The Anatomy of the Hostile Environment: A Weekend with Birkbeck School of Law

In a royal lodge, nestled deep in Windsor Park, lawyers, activists and academics gathered to discuss the hostile environment.

The fact that we were, in effect, guests of the very apotheosis of the establishment in no way restricted or diluted discussion. The talks were bold indictments of a state that has conscripted all areas of society into enforcing its racialised immigration control system, a state that has turned bankers, landlords, teachers, nurses, doctors and even NGO workers into border guards. A state that speaks of humans as ‘illegals’.

In May 2012 Theresa May told the Telegraph that her “aim is to create here in Britain a really hostile environment for illegal migration.” Since then, daily life has become an obstacle course of violence for those with an irregular immigration status, or indeed anyone who is not white or has a non-native accent.  

Creating illegality

 

But as Frances Webber, former barrister and co-editor of the immigration practitioners’ ‘bible’ ‘MacDonald’s’, told us in the conference’s opening talk, the seeds of the hostile environment were really sown in the 1990s. In the 1960s, 70s and 80s, the focus on immigration control was on the port, on controlling the entry of migrants, but once a migrant was in the UK they had more or less the same access to social support as British citizens.

Frances, who has worked in this field for decades, was able to provide a broad perspective on the hostile environment, showing its deep roots in history: ‘For all my career the Home Office has been utterly incompetent and unfit for purpose.‘ But she was also clear that the current situation is especially deplorable:

 it was never good, but it was never this bad.

New Labour

 

Frances then outlined how immigration enforcement was dramatically ‘ramped up’ under Tony Blair’s New Labour. In 1993 there were only 120 immigration officers; by 2008 there were 7,500, all ‘competing in different regions to show how many raids they could do.’

In 2006, Frances told us, there was an ‘explosion in immigration enforcement.’ Sanctions against those employing people without regularised immigration status were made more severe, generally targeting small ethnic minority busineses such as take-aways and nail bars. At the same time, the state began to conscript all areas of society into immigration control, including NHS staff, marriage registrars and university admissions administators. New Labour laid the infrastructure then, Frances stressed, for Theresa May’s hostile environment.

Creating illegality

 

One of the most harmful features of the hostile environment is the manner in which migrants are turned into criminals; through a process Frances described as ‘creating illegality’. Asylum-seekers are not permitted to work, and so are forced to survive on punitively low levels of support (£37.75 per week), migrants are required to pay prohibitively expensive fees for applications for leave to remain, there are severe restrictions on legal aid, and the right to appeal immigration decisions has been removed in the majority of cases. Making matters worse, these changes are set out in constantly changing immigration rules and legislation that baffle even the most experienced professionals in the field.  These forces combine to compel many to seek alternative ways of surviving; driven underground.

Hope

 

But there is hope, Frances insisted. Especially since the Windrush scandal, more and more people are challenging the hostile environment. As an example, Frances referred to the group of doctors who had been awarded medals by the Home Office for their work in West Africa during the Ebola crisis, but who handed these medals back to the department to protest against the hostile environment, saying they were employed to ‘save lives, not to police borders’. Frances also noted that teachers are refusing to include questions relating to the national and birthplace of their students, and people all over the UK are striking and protesting against immigration raids. Is the tide turning?

Master narratives in the court room

If the tide is turning, it has a long way to go out, and rock-pools will remain for years. The next speaker, Gemma Lousley of the Birkbeck School of Law, discussed her research on the way the hostile environment has, as she put it, ‘insinuated itself into the justice system.’ Sentencing narratives in the Crown Court reflect the good migrant/bad migrant narratives, or, as she put it, ‘wanted migrant’ and ‘unwanted migrant’.

Gemma justified her focus on the courts on the basis that these are ‘sites’ of immigration control. For instance, courts are required to inform the Home Office of sentences against foreign nationals (the 2007 UK Borders Act compels the Home Office to automatically deport a non-EEA citizen who has received a prison sentence of 12 months or more).

But the focus of Gemma’s talk was on the dominating narratives in the justice system. Gemma starts with an analysis of narratives as tools which work to ‘impose an image of continuity and meaning’; ‘to moralise’. From this premise, she unpicks the facts relied upon both by the prosecution and defence in cases involving migrants.

Agnesa

 

One case relied upon by Gemma, that of a 34 year old Albanian woman, is particularly instructive.  Gemma notes how the prosecution focused on the fact that ‘Agnesa’ arrived in the UK in the back of lorry and that she had lied to the Home Office by saying that her parents are dead. Both points were brought to the fore by the prosecution in order to portray Agnesa as the ‘deceptive’ migrant. But the defence, Gemma observes, was quick (clearly prepared) to respond to these depictions, focusing on the fact that Agnesa’s story (including the lie about her parents), had been prepared for her by people who helped her get to the UK, submitting that ‘hers is a good family: her husband works extremely hard, she looks after her four children’, in order to show that she is a victim of her smugglers and, as Gemma put it, and a ‘recognisably “good migrant”’.

