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Chapter 2 Updates: July 2018
Policy, politics, and the media
2.5.1 The hostile environment
From being a concept known mainly to immigration and asylum law lawyers and activists, the hostile environment has entered the public domain. The reason was the public exposure of what was being suffered by people who could not prove their immigration status. As the hostile environment policy spread immigration control into many areas of life, and required people to show documentation, increasing numbers of people who were either British citizens or else had settled status, were being detained, removed, threatened with removal, losing their jobs, having welfare benefits stopped, being refused health care, and having their driving licences withdrawn.
People suffering in this way, and their lawyers, had been unable to attract government attention until Guardian journalist Amelia Gentleman responded to a case brought to her attention by the Refugee and Migrant Centre in Wolverhampton: https://www.theguardian.com/uk-news/2017/nov/28/i-cant-eat-or-sleep-the-grandmother-threatened-with-deportation-after-50-years-in-britain.
Shocked by what she found, the journalist spent the next few months investigating and found that thousands of people were actually or potentially affected.
The issue focused on those who became known as ‘the Windrush generation’. This referred to the people who came from Jamaica, Trinidad and Tobago, and other islands, on the ship the Empire Windrush, in 1948. They came at the invitation of the UK government to boost the labour force after the Second World War. They had a right to enter the UK, and their nationality status (Citizen of the UK and Colonies) was the same as a person born in the UK at that time (see chapter 3). Their children born in the UK were British.
The Immigration Act 1971 defined those who had right of abode (i.e. an unfettered right to live in the UK). This included some CUKCs and some Commonwealth citizens, depending on parentage (see chapter 3). The Act gave indefinite leave to remain (the new terminology of that Act) to all those who were settled in the UK on 1/1/1973 but did not have right of abode.
Until the introduction of biometric residence permits, and the hostile environment policy, it was of little practical importance that many people had obtained their rights by operation of law, and not by making an application. People who travelled outside the UK obtained passports, and so could establish their status. More recent migrants, who have arrived through a far more regulated system, more often have paperwork to show their status. But those who arrived longer ago and did not need to produce documents or make applications had less reason to keep any papers they held. In order to prove their settled status in 2017/18, some people who arrived as children in the 1960s have been required to show doctor’s or school records to prove they were settled before 1971.
It became apparent that in many cases there had been no attempt by the Home Office to solve the problem. Lawful residents who had been in the UK often for 50 years were simply faced with immigration enforcement.
The government completely underestimated the importance of the issue, and the political fall-out resulted in the resignation of the Home Secretary.
Some mitigating measures were put in place:
- A ‘task force’ within the Home Office to resolve the status of those affected.
- Fees for nationality applications will be waived for Commonwealth nationals who settled in the UK before 1973 and children of the Windrush generation who joined their parents before they turned 18.
- Some elements of the hostile environment policy were suspended:
- The data-sharing agreement between the Home Office and NHS, which was preventing people from seeking health care
- Quarterly checks on bank accounts
- The misuse of para 322(5) of the immigration rules, pending a review.
The review of paragraph 322(5) is interesting. This immigration rule is not technically part of the hostile environment policy, but the way that it had been being used is an illustration of how a culture of hostility, once created, seeps into other aspects of the system. Para 322(5) allows a person to be refused leave to remain on grounds of:
the undesirability of permitting the person concerned to remain in the United Kingdom in the light of his conduct (including convictions which do not fall within paragraph 322(1C), character or associations or the fact that he represents a threat to national security.
The rule was intended to allow for refusal in the case of terror suspects, but had been used in cases of people who had an unblemished record apart from making minor, legal, amendments to their tax return.
https://www.bbc.co.uk/news/uk-43782241
https://www.theguardian.com/uk-news/2018/may/25/number-of-windrush-cases-passes-5000-mark