The legal powers of the Equality and Human Rights Commission (EHRC) have been much discussed in recent weeks. This month it is not the Labour Party in the figurative dock, but the more familiar presence of the Home Office. An EHRC report into the Windrush scandal, published today, has found the department in breach of section 149 of the Equality Act 2010 (the “public sector equality duty”).

The EHRC has recommended, and the Home Office seems to have accepted, that the two bodies enter into an agreement on avoiding future breaches of the law, under section 23 of the Equality Act 2006. A section 23 agreement is less hard-hitting than the enforcement action taken against Labour, which was handed an “unlawful act notice” under section 21 of the 2006 Act. But as EHRC interim chair Caroline Waters told the Today programme, the resulting agreement is “legally enforceable” just the same.

The report’s substantive findings draw upon, and are familiar from, the Windrush Lessons Learned Review. The EHRC agrees with that report that “the experiences of the Windrush generation were ‘foreseeable and avoidable’”. It says that when concerns were raised about the equalities impact of hostile environment checks of people’s immigration paperwork, the Home Office “did not treat these [concerns] seriously” and “repeatedly ignored” them.

Colin has written of the hostile environment “that the Home Office is not interested in the question of whether it actually works or not”. There have been valiant attempts to argue that hostile environment policies are effective on their own terms, not least by incoming EHRC commissioner David Goodhart. But nobody in government much cared. The EHRC found that, to the extent that there was monitoring of the hostile environment’s real-world effects, bad news was simply ignored:

The only dedicated structure for monitoring and understanding the actual impact of the 2014 Immigration Act [hostile environment] measures was the evaluation of phase one of the right to rent scheme. However, while this evaluation underlined previously identified concerns about the scheme’s negative effects on people with limited documentation, the department chose not to analyse the equality implications of this further.

The EHRC’s recommendations are reproduced in full below. With the best will in the world, it is difficult to see how a set of policies found to systematically discriminate against people of colour can be tweaked into legal compliance.

Understand: gathering information on actual and potential impacts

Findings

We find that the Home Office did not give sufficient attention to understanding the potential impacts of the hostile environment policies for the Windrush generation, even though they were foreseeable.

The department included minimal equality considerations in the impact assessments for the 2013 Immigration Bill. It made no attempt to consider the likely cumulative effect of the restrictions it introduced on access to services on people who were British citizens but who did not have documentation proving that status. There is also little evidence that the Home Office used its knowledge of the historical development of immigration legislation, policy and practice to inform its understanding of the potential negative implications of the 2014 Immigration Act for the Windrush generation.

Public consultations organised by the Home Office identified early equality concerns, but the department did not treat these seriously, downplaying the number of people potentially affected and the potential severity of the impact. Our assessment saw limited evidence of effective impact monitoring, which supports the Windrush Lessons Learned Review conclusion that such monitoring over time was poor. The only dedicated structure for monitoring and understanding the actual impact of the 2014 Immigration Act measures was the evaluation of phase one of the right to rent scheme. However, while this evaluation underlined previously identified concerns about the scheme’s negative effects on people with limited documentation, the department chose not to analyse the equality implications of this further.  

Recommendations

To properly understand the potential and actual equality impact of its policies and practices on people of different racial groups, the Home Office should:

1. Prioritise, act early and use a range of sources and evidence to understand the equality impacts of its policies and practices – particularly through proper engagement with affected groups. This involves:

• Giving active consideration to, and gathering evidence of, potential impacts – including possible unintended ones – from the concept stage and at each stage of decision-making.
• Focusing on understanding the scale and the severity of the potential impacts, taking into account existing inequalities and avoiding assumptions about these effects, and prioritising more thorough understanding where these are more prevalent and / or severe. This is particularly necessary for immigration policy, given the significant potential consequences it has for people’s lives.
• Setting up systems and processes for maintaining, communicating and using institutional knowledge to identify and analyse the cumulative equality impacts of any policy with other relevant current and past policies. This should include those led by different departments (for example, the Department of Health and Social Care’s rules for charging overseas visitors and migrants for healthcare) and is important for policies designed as linked packages of measures, such as the hostile environment agenda.
• Taking active proportionate steps to help make policymakers fully aware of potential and actual human impacts of policies, by using a range of sources, including qualitative evidence […]
• Using data broken down by ethnicity and other protected characteristics to identify historical and structural inequalities that may increase the impacts of policies on particular groups.

Act: using equality evidence to inform policy

Findings

We find that the Home Office did not seek to integrate equality considerations sufficiently when developing the initial policy that would become the Immigration Act 2014, or in later decisions, such as on further rollouts of the right to right policy.

It is our view that Home Office officials and ministers only considered equality issues after already making decisions to proceed with policies, where they were considered at all. The department was inconsistent in considering the equality implications of and mitigations for its hostile environment measures. This is despite the severe impacts of each policy – in isolation and as part of the wider hostile environment agenda – on some protected characteristic groups that had already been identified.

The Home Office review into the right to rent scheme is evidence of steps towards PSED compliance, and did result in the department introducing some mitigation measures. But its overall effectiveness was limited. The department did not give the same weight to reviewing the policy’s equality considerations as it did to operational matters. As a result, these mitigation measures did not address the specific negative experiences of the Windrush generation. We did not see evidence of any other evaluation of policies after their implementation.

While we do not have evidence to show how this affected individual Home Office decisions, it is clear they took place in a political environment that favoured continued implementation of the policy at pace.

