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Future immigration enforcement: will Brexit make ID cards inevitable?


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The whole purpose of the hostile environment is to exert indirect immigration control over migrants through employers, landlords, banks and public services. This is seen as an alternative to direct enforcement the old fashioned way, through arrests, detention and enforced removal. We saw in our post yesterday that direct enforcement is difficult, expensive and, as a consequence, falling across the board.

Some hostile environment activity, such as fines for employers and landlords for failing to check the paperwork of undocumented migrants, has also slowed down. But the Home Office is at pains to stress that this is only on pause as a result of the Windrush scandal and the Prime Minister reiterated her support for what she now calls the “compliant environment” only the other day. For good or ill, indirect enforcement through the hostile environment looks like it is here to stay.

Not only that, but a hard Brexit that sees the UK leaving the single market and ending free movement of workers necessitates the hostile environment. That is exactly the course on which the present government is embarked.

Visa-free entry for EU citizens

Whatever deal is or is not reached on Brexit, it is highly unlikely that visa controls will be imposed on EU citizens wishing to enter the UK in future. They will therefore be able physically to enter the UK at will. This is obvious when you consider that British citizens would not be happy about applying for a visa before travelling on holiday to France or Spain. Visa arrangements will end up being reciprocal; whatever we do to them, they will do to us.

If there are no visa controls on the entry of EU citizens in future, what is to stop them from staying in the UK to work or study, even if this is against the law? What enforcement mechanisms exist to prevent illegal working by EU citizens?

The reality is that some EU citizens will make use of visa-free entry to the UK to then stay and work, whether that is against the law or not. If wages are higher in the UK and the exchange rate is favourable, there will be a considerable incentive to do so.

Policy options

There are four ways forward:

  1. Allow EU citizens to work easily in the UK, either with something akin to existing free movement rules or with a light touch registration scheme akin to the Worker Registration Scheme for new EU citizens in 2004. This way little enforcement is really necessary.
  2. Dramatically increase direct immigration enforcement with a more visible and interventionist approach from Home Office immigration officers. As well as being inherently unpleasant and undesirable, this would require huge additional resources. The current trend — quite possibly due to existing budget constraints — is to reduce direct enforcement activity.
  3. Indirectly enforce immigration controls by outsourcing to employers and others. Since its expansion to landlords, banks and public services, this policy has become known as the “hostile environment” or “compliant environment”.
  4. Abandon enforcement efforts. This may well lead to significant growth in unlawful working and the creation of an exploited underclass of unlawful migrant workers.

The first option was torpedoed by the Migration Advisory Committee last month and has reportedly been ruled out by the government. Of the other options, the least worst of these options is perhaps the hostile environment, or at least a modified version of it.

That conclusion is unpalatable, to say the least. The hostile environment policy is a total disaster area at present.

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Ethnic minorities, casual workers, tenants, migrants and the young bear the brunt of current hostile environment checks but lack clear proof of their status. Employers face crippling fines of up to £20,000 and private landlords are ill suited to a front line immigration enforcement role. Worst of all in the long term, explicitly checking immigration status is degrading for both checker and checked. The risk of race discrimination is obvious and it is corrosive for community relations.

If the hostile environment is likely here to stay because direct immigration enforcement is impossible as well as undesirable, how might its most corrosive effects might be mitigated?

Identity, not immigration

One way forward is to shift the focus from immigration status to personal identity. At the moment, employers and landlords are under no legal obligation to check immigration status. However, if they employ or rent to a person who turns out to be in the UK illegally, they can be hit with a fine of up to £20,000. This causes some employers and landlords to follow what they think is a “risk based” approach, where the status of a white person with a local accent does not need checking, but the status of a foreign sounding or looking person does need checking, for fear of a fine.

It is less likely to cause discrimination if a landlord has to check and record every new tenant’s identity card. Fines for renting to those without status could be scrapped and replaced with fines for failing to check and record identity.

For such a system to work in practice, it might well be necessary to issue ID cards to all UK residents.

White, middle class, middle aged property owners rarely encounter hostile environment checks and discrimination has no impact on them. Principled resistance to identity cards is high. But it is simply unacceptable for the hostile environment to continue as it is. After Brexit, existing resident EU citizens with the right to work will find they need to be distinguished from newly arrived EU citizens without the right to work. They too will find themselves on the receiving end of regular “papers, please” checks by private citizens.

The solution for those citizens is to be digital. Existing EU residents will be given a unique reference number to pass on to employers and landlords, who will then enter it into a Home Office website and receive confirmation that the person in question has settled status in the UK. The think tank Policy Exchange suggests that this could be a model for a universal system of digital, rather than physical, ID cards.

To opponents of ID cards, a shift from Big Brother to Black Mirror will provide little reassurance. Others more exercised by the discrimination in paperwork checks applied only to those who appear foreign may be less concerned with the civil liberties implications. National ID cards might not be the most obvious repercussion of the Windrush scandal, but their logic seems inexorable.

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Colin Yeo

Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.