THE 'HOSTILE ENVIRONMENT': IS IT EFFECTIVE IN MEETING ITS AIMS?
May, 2022
Background
By isolating and ostracizing irregular migrants, the hostile environment is an incredibly cruel policy - one of the “most contentious aspects”[1] of the UK’s approach to immigration. It prevents or limits individuals without leave from accessing basic essential needs, such as accommodation, healthcare, employment, bank accounts, and more.
The intention of penalizing migrants and discouraging them from entering and remaining in the UK has been present in the UK for a long time. The beginnings of the hostile environment can be found in the Asylum and Immigration Act 1996, which began to implement the idea that immigration checks could be carried out by regular civilians. It was further expanded in 2006, under the Labour government, through the Asylum and Nationality Act and since then, the hostile environment has been extended under Conservative leadership – through the 2014 and 2016 Immigrations acts/ This parallels the public’s growing concern of irregular migrants. In 1997, only 3% of the public “cited immigration as a key issue,”[2] but by 2016, this number has risen to 48%. Some may argue that the extension of the hostile environment and increase of its harshness serves a political agenda - pleasing voters, by appeasing their fear of migrants that has been pushed on them by right-wing propaganda. However, it does not seem to do much else.
The Hostile Environment’s Aims
There are two clear aims of the hostile environment, which can be described in two words: discourage and deter. By restricting irregular migrants’ ability to access not only necessary public, but also private services, the hostile environment aims to make the UK exactly that – a hostile environment. By becoming an impossible, or at least incredibly difficult place for them to survive, the aim is to push individuals without legal status to leave the UK of their own accord – saving the government the expenses of forced removal. Secondly, this poor quality of life aims to discourage other migrants from coming to the UK, thus lowering the rate of unlawful immigration.
This dissertation will argue that the hostile environment is not effective in meeting its main aims. In fact, it will argue that it does “not appear to be working for anyone”[3] – as it is harmful to both migrants and the UK’s society as a whole. Firstly, it will argue that there is no evidence that immigrants are choosing to leave the UK due to the hostile environment, or that it is deterring other migrants from entering. Secondly, it will discuss the harmful impacts of the hostile environment on the UK overall. Next, it will address the Home Office’s inefficiency and how this impacts the hostile environment. Lastly, it will discuss what needs to be done to address all of these issues whilst reforming the hostile environment.
The Hostile Environment’s impact on voluntary returns and deterrence
There is no evidence that, so far, the hostile environment has met its aim of causing irregular migrants to leave the UK, or that it has deterred others from entering.
The Home Office has claimed that it has been too early to be able to concretely say whether the hostile environment had a positive impact on voluntary returns. Since its implementation in 2012, its effectiveness hasn’t been truly measured – the focus has been on delivering “process outcomes, such as driving license revocations.”[4] The Institute for Public Policy Research argues that there is no evidence supporting the fact that the hostile environment meets its main aim of increasing voluntary returns. Home Office statistics demonstrate that from 2004 to 2015, voluntary returns were on the rise. However, the Institute for Public Policy Research (IPPR) found that in 2014 (when key hostile environment legislation was introduced,) those numbers dropped back down “considerably,”[5] - back to their 2010 levels. Since then, the number has fallen.[6] Around 12,000 more people without leave were leaving the UK in 2014, compared to 2018.[7] Looking at the Home Office data, we can see that even controlled returns, at the irregular migrant’s own expense but overseen by the Home Office, have fallen significantly. Assisted returns, in which individuals receive a reintegration package or funds for flights, have stayed roughly the same. There is “no robust way of determining”[8] whether there is a concrete, direct link between the “hostile environment measures and individual decisions to leave the UK.”[9] Therefore, looking at the overall trends of voluntary returns is the best indication of whether the hostile environment has an impact on these numbers. However, attempts have been made to obtain data regarding individuals’ decisions caused by the hostile environment – such as a 2011 study by the IPPR. Irregular migrants questioned in the study described the poor living conditions they were forced to endure as a consequence of the hostile environment, but 40% claimed they planned to stay permanently, and less than 10% planned to leave within that year.[10] Though, of course, there may be many “competing factors”[11] affecting the rise and fall of voluntary returns, it is clear that the hostile environment is not resulting in an increase of these returns.
