In recent years, the criminalization of migration has become part and parcel of a policy of migration management, irreversibly altering the relationship between migration and crime, and ultimately leading to the (partial) merging of migration and criminal justice systems, with significant consequences for not only the migrants themselves, but also the wider public, and their opinion on migration.
Both the criminal law and immigration law are, at their core, systems of inclusion and exclusion. Both are centred around the idea of population control, and of distinguishing certain individuals from others based on specific criteria. The criminal justice system distinguishes between law-abiding and law-breaking citizens, whilst immigration regulation distinguishes between residents and non-residents of a specific territory. The criminal law is designed to punish individuals who harm other individuals or the society at large. Immigration law, on the other hand, does not have such a concrete goal. Rather, it is a form of administrative law and management, a part of bureaucratic process. Immigration and crime used to be two separate fields, which despite their similarities had distinct rules, targets, and institutions. These distinctions are no longer as obvious as they once were.
In the UK, the Home Office routinely blurs the lines between crime and migration by emphasising human trafficking and smuggling (crimes which can be prosecuted in court) instead of focusing on the migrants who are being trafficked. It is not a coincidence that although the migrants in question are not criminals, they are always mentioned in the same breath as the criminal traffickers. It is a conflation by choice, which happens on at least three different levels: enforcement, substance and procedure.
Firstly, immigration enforcement has come to resemble criminal law enforcement. One example where this is clearly visible is the transformation and increase of border patrols. In recent years, borders have become the subject of tight control and surveillance, with specialised teams and organisations trained for patrolling and deal with any issues that may arise in the process. Additionally, immigration checks are increasingly intrusive: they happen before, during, and after entry into the territory. Pre-entry, before crossing a border, border patrols might check the migrant’s documents or reasons for moving. Once the migrant enters the territory, they are controlled through detection of entry and data sharing. After entry to the territory, the migrant is monitored to ensure compliance with the relevant rules.
In the EU, organisations like Frontex have been created to deal with all these different checks, and more broadly to promote and co-ordinate the management of the EU’s external borders. Frontex is not a part of law enforcement, but rather a specialised group which co-operates with member countries and Europol to facilitate migration administration, including border control and returns of migrants to their home country. Frontex’ increased presence at the EU’s external borders and their police-like approach is not unique, but rather part of a broader trend to render administrative bodies more police-like, and giving them numerous executive and quasi-judicial responsibilities. Most recently in the UK, Home Secretary Priti Patel announced that extra patrols will be activated on French beaches to prevents migrants from crossing the Channel.
Secondly, the substance of immigration law and criminal law increasingly overlaps. On the one hand, immigration status has been playing a role in criminal law systems for a long time, and conversely, criminality may affect one’s migration possibilities. Immigration laws have long tended to place restrictions on immigration in a reflective manner, for example restricting the entry of people who had previously committed offences. More recent developments, however, shift attention from past crimes to present behaviour, with many immigration violations themselves being defined as criminal offences, and many crimes in turn resulting in liability for deportation. Simultaneously, organisations like Frontex which are supposed to be in charge of migration management for the EU have become important players in the prevention, detection and suppression of cross-border crime, specifically relating to the smuggling or trafficking of people. This double role for Frontex has significant consequences for migrants, as they are simultaneously treated as suspects and victims of migration-related criminal activities, merging both fields.
Lastly, procedural aspects of prosecuting immigration violations have taken on many of the trademarks of criminal procedure. The most obvious example here is immigration detention, where the host country can administratively detain people, depriving them of their liberty often with no judicial oversight, simply for being in breach of immigration rules. Effectively, being stuck in immigration detention is not dissimilar from a prison sentence. In fact, some of the UK’s immigration detention centres even used to be prisons, so that not only the process of detention resembles a custodial sentence, but the physical practice of immigration detention is also assimilated to the criminal justice system. A parallel move is the use of criminal law sanctions to punish businesses that engage with individuals whose immigration status is uncertain or unauthorised. Again, in the UK for example, the threat to employers or landlords, should they hire people without immigration status, is one of the pinnacles of the hostile environment.
