In October 2015, the government amended the ministerial code, removing all references to the obligation on ministers to comply with international law when carrying out their duties. This quiet change, which the government insists will make no difference in practice, echoes the Ministry of Justice’s 2014 proposal to make the European Convention on Human Rights ‘advisory only’. It seems that the government believes that compliance with international human rights agreements signed by the UK is optional. So we should not be surprised at the announcement on 7 March that UK troops are to join the Nato forces in the Aegean that are turning back refugees trying to reach Europe from Turkey, even though such actions were denounced by the European Commission and the European Court of Human Rights as amounting to ‘collective expulsions’ and thus violations of EU and international human rights law. A week earlier, the Home Office had confirmed that the number of refugees accepted outside official resettlement programmes would be restricted and that overstaying students and foreign national offenders might not be allowed to make asylum claims – measures which would breach the 1951 Refugee Convention. It seems that the government, having decided that repealing human rights laws is fraught with political and legal difficulties, is instead simply ignoring them when they interfere with policy objectives.
The UK is of course not the only European state seeking to evade its international obligations towards refugees, but it has even less excuse: its island status means that it has been largely unaffected by the recent surge in refugee numbers across Europe (there were 39,000 asylum claims in Britain in 2015, a slight increase on 2014; there were 1,321,560 in Europe as a whole). This makes the Home Office’s behaviour all the more shameful: its refusal to participate in the EU’s inadequate scheme to reallocate refugees, or to contemplate a change in the Dublin regulation which states that refugees have to claim asylum in the first EU country they reach (scrapping this would mean that the UK and other countries far from the common arrival points in southern and eastern Europe would be responsible for more asylum seekers), or even to take responsibility for the hundreds of children stuck in the Calais camps. After being ordered to by the Upper Tribunal in a test case in January, the Home Office brought three Syrian children and one vulnerable adult from Calais to the UK to join family members. No one else has followed.
Fewer cases will reach court if regulations which deny legal aid to anyone without one year’s lawful residence in the UK are upheld. The High Court ruled that, since access to justice is a fundamental right and ‘he who is subject to English law is entitled to its protection,’ the residence test unlawfully discriminated against foreigners. But the Court of Appeal reversed this ruling in November, and the issue is currently before the Supreme Court. As well as cutting legal aid, the government has sought to restrict access to the courts by pushing up court fees, tightening the rules for judicial review and abolishing immigration appeals except those raising asylum or human rights claims.
But even successful legal challenges, like the one that resulted in the four Syrians being brought to this country, rarely result in any change to policy. A judicial review in 2014 of the home secretary’s decision to freeze asylum support for the third year in row, leaving it at a level so low it was impossible to live on, resulted in the Home Office being told by the High Court to review its decision. The Home Office did so and decided to leave the amount unchanged. Since then, the rate for children has been slashed, and the Immigration Bill now going through the Lords proposes to remove support from most families that have been refused asylum and also to remove the right of appeal against that withdrawal (such appeals have a success rate of more than 60 per cent). The government has also made clear it has no intention of curtailing the use of immigration detention or imposing a statutory time limit on it despite six judicial rulings since 2011 that detention amounts to inhuman treatment for certain vulnerable people, despite the millions of pounds paid out to hundreds of detainees in compensation for unlawful detention, and despite a strongly worded report by the All-Party Parliamentary Group on Refugees and a consequent vote by MPs calling for a time limit. It’s too soon to say how it will respond to the recent vote in the House of Lords for a 28-day time limit in some cases.
Court rulings have resulted in some moderation of policy. Last summer the government was forced to suspend the ‘detained fast track’ process for asylum seekers following a ruling that the ‘time limits are so tight as to make it impossible for there to be a fair hearing of appeals.’ Other criticisms are ignored. The Shaw review on ‘the welfare in detention of vulnerable persons’, commissioned by the Home Office itself and published in January, called for a ban on the detention of pregnant asylum seekers and a much reduced use of detention for others. In response, the immigration minister, James Brokenshire, promised only ‘a new policy defining “adults at risk”’.
Those asylum seekers and migrants who aren’t in detention face increasing restrictions: proof of identity and of lawful status is required to receive hospital treatment; to get a job or enrol in higher education; to get married; to claim welfare benefits or social or emergency housing; to rent a room or a flat from a private landlord; and under the new Immigration Bill, to get a driving licence or open a bank account. Under the bill, which is designed to provide a ‘hostile environment’ for the undocumented, drivers must submit to being stopped and asked to prove their lawful status in the UK; if they don’t they can be arrested and their vehicle confiscated.
Staff in hospitals, local authorities, universities and colleges, prospective employers, bank staff and landlords, as well as road haulage contractors, train, airline and shipping operators – all these people have been conscripted into immigration control. There are varying penalties for those who fail to comply. The penalisation of carriers who unwittingly bring ‘inadequately documented’ migrants into the UK is decades old, but the new bill increases the fine from £2000 to £7000 per passenger. The bill will also double the fines on employers who hire undocumented workers to £20,000 per employee and increase prison sentences for those who knowingly employ such staff from two to five years. At the moment, private landlords can be fined up to £3000 per occupant if they rent property to those without a right to stay in the country; the bill proposes a new penalty of up to five years’ imprisonment for knowingly renting to undocumented migrants. Since the rights to work, to housing and to healthcare are all enshrined in international human rights law, these provisions are forcing British employers and landlords to connive in the violation of migrants’ human rights, sometimes on pain of criminal penalties.
The UK has gone further down the road of co-opting its citizens into immigration policing than most European countries. Universities and colleges have for several years been required to give details about their international students to the Home Office, or lose the right to enrol them. Since 2002 marriage registrars have been under a duty to notify the Home Office of any suspicious proposed marriages, where one party is a non-EU national who may be marrying for immigration purposes. Unlike colleges and marriage registrars, landlords and health professionals are legally obliged merely to deny jobs and services to the undocumented, not to denounce them. Many, however, may not appreciate the distinction – perhaps they are responsible for some of the 75,000 allegations of immigration and customs offences sent to the Home Office’s Intelligence Management System in 2013. This website encourages people to inform on undocumented migrants, and supplies various ways of doing so anonymously. ‘In an emergency,’ it advises, ‘dial 999 and ask for the police.’ To be undocumented, it seems, is inherently to be a threat.