By Christopher Kato Mpanga
What is the hostile environment policy?
The hostile environment policy refers to the measures put in place to help identify and reduce the number of undocumented immigrants in the United Kingdom (UK). In 2012, Theresa May, the United Kingdom’s (UK) Home Secretary at the time, revealed her plans to put in place a hostile environment to encourage undocumented immigrants to leave the country. In her interview with The Telegraph, May said, “We’re going to give illegal migrants a really hostile reception”. As a result, she instituted an inter-ministerial Hostile Environment Working Group. The working group was tasked with finding ways in which they would discourage undocumented immigrants from living in the UK.5 At the time, the number of undocumented migrants in the UK were estimated to be approximately 800,000.
The measures which the working group came up with were enacted in the Immigration Acts 2014 and 2016. They were also contained in the secondary legislation and guidance documents, and in the operational policies taken on by the Home Office and its sister agencies. These measures included the introduction of immigration status restrictions on undocumented immigrants’ access to renting property, free health care, driving, bank accounts, benefits, among others. Some of the measures also involved data sharing between government agencies and the Home Office. They also included requiring some service providers to carry out immigration checks before offering their services. For example, through the Right to Rent scheme, landlords are required to carry out immigration status checks for their prospective tenants. If a landlord fails to do so, they could face a criminal sentence of up to five years in prison or be fined up to £3000.
However, owing to the 2018 Windrush Scandal and associated negative publicity, Sajid Javid, the Home Secretary at the time disowned the term ‘hostile environment’ in the policy. He argued that the phrase did not reflect British values. Consequently, he referred to the policy as the “compliant environment”. Nevertheless, much as this sounded like a new development, the Home Office had already changed the name of the policy from the ‘hostile environment’ to the 'compliant environment’.
Conversely, as although changing the name of the policy is welcome, this had no significant impact on reforming the policy’s hostile legislation. For example, policies such as the Right to Rent scheme, among others, remained in place. Furthermore, the Immigration Act 2014 deleted an important clause from the 1999 Immigration and Asylum Act which safeguarded longstanding Commonwealth residents from deportation.19 The clause which stemmed from section 7 of the Immigration Act 1971, protected Commonwealth citizens who had been ordinarily resident in the UK for 5 years before 1 January 1973, from deportation. Therefore, such residents were exempt from deportation. Not only did the government fail to disclose the deletion of this clause, but they also failed to make consultations regarding the implications of its removal.
In addition, in a parliamentary session on 30th April 2018, Sajid Javid denied the
Immigration Act 2014’s removal of this safeguard. Furthermore, he argued that there was no need to reinstate it. Therefore, this demonstrates the Home Office’s lack of will to resolve the historical and legislative injustices created by the hostile environment policy. Critics have argued that the UK’s immigration policies are still biased towards facilitating a hostile environment.
Having defined the hostile environment policy, the next section will establish who undocumented immigrants are.
Who are undocumented immigrants?
There is no legally outlined, or widely accepted definition of who undocumented immigrants are. However, the phrase is used to describe people who live in the UK without the legal right to do so. It is widely believed that there are four main ways through which one can become an undocumented immigrant. These ways include the following.
Firstly, one can become an undocumented immigrant if they legally enter the UK and violate the terms of their visa.29 For example, by working without authorisation.30 Nevertheless, as opposed to being categorised as undocumented immigrants, such people are usually regarded as having violated their visa’s terms.31 Conversely, if that violation leads to the cancellation of their visa, they could become undocumented immigrants.32
Secondly, a person can become an undocumented migrant if they illegally enter the UK, or if they enter the UK through deception. For example, through using false documents, or deception about their reason of entry.
Thirdly, one can become an undocumented immigrant if they refuse to leave the country after their asylum or any other immigration status application has been denied. This can easily occur after all the avenues of appeal have been exhausted.
Lastly, an individual can become an undocumented migrant in the UK if they are born to undocumented immigrants. This is because birth right citizenship is not given by the UK. However, in certain cases, some of these children can get UK citizenship through registration if they have lived in the UK for 10 years.
It is widely believed by many academic researchers that most undocumented migrants arrived in the UK by air and entered the country legally. However, the migration of undocumented migrants is often described as illegal or irregular immigration.40 The use of the word illegal is often disputed for two main reasons.