Human rights such as access to healthcare, accommodation, work and safe living are all impacted as a consequence of the increased overlap between criminal and immigration systems. The Council of Europe Commissioner for Human Rights has previously expressed that such methods of controlling international movements erodes human rights and weakens established international law principles. Yet, there is a steady advance of the discourse of ‘illegality’ in migration law and policy, with few indicators of change in the future.
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In order to stay in the UK lawfully after the end of the transition period, all EU citizens in the UK have to apply for status under the EU Settlement Scheme (EUSS). Under the Scheme, EU citizens will be given either pre-settled or settled status. For an applicant to the EU Settlement Scheme to receive either pre-settled or settled status, they will have to prove three key things: their identity, their suitability, and a period of continuous residence in the UK.
For most applicants, this will be relatively straightforward. This briefing focuses on three groups of applicants for whom proving these things will be slightly more complicated: frontier workers, people with a criminal sentence, and extended family members. Of course, many other applicants will find the EUSS confusing or hard to navigate, and numerous other vulnerable groups in society have been identified as at risk of failing to secure their rights. This briefing focuses on specific issues with these three groups to break things up a little.
The Withdrawal Agreement between the EU and the UK provides that frontier workers must receive documents certifying their status as soon as possible, so that they are not prevented from exercising their rights after the end of the transition period, and can easily demonstrate proof of those rights at the border. That is why the government is launching a frontier worker permit scheme on 10 December, so that frontier workers can make free applications to receive such a document. Although this is a welcome development, the scheme seems to be cutting it quite short as it opens a mere three weeks before the end of the transition period, with very little information available as to the qualifying criteria and precise application process. Surprisingly, there seems to be more information available for family members of frontier workers than for frontier workers themselves, as there seems to be little certainty about what exactly is required of them
As for EU citizens without a right of permanent residence whose residence is interrupted by a period of imprisonment, the Withdrawal Agreement states that the “conduct” of these citizens may have an effect on their application under the Scheme. “Conduct” here relates to actions taken by the affected citizen, rather than the outcome of the action such as a sentence of imprisonment, meaning it is not the time or severity of the prison sentence but of the conduct which is important in assessing the relevant citizen’s eligibility.
Appendix EU clearly states that continuous qualifying period cannot include a period of imprisonment. In fact, EU law stipulates that periods of imprisonment in the host Member State interrupt the continuity of residence required by Article 16(2) of the Free Movement Directive for the purpose of acquiring a right of permanent residence.
There will be situations where the conduct of the citizen is committed before the end of the transition period, and the conduct is not be serious enough to result in their removal from the UK, but their prison sentence will conclude after the end of the transition period. If this is the case, the only route to status under the EU Settlement Scheme would be if the applicant already had settled status before he committed the offence. If he had been in the UK for less than five years when the offence was committed, and does not have settled status, he will not be able to acquire it. A citizen cannot link periods residence in the member state that are dissected by a term of imprisonment which in this example, began before the end of the transition period.
The result is that a citizen who was in prison during the transition period, but does not meet the threshold for removal from the UK, cannot begin a continuous qualifying period to obtain EUSS status. They are highly unlikely to be able to obtain any other immigration status due to the restrictive nature of UK immigration law and would consequently face removal on the basis that they do not have any lawful residence after 30 June 2020.
Lastly, concerning extended family members, Appendix EU requires that durable partners and dependent relatives apply to the EUSS with a valid “relevant document". The definition of a relevant document is a document issued for under the EEA Regulations. It can be a family permit, a residence card or a permanent residence card. Important to note is that the relevant document must be valid (i.e. not expired or revoked), meaning that an extended family member who has been issued a document which has now expired is unable to apply to the EUSS and will receive an automatic refusal of status should they submit an application. In effect, this raises the financial bar for durable partners of EU citizens, as they are required to make a second application under the EEA Regulations to receive a valid relevant document and then make a third application for EUSS status. The application fee here is 65 pounds.