It is important to consider, when discussing the impact of the hostile environment, that even if the UK is a miserable place for unlawful migrants to live in, it may not be worse than many of the countries they are coming from. Though they may have to live in poverty, without access to healthcare or adequate accommodation, many would rather live in the UK than the countries they moved from, as they may face similar living conditions there, but with the added threat of war, terrorism, rampant sexism, violence and more. In a fresh asylum claim case handled by the Kent Law Clinic this year, Mr. X from Afghanistan admitted he had stayed in the UK for over 10 years without leave, as returning to his home country would have been much worse.[12] Having left Afghanistan as a teenager, he would not be able to find a job there, would not have a social circle, had no family to go back to, and faced the threat of persecution from the Taliban. Though living in the UK as an unlawful migrant is incredibly difficult, it is better than what awaits him in Afghanistan. Many migrants in the UK without leave face the same prospects – stay in the UK with a poor quality of life or return to their country of origin with an even poorer quality of life, often with added violence and discrimination. Another point to consider is that many irregular migrants are under 18 or have come to the UK at a young age. In 2009, it was estimated that there were 215,000 undocumented children in the UK, and that half of all irregular migrant children were born in the UK.[13] Having lived their whole lives here, these children may not have much knowledge of their country of origin and may not even speak the language, making return not an option at all for them.
It is also important to mention that much of the irregular migrant population in the UK is made up of individuals who arrived in the UK legally but lost their status for numerous reasons – “often through no fault of their own.”[14] As highlighted by the Joint Council for the Welfare of Immigrants, some leave their abusive spouses or employers, which causes them to lose their legal status.[15] Others, such as the Windrush generation were brought up, educated and employed in the UK - many have never lived in their country of origin. As a consequence, they always considered themselves British citizens. Others may have simply missed their visa renewal deadline, or were not able to afford the fees to renew it or to appeal a Home Office decision.[16] Again, leaving may not be an option for individuals like these who have been in the UK for a long time, or sometimes even all their life. And if they are not even aware that they are living in the UK unlawfully, why would they leave? Instead of encouraging irregular migrants to leave, the hostile environment simply forces them to live in extremely difficult circumstances, pushing people into destitution, poor health conditions, and exposure to the possibility of exploitation – which will be further discussed below.
The Hostile Environment’s impact on UK society
Now that is it clear that the hostile environment is not meeting its primary goal of increasing voluntary removals and deterring entry, it is important to analyse its harsh, negative impact on the UK as a whole.
Firstly, many of the schemes implemented directly increase racial profiling and discrimination within UK society. This can be seen with the Right to Rent Scheme. The Scheme restricts irregular migrants’ right to rent and requires that landlords check an individual’s status in order to rent to them - if they are found to be renting to someone without the right to rent, they have committed contravention. The Immigration Act 2016 made this a criminal offence, with a maximum punishment of five years and a financial penalty.[17] This has resulted in landlords not wanting to rent to people who ‘look’ like they may be illegal immigrants – disproportionately affecting minorities. For a Black and Asian British citizen, it takes twice as long to find accommodation.[18] Significantly, it was accepted by the court in R (On the Application Of) V Secretary of State for the Home Department [2019],[19] that the scheme led to discrimination and therefore could not be justified by the aims of the policy – especially since the outcomes of the policy were not evaluated - therefore making it incompatible with Article 14 in conjunction with Article 8 of the ECHR. Though R (Joint Council for Welfare of Immigrants) v Secretary of State for the Home Department [2020][20] overturned this decision and held that there was no breach of the ECHR, it did agree that the policy did cause discrimination. Another example is the enforcement of rules regarding illegal work, which has also been shown to be “biased against certain ethnic groups,”[21] – with the last quarterly data showing that roughly half of all fines issued for illegal work went to South Asian and Chinese restaurants[22]. The Chief Immigration Inspector also reported that raids were “targeted at specific nationalities on the basis that they were “believed to be removable.’”[23] The 2016 act has also contributed to an increase in discrimination by giving immigration and police officers the power to stop individuals who they reasonably believe may own a driving license, whilst not lawfully resident in the UK. This is a point of concern, as it will likely result in officers stopping people based on their race or ethnicity – and is something incredibly hard to control. There is a high chance that minorities will be disproportionately seen as potentially being unlawful migrants, which will further drive a wedge between people and the police and foster an environment of distrust and hostility.