A lawyer’s dilemma

 

Gemma’s observations are concerning and challenging. It is concerning (though not surprising), that the courts are subject to the ‘master narrative’ of the deserving/undeserving migrant, and it is also worrying that even the defence lawyer was quick to work within this narrative.

So a practising lawyer has a choice:

  1. To work within that narrative, in order to counter the undeserving migrant depiction, and to bring the judge on side for the client in that particular instance, but thereby legitimise the narrative, or

  2. Reject this ultimately harmful and false narrative but thereby risk an adverse judgment against that particular client.   

Immigration detention and removal

As Toufique Hossain then showed, this is not the only challenge facing lawyers in this field. Toufique, a director of public law at Duncan Lewis Solicitors, discussed his work challenging immigration detention and unlawful removal.

Detention: an obsession

 

Starting with immigration detention, Toufique highlighted the fact that there is no time limit in the UK’s immigration detention system, the only limit being that of a ‘reasonable time’. A ‘reasonable time’, Toufique showed, has been interpreted by the courts to be up to 43 months. He also emphasised the fact that many are kept in detention even when they have indicated their willingness to return, but are from countries such as Algeria and Iran which often do not provide identity documents, meaning that these people cannot be removed and so are languishing pointlessly in these centres.

Worse, Toufique explained, many of those detained are survivors of torture, sexual abuse or trafficking. The only conceivable explanation for the continuing detention of such groups, Toufique argued, was that ‘the Home Office is obsessed with showing to the public that they are tough on immigration.’

Toufique then elaborated on the inadequacy of safeguards for vulnerable people. The Adults at Risk policy, he argued, has singularly failed to reduce the number of vulnerable people in detention. Vulnerable adults are compelled to self-identify, they are often met with the incredulity of the Home Office, or a response from the Home Office that other risks (such as their risk of absconding or risk of harm to the public) outweigh their need to be released. Part of the problem, Toufique argued, is that healthcare staff are ‘incompetent, negligent, ineffective, and in cahoots with the Home Office.’ Toufique back-up his point by referring to a nurse at Brook House IRC who was caught by BBC Panorama agreeing not to record a ‘use of force incident’ where a client of Duncan Lewis was strangled by a guard, in the presence of this nurse.

Removals and blocking access to justice

 

Toufique then turned to the manner in which the Home Office has made it increasingly difficult to challenge the removal or return of people to their home countries. He outlined the harm and anxiety that results from the ‘removals window’ policy which means the Home Office only provide notice of ‘liability for removal’, but, as long as the actual removal is within a certain period of time, they are not required by policy to give any further warning or details of the removal. This makes it difficult for legal representatives to put together submissions, leaving those targeted in a state of extreme distress and confusion.

Making matters worse, Toufique continued, was the fact that legal aid changes mean that much work undertaken by immigration lawyers is at risk, or very poorly remunerated, with the result that that many in this situation go unrepresented and are denied access to justice.

A three-pronged attack

 

Toufique argued that the hostile environment cannot simply be challenged by lawyers; ‘there needs to be a three-pronged attack: through the law, politics, and the media.’ Of the three, Toufique suggested, ‘the future is in politics’.  Given this bleak picture, Toufique was asked why he keeps going. ‘As a lawyer you might not change the overall landscape’ Toufique replied, ‘but you can represent and possibly obtain justice for an individual or a particular group.’

Hospitality and Hostility

 

In the next talk, we heard of a positive example where a legal challenge was able to put an end injustice.  Sarah Turnbull and Rachael Dobson, both of Birkbeck School of Law, then spoke about the way the Home Office managed to conscript NGOs (‘non-governmental organisations’!) such as the street homeless charities St Mungo’s and Thames Reach who shared data including the identity and location of rough-sleepers - citizens of EEA countries who could be sent back to their home countries. The majority of those targeted under this operation were from Romania, Poland and other Eastern European countries. The programme, in operation between 2015-2017, was found to be unlawful in a legal challenge (by judicial review), in the case of Gureckis, where the judge held that rough sleeping ‘would not be grounds for removal’.

Eager collaboration

 

Possibly the most striking feature of Rachael and Sarah’s observations was the way in which the directors of the charities spoke about their collaboration when applying for government funding. In a 2012 St Mungo’s bid, for instance, the charity went to great efforts to assure the decision-makers that St Mungo’s staff ‘don’t see enforcement activity as a last resort separate to [their] work, but as part of the process of supporting people off the streets’, while Thames Reach boasted in 2014 that their workers were happy to do the work others would find ‘unpalatable’.

Rowing for the Home Office

 

So how did we reach this sordid state of affairs? Rachael provided a convincing argument setting these developments firmly within the process of neoliberalism. Under New Labour, in the 2000s, the government funding of such charities and agencies expanded massively to the point that, for many such organisations, 80% of funding came from the state.

