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A Brief Look at the 'Hostile Enviroment'

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There have been countless articles since around 2012 of the government’s ‘Hostile Environment’, but what exactly does hostile environment mean? Does it mean the Windrush scandal? Is it about immigrants in detention centers for long periods? Isn’t this all over now? Well, I’ll attempt to explain, yes, yes and no. The issue is still very much ongoing.

Firstly, what is the hostile environment policy? “The UK Home Office hostile environment policy is a set of administrative and legislative measures designed to make staying in the United Kingdom as difficult as possible for people without leave to remain, in the hope that they may "voluntarily leave".” This is taken straight from Wikipedia (I know, I KNOW) but seems to sum up the policy in the most succinct way.

The Windrush scandal led to many people being detained, deported and denied their legal rights as a result of the hostile environment policy. In the podcast Law Pod UK, in episode 117 (Systemic Racial Inequality – Windrush and the Bar – Martin Forde QC) Emma-Louise Fenlon talks to Martin Forde QC, who educates listeners on why these people came to the UK in the beginning. Martin’s father came from Barbados and speaks of people in Barbados being taught they were part of the British Empire. They learnt about British History, including the Tudors and Stewarts, and came to the ‘mother country’ as they called it when the call came to help rebuild post-war Britain.

The Home Office has argued the Windrush scandal was an accident. However, an independent report published in March 2020, entitled ‘The Windrush Lessons Learned Review’, makes it clear this was the inevitable result of policies designed to make it impossible for those without the right papers to live in the UK.

Have lessons really been learnt? The Windrush generation is still awaiting a full, unqualified apology for the way the Home Office treated them. What’s more, the ‘Hostile Environment’ policies that lead to the scandal are still in place. They have not even been suspended due to the pandemic, despite repeated calls to do so.

The news is still full of the results of these policies. A recent story of a Filipino man who died home alone of coronavirus, because he was afraid seeking medical help would lead to deportation. A special needs teacher who lost his job and was accused of having no right to remain in the UK and threatened with deportation, despite living here for 50 years.

The news is not the only place these cases are coming up. In October 2020, a case came before the Supreme Court (R (on the application of Pathan) v Secretary of State for the Home Department [2020] UKSC 41). The appellant, Pathan, applied for leave to remain in the UK with a certificate of sponsorship from his employer to support the application. The Home Office revoked the employer’s sponsor licence after the application was submitted, but before a decision was made. The Home Office did not notify Pathan. Therefore the application failed due to a lack of a valid sponsorship certificate. All five justices found the Home Secretary breached the duty of procedural fairness as the applicant should have had ‘timely notice’ that the application was bound to fail for reasons that could not be anticipated.

However, the next question before the court was Pathan asking for another 60-day period to find a new sponsor. Here the justices were split, with the majority finding the Home Office was not under a duty to provide a period of time following notification to enable the appellant to react to the revocation of his sponsor’s licence. Lord Kerr and Lady Black consider that the duty to act fairly in the circumstances involves a “duty not to deprive, not an obligation to create”. To require the respondent to grant a grace period following notification would be to impose a positive duty and an extra extension of leave beyond that set out in the legislation or Immigration Rules. This would be a substantive duty, falling outside of the bounds of procedural fairness.

Lord Wilson and Lady Arden dissented, with Lady Arden stating it is pointless to impose a duty on the respondent to notify the appellant promptly if that duty is not accompanied by a grace period giving the appellant a meaningful opportunity to take steps in light of that notification.

Lord Wilson agreed, he found that a duty of prompt notification would be “to give nothing of value” to the appellant unless accompanied by a duty to provide a grace period and that “the law should not impose a duty nor confer a right if they are of no value”.

Marcus Cleaver explores this case on the ‘UK Law Weekly’ podcast. He thinks there are solid arguments on both sides. It is the executive branch that sets out the policy, and it is not for the court to make changes to the law themselves. Although he does side with the minority; where there is a right, there also exists duty as a necessary corollary. He also makes a passing comment that the Home Secretary is a proven bully, and this case is proof that the immigration system is run by a bully. He finds that it would not have taken much to notify Pathan of the circumstances that were beyond his control and provide additional time for him to rectify the problem with the application, and the failure to do this speaks to a small-mindedness that is ingrained in the rules.

Furthermore, the Equalities and Human Rights Commission (EHRC) has concluded the Home Office broke equalities law when it introduced its hostile environment immigration measures. The department now has a legal duty to review these policies to ensure they are not racially discriminatory, and that they comply with equalities legislation, the rights body announced. Negative consequences of the hostile environment were “repeatedly ignored, dismissed, or their severity disregarded”, the report found. The EHRC has recommended that the Home Office enter into an agreement with them, under section 23 of the Equality Act 2006. They expect a proposed action plan to be shared by the end of January 2021.

When writing this article, I tried to find a balanced argument, as difficult as that may be. I googled ‘support for the hostile environment’. I got nothing. Absolutely nothing that supports the policies in any meaningful way. The only argument I found was that UKIP had enjoyed increased support by using policies that were hostile to immigrants. Whilst it is undoubtedly true that illegal immigration creates problems, I could not find any reasonable justification for such hostile policies. There is no evidence the hostile environment achieves its stated aim of forcing people out of the UK, but there is an extraordinary amount of evidence of the damage being done.

The Government itself accepts that the vast majority of undocumented people have done and will do no harm in the UK. Instead of punishing people for becoming undocumented, the Government could enable and support people to get secure status. Currently, routes to status for those who are undocumented can take decades and cost tens of thousands of pounds.

Not every policy can be used to fight racism. But no policy should be used to encourage it. The hostile environment has always been indefensible, but reports confirm that the decisions that built it were unlawful, too. The government now has an opportunity to listen: it should learn the lessons of Windrush and dismantle the hostile environment for good.

Written By: Chloe Lydell

OULS News Reporter

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