The hostile environment also breeds criminal activity. Firstly, by pushing people into poverty the risk of them falling into criminal activity increases. Without access to work and income, some may have no choice but to partake in illegal activity. Secondly, the Council of Europe Group of Experts on Action Against Trafficking in Human Beings stated that the hostile environment and its creation of the offence of illegal working act “as a major driver of exploitation and barrier to justice.”[24] As migrants are often pushed into more dangerous employment and housing, this exposes them to exploitation and modern slavery. With landlords and employers in fear of being charged or fined if they hire anyone without leave, irregular migrants have to find those willing to break the law and hire them or rent to them. They often end up working cash-in hand jobs and find themselves unable to report poor conditions or ill-treatment, as employers can “use the threat of immigration and criminal repercussions towards workers who challenge precarious working conditions.”[25] They may also find themselves being blackmailed into work, accepting accommodation in return for unpaid work, or becoming a victim of human trafficking. The hostile environment simply creates an “illegal underclass of foreign, mainly ethnic minority workers and families highly vulnerable to exploitation.”[26] Due to many of the restrictive measures in place, this policy provides opportunities for the development of the illegal practice of creating fake passports and driving licenses, though research on this is limited. Whilst the environment contributes to criminality, it simultaneously deters irregular migrants from reporting crimes to the police, afraid that their status will be reported. In 2018, a Freedom of Information Request demonstrated that 27 out of 45 police forces “shared information on victims and witnesses of crime with Immigration Enforcement.”[27] Though the Home Office has claimed it would support victims regardless of their status, this is clearly not the case. The threat of being removed prevents many from coming forward – which results in them being left vulnerable, particularly women. This can be seen in a study conducted on 50 migrant women who were domestic abuse survivors. Of these 50, 25% claimed that the fear of deportation prevented them from reporting their abuse, and 33% claimed that their abuser had used deportation as a threat.[28] Treating irregular migrants as criminals and reporting them to the Home Office instead of treating them as victims of an offence deters them from reporting crimes, which “poses a risk to public safety.”[29]
Another significant issue is healthcare and public health. Irregular immigrants are restricted in their access to healthcare[30] – often having no access except for accident and emergency services, and those not exempt from these restrictions can be charged 150% of the cost of treatment. However, due to data sharing between the NHS and Home Office, they often do not seek medical help due to the fear of their status being reported. At the peak of the pandemic, it was reported that a cleaner from the Philippines died of Covid-19 due to fears of seeking treatment whilst not having immigration status.[31] This is incredibly dangerous not only for the migrants themselves, but also for society as a whole, which can particularly be observed in a situation such as the COVID-19 pandemic. If people do not feel safe seeking medical care, viruses or diseases such as COVID-19 may be more difficult to control and spread much faster due to lack of reporting and tracing. It may also make it much harder to calculate an estimate of the number of cases, deaths and recoveries. This creates a problem for all those in the UK. This is an even more critical issue when it concerns more life-threatening diseases, such as Tuberculosis, which we are slowly seeing the return of. A significant cause of this problem is irregular migrants entering countries and living in poor conditions with no access to proper healthcare. It has been shown that poor living conditions and overcrowding can trigger the disease’s symptoms.[32] Sergey Mishustin, a Russian doctor, argues that countries’ anti-immigrant policies do not prevent the spreading of disease – but instead, increase it.[33] Due to the fear of seeking medical help and being reported to the government, or not being able to pay the medical fees, sick individuals are simply left to get sicker and sicker, potentially infecting others. Therefore, the hostile environment is negatively impacting all citizens by preventing individuals without leave from accessing healthcare – and that it would actually be “a health benefit for everyone”[34] if this were not the case.
The Efficiency of the Home Department
A major problem regarding the hostile environment’s efficiency in meeting its aims is the actual competency of the Home Office. When the hostile environment measures were first implemented, there were no targets set in place for the policy and its impacts. There was also no method in place to evaluate the impacts of the policy and assess its efficacy. In 2018, the Immigration Chief Inspector stated that the Home Office was struggling to prove a “causal relationship”[35] between hostile environment measures and voluntary returns. Without targets and assessments allowing for analysis and improvement, there is no way to know whether the hostile environment is effective or not.