This fee is entirely avoidable. In fact, when an extended family member applies to the EUSS, the process assesses whether the family relationship continues to exist (or did for a 5 year period in the past). Therefore, it is available to the Home Office to assess the continuing family relationship of an extended family member applicant through the EUSS process, even where their relevant document has expired. The Home Office approach puts a disproportionate burden on these applicants not only financially, but also practically, as they have to evidence and re-evidence their family relationships which could be considered detrimental to the rights of their sponsoring EU citizens.
Once family members of EU nationals succeed in their application and get status under the Settlement Scheme, they are issued a physical document to prove their right to residency in the UK. This physical document is a privilege not granted to EU citizens, meaning that in practice, durable partners receive physical proof of their status when the EU citizens on whose application they depend do not.
If you require any advice on the EUSS as a member of one of these three vulnerable groups of EU citizens or otherwise, do not hesitate to contact us for advice.
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A study by the Institute for Public Policy Research (IPPR) has found that the hostile environment policy, introduced by Therese May in 2012 in an effort to deter irregular migrants from staying to the UK, has fostered racism and discrimination, contributed to pushing many people into destitution, and erroneously affected people with the legal right to live and work in the UK.
The hostile environment’s key objective has always been to make life for those living in the UK without immigration status so difficult that they ultimately decide to leave. In order to achieve this, measures under the hostile environment make it harder for individuals without status to rent a house, find a job, get driving licences or even simply open a bank account, in the hope that by making these basic services harder to access, they would voluntarily leave and irregular migration numbers would decline.
As voluntary returns/departures from the UK have dropped since 2014 (after the hostile environment came into force), the IPPR’s report found that the policy not only fails to meet that goal, but it also has endangered and complicated the lives of migrants in the UK in various ways.
Firstly, for those without immigration status with little to no financial support from the state, finding work is essential to ensuring some financial security and to avoid destitution. By forcing employers to check employees’ “right to work” and criminalising work without immigration status, the hostile environment pushes migrants without a status into the shadow economy and cash-in-hand jobs (especially if they are not allowed to open a bank account). This makes them vulnerable to exploitation and modern slavery if they manage to find work, and destitution if they don’t. The risk of destitution and impoverishment is exacerbated by the restrictions on access to benefits and healthcare. The report specifically mentions malnutrition, cramped and substandard accommodation, and mental ill-health among undocumented migrant families unable to access public funds.
The problems do not stop there. The hostile environment, it turns out, not only impacts its target population, namely individuals without immigration status, but also many individuals with legal immigration status.
As such, the report shows that the policy fosters ethnic and racial bias, as home and work raids are often targeted at specific nationalities on the basis that they are “believed to be removable.” Unsurprisingly, these people are often people of colour and ethnic minority background. Similarly, the right to rent checks have been ruled discriminatory and biased against people of ethnic minority backgrounds, because they make landlords more suspicious of “removable-looking” people, whatever that may mean, and therefore disadvantage tenants of ethnic minority backgrounds who might very well be British nationals or people with leave to remain.
Recently, the hostile environment has been under heavy scrutiny. In March, the Wendy Williams Windrush review was laid before Parliament. The report overtly criticised the workings of the Home Office’s hostile environment, exposing how thousands of legal UK residents were classified as illegal immigrants and denied the right to work, rent property, access healthcare and benefits during the Windrush Scandal. In April, the Court of Appeal affirmed that immigration checks required by landlords to ensure that tenants have the right to rent are discriminatory, but fell short from ruling that the discrimination was severe enough to render it unlawful. The case is currently being appealed.
The IPPR report warns that a significant proportion of EU citizens will miss the EUSS application deadline of 30 June 2021, barring them from accessing benefits and many public services and losing their immigration status altogether. Despite the mounting warnings and criticism, the Home Secretary confirmed in May that EU citizens who fail to apply for status under the EU Settlement Scheme in time will be unlawful residents and fall subject to all hostile environment policies currently in place.
For all these reasons and many more, the report is unequivocal in its condemnation of the policy, stating that “restrictions on access to benefits can force people without immigration status into destitution. There is evidence of malnutrition, cramped and substandard accommodation, and mental ill-health among undocumented migrant families unable to access public funds … The hostile environment does not appear to be working for anyone: for migrants, for the Home Office, or for the wider public.”
