their lives and health at risk, to protect others and keep society functioning. Yet, even within this ‘appreciation discourse’ remains a focus on what migrants can contribute to us, rather than an acknowledgement of their inherent human dignity.

As the Government is now suggesting that the UK may gradually be moving away from lockdown, the time has never been more urgent to push for an end to the failed experiment that is the hostile environment.

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