When I was first starting out as an immigration lawyer at the turn of the millennium, I was taught that here in our island nation of Great Britain we do immigration checks at our natural border. This contrasted with our continental neighbours, with their land borders, their Napoleonic Code and their state supervision of populations through systems of identity cards and population registers.
In the UK, trained officials checked passports at ports and airports. On the continent, employers, hoteliers, public servants and police officers checked identity cards in innumerable everyday interactions both between citizens and between the state and the citizen.So I was pleasantly surprised to find that Jacob Rees-Mogg commented in a Channel 4 debate this week that the modern “hostile environment” introduced by Theresa May is “fundamentally un-British.” I could not agree more.
During my career, I have witnessed the distinctions between the approach in Britain and the approach on the continent eroded. The first shift came in 1996 when a criminal offence of employing an unlawful resident was introduced. It went virtually unenforced, though, until the Labour government introduced civil financial penalties of up to £5,000 per illegal worker for employers in 2006.
This change was objectionable in principle. Requiring citizens to conduct immigration checks on one another is likely to encourage discrimination. Only fellow citizens perceived as potentially illegal are likely to be checked. Those with white skin and local accents might be assumed to be legal but cautious citizens who, fearing a substantial financial penalty if they get it wrong, might feel they need to check the papers for foreign looking or sounding citizens. After decades of equality legislation, though, employers ought at least to be used to the concept of non-discrimination, and they were encouraged by a code of conduct to check the papers of all employees irrespective of background or appearance.
It was not until Theresa May announced the “hostile environment” in 2012 that continental style citizen-on-citizen “papers, please” checks within the United Kingdom really became embedded. The Immigration Acts of 2014 and 2016 and myriad changes to secondary legislation have increased the civil penalties for employers to £20,000 per worker, and introduced the same checks for private landlords backed by fines of up to £3,000. Banks and building societies have been required to cross check account holders against a central database and close accounts of suspected unlawful residents. The notice period for all marriages in England and Wales has been increased to give the Home Office time to nab suspected sham brides and grooms. Driving licences have been confiscated and revoked and a new bureaucracy of health care checks has been introduced, at considerable expense, to deny treatment to those without immigration papers.
And this is why the Windrush scandal emerged: Commonwealth citizens lawfully and happily resident in the UK for decades were suddenly required to produce papers they had never obtained and never previously needed. But it is not only the Windrush generation who are affected.
Firstly, there are other examples of the “wrong” people being targeted. Passports are supposed to be for holidays, and it is those people who regularly travel abroad who tend to have one. An estimated nine million British citizens do not have a passport, and many long term resident non-citizens have allowed their passports to expire because they just do not need them. Or, at least, they didn’t. Thanks to the hostile environment, elderly citizens and young people find themselves having to apply for passports and expensive fresh immigration stamps not to go on holiday but in order to rent accommodation, open a bank account or get a job.
Secondly, more perniciously, the hostile environment is more likely to affect certain groups than others because certain groups are more likely to have their papers checked by their fellow citizens. The Home Office’s own research into the pilot for “right to rent” checks showed that some landlords were likely to discriminate and BAME “mystery shopper” tenants were more likely to have their paperwork checked. Subsequent independent research by charity JCWI has confirmed the risks have translated into reality.
In some countries on the continent, everyone has an identity card and everyone is asked for it. It is not the British way, but at least it is not discriminatory. In other countries, all residents have to register their presence in their locality. Again, it is not the British way, but it is at least universal in nature and not intrinsically linked to immigration and thus to race.
If we want to stop promoting discrimination against ethnic minorities, we need to either abandon the hostile environment policies or introduce a continental style population register. Abandoning “papers, please” checks would certainly be more British.