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After the death of George Floyd on 25 May 2020 at the hands of a white police officer, protests against police brutality and institutional racism erupted in the US and around the world. The US now finds itself in a period of political unrest and upheaval not unlike after Martin Luther King’s assassination in 1968. In the UK, George Floyd’s death resonated with many, mobilising thousands in London, Manchester and Cardiff to march in solidarity with Black Lives Matter, a movement dedicated to ending violence and systemic racism towards black people.
Highlighting the racism and unfairness engrained in the American justice system is important, but it is easy to judge what happens abroad without looking inward. The reality is that Britain is not innocent when it comes to institutional racism or police brutality – far from.
When it comes to UK immigration, the dissonance between how white (Western) immigrants and immigrants of colour from the Global East and South are treated is painstakingly stark. The culmination of these double standards was the 2018 Windrush Scandal, which erupted after Theresa May introduced the hostile environment rules in 2012. Under the hostile environment, those who lack documents evidencing their lawful residence become subject to the hostile environment checks. They are no longer allowed to work, rent or even open a bank account in the UK.
Many people of colour who came to the UK in the 50s, 60s and 70s from Commonwealth countries were granted indefinite leave to remain in 1971 but when the hostile environment kicked in, thousands of them were not able to prove their status, and as a consequence, were wrongly told that they were in Britain illegally. Hundreds were detained, and some of them deported, despite living and working in the UK legally for decades.
Although Windrush victims are now able to apply for compensation under the Windrush Scheme, the number of applications has been remarkably low, and internal reviews confirmed that the government’s hostile environment immigration policies still have devastating impacts on the lives and families of black citizens in the UK. With the new Points-Based Immigration system, set to come into force in January 2021, that impact is set to worsen. Requirements like visa fees (UK fees are among the highest in the world), income thresholds (the minimum salary under the PBS is set at £25,600) and health surcharges (recent controversy on the NHS surcharge led the government to scrap it for migrant NHS staff) have been found to predominately affect those from the East or South, as they are less likely to be able to meet financial requirements. The new points-based system thus builds on existing discriminatory structures instead of breaking them down. That is not a coincidence.
Don’t be mistaken - Windrush was a direct result of an immigration system set up to discriminate against some but not others. It was not just a profound institutional failure or mistake of government. It was not a mistake at all, but rather simply the hostile environment rules put into practice. The points-based system is a continuation of that. It is institutional racism at its peak, rearing its ugly head yet again, here in the UK.
When the then Prime Minister Theresa May (yes, you read that right - the same person who introduced the hostile environment in the first place) apologized for the catastrophe of Windrush in April 2018, she insisted it was not her government’s intent to disproportionately affect people from Afro-Caribbean backgrounds in the operation of her hostile environment policy. That statement shows exactly what the government fails, or refuses, to understand, namely that racism is much bigger than discrimination with intent, that it encompasses more than active and direct discrimination. It is about institutional neglect of certain parts of the population, certain neighbourhoods, and certain ethnic minorities, creating and feeding into more hardship for those groups compared to their white British counterparts. The public health crisis that we are currently dealing with is only the latest of an endless string of examples.
People of colour are 2.5 times more likely to die of COVID-19 than their white counterparts in the UK. For the black Caribbean and African population, that number goes up to three against one. This is partly because BAME communities are more exposed to the virus, as a third of all working age black Africans and black Carribeans work in key worker roles (that is 50% more than white British people), whilst Indian men are 150% more likely to work in health or social care roles than their white British counterparts. It is also because BAME communities are more economically vulnerable to the current crisis than white ethnic groups, and not enough is done to actively help them bridge that gap.
To make matters worse, people of colour are not only more likely to die of the virus once they get it, but they are also 54% more likely to get fined for violating lockdown rules than the white majority British population. More broadly, in our criminal justice system, Metropolitan Police officers are four times more likely to use force against black people compared with the white population.
It is true that the UK is not a nation of gun ownership like the US. It is true that British police officers do not carry weapons. And it is true that these things play a part in limiting violence and abuse of power. But we cannot trick ourselves into believing we are so much better, and that it could not happen here. The US might be a land of extremes, and the UK a country of covertness, but the foundational institutional challenges we face are the same.
