The Immigration Act of 2016 denies those without leave to remain, access to basic infrastructure like housing, employment, health care, banking services and driving licenses.
In the aftermath of the UK’s vote for Brexit, the National Police Chiefs Council has documented a 42% increase in race-hate incidents. This escalation in racial tension comes as living as a migrant in the UK has been made even more difficult in recent years by laws introduced by Theresa May, now prime minister, during her time as home secretary.
With the Immigration Act 2016, which gained royal assent on May 12, May built upon a process begun two years earlier to create “a really hostile environment” for those living in the UK without leave to remain. These are those asylum seekers whose claims have been refused and migrants who have entered the country illegally or overstayed their visas. Some of those affected will have resided in the UK for many years and have well-established family ties.
The intention of the new law is to deny them access to the basic infrastructure – housing, employment, health care, banking services, driving licenses – that make it possible to live a normal life. It requires the active participation of civil society to cut off the social ties and networks that allow social integration to occur, to socially exclude and force those without leave to remain into destitution.
The ultimate aim is their detention and removal, though recent figures show that while the number of individuals detained has risen year-on-year, the number of removals has actually fallen. The unacknowledged reality is that there is a significant gap between those deemed to be removable and those who can actually physically be removed to their countries of origin.
Recent immigration legislation has been based on the premise that a “hostile environment” will encourage those without leave to remain to voluntarily return to their countries of origin. Critics have, however, pointed out that it will take a significant effort to create an environment in the UK that is more hostile than the conflict zones that await some refused asylum seekers on return – destitution on the streets of Kabul or an uncertain future in Baghdad.
Landlords as immigration officers
In the first steps of May’s creation of a “hostile environment”, the Immigration Act 2014 introduced a “right to rent” scheme, introducing a civil penalty for landlords who rent property to those without leave to remain and requiring regular status checks on those with limited leave.
The 2016 Act, when fully in force, will go one step further, making it a criminal offence to rent to someone without leave to remain and introducing summary eviction for those without legal status. In cases where no occupant in a house has any leave to remain, this means that the secretary of state may require a landlord to evict all of them without the need to go before a court. In circumstances where one tenant is disqualified from renting, the landlord may terminate the tenancy. Under the 2016 Act, there are plans for the Housing Act 1988 to be amended to provide for possession orders in such cases.
This could create situations where both British people and people who have settled in Britain are forced to separate from their own family members, or face their own eviction. This could mean they face the eviction of their partner or the parent of their children, simply because that family member does not have leave to remain. Some of these individuals may have been in the UK for many years and may have good legal arguments to remain, but due to a combination of a lack of legal aid and an increase in application fees, struggle to get their cases considered.
A broken system
An assumption underpinning the new laws is that the home office always gets it right when it assesses who does and does not have lawful status to remain. Yet the stories of incompetence and Kafkaesque bureaucracy abound.
Files containing the life history of migrants to the UK have disappeared into the bowels of the Home Office or been lost in transit. Asylum cases can take many years to be concluded and text messages have been sent to British citizens telling them to “go home”. Statistics for the year 2014-2015 show that approximately 40% of appeals against immigration decisions were successful.
The Kent Law Clinic, where I work as part of the University of Kent, recently acted for a man who had been resident in the UK for over 30 years and was awaiting the outcome of his most recent immigration application. He had been informed that he no longer had valid leave and should consider leaving the UK. Despite numerous letters, it took the intervention of his local MP for an acknowledgement that his application had been placed in the incorrect file and as a result it had mistakenly been concluded that he had no leave to remain.
We often receive enquiries from individuals whose documents are with the home office but who retain the right to work. Yet some have been suspended from their employment since an over-cautious employer concludes they do not have the right to work. The home office employment checking service, which is meant to tell employers the status of a potential employee, is not always used and even when it is, does not always return the right answer.
Under the new law, a small mistake by the home office could lead to someone losing their job, home, or access to healthcare. It could prevent them from operating a bank account. They could also face potential prosecution for the new offences of working or driving without leave to remain. Even if eventually corrected, the damage to the person’s integration in the UK will have been done.
As the dust settles after the Brexit vote and we contemplate the tensions that have emerged in the aftermath, perhaps now is the time to reflect on whether creating a hostile environment for any human being is a way to unite the country.
Richard Warren is a Phd candidate at Kent Law School, University of Kent.