By Christopher Kato Mpanga
Has the Home Office delegated the enforcement of the hostile environment to 3rd parties?
It can be argued that the Home Office has abdicated some of the enforcement responsibilities of the hostile environment policy to other agencies. For example, the Driver and Vehicle Licensing Agency (DVLA), landlords, among others.
The Home Office has delegated the some of the enforcement of the hostile environment to 3rd parties by requiring the Driver and Vehicle Licensing Agency to revoke driving licenses of undocumented immigrants. Section 47 of the Immigration Act 2014 gives authority to the Secretary of State to cancel driving licences of people living unlawfully in the UK. For instance, in 2015, the Home Office requested the Driver and Vehicle Licensing Agency to revoke almost 10,000 driving licences of undocumented immigrants. Nevertheless, the DVLA has been criticised for wrongly issuing driving licences to irregular migrants, whilst incorrectly revoking driving licenses of documented immigrants. This is due to having faults in their data.
For example, owing to having faults in their data, in 2015, the DVLA reinstated 259 licences that had been wrongly revoked. The supervision of irregular migrants to the point of revoking their driving licences is an extreme measure. In addition, carrying out immigration checks adds a burden to, and inadvertently turns the DVLA into immigration officers, yet their main role is to manage motor vehicle records. It is questionable how far the Home Office has extended the implementation of the hostile environment policy to 3rd parties. This is because landlords, employers via right to work checks, banks, utility providers, among others are required to enforce some measures of the hostile environment.
Under chapter 1 on residential tenancies, the Immigration Act 2014 (the 2014 Act) introduced the Right to Rent (RtR) scheme to prevent undocumented immigrants from renting accommodation. To achieve this, the 2014 Act required landlords, letting agents and sub-letters to carry out checks to ensure that prospective tenants have the required immigration status before leasing them property for residential purposes. Any landlord who contraventions the RtR policy risks getting a prison sentence of up to five years, or a fine of up to £3000.
Consequently, through the RtR policy, the Home Office has delegated the enforcement of the hostile environment policy to 3rd parties. This means that landlords are inadvertently made to carry out the duties of immigration officers, but how competent are they to do so? How often are they trained in the implementation of the RtR policy? Besides, by introducing the RtR scheme, the Home Office ignored the out cries of landlords who did not want to be made border guards.
Consequently, the RtR policy has led to the discrimination of ethnic minorities over other accommodation applicants.142 This is because verifying a prospective tenant’s immigration status is a complex task. As a result, landlords fear getting penalties owing to their misinterpretation of such immigration status. Consequently, they are less likely to rent out to people with foreign names, or people who are not British Citizens. According to a report published by the Joint Council for the Welfare of Immigrants (JCWI) in 2017, 42% of landlords surveyed revealed that they were less inclined to renting out to non-British Citizens owing to the RtR scheme.146
If a lawyer is approached by an ethnic minority with a valid immigration status who has been discriminated owing to the RtR scheme, they ought to advise them to assert their rights. This can be done by advising the client to write to their prospective landlord showing full proof of their immigration status, and why they are entitled to such accommodation. Alternatively, a lawyer can write a letter through their law firm to a client’s prospective landlord stating why they are entitled to such accommodation, and the possible penalties if a client is denied accommodation.
However, in R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department, the Court of Appeal (CA) declined to declare the RtR scheme unlawful.147 As a result, it left the Members of Parliament (MPs) and the government to decide if racial discrimination is greater than envisaged. Nevertheless, the CA acknowledged that the RtR scheme causes racial discrimination.149 Consequently, the Home Office needs to revise the RtR policy to ensure that ethnic minorities are not discriminated whilst seeking accommodation.
In conclusion, this paper has defined the hostile environment policy. It has discussed who undocumented immigrants are. This paper has established that the home office needs to evaluate the hostile environment policy to determine if the policy has achieved its objectives. The author has also discussed the negative consequences of the hostile environment on the Windrush generation’s opportunities for settlement. For example, the unlawful detention and deportation of some members of the Windrush generation, among others.
This paper has similarly established that the home office has delegated the enforcement of the hostile environment to 3rd parties. For example, requiring landlords to carry out right to rent checks to exclude undocumented migrants from accessing accommodation. This has led to negative consequences such as discrimination of ethnic minorities over other accommodation applicants whilst looking for accommodation, among others.
Therefore, the hostile environment policy has had a negative impact on undocumented immigrants in the United Kingdom. This author would recommend the Home Office to comprehensively evaluate and revise the hostile environment policy to resolve the negative consequences brought about by the policy.