Secondly, there is an issue with their competency in regard to keeping accurate records of who is in the UK lawfully. The hostile environment policy revolves around the concept that the Home Office does, in fact, know who is in the UK lawfully or not, and consequently limits those without leave’s access to basic needs. How can the policy be effective if this is not the case? In 2016, the Independent Chief Inspector of Borders and Immigration’s report on the impact of the Hostile environment’s measures demonstrated that the Home Office is not capable of doing this efficiently and outlined a few issues with its work. Firstly, it reported that many individuals were being wrongly listed as without leave. The report also demonstrated that the Home Office shares its data with the Cifas National Fraud database weekly, updating the list of disqualified individuals. However, it was shown that when a financial institution searched the database, 10% (17) of the results should not have been listed as a ‘disqualified’ person[36]- and 52% of this 10% had leave to remain.[37] Though this is incredibly serious and damaging to those concerned, the Home Office does not seem to truly appreciate the seriousness of making an error of this type, and the impact this has on the individuals involved. Another incident demonstrating the Home Office’s inefficiency is the loss of over 17,000 files containing refugees and their families’ personal information, in 2009.[38] However, even without an incident of this magnitude, the UK Border Agency struggles to keep up with its caseload, resulting in significant backlogs. In 2013, the Independent Chief Inspector John Vine discovered that the UKBA had a backlog of 14,000 requests from individuals married to British citizens asking to “re-consider decisions to refuse them further leave to remain,”[39] which increased by 700 cases a month. There were also many individuals still awaiting initial decisions regarding further leave to remain, some of which dated back “nearly a decade.”[40] Therefore, many of these individuals may have been living unlawfully in the UK, affected by the hostile environment whilst awaiting decisions that were taking far too long to be concluded. Judging by this all of this, it is clear that the system is incredibly inefficient – and if the system isn’t efficient, how can the hostile environment overall be effective? Not only has it been shown that this policy doesn’t increase voluntary returns, but it has now been shown to penalise people living in the UK lawfully - the complete opposite of its main aim.
Improving the efficiency of the Hostile Environment and the Home Office
All of this demonstrates that the hostile environment is not effective in meeting its main aims, and instead contributes to a negative environment for all. It is clear that the justification for extending its measures is “based on the conviction that they are right in principle and enjoy public support,”[41] instead of “any evidence that the measures are working.”[42] However, it is definitely not reducing the number of irregular migrants in the UK, or deterring others from entering. As stated by Richard Warren in 'Grenfell Tower And The Hostile Environment,’ “perhaps it is time to reconsider the wider impact on community relationships of policies that seek to divide residents based on their immigration status,[43] and make some changes.
It is possible to work to fix some of the negative impacts caused by the hostile environment. However, this would change its aims and nature – from penalizing migrants to working to create a more supportive society for all. In Beyond the Hostile Environment, (2021), the IPPR has made several suggestions: firstly, to repeal the requirement on landlords to carry out checks and repealing the restrictions on irregular migrants accessing bank accounts or drivers’ licenses. It also suggests reforming the provisions on the right to work, by “shifting the burden”[44] of making checks on the DWP as opposed to employers and removing the criminal offence of working illegally. Importantly, it calls for legislation to be introduced in order to protect irregular migrants from having their information shared by police, healthcare services or social services – so that they can access these services without fear. Implementing these suggestions would be incredibly beneficial for the UK. They would work be effective in reducing discrimination and would no longer require public sector workers and private civilians to act as “border guards.”[45] They would also encourage migrants to report crime, poor working conditions, and health problems, working towards a safer and more cohesive society.
The Home Office also needs to be reformed. Firstly, there should be a clear method of evaluation set in place, to properly assess the impact of the hostile environment and limit its negative effects. By doing this, the Home Office would be able to pinpoint measures that result in discrimination or disproportionate suffering, and deal with these accordingly. There should also be improvement in alerting people of their loss of status. By doing this, individuals who may have remained unaware of their loss of status can apply for further leave, instead of remaining in the UK unlawfully. Similarly, there should be better notification of the revocation of an individual’s driving license, so that they do not drive illegally without the knowledge they are doing so. For those who have lived in the UK for a long period of time and are in vulnerable circumstances, the IPPR suggests a long residence route designed to help them obtain leave to remain.[46] This would reduce the number of vulnerable people left to live in poor conditions. Another proposal that would be incredibly beneficial would be the implementation of an independent body, led by individuals with “direct experience of the immigration system,”[47] who would “advocate for and safeguard migrants’ rights.”[48] This body should have the power to assess legislation and measures and make recommendations to the Home Office on how to improve them. This would not only also work towards decreasing discrimination and suffering, but also help the Home Office fix its reputation, which had been damaged by its poor practice.