When Brandon Lewis MP stated that EU citizens who miss the EU Settlement Scheme deadline could face deportation, it was a wake-up call for all EU citizens in the UK. The 3 Million, the largest campaign organisation for EU citizens in the UK, and one of many organisations advocating for a declaratory instead of a constitutive scheme, called upon the government to ensure that law-abiding EU citizens living in the UK do not fall subject to the hostile environment as unlawful migrants merely due to a formality such as a missed deadline.
At the time, the Home Office sussed the situation by reiterating that they “are looking for reasons to grant status, not refuse, and EU citizens have until at least December 2020 to apply.” A spokesperson said: “We’ve always been clear that where they have reasonable grounds for missing the deadline, they’ll be given a further opportunity to apply.” Mr. Lewis personally clarified that EU citizens will have enough time to apply, and highlighted that the Home Office will accept late applications.
“It is not true that as a general rule, eligible persons who remain in the UK without registration are here ‘unlawfully’. For most purposes, there ought not to be legal consequences,” said Professor Bernard Ryan of the University of Leicester. Guy Verhofstadt, the EU Brexit spokesman, also reported being told by the Government that there would be no automatic deportation for EU citizens who fail to apply to the Scheme.
Now, the Secretary of State for the Home Department Priti Patel confirmed in writing what grassroot organisations always feared, and Mr. Lewis hinted at in October: that those who fail to apply to the EU Settlement Scheme by the deadline of 30 June 2021 will be unlawfully resident in the UK. If information regarding EU citizens’ rights after Brexit was previously conflicting, the Home Secretary now clarified once and for all that late applicants will be subject to the hostile environment rules during their period of unlawful residence.
Ms. Patel made the remarks in response to a letter from the Home Affairs Committee outlining various concerns regarding EU citizens’ rights in the UK after Brexit. The Home Secretary wrote that “those who have not applied to the EUSS by the deadline will not have lawful status in the UK. This means, for example, they will not be able to evidence a right to work or rent if they seek new employment or a new private rental property during the period in which they have no lawful status.”
In the same breath, Ms. Patel stated that late applications to the EUSS “for good reason” will be accepted as valid. Some examples of good reasons given are children whose parent or guardian do not apply on their behalf, those in abusive or controlling relationships who are prevented from applying or accessing the documents they need to do so, and those who lack the physical or mental capacity to apply. If these examples are an indication of what may constitute “good reason,” the bar seems to be set high and at the Home Office’s discretion.
In other words, people who fail to apply to the EUSS by the deadline will lose the right to rent and work, as well as lose access to most social services and benefits including free NHS treatment. They will be subject to the hostile environment rules until they acquire status under the Scheme, assuming they do successfully apply late, which in itself is a strong assumption to make considering late applicants must meet the “good reason” policy. Even if they do get status, late applicants will face consequences of their interim unlawful residence until years after the facts, not in the least because they will not be able to naturalise as British citizens for a further 10 years.
Last week, the Home Affairs Committee hosted a livestream with Ms. Patel to discuss the Home Office response to the COVID-19 outbreak. The online discussion was meant to offer reassurance at a time of crisis. Concerning EU citizens’ rights, Ms. Patel confirmed that there will not be an extension to the deadline to apply for the EU Settlement Scheme. Except of that reiteration, she did not address many of the concerns which EU citizens in the UK have brought to her attention since the COVID-19 outbreak. Most importantly, she failed to address the effect of breaks in continuous residence due to the coronavirus outbreak, except to say that the government will be “flexible.”
A pattern emerges here, whereby there is a lot of talk about Home Office flexibility and cooperation at the government’s discretion, but very little clarity about what that translates to in practice. The Home Secretary’s letter reiterates the government’s known position on a number of issues without offering clear answers to the questions asked. It provides vague statements instead of hard facts and lacks a legal framework to resolve the pitfalls the Committee flagged up.
