The distinction between citizen and non-citizen is far more blurred that politicians recognise.
The Equality and Human Rights Commission’s (EHRC) found that the Home Office broke the law when it introduced the hostile environment policy, and is confirmation that Windrush was a scandal twice over. The human cost can be counted in the number of lives ruined, of the scores of British citizens, mostly of Caribbean heritage, who were forced into destitution, denied healthcare or deported because they could not prove their right to live in the UK. But the EHRC, which found that officials failed to properly assess whether the set of harsh immigration policies drawn up in 2012 would be racially discriminatory, adds to the picture of bureaucracy that either did not know or did not care that it was breaking the law.
The report found that decisions in the Home Office were driven by a ‘narrow focus on delivering the political commitment of reducing immigration, and a culture where equality was not seen as important’. Not only did officials fail to comply with equality legislation, but they repeatedly ignored warnings of campaigners, such as the Joint Council for the Welfare of Immigrants, that their policies would end up discriminating against people who had the right to live in the UK.
The most disturbing thing however, is that ignoring or misapplying the rules seems to be part of a wider pattern when it comes to Britain’s approach to immigration. Although the Windrush scandal captures national attention, it is just one of a series of large scale failures to have come to light in recent years.
In 2018 it emerged that as many as 7,000 foreign students had been wrongly accused of cheating on English language tests, some of them had their visas revoked or were deported. The year before, a court ruled that the Home Office had been unlawfully deporting homeless EU citizens, based on ‘discriminatory’ policy. A further court ruled that the ‘right to rent’ scheme, an important element of the hostile environment, which requires private landlords to check the immigration status of prospective tenants, caused racial discrimination.
Although some of these breaches can be linked to the enthusiasm with which Theresa May, architect of the hostile environment, pursued the removal of unwanted migrants while she was home secretary, others reach farther back. The practice of ‘fast-track’ immigration detention, a flagship New Labour policy intended to speed up the processing of asylum claims, was ended after the high court declared it to be ‘structurally unfair’. As many as 10,000 people, some of whom will have been sent back to countries in which they may have been subsequently tortured or killed, are believed to have been denied a fair asylum hearing.
The reasons for this pattern of behaviour are complex. Bureaucratic inefficiency, ingrained attitudes among officials, and pressure from politicians and the rightwing press may all play their part. But the central logic is that when immigration control becomes the overriding priority, people’s rights get trampled on. The EHRC;s report confirmed an earlier finding by the Windrush Lessons Learned review, that senior Home Office staff seemed to ‘assume that the Equality Act did not apply at all’ to immigration control.
These problems arise partly because the distinction on which this control rests – the distinction between citizen and non-citizen is far more blurred than the politicians in charge recognise. The harder the country tries to police immigration, the more rigidly it tries to enforce the distinction, passing more laws and setting up more security measures. Interim director of the civil rights organisation Liberty, Gracie Bradley said: “Your can’t have a hostile environment without breaching equality and human rights laws, and increasing surveillance of everyone”.
The Windrush scandal shows one type of damage that can result. ‘Citizenship’ is not only a form of legal status, recorded on documents. It is a claim about who belongs to the national community – and this claim continues to be shaped by Britain’s history of racism and empire. The hostile environment, as the EHRC puts it, “accelerated the impact of decades of complex policy and practice based on a history of white and black immigrants being treated differently”.
If the Windrush was primarily about pe0ple who should have had the right to citizenship being treated as if they didn’t, it doesn’t mean we should close our eyes to people who fall more squarely on the ‘non-citizen’ side of the line. A further published report, by the Institute of Race Relations think tank, counts almost 300 people who have died at the UK’s sea border with France and Belgium since 1999. Most were asylum seekers or undocumented migrants trying to cross the Channel without permission. These deaths aren’t officially counted, or even widely noticed.
As migration across the Channel regularly appears in headlines the government’s response displays an all-too-familiar indifference to aspects of law. Priti Patel, home secretary has launched a rhetorical war on ‘activist’ lawyers who supposedly frustrate her department’s attempts to remove asylum seekers and other unwanted migrants from the UK. This is a line of attack that both she and Boris Johnson persisted with even after an alleged far right attack on a law firm. Legal challenges to government policies are only successful if those policies fail to follow the rules in the first place. It is ironic that a minister responsible for law and order would show such little regard for due process.