Conclusion
Unfortunately, until all of this is done, the hostile environment remains, ineffective and harmful. There is no evidence that it increases the rate of voluntary returns, or that it deters others from entering the UK. Instead, it pushes migrants further underground, cruelly forcing them to live in poor conditions, and exposes them to exploitation. As stated in the ‘Guide to the Hostile Environment,’ report by Liberty, the UK has become a cruel country that “hikes immigration and nationality fees to exorbitant rates, slashes access to legal aid, and leaves people at the mercy of destitution and exploitation when they can’t retain their immigration status.”[49] Though many believe that removing irregular migrants may make society safer, we have seen that this is not the case. The hostile environment actually contributes to illegal activity, making irregular migrants easy targets of exploitation and rendering them unable to report their abusers. By making civilians carry out status checks, it creates a society filled with distrust, hostility and suspicion, and “prioritises state-sanctioned racism and xenophobia over respect for fundamental human rights.”[50] Raids that disproportionately affect minorities and police sharing data with immigration forces drives a wedge between police and minorities, and the irregular migrants’ lack of access to medical care creates public health hazards. In conclusion: we are yet to see the hostile environment work effectively to meet its aims.
Bibliography:
Reports:
Committee on the Administration of Justice, 'Can Stormont Rollback The Home Office ‘Hostile Environment’?' (2021)
David Bolt, Independent Chief Inspector of Borders and Immigration, 'An Inspection Of The ‘Hostile Environment’ Measures Relating To Driving Licences And Bank Accounts' (2016).
Group of Experts on Action against Trafficking in Human Beings, 'Access To Justice And Effective Remedies For Victims Of Trafficking In Human Beings, Evaluation Report' (2021)
Independent Chief Inspector of Borders and Immigration, 'An Inspection Of The ‘Hostile Environment’ Measures Relating To Driving Licences And Bank Accounts' (2016)
Independent Chief Inspector of Borders and Immigration, 'An Inspection Of Applications to Enter, Remain and Settle in the UK on the Basis of Marriage and Civil Partnerships’ (2012)
Liberty, 2019. A GUIDE TO THE HOSTILE ENVIRONMENT: The border controls dividing our communities – and how we can bring them down.
Qureshi A, Morris M, and Mort L, 'Access Denied: The Human Impact Of The Hostile Environment’ (Institute for Public Policy Research 2020)
Qureshi A, Morris M, and Mort L, 'Beyond The Hostile Environment' (Institute for Public Policy Research 2021)
Yeo C, 'Briefing: What Is The Hostile Environment, Where Does It Come From, Who Does It Affect?' (Free Movement Organization, 2018)
Articles:
'Hostile Environment Has Fostered Racism And Caused Poverty, Report Finds' (The Guardian, 2021)
'The Hostile Environment Explained' (Joint Council for the Welfare of Immigrants, 2020)
Bulman M, 'Undocumented Migrants Dying Of Coronavirus Because They’re Too Afraid To Seek Help, Mps And Charities Warn' (The Independent, 2020)
Leigh Phillips, 'Tuberculosis' Deadly Return To Europe' (EUobserver, 2010)
Rajeev Syal, 'Government Loses 17,000 Asylum Seekers' Files' (The Guardian, 2009)
Shabi R, 'How Immigration Became Britain’s
Most Toxic Political Issue' (The Guardian, 2019)
Williams-Brown E, '‘Hostile Environment’ Fails On All Fronts Including Forcing Those Without Immigration Status To Leave UK – The Justice Gap' (Thejusticegap.com, 2020)
William Walsh P, and Sumption M, 'Recent Estimates Of The UK’S Irregular Migrant Population - Migration Observatory' (Migration Observatory, 2020)
Blogs:
Warren R, 'Grenfell Tower And The Hostile Environment’ (Countercurrents: Critical Law at Kent, 3 July 2017)
Caselaw
The Secretary of State for the Home Department v R the Joint Council for the Welfare of Immigrants [2020] EWCA Civ 542
R (On the Application Of) V Secretary of State for the Home Department [2019] EWHC 452
Legislation
Asylum and Immigration Act 1996
Asylum and Nationality Act 2006
Immigration Act 2014, s.38-39
[1] 'The Hostile Environment Explained' (Joint Council for the Welfare of Immigrants, 2020)
[2] Rachel Shabi, 'How Immigration Became Britain’s Most Toxic Political Issue' (The Guardian, 2019)
[3] Amreen Qureshi, Marley Morris and Lucy Mort, 'Beyond The Hostile Environment' (Institute for Public Policy Research 2021).