These ambiguities and failures on behalf of the Home Office will impact the most vulnerable and marginalised citizens most devastatingly, as they are least likely to apply to the EUSS at all, let alone before the deadline. As per the 3 million, even if the EU Settlement scheme performs as well as the UK's most successful campaign ever - to switch everyone to Digital TV (97% of people signed up by the time analogue TV was disactivated) - over 100,000 EU citizens would still lose their legal status and face the full consequences of the government's hostile environment. Following the Home Secretary’s comments, those 100,000 people will be at the discretionary mercy of the Home Office.
In March, the PM promised that destitute migrants would receive the necessary accommodation and funding during the coronavirus pandemic. Six weeks later, food banks are struggling to meet demands, asylum seekers are moved out of their flats without warning, and local authorities fail to offer guidance on how to offer shelter to rough sleepers during the crisis.
Under Theresa May’s “hostile environment” rules, individuals without immigration status in the UK do not have access to public funds. The hostile environment prevents them from accessing many benefits, ranging from healthcare to housing to public authority assistance of any kind.
In an open letter to the Government, the Jesuit Refugee Service (JRS) asks the Prime Minister to grant all immigrants who currently do not have status a period of Leave to Remain for the time of the pandemic, to avoid the hostile environment’s detrimental effect on public health. The letter is signed by over 30 organisations and charities who work with asylum seekers, refugees and other individuals with insecure immigration status, including Bail for Immigration Detainees, Women for Refugee Women and many others.
The JRS’ letter asks the PM to “to grant a period of leave to remain, with recourse to public funds and access to the labour market, to all those with insecure immigration status,” stating that “This is a vital step to protect public health during the Covid-19 pandemic. At a time when public health demands that everyone has ready access to housing and healthcare, insecure immigration status acts as a barrier and puts everyone’s health at risk.”
Although the government has made all COVID-19 treatment free of charge irrespective of the patient’s immigration status, many people with precarious status are reluctant to get help. They fear that data-sharing between the NHS and the Home Office, another pillar of the hostile environment policy, will lead to their deportation if they go to the hospital. If they think they might be sick, many migrants prefer staying under the radar so as to avoid the risk of getting into trouble, leading infected people to remain untested and at large.
In order to avoid a crisis of exploitation, destitution and homelessness on top of the coronavirus emergency we are already going through, all migrants should be encouraged to access public funds and especially healthcare.
As charities which normally support vulnerable asylum seekers have been forced to shut down, destitute and vulnerable asylum seekers have been left out in the cold. A #HumaneMigration system including temporary amnesty and leave to remain for migrants who are in the UK during the pandemic is the only viable solution not only to help all the people who are currently slipping through the cracks, but also to limit the spread of the virus in the wider community. Only unprecedented measures can reflect the unprecedented nature of this crisis, and ensure the health and safety of the nation as a whole.
Since 2008, an average of 26.4 million people per year have been forcibly displaced by weather-related hazards. This is the equivalent of one person being displaced per second every day. The UN Internal Displacement Monitoring Centre (IDMC) and the Norwegian Refugee Council identify natural disasters as the number one cause for the international displacement of people. Many of those displaced find refuge within their own region or country. In fact, almost two-thirds (61%) of all new internal displacement in 2018 was triggered by natural disasters such as floods, windstorms, earthquakes or droughts. Others, however, are forced to go abroad and seek refuge in a foreign country.
Migrants fleeing their home country for environmental reasons are informally called “climate refugees.” They broadly fall into two groups: on the one hand, those fleeing immediate natural disasters such as storms, droughts or earthquakes, and on the other hand, those fleeing climate impacts that deteriorate over time, like rising ocean levels and desert expansion. With climate change, the number of both types of climate refugees is set to rise for years to come. The response to this global challenge of displacement has thus far been limited, and protection remains lacking.
Traditional asylum law is based on the 1951 Geneva Convention, which grants a right to asylum to people who “have a well-founded fear of being persecuted because of their race, religion, nationality, membership of a particular social group or political opinion, and are unable or unwilling to seek protection from their home countries.” Although the Convention is a living document and it is possible to push the boundaries of these definitions, shoehorning climate refugees into it has proven to be a challenging undertaking. The 1951 definition of a refugee is hard to apply to those who are forced to flee their home due to environmental disasters; climate change does not fall under “persecution,” nor are any of the grounds for persecution compatible with haphazard natural catastrophes.
