Welcome to Britain: Fixing Our Broken Immigration System

by Colin Yeo;

  In one of my own cases, I acted for a musician from Jamaica who had arrived in the 1980s but was now being refused by the Home Office because he was missing evidence of residence for a short period of several months in the 1990s. He easily won his appeal because judges, unlike immigration officials, are willing to accept evidence from witnesses and unofficial sources; in this case from flyers from gigs the man had played back in the ’90s, which a friend had fortunately kept. This attitude, that it was somehow the fault of long-term residents for failing to obtain documents they did not previously need, went right the way to the top. ‘Albert Thompson’, who, following the conclusion of his legal battles, now goes by his real name of Sylvester Marshall, was denied cancer treatment by his local hospital, despite lawful residence of forty-four years.45 His case was eventually raised with Prime Minister Theresa May in 2018, who wrote in response: ‘While I sympathise with Mr Thompson … we encourage him to make the appropriate application [and provide evidence of] his settled status here.’

  Some, indeed, had ‘self-deported’ and left the country. Gentleman visited Jamaica to interview some of those affected. Joycelyn John had arrived in the UK in 1963, aged four, and was lawfully resident. However, there had been a mix-up with her papers and by 2014 she had been wrongly classified as unlawfully resident in the country. She lost her job, was unable to find a new one and ended up homeless. John then agreed to a so-called ‘voluntary’ departure to Grenada in late 2016 – though, in reality, there was nothing voluntary about it at all, given that her only alternative was to sleep on the streets. In another case, Colin Smith (not his real name) had been detained and formally deported in 2013, following a fourteen-month sentence for a relatively minor offence. But this should never have happened, as Windrush-era Commonwealth citizens were legally protected from deportation by the Immigration Act 1971. Others, like Vernon Vanriel, ended up trapped outside the UK. Vanriel had arrived in the UK with his family in 1962 and lived here until 2015, when he visited Jamaica. Refused a visa to return, when Gentleman met with him, he was living destitute in a wooden shack. Joe Robinson had experienced a similar fate. Having arrived in the UK aged six, he visited Jamaica for his fiftieth birthday with his family. He was refused boarding for the return flight and it took him two years for him to be able to sort out his situation and return.46

  The Windrush scandal finally received the attention it deserved in April 2018. Immediately before a Commonwealth heads of government meeting, Prime Minister Theresa May had 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 and 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 despatch 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 could be labelled weak attempts of the ‘sorry-not-sorry’ variety. Very belatedly, the special unit that Fiona Bawdon had advocated in 2014 was set up, along with a compensation fund for those affected.

  Still, the fundamental flaw in the design of the hostile environment persists: it targets the undocumented, not the unauthorised. The problem is an inherent one and, as discussed in more detail in Chapter 9, the system will have major consequences for EU citizens once the Brexit transition period ends and free movement rules are fully abandoned. The majority of lawful residents living in the United Kingdom without status papers (i.e. undocumented migrants) are citizens of European Union countries who entered the UK under free movement rules. In fact, immigration officials are literally forbidden from stamping the passports of EU citizens entering and leaving the UK and they have no idea why an EU citizen might be entering the UK, nor for how long he or she will stay.

  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. During the referendum, these people were promised by the official Leave campaign that their position would be automatically – and magically – protected, but this has turned out to be untrue.47 When EU law ceases to apply in the United Kingdom, all of those millions of EU citizens and their family members from outside the UK will need to have applied for and received 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 per cent success rate and experts predict that as many as hundreds of thousands of EU citizens will miss the deadline.48 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; after all, 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 what 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 their access to the NHS and welfare benefits ended. The consequences for any individual caught out in this way will be calamitous.

  THE RIGHT VICTIMS

  The hostile environment is intended to deny work, money, housing and public services to unauthorised migrants in order to force them to ‘self-deport’ and leave the country. In order for this approach to work, however, the policy must achieve three things. Firstly, the right people have to be affected (and we have already seen that in fact many of those affected, sometimes catastrophically, have been the wrong people – i.e. lawful residents). Secondly, their life must be made miserable. And thirdly, this must have the effect of forcing them to leave. We will soon turn to whether enforced and voluntary departures from the UK have actually gone up in the era of the hostile environment, but in the meantime, it is necessary to question the human impact of this denial of life’s basic requirements.

  The testimonies gathered by Amelia Gentleman from affected members of the Windrush generation are heartbreaking. They tell of the human cost of the hostile environment: poverty, isolation, ill health, homelessness, despair, forced exile from the country and even suicide. Yet, it is important to recall that this is the whole purpose of the hostile environment; ministers claim that they are sorry that some of the ‘wrong’ people were affected in this way, but the fact remains that these effects were supposed to be felt by the ‘right’ people.