Firstly, illegal migration can mean the violation of a country’s criminal laws. Conversely, as opposed to being a criminal matter, in some countries, the violation of immigration laws is an administrative issue. For example in Italy and Spain. Nevertheless, according to Section 24 of the Immigration Act 1971, it is a crime to knowingly move into, or to stay in the UK without permission 44 So the UK has determined this to be a criminal offence, however, trials under this section are rare.45
The second contention against the use of the words illegal immigrant is that the phrase is degrading. This is because it means that humans can be illegal. Owing to this, several international institutions such as the United Nations disregard the use of this term. They prefer using the terms irregular migration, or irregular migrant. In addition, most researchers use the words undocumented or unauthorised immigrants to refer to the concept of illegal migrants.
However, the word undocumented migrant can be used to describe migrants with unrecorded movements, or immigrants without the right to live in the UK. Nonetheless, an undocumented immigrant is not necessarily an irregular immigrant. For example, well as some members of the Windrush generation were undocumented, they had a right to live in the UK. This was due to the indefinite leave to remain granted to them by the Immigration Act 1971.52 Therefore, UK law’s lack of a standard definition of who exactly undocumented immigrants are, might create several gaps in the law whilst identifying such.
In addition, a reliable census of the UK’s undocumented immigrant’s population has not yet been possible. It is difficult to estimate the number of irregular immigrants in the UK because undocumented migrants fear to be counted. Therefore, this creates a significant challenge to the UK’s government to establish who, and how many undocumented migrants the country has.
There are various routes an immigration lawyer could advise an undocumented immigrant to obtain valid immigration status. However, this would depend on one’s circumstances. For example, if returning to their home country would be dangerous, for instance if one would be persecuted, they might be eligible to apply to the Home Office for asylum. In addition, an undocumented immigrant could be able to apply to the Home Office for indefinite leave to remain if they have lived in the UK for 20 continuous years, among many other routes available for undocumented migrants to obtain valid immigration status.
Having explained who undocumented immigrants are, the next section will examine if the hostile environment policy has achieved its objectives.
Has the hostile environment policy achieved its objectives?
In her interview in May 2012, Theresa May stated three broad aims of the hostile environment. These included the following. Firstly, the hostile environment policy was introduced to discourage migrants from moving to the UK.61 Secondly, the policy was introduced to stop migrants who came to the UK from overstaying. Lastly, the hostile environment was instituted to block undocumented immigrants from accessing the essential needs of ordinary life.
According to a report published by the National Audit Office in June 2020, the Home Office has no evidence to show whether the hostile environment policy has achieved its objectives. This is supported by a report by the Independent Chief Inspector of Borders and Immigration published in July 2016. The publication raised concern over the insufficient evidence the Home Office had to assess the hostile environment policy. Without an evaluation of the policy’s objectives by the Home Office, one can hardly gauge the success of the hostile environment.
This revelation raises many questions about the work of the Home Office regarding the hostile environment policy. Why has the effectiveness of the policy not been evaluated ever since the policy was introduced? Failing to evaluate a policy that has affected the lives of many immigrants, including the Windrush generation, could mean that any adverse conclusions will not be shared with the public.
However, in the wake of the Windrush scandal in 2018, Said Javid, the Home Secretary at the time said that the Home Office was considering the best ways of assessing the policy. Nevertheless, the Windrush Lessons Learned Review published in March 2020 revealed that Home Office’s promises to assess the policy had not been fulfilled.
The failure of the Home Office to evaluate the impact of the hostile environment policy on undocumented immigrants has many implications in practice. For example, by failing to evaluate the policy, the Home Office cannot establish if the policy’s measures have deterred undocumented immigrants from staying in the UK, or there are other factors that attract undocumented immigrants to stay in the country. As a result, they cannot tell whether the hostile environment is the best approach to curbing undocumented immigrants.
In addition, without an evaluation of the policy, the Home Office cannot clearly establish some unintended consequences of the policy. For instance, racial discrimination brought about by the right to rent policy, among others, which might need to be remedied. This means that both documented and undocumented migrants, especially ethnic minorities will continue to face such negative effects of the policy. Therefore, there needs to be an evaluation of the hostile environment policy to find a solution to the policy’s consequences.
Furthermore, the Windrush scandal is one of the effects that was brought about by the implementation of the hostile environment policy. In the next chapter, this writer will examine the effects of the hostile environment on the opportunities for settlement of the Windrush generation.