Environmental migration can take many forms. Sometimes it is forced, sometimes voluntary, often somewhere in a grey zone in between. The very notion of climate refugees seems to challenge the boundaries of asylum law as we know it. It blurs the line between economic and political migrants, a dichotomy which lies at the core of the 1951 Convention. Moreover, instead of focusing cross-border movement as the Geneva Convention does, climate change displacement forces us to consider internal displacement, as the majority of today’s climate refugees are displaced within the borders of their own country. As such, the 1951 definition of a refugee is clearly not applicable to those who are forced to flee their home due to environmental disasters; climate change does not fall under “persecution,” nor are any of the grounds for persecution compatible with haphazard natural catastrophes.
The European Parliament has recognised that the “protection gap” for climate refugees is a problem. In his 2015 State of the Union speech, then European Commission President, Jean-Claude Juncker, said: 'Climate change is one of the root causes of a new migration phenomenon. Climate refugees will become a new challenge – if we do not act swiftly'. Five years later, there is still no formal legal definition of who exactly qualifies as a climate refugee, nor any formal protection under existing international law.
Laws are slow to adapt to the reality of increasingly frequent and accelerated natural disasters, but there has been some progress. In January, a landmark decision by the United Nations Human Rights Committee found it unlawful to force climate refugees to return to their home countries. While a UN Committee judgment is not formally binding on countries, it points to legal obligations that countries have under international law, and individual countries have to consider it within their own legal systems.
The ruling is the first of its kind to explicitly find that governments must take into account climate-related human rights violations when they consider deporting asylum seekers. Although on a personal level, the man at the centre of the case, Mr. Teitiota, was not considered at imminent risk of death upon deportation, and therefore lost his case, the ruling did open the door to a more concrete legal framework for climate refugees.
Nature does not stop for anyone; as climate emergencies become more frequent, many more cases like Mr. Teitiota’s will be brought to courts all over the globe. Needless to say, it is beyond time to integrate environmental and climatic factors into migration management laws and policies nationally and internationally, in order to prepare for the waves of climate migration to come.
The "Right to Rent" scheme was introduced as part of the hostile environment rules aimed at restraining illegal immigrants from entering and living in the UK, and came into force in 2016. The policy requires landlords to check the immigration status of prospective tenants. If they fail to do so, and end up renting out property to undocumented migrants, they can be charged unlimited fines or even a prison sentence.
The Joint Council for the Welfare of Immigrants (JCWI), a London-based charity, is challenging the lawfulness of this policy in court. Last year, the High Court ruled the scheme unlawful, racially discriminatory, and in breach of the European Convention on Human Rights. The Government appealed this decision, and on Wednesday, the Court of Appeal allowed the Secretary of State's challenge, finding that although the Right to Rent scheme does lead to discrimination against those who do not hold British passports and those who do not have traditionally ethnically-British attributes, it is an indirect consequence of the scheme’s otherwise legitimate goal to control and curb immigration, and therefore, the policy itself is not unlawful.
Lord Justice Hickinbottom stated: “The discrimination is entirely coincidental, in that the measure does not unlawfully discriminate against the target group but only collaterally because, in implementing the Scheme, as a result of the checks required by the Scheme and the possible sanctions for letting to irregular immigrants, landlords engage in direct discrimination on grounds of nationality; and section 33 and the Discrimination Code of Practice clearly recognise and seek to address that discrimination by landlords."
In short, the Court of Appeal agreed that the Right to Rent scheme causes discrimination but did not rule that that discrimination amounted to a human rights violation, because it is indirect, and only “some landlords” may participate in it. The court leaves it to the government to decide whether the racial discrimination is “greater than envisaged”.
To advocates and immigration lawyers, it is clear that whatever was envisaged, any amount of racial discrimination is unacceptable. The Home Office’s own research has shown that 25% of landlords would not be willing to rent to anyone without a British passport, whilst the Residential Landlords Association found that more than half of landlords were less likely to rent to those with limited time to remain in the UK. Effectively, the Right to Rent scheme turns landlords into border patrol, as they are forced to evaluate who does and does not have the right to be in the country. Needless to say, landlords are not properly trained or qualified to do so.