  Consider the impact of immigration checks, combined with upfront charges for NHS care, combined with data-sharing with the Home Office. What are the consequences if some residents of the UK and their children, whether they are here lawfully or unlawfully, are unable (or, for fear of the possible consequences, unwilling) to access doctors? Some conditions are personal and non-contagious, such as cancer. Rather than such a condition being caught early and treated, the victim may die prematurely. When Kelemua Mulat was denied urgent cancer treatment, it was a personal tragedy for her. The decision was reversed some six weeks later after a media outcry, but she died a year afterwards.49 There are also reports of very ill patients wrongly being turned away by hospitals and pregnant women being afraid to seek antenatal care for fear of the immigration consequences, with obvious risks to their own health and the health of their babies.50 As has been starkly illustrated by the coronavirus crisis, other illnesses are contagious and have wider public health implications. It is critically important that vaccination rates are very high amongst the public, for example, and that transmissible conditions such as HIV, tuberculosis or new diseases like Covid-19 are identified and treated. By denying healthcare to afflicted people and making them scared of going to the doctor, it can be argued that the hostile environment represents a risk not just to individuals but to p
ublic health in general.

  Inculcating a fear of the authorities is problematic in policing, as well as in public health. Good, effective policing relies on trust and community consent, but both are being corroded by the discriminatory way in which some communities perceive they are targeted. Commenting on Operation Nexus, the joint working operation between the police and immigration authorities (see Chapter 3), in 2013, Rita Chadha, chief executive of the Refugee and Migrant Forum of East London, said:

  What we are seeing now is that they are targeting all crimes and low-level criminality. This is going to stop victims coming forward in the black and ethnic minority communities because they fear they will be targeted by Nexus. If you have a woman suffering domestic violence in a household of overstayers she is not going to come forward. This is totally going to mess up local policing and any trust communities have in the police.51

  The societal price of the hostile environment is the creation of an illegal underclass of foreign, mainly minority ethnic workers and families. These people are highly vulnerable to exploitation and have no access to the social and welfare safety net that protects not just British citizens as individuals but the very fabric of our society.

  DOES THE HOSTILE ENVIRONMENT ACTUALLY WORK?

  The stated purpose of the hostile environment is to drive down inward migration to the UK by making it as disadvantageous, risky, expensive and inconvenient as possible to come here. The policy is also intended to encourage migrants already in the UK to leave, by administering many into irredeemable illegality (as we will see in the next chapter) and making their lives as marginal and difficult as possible. Given the impact of the hostile environment on the lives of citizens, its breadth across government and the cost of implementing it, we might expect that the success or otherwise of the policy would be carefully monitored. But it is not. Ministers and civil servants are just not that interested in the question of whether the system actually works or not.

  In his inspection report on the hostile environment, David Bolt, chief inspector of borders and immigration, found that ‘there was no evidence that any work had been done or was planned in relation to measuring the deterrent effect of the “hostile environment” on would-be illegal migrants’.52 Furthermore, ‘no targets had been set by ministers for voluntary returns or net migration and there was no pressure to deliver specific outcomes’. Revealingly, the inspectors were told by civil servants that, even if there was research to show that the hostile environment was not effective, the policy would still not be abandoned: ‘This was because it was the right thing to do, and the public would not find it acceptable that illegal migrants could access the same range of benefits and services as British citizens and legal migrants.’

  Similarly, a separate report by Bolt’s inspectors on the Right to Rent programme targeting landlords found that ‘overall, the scheme is yet to demonstrate its worth as a tool to encourage immigration compliance (the number of voluntary returns has fallen). Internally, the Home Office has failed to coordinate, maximise or even measure effectively its use. Meanwhile, externally it is doing little to address stakeholders’ concerns.’53

  Even as late as February 2020 the government had still failed to commission any research into whether the hostile environment has any effect on migrant behaviour. In her ‘Windrush Lessons Learned Review’, Wendy Williams revealed that a research proposal ‘to increase our understanding of the behaviour, attitudes and motivations of immigration offenders’ had been submitted to ministers in January 2018, but was yet to be approved. Williams looked particularly closely at the Right to Rent scheme, which has been repeatedly flagged as presenting a clear risk of discrimination. She concluded that, although an intention to attempt in future to track the outcomes for people subject to ‘compliant environment’ sanctions had been declared, ‘to date there has been nothing to indicate any such assurance or monitoring has been put in place for the Right to Rent scheme’.54

  Although the architects and engineers of the hostile environment seem remarkably nonchalant about whether the policy does what it was supposed to, there is some evidence available for us to take a look for ourselves. The Home Office publishes immigration statistics every quarter and the data suggest a fall in both enforced removals and voluntary returns away from the UK since the hostile environment was first announced in 2012:

  Source: Home Office quarterly immigration statistics year ended September 2019, table Ret_01.