This funding came at a cost. The agencies lost their agency, discretion was diminished, levels of bureaucracy rose, and the area was marketised: forced to adopt business jargon, practices and ethos. Essentially, the state was able to ‘steer’ these organisations, while organisations themselves simply ‘row’, to the point where they are simply competing for state funds. As Rachael told us:

 This is how you get a charity to be compliant with a state in punitive behaviour.

A Comparison with Russia

 

Against this bleak backdrop, we were then given a glimpse of how migrants are treated in Russia. Agnieszka Kubal, of University College London, outlined her observations in the Russian court system, where she spent six months speaking to lawyers, judges and migrants. The talk was fascinating as much for the similarities with the UK system as for the differences.

Substance not form

 

Some of the basic differences turned out to be more procedural than substantive. For instance, in Russia, immigration ‘offences’ are still considered to lie within the jurisdiction of administrative law (the ‘Code of Administrative Offences’, or ‘CAO’), rather than, as in the UK, under criminal law. Agnieszka confirmed however that this does not reflect a more humane approach to migration offences: administrative law in Russia is ‘already very punitive, unlike the west where we continue to suggest it is purely administrative.’ We need to look at the substance, not the form. By renaming ‘hostile environment’ the ‘compliant environment’, Sajid Javid is fooling no one.

Other differences are more overt. In Russia, on your first deportable immigration offence you are asked to ‘self-deport’ within ten days, it is only after your second immigration offence that the state will take active steps to deport you. Moreover, Russia does have a time-limit on detention, but it is two years, and when you are released you are without papers or any status, simply floundering.

Case file logic

 

In terms of similarities, familiar patters emerged. Struggling to deal with the number of cases coming their way, and with 82% of all administrative law cases relating to immigration issues, many matters are simply dealt with on the papers. As a consequence there has emerged, as Agnieszka puts it, a ‘case file logic’. Decisions are simply copied and pasted, names and nationalities are switched around, and the full factual matrix is not properly considered. For these reasons, Agnieszka concluded that the case-file system was ‘biased against the migrant’. Any immigration practitioner in the UK will recognise such practices and their harmful consequences in this country’s bureaucratised and under-resourced immigration system.

Conscripting the courts

 

Another similarity is that, as Gemma had touched upon, courts have been conscripted into immigration control, and judges have had their discretion limited. With an amendment to CAO in 2013, the immigration offences in Russia of lacking a residence registration or working without permission are punishable by automatic expulsion (where it was previously discretionary). This is can be compared with the automatic deportation provisions of the 2007 UK Borders Act mentioned above.

Resistance

 

Throughout, the talks had dealt unflinchingly with the way the hostile environment has seeped into every area of life in the UK. The send-off talk was a similarly fearless attack on the human impact of May’s policy, but it left us energised and motivated to challenge the system.

A border on every street

 

The talk was presented by Lizzy Willmington, of Cardiff University, and her co-speaker (who we will call ‘Nadia’) who had been detained at Yarl’s Wood, the women-only detention centre in Bedfordshire. They referred to Frances’ depiction of the hostile environment as a ‘mobile border’, and the Church of England’s depiction of the regime as ‘a border on every street.’ Nadia told us what this means to her in her daily life:

I can’t drive, I can’t use a bank card, I had to stop my higher education, I can no longer live in a rented house, I can’t get an x-ray at the hospital, I am on the outside of society.

Nadia also described her experiences in detention, which she memorably described as:

the hostile environment on steroids.

Art as resistance

 

But Lizzy and Nadia were not primarily concerned with describing the hostile environment, but with the question of how it can be challenged. Both speakers were involved in ‘The Hostile Environment Tour’ as part of the ‘Who Are We?’ project at the Tate Exchange in May 2018. The tour took people through ten key sites where the hostile environment is implemented, including detention. It also included testimonies by Detained Voices, where those still in detention could speak out. The tour aimed to put the hostile environment under the spotlight, to show people how expansive and omnipresent the hostile environment really is.

The project was based on the idea that participatory art can help break down dominant (or ‘master’) narratives by allowing people from different backgrounds to come together and create alternative narratives. But, clearly, these narratives were not passive/static stories, but narratives of action and resistance.

Hunger-strike

 

Nadia then spoke about resistance from within detention, where she led a hunger strike. The strike brought media attention to detention centres and questions were asked every day in Parliament about conditions in Yarl’s Wood. Nadia told us that she was motivated by a desire to make the people who worked at the centres think:

I didn’t want them to look forward to work, put on their alarm and just come into work.

At the same time, however, Nadia was clear that resistance should be done in a way that doesn’t alienate; she is confident that the public can be persuaded that the hostile environment needs to be dismantled if people ‘just knew how bad it is’.

Parting words

 

Nadia ended the weekend by giving advice on resistance, urging us to remember that ‘there are ways to resist, but don’t do anything they can use against you.’ When asked how to start, Nadia just told us to just go for it, adding:

you don’t need permission to be anti-establishment.

 

Huge thanks from Toufique and the author to Sarah Turnbull, Jeremy Pilcher, and Sue Baines, all of Birkbeck Law School, for organising such a fascinating, open, vibrant and engaging conference.