The Home Office response to the coronavirus crisis has been hesitant at best. To the credit of the department, it has on the whole acted to protect its own staff and the staff of some of its major contractors, albeit sometimes belatedly. Basic steps to reduce immediate contagion risk were quietly implemented in mid-March: suspension of immigration bail reporting, asylum interviews cancelled and similar. One suspects this was because the hand of the Home Office was forced by the social distancing guidelines from other government departments. Nevertheless, steps were taken. 

Despite this, it is reported that one immigration officer has died after contracting the disease – although it is unknown how he contracted it because contract tracing is not being carried out. There is still more the Home Office could do even on this front. It is not just the detainees but private contractor staff who are at risk in immigration detention centres, for example.

Where the Home Office response has been most seriously deficient is chaotic communications, failure to protect migrant lives, failure to protect families and questionable legal competence. Adrian Berry from the Immigration Law Practitioners’ Association and I gave evidence to the Home Affairs Select Committee last week about these failings. For example, evictions from asylum housing are suspended but conditions in that accommodation are reported to be unsanitary and overcrowded; claims for asylum must still be made in person, exposing the asylum seeker to risk while immigration officials remain safe behind glass partitions; the economy has been devastated, leaving migrant workers and families fearing for their income-linked visas.

I could go on. But I want to step back from the immediate Home Office failings here and think about the broader context. The coronavirus pandemic does not exist in a vacuum. The immigration system is a deliberate construct and there are important features of that system which would inform a considered, strategic and effective government response. If there was to be such a thing.

Unauthorised migrants

Firstly, there are estimated to be between 600k and 1.2m unauthorised migrants living in the UK. That may include 215,000 unauthorised non-citizen children and a further 117,000 young people between the ages of 18 and 24. I take these figures from the low estimate of one study and the high estimate of another. By their nature the numbers are disputed and some academics question whether these guesses are sound. The reality is that no-one knows how many unauthorised migrants there are because they are by nature clandestine. 

As an aside, if the government later decides to employ a policy of contract tracing, the size and distribution of this population will potentially make such a policy very difficult. Contract tracing relies on consent. Unauthorised migrants are not going to, for example, volunteer to download an app which tells the immigration authorities who they are and where they live.

These unauthorised migrants are themselves in considerable danger from coronavirus. They are almost by definition vulnerable because many are destitute, they have no routine access to healthcare and they have to live in substandard accommodation. Many would have been working in the shadow economy until that shut down, and they have no access to furloughing or Universal Credit.

But there is also a public health dimension. These migrants are human beings and like other human beings they can pass on the virus to others if infected themselves. They are cut off from the social safety net by their immigration status and are desperate to work. The government says it is trying to stop reduce transmission of the virus by reducing non-essential work which brings people into contact with one another, but there is no policy in place to enable unauthorised migrants to do this. Work is literally a matter of survival for this group.

The greatest risk they present is to the communities to which they are closest: minority ethnic communities.

Some countries are responding to the coronavirus crisis by offering an amnesty or regularisation programme so that unauthorised migrants can acquire lawful residence and access to welfare support. There were already lots of reasons to pursue this policy – something I’ve written about in my upcoming book – and the public health dimension during a pandemic is just one more.

Access to healthcare

This brings us to the hostile environment. This policy, or set of policies, is intended to deprive unauthorised migrants of the basic essentials of life in the UK and thereby to force those affected out of the country.

As discussed elsewhere, there is no evidence that the hostile environment succeeds in forcing anyone to leave, but there is plenty of evidence to show that it has served to create a large, vulnerable, exploitable, marginalised, destitute unauthorised migrant population. As the Windrush scandal showed, it also catches unintended victims and lawful residents.

One of the features of the policy – and it is a feature, not a bug – is that it makes unauthorised migrants afraid of the authorities and public servants. Data sharing agreements between departments mean that a victim of crime approaching the police for help is reported to the immigration authorities, as is a sick person who seeks medical help. 

Anyone, irrespective of their status, is entitled to free emergency medical care but there is plenty of evidence that unauthorised migrants would rather go untreated than risk deportation. The government has added coronavirus to the list of diseases for which free treatment is available to all. This is welcome, but it does nothing to address the fear that an unauthorised migrant has that if she or he approaches a doctor for help, she or he will be reported to the Home Office. Other countries, like Ireland, have announced that this will not happen.

CONFIRMED: It is SAFE for all migrants to access essential services during this crisis. The Irish Government has confirmed to MRCI that all people – documented or undocumented – can access healthcare and social services without fear. #UndocIRL #COVID19 pic.twitter.com/hiNTHMA3zT— Migrant Rights Centre Ireland (@MigrantRightsIr) March 20, 2020

The reasons to do so are obvious: it reassures unauthorised migrants that they can safely receive treatment. In turn, this reduces the risk to others.

An amnesty would address this issue. As a bare minimum, the data sharing arrangements between government departments and the immigration authorities need to be suspended so that unauthorised migrants are not afraid of getting the help we all need them to get.

Nature of the immigration system

The context at the outset of the pandemic also included a very complex immigration system with outdated and sometimes incomprehensible laws, a widespread lack of faith in the immigration authorities, a very poor working relationship between the authorities and civil society and the legal community, and dire consequences for anyone who makes the slightest mistake in their dealings with the immigration authorities.

Lawyers are naturally cautious because they are concerned about worst case scenarios. Sometimes this caution is misplaced. Immigration lawyers have to be cautious because worst case scenarios are the norm in our field of work. Anything but an outright and total success is a disaster for the client.

So, when the Home Office says “we’ll extend visas, trust us” or “don’t worry, we’ll be reasonable”, immigration lawyers are simply unwilling to accept such loose, unspecific, unverifiable and easily-reversible platitudes at face value. We want to see hard guarantees and, y’know, some law. So far guarantees and actual law are entirely absent.