  Another measure of success would be if the hostile environment saved money for the taxpayer. The idea was, in part, that those who were not entitled to public services would no longer receive them, which would thereby reduce costs. It was also expected to reduce the need for expensive, unpleasant and resource-hogging enforced removals, involving dawn raids, detention and charter flights, because life would be so hard for illegal immigrants that they would ‘self-deport’. However, all this ignores the costs of implementing the policy itself and creating the systems to routinely check immigration status that are required alongside it. In reality, the costs of introducing the hostile environment have been huge and the savings illusory.

  Sometimes the costs are obvious and upfront, as with the creation of the sinister-sounding Interventions and Sanctions Directorate at the Home Office. Its purpose is ‘the indirect enforcement of immigration control through third parties’. It has existed since June 2013 and was reported to have a staff of 146 in 2016 and a budget of £5.5 million in 2015/16.55 It might be thought that this team was self-financing due to the income from sanctions imposed on employers and landlords. Barely. It is true that very large fines are imposed, but the actual recovery of those fines is small in comparison. Very few employers pay the fines they are charged with, often because the employer goes out of business and sometimes because they successfully appeal. Other costs to the Home Office are effectively hidden because they end up inflating other, existing internal budgets, as with the additional workload caused by the massive increase in referrals for investigation by marriage registrars discussed in Chapter 5. This makes it hard to measure the true cost to central government of implementing and policing the hostile environment.

  The nature of the hostile environment as a privatised system of immigration controls means that the costs of its administration fall largely on public services, private citizens and companies. It is impossible to quantify easily the financial burden borne by private individuals and companies, and therefore ultimately, if indirectly, by the British public. But it must be huge. The NHS may well be spending more on conducting checks on potential patients than it recovers in charging them fees as a consequence, for example. Professor Martin McKee, professor of European public health at the London School of Hygiene and Tropical Medicine, gave evidence in February 2017 to the House of Commons Health Select Committee. He told the committee that his research team had just completed a study in which they submitted Freedom of Information requests to every hospital trust in England to ask them how much they spent collecting money from overseas patients and how much they recovered. It was found that ‘most of them were spending more money than they were recovering. They had a very low level of recovery, but as time went by they found they were often trying to recover from people who were entitled anyway.’ It may seem to be a matter of common sense to many members of the public – and perhaps ministers and civil servants too – that preventing foreign nationals accessing public services will save money. But setting up and enforcing a system of ‘papers, please’ checks is very expensive. Designing and creating the required systems has upfront costs, and operating those systems costs staff time that must also be paid for. It seems that these costs, which end up being absorbed into existing budgets where they squeeze service delivery even more, may well outweigh the savings.

  The hostile environment is supposed to discourage illegal immigration but there is no evidence to suggest it works. No targets were set, no evaluation has been commissioned and the expense of implementation may very well be greater than the very li
mited savings generated. The closer we look at it, the less the hostile environment seems to be evidence-based policy-making, and the more it resembles a moral crusade.

  NOTES

  1 ‘Lib Dem MP attacks coalition’s plans for immigration reform’, The Guardian, 13 July 2013.

  2 Baker v Abellio London Ltd [2017] UKEAT 0250_16_0510.

  3 See part 6a of the Immigration Rules, entitled ‘The points-based system’, available at: https://www.gov.uk/guidance/immigration-rules/immigration-rules-part-6a-the-points-based-system

  4 Figures compiled from Home Office migration transparency data, available at: https://www.gov.uk/government/collections/migration-transparency-data

  5 ‘London Met wins back foreign student licence’, BBC News, 9 April 2013.

  6 ‘“It was a fake meeting”: Byron Hamburgers staff on immigration raid’, The Guardian, 28 July 2016.

  7 ‘Pressure on law chief after fine’, BBC News, 22 September 2009.

  8 ‘Lady Scotland’s former cleaner convicted of fraud’, The Guardian, 9 April 2010.

  9 ‘Border police arrest cleaner at heart of Mark Harper immigration row’, The Guardian, 18 July 2014.

  10 Collated from Freedom of Information requests and Home Office transparency data, available at: https://www.gov.uk/government/collections/migration-transparency-data

  11 Anderson, Us and Them. Although the book pre-dates the Immigration Act 2014, this is very much the thrust of her argument, as I understand it.