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Home Office broke equality law by pursuing ‘hostile environment’ policies

Posted by: Gherson Immigration

It has emerged that the Home Office breached its duties under equality law in implementing its ‘hostile environment’ immigration policies. A report by the Equality and Human Rights Commission (“EHRC”) has stated that the Home Office pursued its policies to reduce net migration numbers in the UK without having due regard to the fact that people of certain race and ethnical background would be disproportionately affected, including the Windrush generation of migrants. This resulted in the failure by the Home Office to ensure that an adequate assessment was carried out to reduce any negative consequences associated with a particular policy before it became law.

In accordance with Section 149 of the Equality Act 2010, the Home Office as a government department is under a public sector duty to promote the principles of equality. In developing its policies, it must ensure that a policy does not breach equality law by assessing its potential impact against relevant criteria. In doing so, it is essential to consider the likelihood of the policy to be discriminatory against, or having an adverse impact on, a particular race or group, and if so, whether there are ways of reducing its discriminatory or negative effect and improving adherence to equality principles. The Home Office is therefore required by law to make an informed decision at the development stage as to whether any given policy promotes equality by carrying out an impact assessment and consulting groups which may be affected.

The EHRC report found that when the Government considered the adoption of the Immigration Acts of 2014 and 2016, to form the legal basis for the majority of its ‘hostile environment’ policies, it gave minimal consideration to the equality implications of the proposed legislation for the groups of migrants affected. Although some policy assessment was carried out and consultation took place, its scope was inadequate and any alarm bells were mostly ignored. In particular, the Home Office failed to take into account any unintended consequences that future policies would have on the Windrush generation, and the historical development of immigration policy. Moreover, the Home Office at times failed to make adequate arrangements to receive feedback which could have assisted the promotion of equality principles, although by that stage it was no longer possible to use any such feedback for developmental reasons as the policy had already been formed. 

Many of the ‘hostile environment’ policies were based on the tightened requirement of proving an individual’s immigration status. The Home Office continued to maintain this requirement despite knowing that it would create further complications, especially for the older generation of migrants to whom the Government had historically failed to provide any relevant documentation. Some policies are currently subject to legal challenge, such as the right to rent policy, which was initially held to be unlawful by the High Court. This decision was reversed on appeal and is now subject to a further appeal to the Supreme Court. Although the Home Office subsequently made concessions to mitigate the impact of some hostile policies such as allowing expired documents to be accepted, it failed to appreciate that some groups of migrants, such as the Windrush generation, were still disproportionately affected. This was mainly because of the Government’s systematic failure either to issue those migrants with documentation proving their status or keeping proper records confirming their arrival in the UK many years ago.

The EHRC has held that by concentrating on its political commitment to reduce net migration, the Home Office failed to introduce adequate safeguards into its policymaking and have due regard to the fate of Windrush generation migrants and their descendants. Among other things, it recommends that the Home Office should use its institutional knowledge to identify any impact that its policies might have on various groups of migrants with full regard to any historical context. Ministers and other decision makers should be fully informed about equality ramifications that any proposed policy would entail, and reviews carried out to reduce any negative consequences. Moreover, with further immigration policies to be introduced because of the end of the Brexit transition period, the EHRC has recommended an improvement in transparency in relation to the commitment to advance equality in current and future policies in order for the Home Office to fully adhere to its public sector equality duty as enshrined in law.

The Home Office is expected to provide its action plan in response to the findings made in the report by the end of January 2021.

The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.

©Gherson 2020

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