We are therefore advising our clients, based on our long and bitter experience of dealing with the Home Office and the anti-migration agenda of the Home Secretary, not to trust a government website that changes almost daily, leaving no trace of whatever was yesterday’s mumbled, fumbled plan F.

The Home Office response needs to be formal and legally binding. The vaguely comforting but legally meaningless words on gov.uk might as well be written on sand. We need to see proper statutory instruments that we can all be confident are legally effective. At the very least, the Home Office needs to share why it thinks announcements on a website meet the formal requirements of the Immigration Act 1971.

Valuing migrants

The whole UK immigration system is constructed around the idea that migrants are valued according to their economic worth. The ideology stretches back into the early years of the Labour government of 1997. Migrants are Good Migrants if they contribute to the economy in certain preordained ways: as the “highly skilled” and “brightest and best“.

Implicitly and often explicitly, migrants are Bad Migrants if they contribute to our economy and society in other ways. Such as through “low skilled” work picking fruit, cleaning hospitals and delivering food. Or by caring for children or the elderly.

The public and maybe even the government may be re-evaluating what the coronavirus has definitively shown to be a false dichotomy. I’m not holding my breath; the old ways of thinking have become deeply embedded.

It is not just migrants who are valued by their perceived economic contribution; as Professor Bridget Anderson argues in Us and Them: The dangerous politics of immigration control, British citizens who are out of work and/or claim benefits are often considered failed citizens, particularly by those on the right of the political spectrum. With the economic collapse caused by coronavirus, a lot of people’s economic worth has also crumbled. People are losing jobs all over the place, salaries are being slashed, whole industries are shutting down for the foreseeable future and the worst is yet to come. For citizens, the state is to some extent there to protect them, at least for now and while there is a public health imperative.

For those whose values are mainly monetary, the Failed Citizen needs to be inveigled into employment or is otherwise a burden on the state. (In fact, citizens will find in future that they have to stay in the country whether they like it or not. In previous recessions British citizens have travelled in search of work to European countries. Just think Auf Wiedersehn, Pet. Brexit is depriving ordinary British citizens of the possibility of emigrating just when they will want and need it most.)

In contrast, the Bad Migrant can simply be wished away by being removed or deported – out of sight, and therefore out of mind. Thus a range of harsh policies are automatically triggered against migrants who lose their jobs or whose salaries are reduced. The economic crash, which is not of their making, is automatically triggering all of these policies. Some take effect quickly, others more slowly. 

If a family which includes a migrant husband, wife or partner finds that its income has dropped below £18,600, that family will need to make a horrendous choice. The migrant will need to leave the country, and the British partner and any British children will either have to (a) accompany him or her into exile or (b) stay behind and hope to reunite in the future should better times eventually come. Some families are affected by this rule right now because they have to make extension applications, while many others face the same problem in the coming months or years when their current visas expire. So far, we have heard nothing from the Home Office to suggest the normal rules will be suspended or waived.

If a skilled worker on a Tier 2 visa loses his or her job or finds that his or her salary drops below £30,000, he or she will have to leave the country. Any family members, including children, will need to leave too. Again, this is happening right now for some and others know that it is coming once their current visas run out. The Home Office’s short-term concessions may prevent some in this situation from being immediately being treated as unauthorised, but they will be required to leave soon or later.

There are other examples: the immigration and welfare benefit rules for Tier 1 and 2 migrants, UK ancestry visa holders and the 40% of EU citizens only granted limited leave to remain under the EU Settlement Scheme are also linked to a narrow conception of economic value.

Treating migrants with respect

I’m writing here about migrants who are already living in the United Kingdom; I am not arguing in favour of increased migration or about the numbers coming into the country in future. To my mind, the big issue is how we treating existing residents of the UK who happen to be migrants. The reality is, as I argue in my book, is that they are here to stay. Just look at the declining numbers of forced and voluntary returns over the last decade.

Immigration policies tying immigration status to economic value are supposed to incentivise migrants to work, and to work hard – or, at least, to earn a lot, which is not always the same thing. This is the whole point of these rules in normal times. But during the coronavirus, when the government is trying to discourage everyone from unnecessary work and the social contact it inevitably brings, migrants are still compelled to work, at least if they want to carry on living in the UK. Migrants do qualify for furloughing, but if the accompanying 20% cut in wages drops the migrant below any of the income thresholds, he or she is ultimately going to have to leave the country.

If migrants are valued in purely economic terms, and very narrow economic terms at that, they are – not to put too fine a point on it – totally screwed if or when the economy collapses. I’m not talking here about future migrants; stopping them from coming in the first place is a legitimate if, in my view, blinkered and self-harming policy choice. I’m talking about the migrants who already live here. Treating them with anything but respect is not, to my mind, legitimate.

This is why I and others have been so critical of the whole hostile environment policy. It does nothing to deter future arrivals or encourage departures but it does treat migrants already in the UK as a disposable economic commodity rather than as human beings worthy of respect. It was always a terrible policy and the coronavirus crisis merely highlights its flaws.

It is not straightforward for politicians who have risen to power on the back of anti-immigrant sentiment to reverse an anti-immigrant policy. Not only are some genuinely ideologically committed to reducing immigration but their political support depends on their presenting themselves as tough on immigrants. The awful and unforgivable mistake made by David Cameron and Theresa May was to conflate the admission of future immigrants with the treatment of migrants already in the UK. They assumed that treating migrants in the UK really badly would deter others from coming in future. There is no evidence at all to support this hypothesis, though.

It is time to separate out future admissions policy from the treatment of migrants who are admitted. The coronavirus offers an opportunity to make changes on a temporary basis that can later become permanent. The opportunity should be embraced and hostile environment measures suspended.