Wafted by goodwill onto the rocks of error

Without some kind of internal border—in other words, status-checking by employers, landlords and so on—there would be a huge incentive for people, especially from poorer countries, to arrive and stay permanently but illegally

David Goodhart

This is a doubly depressing book. It describes a shameful episode in the history of the Home Office, and in Britain’s treatment of a section of its Caribbean minority, but in its highly selective analysis and extreme conclusions it also contributes to an ideological assault on the proper operation of Britain’s border.

But praise where it is due. Amelia Gentleman, a Guardian reporter, showed admirable persistence and empathy when, towards the end of 2017, she stumbled across a pattern of mistreatment of British citizens, mainly of Caribbean background, who had been wrongly classified as illegal immigrants and who were thus denied NHS treatment, were not allowed back into the country or, in at least 83 cases, were actually deported.

She was not the first to write about the issue, nor to spot the pattern, but it was the Guardian reporting that prompted a national debate in April 2018 and led to the resignation of Amber Rudd as Home Secretary.

So what happened? The relevant group came to be called the Windrush generation but they were, in the main, the children of those who had arrived in that imperial family “open door” period of 1948 to 1962, or a decade or so after, and not just from the Caribbean but from throughout the empire, Commonwealth and the white dominions. This group had been granted Indefinite Leave to Remain in 1971 but in many cases had never acquired the documentation to prove it.

For several decades this did not matter and as people who felt themselves to be obviously British it simply did not occur to many of them to acquire any kind of proof of status, (around 30,000 in this group had never applied for a British passport). Many of them would also not have known that Indefinite Leave to Remain lapses if you leave the country for two years or more. Some retired Caribbeans live a dual life, straddling Britain and their country of birth.

But in recent years what one might call the internal border (otherwise known as the hostile environment)—meaning checks on peoples’ right to be in the country by employers, landlords, banks, public service managers and so on—has become more stringent, with heavy potential fines for employers and landlords. This was designed to encourage people here illegally to leave of their own accord, partly because human rights legislation (and now the fall-out from the Windrush scandal itself) has made deporting illegal immigrants against their will harder. Some people in that 1971 group got swept up in error in this status-checking and, in many cases, could not prove their legal status.

Campaigners warned of these historical anomalies when the legislation was toughened in 2014. In particular Fiona Bawdon, in her prescient “Chasing Status” report for the charity Legal Action Group, described the plight of several innocent people already caught up in the over-zealous application of the hostile environment.

Some of these warnings came from open-border lobby groups that complain about every kind of restriction, so were easily overlooked. But voices inside the Home Office itself warned about historical groups who might be wrongly trapped by the new system. The priorities of a powerful Home Secretary, Theresa May, on a crusade to tighten border controls after years of latitude, meant that these voices were not listened to. The culture was “if in doubt, say no”.

When Gentleman’s stories started to appear at the end of 2017, the department should have taken more notice. Indeed, it is clear, with hindsight, that when drawing up the original hostile environment legislation there should have been more proactive thinking about Windrush-type anomalies. A lack of institutional memory is one explanation for this failure. Also, as Lucy Moreton, head of the Immigration Service Union, points out, staff who were far too junior and inexperienced, and even agency workers, were making momentous decisions about people’s futures on a “tick-box” basis. Another factor was a lack of people of Caribbean (or similarly relevant) background at the top of the department who might have sounded the warning, recalling, perhaps, that an elderly relative was still travelling on, say, a Jamaican passport, and had never become a citizen.

As Tony Smith a former senior Home Office official, explained to me: “There was a move towards a tick box system for documents to establish status, which is dangerous when we don’t have a national ID register and some long-term residents don’t have documents. Back in the 1980s, I came across quite a few of these cases when people had been arrested and we were called out to establish immigration status. The difference is that we used common sense and we knew the history and how things had worked at the border over the years. That corporate memory has evaporated in recent years.”

There were other factors in play. Resource pressure meant that all the onus was on the potentially irregular person to come up with the relevant documents, with no help from officials. Moreover, the law in this area, indeed nationality law in general, is inordinately complex and full of rules that many people are unaware of.

