The hostile environment confuses unlawful with undocumented, with disastrous consequences

By Colin Yeo

If a policy that deprives residents of jobs, homes and money is going to be introduced, one would hope it would be targeted using the best available data with strong failsafe mechanisms in place to reverse any 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.

In reality, Home Office data on the immigration status of residents of the United Kingdom is often wrong and this has become increasingly clear in the years following Theresa May’s announcement in 2012 of her intention to make Britain a ‘really hostile environment for illegal immigrants‘. Public confirmation was provided as early as 2013 after a contract was awarded to the private company Capita to track down 174,000 suspected unlawful residents on the Home Office database. As soon as the company started sending out threatening text messages, though, it became clear that lawful residents and even British citizens were somehow on the database (Dixon, 2018). In 2016 it emerged that hostile environment bank account checks were throwing up incorrect results as much as 10% of the time (Bolt, 2016). 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 relevant database ‘until some months after the event, and that data was often entered in the wrong field, commonly as free text.’

Similar issues arose with the new duty on the DVLA to cancel driving licences. The Chief Inspector of Borders and Immigration examined the use of these powers in 2016 (Bolt, 2016). The Home Office made 9,732 revocation requests to the DVLA in 2015, all but meeting the target set of 10,000 per year. Some of these licences were wrongly revoked, though. The same year, 259 licences had to be reinstated after complaints. In the meantime, those affected would have been unable to drive or would have committed the strict liability criminal offence of driving without a licence. As the Chief Inspector said, ‘the Home Office did not appear to appreciate the seriousness of such errors for the individuals affected.’

Diagram showing who the hostile environment affects

As well as getting the facts wrong on people it does know about, there are many people living in the UK the Home Office does not know about. The vast majority are lawful residents and many are British citizens. They just do not have documents yet, perhaps because they did not really need them until the hostile environment was launched in 2012. There is currently no population database or register for the UK, nor is there a central register of British citizens. There are plenty of British citizens who have never applied for a passport, for example. The last census showed that 17% of UK residents (about 10 million people) do not have passports, the majority of whom are likely to be British citizens. There is simply no reason for the Home Office to know about these people and, traditionally, it would be considered none of the Home Office’s business to know about them. There are also plenty of foreign nationals living in the UK unknown to the Home Office, millions of whom are lawfully resident. Some have been resident for decades and were granted status many years ago, before Home Office computer records began. Nevertheless, they are all potential victims of the hostile environment.

One of the fundamental flaws in the whole conception of the hostile environment scheme is that it is intended to affect unlawful residents but it is actually aimed at undocumented residents. Sometimes these things overlap and a person who has no documents is also unlawfully resident. But that is very far from always being the case.

This leads us to the most famous victims of all of the hostile environment: the Windrush generation. Broadly speaking, this is the label that has been attached to lawful long-term residents from Commonwealth countries. Many either came to the UK themselves when they were in effect British citizens or are the children of those who did so (before the British Nationality Act 1981 there was no such thing as a ‘British citizen’, just ‘Citizens of the United Kingdom and Colonies’). Typically, they are lawfully resident because they were granted a status called Indefinite Leave to Remain many years ago, sometimes automatically by law and sometimes in the form of a stamp in a long-expired passport. For decades, they lived in the UK without anyone asking them to prove their right to be here. That started to change as the hostile environment geared up from 2012 onwards.

In 2014, Fiona Bawdon researched and wrote a report entitled Chasing Status for the Legal Action Group (names were changed for the purposes of the report). The report highlighted the plight of thousands of long-term UK residents who were unable to prove their immigration status or have ‘irregular’ status, despite having lived legally in the country for most of their lives. Bawdon called these residents ‘surprised Brits’ because they felt British, many thought they actually were British, and yet they had been caught out by the new hostile environment laws.

The Chasing Status report seemed to sink 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. A journalist at the Guardian, Amelia Gentleman, started to investigate the cases of destitute Commonwealth migrants. Realising that the examples she was seeing must be the tip of an iceberg, she unearthed a shocking series of similar cases (see Gentleman, 2019, for the full account). As Bawdon had earlier shown and predicted, lawful residents were finding themselves turfed out of jobs and homes, denied life-saving NHS care and threatened with deportation to a country they barely knew.

In April 2018, what became known as the Windrush scandal finally received the attention it deserved. Immediately before a Commonwealth heads of government meeting, Prime Minister Theresa May refused to meet with a delegation of twelve Caribbean high commissioners to discuss the situation of long-term residents facing immigration difficulties. An article about this diplomatic snub appeared on the front page of the Guardian. Suddenly, as Gentleman writes, ‘ministers who had shown no interest were falling over themselves to express profound sorrow.’ Home Secretary Amber Rudd was forced to appear at the Commons dispatch box to make the first of two comprehensive admissions that the Windrush generation had been treated ‘appallingly’. Theresa May herself was forced repeatedly to apologise, although her initial efforts were weak attempts of the ‘sorry-not-sorry’ variety. Belatedly, the special unit that Bawdon had advocated in 2014 was set up, along with a compensation fund for those affected.

The fundamental flaw in the design of the hostile environment persists, though, and this will have major consequences if or when the UK leaves the EU and scraps free movement rules for EU citizens. This is because the majority of lawful residents without status papers are citizens of EU countries who entered the UK under free movement laws. Immigration officials are literally forbidden from stamping the passports of EU citizens entering and leaving the UK and have no idea why an EU citizen is entering the UK or for how long he or she stays.

Brexit therefore represents a huge challenge; no-one knows how many EU citizens live in the UK but estimates go as high as four million. When EU law ceases to apply in the UK, all of these EU citizens and their family members need to have acquired a new immigration status under UK law. If they do not apply by the deadline, they will become unlawfully resident. No registration campaign around the world has ever achieved a 100% success rate and it is estimated that as many as hundreds of thousands of EU citizens will miss the deadline. Some will be elderly residents in care homes, some will be young children, others will not speak good English, some may be afraid of applying and some will have believed the Leave campaign promise that their rights would be protected. Some will just be disorganised or unaware; a lot of people miss the deadline for filing their tax return every year even though they get fined for doing so. Some may refuse on principle.

No matter their reasons, the effect of being exposed to the hostile environment will be the same. Their jobs will be lost, their bank accounts closed down, their tenancies terminated and access to the NHS and welfare benefits ended.

Colin Yeo is a barrister, writer, campaigner and consultant specialising in immigration law. He founded and edits the Free Movement immigration law blog.

 

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