The Law of Common Humanity: revisiting Limbuela in the 'Hostile Environment'

Introducing an Immigration Bill in 2013, Home Secretary Theresa May famously promised the introduction of a ‘really hostile environment’ for ‘illegal migrants to Britain’. This policy has its predecessors. In 1996, after losing a court battle over the lawfulness of restricting asylum-seekers’ access to benefits, the government introduced primary legislation providing that no migrants apart from specified exceptions would be entitled to mainstream social assistance (income support) or social housing. In particular, this excluded those who claimed asylum after entering the UK, unless they had dependent children. Injunctions were granted for applicants found foraging for food in dustbins and begging outside tube stations. The Court of Appeal decided in MPAX that local authorities had the power, and a duty, to support such applicants under s21 National Assistance Act (NAA) 1948, as they were ‘in need of care and attention’ and moreover were entitled to remain in the UK awaiting determination of their asylum claim. In response to this, Labour introduced a new national asylum support system in the Immigration and Asylum Act 1999. Then, in response to a sharp increase in asylum claims, further primary legislation in 2002 provided that those asylum-seekers who had not claimed asylum ‘as soon as reasonably practicable’ would be refused all access to support. Some hundreds of High Court injunctions, backed up by campaigns, evidence and legal interventions from NGOs, churches and community groups, eventually led to the House of Lords decision in Limbuela that, since a breach of art 3 ECHR was clearly foreseeable, refusal of support was unlawful.

The modern ‘hostile environment’ measures target migrants unlawfully present in the UK. The reality is that these measures are likely to catch families, young people, those in long Home Office and tribunal backlog queues awaiting the outcome of an application or appeal, and failed asylum-seekers and others who cannot return home. This paper explores the political, social and legal contexts for the earlier litigation on behalf of destitute migrants. I then consider the barriers to the achievement of a Limbuela for our time.