Regarding the history of the Hostile Environment the two articles below, one by Colin Yeo, and the other by Shu Shin Luh, combined give a thorough background to and history of the so-called Hostile Environment, its dynamics, and infamous attributes.

The evidence-free origins of the hostile environment — There is no concrete proof that the policy actually works. Only that it harms vulnerable men, women and children

The “hostile environment” for illegal immigrants announced by Theresa May in an interview in 2012 is much more than merely nasty or unpleasant, although it certainly is those thingsIt takes a policy developed to address terrorism and serious crime and extends it to illegal immigration and, soon, to those EU citizens who miss the deadline to apply for settled status. Even after Windrush the hostile environment is not going away. But where did it come from?

The idea of a “hostile environment” can be traced back to the early 2000s, when steps were taken to make life difficult for terrorists and serious and organised criminals by constraining their access to finance. This was achieved by forcing banks and others to conduct routine checks on account holders and money transfers. Direct pressure in the form of arrest and conviction was insufficient; indirect pressure applied through third parties was also thought necessary.

White Paper in 2007 signalled that the Home Office wanted to apply similar policies to address illegal immigration, but balanced by making the rules simpler and easier to comply with for lawful migrants. The language of “hostility” was studiously avoided at that time. Little seems to have been done until May took the reins as Home Secretary, at which point a full spectrum crusade was launched. Employers were already encouraged to conduct immigration checks but fines for employing an illegal worker were increased to £20,000 and enforcement activity was ramped up. The Immigration Act 2014 introduced similar rules for landlords, banks, building societies, the DVLA and rules on access to public services, particularly the NHS, were toughened. New data sharing arrangements between government departments and public services, including the NHS and schools, were introduced. Meanwhile, the immigration rules had become more complex rather than simpler and fees for applications had shot up so that some cost over £2,000 per person.

Immigration checks were transformed over the space of a two or three year period from something conducted at the border by trained officials to an everyday experience of citizen-on-citizen checks. No new white paper heralded this revolution, no consultation had been conducted and virtually no research commissioned on what the impact might be.

There are two fundamental flaws that lie at the heart of this system of outsourced immigration controls. The first is that policy makers have conflated “illegal” with “undocumented.” Famously, some members of the Windrush generation, who had come to the UK as citizens but since been reclassified as migrants, did not have any or any up to date immigration papers. They found themselves unemployed, homeless and without access to the NHS, benefits or legal aid. It is not only they who are legal residents but lack documents, though. There are other long term residents in a similar position. Young and old alike now find they have to apply for a passport not to go on holiday but to live within their own country.

The second flaw is harder to understand for a reader who might be white, middle aged, own their own home and have long term employment. The hostile environment checks are not checks on identity but on immigration status, and they are discretionary. An employer will not be fined for failing to carry out the check on a person who is legally resident, only on a person who is not legally resident. This permits, and arguably even encourages, selectivity on the part of the employer. Some feel there is no real need to check the papers of a white man with a local accent, but there is some risk in failing to check the papers of someone who is perceived as potentially “foreign,” such as a black or Asian man, or one with a foreign-sounding name or accent.

Selectivity is one word for it, but this self-evidently amounts to race discrimination. And it is not just employers who find themselves in this invidious position but landlords, doctors, nurses and teachers.

Just as important is the impact on the person who is checked. Because of the way the citizen-on-citizen checks are structured, a person who moves between jobs, rents accommodation, is ill or needs benefits will experience the checks more frequently and more intrusively. The young, the old, women and ethnic minorities are more likely to be checked because of their social and economic position, compounding the impact on ethnic minorities.

To be asked for proof of your immigration status is to have your right to live in the country challenged. This will be of little concern to the privileged but it is demeaning and insulting for those who already experience other forms of racism or who otherwise feel insecure. The EU citizens currently having to queue at scanning locations around the country to submit their proof of residence to the Home Office might well feel nervous and resentful when challenged, for example.

There is a widespread assumption that some sort of checks need to be carried out. Some argue that if not immigration checks, then identity cards should be introduced. Mandatory checks on identity rather than immigration status would certainly be less inherently discriminatory. But the evidence base for the assumption that checks are needed is notable by its absence. The unlawfully resident population is by its nature hard to estimate in size. Evidence of the actual harm caused by this population—theorised to be cost to public services, impact on wages and so on—appears to be non-existent.

In contrast, the cost of introducing the bureaucracy of checks is considerable and likely to outweigh any savings. There is concrete and very real evidence of human harm caused by the hostile environment policies. And there is no evidence that the hostile environment has encouraged unlawful residents to actually leave the UK. Instead, the policy is creating a racialised underclass of extremely vulnerable men, women and children.

Colin Yeo.  February 13th 2019.  Colin Yeo is a barrister at Garden Court Chambers and editor of www.freemovement.org.uk


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

by Colin Yeo / February 13, 2019

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

‘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’.

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. Tuesday 16 October 2018.  Shu Shin Luh is a member of the Garden Court Chambers Administrative and Public Law Team.