The Hostile Environment On Trial

Next Tuesday and Wednesday (14 and 15 January 2020), the Court of Appeal is scheduled to hear the government’s challenge against a High Court ruling on the lawfulness of a key component of the regulatory regime created by the Immigration Act 2014 - the so-called “right to rent” provisions. It is likely to prove a decisive moment for the growing number of individuals who have fallen victim to the “hostile” or “compliant” environment which the UK government designed through the Immigration Acts of 2014 and 2016. By requiring every person resident in the UK to prove, by way of a limited range of documents, their entitlement to be in the UK before basic resources, such as National Health Service care, can be accessed, the hostile environment policies are intended to make life in the UK so difficult for undocumented migrants that they are forced to “self-deport” - often to countries they have not lived in, or even visited, since early childhood. According to sections 20-37 of the Immigration Act 2014, public and private rented accommodation falls within the scope of resources for which proof of lawful residence in the UK is required.

The first “trial” of the hostile environment concluded on 1 March 2019 with the decision of the High Court in R (On the Application of Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department [2019] EWHC 452 (Admin). The court concluded that sections 20-37 of the Immigration Act 2014 caused landlords who would otherwise have rented out property in a non-discriminatory fashion to discriminate on racial grounds (see para. 105). In so doing, the High Court drew attention to the fact that the harms caused by the Immigration Act's provisions cannot be measured solely in the unlawful deportations, losses of employment and homelessness suffered by those who, despite not being in possession of a British passport, have an indisputable right to be in the UK. The High Court recognised that landlords were also “victims” of the hostile environment - because the policies have placed them in the morally reprehensible position in which they are forced to debate between the merits of racially discriminating against prospective tenants, or face a fine or imprisonment for refusing to discriminate on racial grounds. No doubt it is for this reason that the Residential Landlords Association has been granted permission to intervene in next week’s appeal.

Brazen ‘though this government has proved itself to be, its hostile environment policies are unlikely to survive a decision by the Court of Appeal to uphold the High Court’s finding that, in effect, the UK government - that bastion of liberal democracy - has enacted a law which is so fundamentally unjust as to raise the question of whether it should be obeyed.

So, the burden on next week’s Court of Appeal is a heavy one. Whatever is decided there, the trial of the hostile environment is likely to be a protracted one, and will almost certainly involve the UK Supreme Court. The Joint Council for the Welfare of Immigrants, who brought the case against the government, has paved the way for judicial scrutiny over other elements of this shameful legislation.