The verdict of the Equality and Human Rights Commission (EHRC), that the Home Office broke the law when it introduced the hostile environment policy, is confirmation that Windrush was a scandal twice over. Its 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 a bureaucracy that either did not know or did not care that it was breaking the law.
As the EHRC’s report found, 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 the 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.
Yet perhaps the most disturbing thing 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 – rightly – captured national attention, albeit only after painstaking work to expose its injustices by the Guardian’s Amelia Gentleman and others, it is just one of a series of large-scale failures to have come to light in recent years.
In 2018, for instance, 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 a “discriminatory” policy. And earlier this year, another 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 zeal with which Theresa May, architect of the hostile environment, pursued the removal of unwanted migrants while she was home secretary, others reach farther back. In 2015, 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 subsequently been 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, published in March this year, that senior Home Office staff seemed to “assume that the Equality Act did not apply at all” to immigration control.
Such 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. As the sociologist Luke de Noronha has argued, a proliferation of immigration rules and regulations in recent decades has led to a phenomenon he terms “multi-status Britain”: thousands of people living on a complex mix of temporary and precarious forms of leave to remain.
But the harder the state tries to police immigration, the more rigidly it tries to enforce the distinction, passing more laws and setting up more security measures. As Gracie Bradley, interim director of the civil rights organisation Liberty, commented after the EHRC’s report was published: “You 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” isn’t 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. As the EHRC put it, the hostile environment “accelerated the impact of decades of complex policy and practice based on a history of white and black immigrants being treated differently”.
But if Windrush was primarily about people 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. Another report published this week, by the Institute of Race Relations thinktank, 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 – the report’s authors gathered most of their information from local newspaper reports and activist blogs – yet they too are part of the “collateral damage” of immigration control.
As migration across the Channel has come to regularly appear on headlines this year, the government’s response displays an all-too-familiar indifference to aspects of the law. The home secretary, Priti Patel, 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. Yet legal challenges to government policies are only successful if those policies fail to follow the rules in the first place.
It may seem ironic that a minister responsible for law and order would show such little regard for due process. But this is central to the authoritarian populist stance Patel has taken: for a politician who promises to defend ordinary British citizens against outsiders who are aided and abetted by the “north London metropolitan liberal elite”, displaying a readiness to break the rules in the pursuit of security is part of the performance. Many previous home secretaries have tried to appear “tough” on immigration, but under the current government, the destructive dynamic that produced injustices such as the Windrush scandal has intensified. It won’t end unless we challenge the logic on which the system rests.
• Daniel Trilling is the author of Lights in the Distance: Exile and Refuge at the Borders of Europe and Bloody Nasty People: the Rise of Britain’s Far Right