The evidence-free origins of the hostile environment

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 things. It 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.

A 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 is a barrister at Garden Court Chambers and editor of www.freemovement.org.uk