The “Hostile Environment”and the Overenforcement of Immigration Law by Paul Daly

One of the most striking things for me about returning to Britain in 2016 after six years in Canada was how I needed to produce a passport to do just about anything, from opening a bank account to examining a PhD student. These are not the identity checks familiar to people the world over, for which a driver’s licence or ID card would suffice. They are checks designed to establish one’s right to reside in the UK.

The obligation to produce one’s passport (or equivalent document) in a wide variety of everyday circumstances is part of the “hostile environment” successive British governments have developed in order to reduce illegal immigration. Cast your eye over the front pages of the British newspapers over the last week and you will quickly gather that the government is under pressure because of the treatment by immigration officials of the “Windrush generation“, long-time British residents, many of whom are British citizens but who do not have documents proving their right to reside in the UK.

With the shift in policy towards a “hostile environment”, underpinned by the Immigration Act 2014 and the Immigration Act 2016, members of the Windrush generation seeking to access the National Health Service, change jobs or do other everyday things have become ensnared in the immigration bureaucracy. Some may even have been wrongly deported.

We studied the “hostile environment” in our LLM seminar on Legislation this year. It is an instructive case study in the outsourcing of government functions, on this occasion requiring landlords and others to enforce the immigration laws. A useful example is s. 22(1) of the Immigration Act 2014, which provides as follows: “A landlord must not authorise an adult to occupy premises under a residential tenancy agreement if the adult is disqualified as a result of their immigration status”. Breach of s. 22 can result in the imposition of a penalty up to £3000. In short, on pain of a significant financial penalty, anyone in the UK who rents out property to tenants is responsible for enforcing the immigration laws.

We can, of course, debate the appropriateness of commandeering private parties in this way (and see the excellent recent symposium on the Notice and Comment blog about the privatisation of government functions in the United States). But there are some serious problems with the legal framework of the “hostile environment” created by the Immigration Act 2014.

To begin with, the Secretary of State is required to issue a “code of practice” (s. 32(1)). Notably, proof of compliance with the code of practice will be helpful to a landlord who is alleged to have breached s. 22. The Code of practice on illegal immigrations and private rented accommodation is publicly available. Any landlord can consult it with a view to ensuring that he or she is complying with the law. Guidance of this nature is a common feature of modern regulatory regimes and can be quite helpful in explaining complex legal concepts in everyday terms. Consider, however, section 2 of the Code, “Who can occupy residential accommodation?” and in particular section 2.2, “Those with a time-limited right to rent”:

Those who are not British citizens, EEA or Swiss nationals (British citizens, EEA and Swiss nationals are ‘relevant nationals’ as defined in s21(5) of the Immigration Act, and so cannot be disqualified from occupying premises under a residential tenancy agreement under s21(1)) or do not fall into ii above will have a time-limited right to rent if:

• they have valid leave to enter or remain in the UK for a limited period of time or

• they are entitled to enter or remain in the UK as a result of an enforceable right under European Union law or any provision made under section 2(2) of the European Communities Act 1972. For instance, qualifying family members of EEA nationals under the Immigration (European Economic Area) Regulations 2006 and those who derive their right to reside in the UK directly from the EU treaties

These people have a right to reside in the UK as a matter of fact and will be able to obtain documentary evidence to demonstrate this.

Bear in mind that this is a Code designed for private individuals with no legal training. It simply restates the relevant provisions of British and EU law. Even I would struggle to determine, in some cases, whether a person has a right to reside in the UK under EU law. Pity the landlords who have to do so.

The worst problems will arise in borderline cases, where the landlord is unsure about a prospective tenant’s immigration status. The incentive structure created by the Immigration Act 2014 and the Code is to overenforce the immigration laws. There are penalties for failure to enforce the immigration laws but no prizes for enforcing them correctly. Any rational landlord will refuse to let a premises to a prospective tenant when unsure about his or her immigration status. Anecdotal evidence in Cambridge, a city in which people have a bewildering variety of immigration statuses, suggests that there is systemic overenforcement by landlords who have difficulty in understanding the laws they are required to enfore and who, quite rationally, err on the side of caution. And common sense teaches that the most vulnerable people, those without documentation and legal support, will be those most affected by overenforcement of the immigration laws by private parties.

On the one hand, if one’s goal is to deter illegal immigration, the “hostile environment” is a splendid tool, because its overenforcement bias indeed makes it difficult for people to remain in the UK illegally. On the other hand, overenforcement of the immigration laws has backfired spectacularly, such that a change in policy, towards a more hospitable environment for immigrants, is becoming more likely by the day.

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