The ‘hostile environment’: How Home Office immigration policies and practices create and perpetuate illegality

The UK’s ‘assume illegal unless prove otherwise’ style of immigration control, highlighted in Theresa May’s 2013 announcement to create a ‘really hostile environment’ for illegal migrants, started long before Theresa May, and has affected many more than those here illegally. Not just the well-publicised fate of ‘Windrush’ people, lawfully present for decades, but also lawful migrants facing Home Office mistakes or unable to afford Home Office application fees have found themselves treated as unlawful or even becoming unlawful.

In this article I examine the range of ‘hostile’ immigration measures starting during the 1980s Thatcher regime and continuing through the 1997-2010 Labour government. Access to rights and entitlements in civil society have become increasingly based on immigration status, in relation to which the burden of proof lies wholly on the applicant. This has led to a shift in the meaning and use of the term ‘illegal’ as in the phrase ‘illegal migrant’, etc. As proof of those rights and entitlements increasingly rests on showing increasing numbers of specific original documents in a multiplying set of circumstances to diverse bodies, the very definition of ‘illegal’ shifts from being an objective definition of a person’s status under the law to a contingent relation between the person and whichever private or public entity she faces in order to obtain a right or entitlement. Then, as responsibility for immigration control and enforcement has increasingly been outsourced, migrants have become legally distanced from decisions made about them: deprived of agency and left without remedies. Thirdly, the UK’s ‘hostile’ immigration policies consist in far more than the recent ‘hostile environment’ measures. A combination of decades of Home Office mismanagement, coupled with the more recent deep cuts in Home Office, tribunal and court staff, the increased number, cost and complexity of immigration applications, cuts in rights and grounds of appeal and withdrawal of legal aid leaves applicants both practically and legally precarious. I conclude that far from reducing numbers of ‘unlawful migrants’, as the ‘hostile environment’ policies were designed to do, effectively it is Home Office policies which themselves create and perpetuate illegality.