Why we’re taking the government to court over the ‘hostile environment’ policy

As reported last Friday, my charity, the Refugee and Migrant Forum of Essex and London (Ramfel), is taking the government to court. We are challenging their failure to ensure that migrants in the UK on “3C leave” are not routinely trapped by their “hostile environment” in the same way as happened with the Windrush scandal.

It may be surprising to read that there are hundreds of thousands of people in the UK who, like members of the Windrush generation, have valid immigration status but no visa documents to prove it. That, though, is the situation facing those on 3C leave, an immigration status designed to protect people when renewing their visas and allow them to continue living their life as normal whilst waiting for a decision. The hostile environment, though, ensures that when people do not possess a recognised visa document, they are often wrongly considered to not hold valid status.

The phrase hostile environment entered everyday lexicon in 2012, with then-home secretary Theresa May declaring her aim “to create, here in Britain, a really hostile environment for illegal immigrants.” In the following years, checks were introduced that made everyday life harder for those assumed to be migrants.

The NHS needed to check a person’s immigration status before providing certain types of care, banks needed to check a person’s status before allowing them to open an account, and landlords and employers faced increased civil and criminal penalties if renting to or employing a person without the correct status.

The agencies that effectively now carry out border enforcement are compelled through heavy civil and criminal sanctions to be overtly risk-averse in the performance of those duties, with one study finding that “right to rent” provisions saw 42 per cent of landlords less likely to rent to someone without a British passport.

This coincided with the government introducing the “10-year route” to settlement, with people required to complete 10 years’ “continuous lawful residence”, split up into 30-month chunks of limited leave to remain, before qualifying for settlement. People in the UK on the basis of their family and private life now needed to apply more frequently for further leave to remain, in turn spending regular periods on 3C leave.

Currently, each time a person applies to renew their visa, government delays mean they wait on average 10 months for a decision. Throughout this period, they are automatically placed on 3C leave, without proof of their right to be in the UK. Many are subsequently wrongly assumed to not hold immigration status and are prevented from working or accessing other services.

In September 2022, we released a report, The Hostile Environment Remains in Place. Reviewing 329 cases of people on 3C leave, we found that at least 109 (31 per cent) suffered some form of detriment – most commonly their employer threatening to suspend them from work. In 56 instances (17 per cent) clients suffered more serious forms of detriment, with 21 clients (six per cent) wrongly suspended from work or prevented from taking up employment. Using Home Office data, we estimate that at as many as 40,000 people across the UK are facing such serious detriment.

The government had already been repeatedly warned that those on 3C leave were suffering at the hands of the hostile environment. We also shared our report with them, where we recommended they make modest amendments to how they acknowledge further leave to remain applications by just providing people on 3C leave with documentary proof of their status.

This appears to have fallen on deaf ears, and recently the government announced plans to expand its hostile environment. This was swiftly followed by confirmation that they were ditching commitments from the Windrush lessons learned review.

With the government seemingly more focused on appearing tough on immigration than improving existing processes and fixing systemic problems – of which there are many – we were left with no option but to issue legal proceedings. We allege that not only are the government’s existing policies and practices frustrating the purpose of 3C leave, as those with this immigration status should not be seeing their lives interrupted by the hostile environment, but also that their refusal to take modest steps to ensure people on 3C leave are appropriately documented is irrational.

Whilst the hostile environment itself is immoral and needs scrapping, the government has repeatedly shown itself unable to create a system that distinguishes between those who hold status and those who do not. Our recommended changes are modest, workable and would protect those on 3C leave, yet the government has been unwilling to listen and is instead spending public money defending its position in court.

When appearing tough on immigration trumps all other considerations, no matter the financial and human cost, then creating an immigration and asylum system that actually works will remain a distant prospect.

Nick Beales is head of campaigning at Refugee & Migrant Forum of Essex and London