[4] David Bolt, Independent Chief Inspector of Borders and Immigration, 'An Inspection Of The ‘Hostile Environment’ Measures Relating To Driving Licences And Bank Accounts' (2016).
[5] Amreen Qureshi, Marley Morris and Lucy Mort, 'Access Denied: The Human Impact Of The Hostile Environment ' (Institute for Public Policy Research 2020).
[6] Ibid.
[7] ‘Hostile Environment Has Fostered Racism And Caused Poverty, Report Finds' (The Guardian, 2021)
[8] Qureshi, Morris and Mort, n.5, pg.10
[9] Ibid.
[10] Ibid.
[11] Ibid.
[12] Case of Mr X, Kent Law Clinic case 2021-22
[13] Peter William Walsh and Madeleine Sumption, 'Recent Estimates Of The UK’S Irregular Migrant Population - Migration Observatory' (Migration Observatory, 2020)
[14] Joint Council for the Welfare of Immigrants, n.1
[15] Ibid.
[16] Ibid.
[17] Immigration Act 2016, s.35
[18] Joint Council for the Welfare of Immigrants, n.1
[19] EWHC 452
[20] EWCA Civ 542
[21] Qureshi, Morris and Mort, n.5, pg.13
[22] Ibid.
[23] Ibid.
[24] Group of Experts on Action against Trafficking in Human Beings, 'Access To Justice And Effective Remedies For Victims Of Trafficking In Human Beings, Evaluation Report' (2021).
[25] Ibid.
[26] Colin Yeo, 'Briefing: What Is The Hostile Environment, Where Does It Come From, Who Does It Affect? - Free Movement' (Free Movement, 2018) <https://freemovement.org.uk/briefing-what-is-the-hostile-environment-where-does-it-come-from-who-does-it-affect/> accessed 3 May 2022.
[27] Ellie Williams-Brown, '‘Hostile Environment’ Fails On All Fronts Including Forcing Those Without Immigration Status To Leave UK – The Justice Gap' (Thejusticegap.com, 2020)
[28] Qureshi, Morris and Mort, n.5, p.16
[29] Ibid.
[30] Immigration Act 2014, s.38-39
[31] Qureshi, Morris and Mort, n.5, p.4
[32] Marcas, D., 2016. Tuberculosis and poor living conditions.
[33] Phillips, n.30
[34] Ibid.
[35] Qureshi, Morris and Mort, n.5, pg.20
[36] Bolt, n.4, p.42
[37] Ibid.
[38] Rajeev Syal, 'Government Loses 17,000 Asylum Seekers' Files' (The Guardian, 2009)
[39] John Vine, Independent Chief Inspector of Borders and Immigration, 'An Inspection Of Applications to Enter, Remain and Settle in the UK on the Basis of Marriage and Civil Partnerships,’ (2012).
[40] Ibid.
[41] Bolt, n.4, p.7
[42] Ibid.
[43] Richard Warren, 'Grenfell Tower And The Hostile Environment’ (Countercurrents: Critical Law at Kent, 3rd July 2017)
[44] Qureshi, Morris and Mort, n.3, p.30
[45] Warren, n.42
[46] Qureshi, Morris and Mort, n.3, p.4
[47] Ibid, p.3
[48] Ibid.
[49] Liberty, A GUIDE TO THE HOSTILE ENVIRONMENT: The border controls dividing our communities – and how we can bring them down, (2019)
[50] Gracie Bradley, 'The Windrush Scandal Shows Why The 'Hostile Environment' For Migrants Must End' (Vice.com, 2019)