Chai Patel, the JCWI’s legal policy director, said that, “At a time when our lives depend on our ability to stay at home safely, ethnic minorities and foreign nationals are being forced by the government to face discrimination in finding a safe place for them and their families to live.” The JCWI has said that they are planning to appeal the decision to the Supreme Court. In the meantime, however, the policy is still in place, and the people affected by it remain at risk.
You can support JCWI's work by donating here.
A year has gone by since the Stansted 15 were convicted of terrorism offences for blocking the take-off of an immigration removal charter flight at Stansted airport. Where are they now, what has happened since, and how has the law changed?
On 28 March 2017, a group of nine men and six women cut a hole in the perimeter fence of Stansted Airport, and used lock-on devices to secure themselves around a Titan Airways Boeing 767 chartered by the Home Office to remove 60 undocumented immigrants to Nigeria, Ghana and Sierra Leone.
Initially, the Stansted 15 were charged with aggravated trespass, but four months later these charges were upped to “endangering safety at aerodromes”, a serious terrorism-related charge which can lead to a life sentence. As a consequence, on 10 December 2018, the 15 were convicted under this rarely used anti-terrorism legislation and faced a potential sentence of life in prison.
The verdict was criticized by many human rights organisations, including Amnesty International, as it was seen as a blow to non-violent human rights activism. It was said that by charging peaceful public dissenters with such heavy crimes, the prosecution effectively threatened the future of peaceful protests as well as the legitimacy of public dissent in the UK.
The 15 were protesting Theresa May’s hostile environment policy, introduced in 2013. The idea behind that policy is that by making life for undocumented individuals difficult in the UK, they will leave the country or report to the relevant authorities, allowing the Home Office to curb and control immigration more effectively. Amongst other things, the hostile environment policy requires immigration checks to be carried out before anyone can open a new bank account, be issued with a driving licence, rent a flat, or access routine health treatment. The judgment against the 15 seemed to reflect the government’s hostile approach to immigration generally
One of the people who had a seat booked on the mass deportation flight which the Stansted 15 managed to stop, said:
“Migration and deportation targets suck humanity from a system whose currency is the lives of people who happen to be born outside the UK. Such is the determination to look “tough” on the issue that people are rounded up in the night and put on to brutal, secretive and barely legal charter flights. Most take off away from the public eye – 60 human beings shackled and violently restrained on each flight, with barely a thought about the life they are dragged away from, nor the one they face upon arrival.”
After months in detention and years facing the hostile environment, he won his appeal, which he was only able to attend thanks to his flight being cancelled. He has now regularised his status in the UK, enabling him to live with his partner and three young children.
The Stansted 15 were sentenced in February 2019. The sentencing judge accepted they were motivated by “genuine reasons,” and as a consequence, all 15 avoided immediate prison sentences, with three set to be given suspended sentences and 12 set to be given community service. A year after their conviction, it is worth reflecting upon the state of the laws they were protesting against, and the cause for which they were willing to take such serious risks.
Both Labour and the Liberal Democrats have vouched to end the hostile environment, stating that making landlords and banks perform immigration checks instead of investing in the immigration system is an inhumane and ineffective way of policing migration. Dianne Abbott, Labour MP for Hackney North and Stoke Newington, has argued that mass deportation on chartered planes is a brutal way of responding to the current immigration panic, as it allows people to be bundled out of the country when they have not yet exhausted all their avenues of appeal and without due process. This was no different on the aircraft which the Stansted 15 managed to stop: today, at least two of the 60 passengers who were to be forcibly deported that day live legally in the UK. At least nine other claims remain outstanding.
The Stansted 15 stated that although they consider saving these 11 people’s lives a partial victory, there is still a long way to go. In the meantime, they have appealed their conviction, and are waiting for it to be listed in the coming months, as they refuse to accept their guilty verdict. One of 15, Benjamin Stoke, states,
“We were charged with endangering life, but we took the actions at Stansted to try to protect life.”