Recommendations

To act properly on its understanding of the potential and actual equality impacts of its policies and practices, the Home Office should:

2. Make sure ministers and other decision-makers receive and consider detailed equality information, including options for mitigating any negative impacts, at an appropriately early stage to inform the policymaking process. This involves:

• Developing a range of options at the initial stages of policy development for ministers to consider, before any decisions are made. These should aim to mitigate any potential or actual negative impacts for ethnic minority groups, or reduce existing inequalities. Equality considerations should, in principle, be given the same weight as operational, legal and reputational issues.
• Making sure that senior officials, and then ministers’ private offices and advisers, present this range of options clearly in submissions to ministers. If this information is not included in a submission, ministers should request it.
• Documenting, with reasons, decisions taken to adopt or not adopt particular measures to mitigate impacts.

3. Regularly review equality impacts as policies are implemented, act on this information in a manner proportionate to the severity of the impacts, and document decisions taken to adopt or not adopt particular mitigation measures. This involves:

• Testing policy meaningfully through pilots, ‘challenge sessions’ with internal and / or external stakeholders, or other appropriate measures. This should include involving stakeholders in design, delivery and evaluation to monitor the intended and actual impacts and whether any mitigating actions taken are effective.
• Reviewing decisions regularly and with an open mind, to reflect any changing circumstances or new information on risks to equality. The frequency and depth of reviews should reflect the severity of the policy’s potential and actual impacts.
• Establishing systems and processes to understand and act on actual equality impacts. This could be through the proactive creation of stakeholder networks across protected characteristics and other priority groups (such as those representing migrants), and from internal evidence gathered from frontline implementation. Such an approach should be led by an appropriate senior official.
• Responding to any potential or actual negative equality impacts promptly and with an open mind by considering amending the policy to avoid or mitigate impact, or by considering stopping or postponing a policy where the negative impact is unavoidable. Where the impact is likely to be severe, this consideration should be robust. If the decision is made to continue the policy, the reasons for that decision should be recorded, setting out how equality impacts were considered and balanced with other relevant factors.

Embed: understanding, prioritising and supporting the PSED

Findings

We find that there were significant gaps in the Home Office’s understanding of how the PSED applied in the context of the hostile environment. In particular, there was an over-broad and inconsistent understanding of the exceptions to the Equality Act for immigration functions.

This was the result of limited training on the PSED and equality, and limited guidance for officials and ministers on how to identify, analyse and use equality information to inform decision-making.

Consideration of equality does not appear to be part of the culture in which these policy measures were developed and implemented, which was characterised by visible and often contentious political debate. This includes even the name given to this policy agenda. As the Windrush Lessons Learned Review notes: ‘the choice and use of words undoubtedly reflects, and also influences, an organisation’s culture’.

A narrow focus on delivering the political commitment of reducing immigration, combined with a culture where safeguards were not used, resulted in the Home Office failing to have due regard and led to deeply negative outcomes for Black members of the Windrush generation and their descendants. 

Recommendations

To embed its commitment to equality fully, the Home Office should:

4. Be completely transparent and open to scrutiny about its commitment and approach to advancing equality. This involves:

• Identifying and publishing its analysis of the important equality issues, including structural inequalities, relevant to its functions and the equality objectives it will aim to achieve through its work. This should be informed by engaging with relevant stakeholders.
• Putting strategies and action plans in place to achieve its equality objectives, publishing annual reports on its progress, and reviewing plans where progress is not being achieved. This should include the department’s approach to gathering evidence on equality, and how it has acted on this information.
• Making sure that the language used internally and externally reflects its commitment to equality, improves public confidence in its ability to carry out its functions fairly and without prejudice, and helps deliver its ambition of being a fair, humane and compassionate organisation.
• Engaging with existing structures and bodies whose role it is to provide scrutiny – such as the Independent Chief Inspector of Borders and Immigration, the National Audit Office, and relevant parliamentary advisory and select committees – to share information about the equality implications of its work, and take specific, measurable action on recommendations from these groups.

5. Take meaningful action to improve its internal capability to fully understand and comply with the PSED, in order to fulfil its commitment to equality. This involves:

• Identifying which of its functions have the greatest actual and potential impact on equality, and prioritising those for its PSED improvement work. It should work with external partners to identify these, gather other relevant evidence, and respond effectively to any negative impacts it identifies.
• Delivering mandatory, high-quality learning and development on how to comply with the PSED and the importance of the Duty for equality more broadly. This should include training and role-modelling from senior leadership, and should be informed by engaging with groups representing those directly affected by the department’s work. This learning and development should focus on the purpose of the duty and its origins in the Macpherson report, ensure consistent and accurate interpretation of the exceptions for immigration functions in Schedule 18 to the Equality Act 2010, and make clear the role of all Home Office staff in complying with the PSED.
• Making sure that senior officials champion and continue to strengthen the department’s integration of equality considerations into planning and delivery, and holding them to account for this through its performance management system.
• Continuing to develop and embed the use of materials, such as guidelines and templates, which support frontline staff and hold them to account for considering equality in all aspects of their daily work.
• Making sure that performance objectives for relevant Home Office roles, particularly those providing advice or support to ministers, include a responsibility to check and challenge for compliance with the PSED in daily operations and decision-making.
• Developing the appropriate structures, groups and culture to allow staff to scrutinise and challenge decisions and practices constructively.