We will continue to challenge the ‘hostile environment’ policy, whatever name the government gives it

Tuesday 16 October 2018

This article was originally published in the October Legal Action editorial: We will continue to challenge the ‘hostile environment’ policy, whatever name the government gives it

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‘The aim is to create here in Britain a really hostile environment for illegal migration,’ said Theresa May when, as home secretary, she was challenged on the Conservatives’ controversial net migration target.1 It is a boast that she has repeated ever since. In pursuit of this aim, we have seen two new pieces of legislation – the Immigration Acts of 2014 and 2016 – more than 45,000 changes to the Immigration Rules and a host of policies, all designed to curtail migrants’ rights and deter them from accessing services, and creating a society of us versus them.

In the past six years, the ‘hostile environment’ policy has spun into a sprawling web of immigration controls across public services and communities. Public servants in the health, housing and social care sectors, private institutions such as banks and corporations, and private citizens including landlords and small business owners have all been co-opted into checking a person’s immigration status under the threat of hefty fines and criminal sanctions before they can offer services. These controls have driven a wedge between what used to be innocent everyday interactions between the public sector and the people they are there to serve: nurses, doctors and patients; police and victims of crime; social workers and the children and vulnerable adults they care for; and teachers and their pupils.

Alongside these changes were a myriad of new Immigration Rules paired with removal of in-country appeal rights and significant curtailment of access to legal aid in immigration law. Anyone who is subject to some form of immigration control is now subject to immigration bail conditions, which have led to absurd outcomes such as children and care leavers being prohibited from studying. Numerous children are unable to register for British nationality because of expensive application fees; other migrants are also unable to scrape together the exorbitant fees in order to regularise their leave to remain in the UK or pay solicitors to help them challenge poor Home Office decision-making. Austerity measures that have hit the poor have made destitute migrants even worse off, if that is possible, with cuts to subsistence rates for asylum-seekers, and now victims of trafficking, being maintained and increased barriers to accessing support for unaccompanied children and care leavers, migrant families including carers of British children as well as EEA nationals.

Additionally, new powers authorise a wider range of public authorities to share information for immigration purposes, and new duties require specified public bodies such as local authorities and health authorities to supply nationality documents to immigration officers upon request. Schools had to collect data on children’s nationality and country of birth, in the guise of research on migratory trends in the education sector. The introduction in the Data Protection Act 2018 of an exemption to data protection in the name of effective immigration control (Sch 2 Part 1 para 4) legitimises the open-ended discretion to erode privacy and abet the hostile divide in society.

In May 2018, the UN special rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, Professor E Tendayi Achiume, found that the hostile environment policy did not just affect ‘irregular’ immigrants but also ‘racial and ethnic minority individuals with regular status, and many who are British citizens and have been entitled to this citizenship as far back as the colonial era’. She believed it was ‘destroying the lives and livelihoods’ of ethnic minority communities, including people with rightful citizenship status and those who have been in the country for ‘decades’. Where a strategy for immigration enforcement is ‘so overbroad, and foreseeably results in the exclusion, discrimination, and subordination of groups and individuals on the basis of their race, ethnicity or related status’, she concluded that it ‘violates international human rights law’.2

It has taken the tragedy of the Grenfell fire and the Windrush scandal to finally shine a spotlight on just how easily people end up with uncertain immigration status, exposing themselves to the injustices created by the hostile environment policy. The rhetoric has now been altered, but rebranding it as a ‘compliant environment’ policy is, in reality, a change without distinction if the intention and effect remain the same.

It is, however, clear that the lawyers and the non-governmental sector with whom they work closely have been undeterred. Litigation over the past 12 months led to a stop in data collection and sharing in the health sector and in schools. The adverse effects of the right to rent and subsistence cuts to support for victims of trafficking are currently under legal scrutiny. NHS charging and its chilling effect on access to life-saving cancer treatment and essential maternity services are also being questioned in the press and through policy research.

It is against this backdrop that LAG and Garden Court Chambers are co-hosting an inaugural Migrant Support Conference. The aim is to bring together all those working at the coalface of supporting and representing this growing community of the disenfranchised to share experiences and exchange ideas for collective action to call to account this hostile environment policy that has become so embedded in our society.

Shu Shin Luh is a member of the Garden Court Chambers Administrative and Public Law Team.

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