In the department’s defence it might be pointed out that even as the Guardian stories rolled out there was no high-profile organised campaign on behalf of the undocumented Windrush generation as a specific group, as there was for the Gurkhas or the Calais children; they were just a series of unfortunate people caught up in a bureaucratic nightmare. But as the cases mounted up in the first few months of 2018 it was clear there was a generic problem. The Home Office was far too slow to acknowledge it.

Thanks to the Windrush scandal, the hostile environment has now been facing a hostile environment of its own. Gentleman’s book is a contribution to that campaign, but it is based on a category error.

She insists that the Windrush scandal was intentional. The combination of the government’s (now abandoned) “tens of thousands” net immigration target, combined with the hostile environment and racist attitudes in the Home Office, and wider British society, caused the scandal. “It was the hostile environment policy itself, not the implementation of it, that was causing the problems,” she writes—providing not a shred of evidence for this claim.

Her justified anger at the appalling treatment of innocent people, whose harrowing stories take up about half of the book, causes intellectual precision to be jettisoned. Instead of focusing forensically on exactly what went wrong and how to prevent a repetition, she elides a bureaucratic mistake with her own caricature of anti-immigrant prejudice in the Home Office and the Conservative Party.

Britain is, and will remain, an internationally-open “hub” country inviting large annual flows across its borders. There were 142 million arrivals into the UK last year. About 120 million of those people are UK and EU citizens who have the right to live and work here, but 20 million are people who do not have that automatic right and three million of them came in on time-limited visas.

Without some kind of internal border—in other words, status-checking by employers, landlords and so on, a cumbersome UK version of ID cards for non-citizens—there would be a huge incentive for people, especially from poorer countries, to arrive and stay permanently but illegally. Already it is thought that the number of illegal immigrants is anything between 500,000 and 1.5 million and being added to through visa over-staying, clandestine entry on lorries or boats, and failed asylum seekers, by about 25,000 a year. This contributes to a brutal, twilight world in parts of inner-city Britain where exploitation and modern slavery flourish and law-abiding employers and immigrants are undercut by illegal immigrants.

So why can’t we just deport people who have no right to be here? In an era of human rights law, it is very hard to remove people, especially those who have been here for a few years and can claim protection under the right to family life.

There is currently just one right of appeal against the rejection of an asylum appeal. But many claimants will then put in for a judicial review. The vast majority are refused, but the process takes up more time.

A relationship that has lasted two years is usually regarded as a “durable relationship” and might qualify as a form of family life. Asylum applications are now more likely to be granted on such human rights grounds than asylum itself.

Most attempts to find a way round these legal constraints, so that cases may be concluded more quickly, such as deporting people first and allowing them to appeal from abroad, have been knocked back by the courts. And a Liberal Democrat initiative during the 2010-2015 coalition government means that it is virtually impossible to detain immigration offenders with young children. Illness, too, is a significant reason for holding up deportations.

A further obstacle to deportation is the non-cooperation of receiving countries such as India, Algeria and Pakistan. One regional head of enforcement told me that the current system is “broken” and that of the people in detention only about 20 per cent end up getting deported.

Reading this book you would get the false impression that deportation is easy.
It is not. The combination of legal and political obstacles to deportation—obstacles that Gentleman would presumably approve of—was, ironically, one of the main reasons for the government’s shift to the hostile environment policy after 2010 designed to encourage illegal immigrants to self-deport.

In 2004 (under Labour) there were 21,425 forced removals, but in the year to June 2019 that had fallen to below 3,000 (excluding the 5,203 foreign national offenders). Over some of that period the number of voluntary removals rose sharply from 3,566 in 2004 to 28,655 in 2016, perhaps some evidence that, despite Gentleman’s assertions, the hostile environment was working and was prompting people to leave voluntarily. At least until the Windrush scandal itself threw a spanner in the works—voluntary removals last year fell to just over 13,000.

Unless you are an open-door advocate and think that there is no real distinction between a citizen and a non-citizen, which Gentleman implies she is not, then what possible objection can there be to a well-policed internal border that makes it harder for illegal immigrants to work and live comfortably and nudges them to self-deport?

Yet because of the misapplication of the hostile environment to people who should never have experienced it in the first place, Gentleman argues that the whole system should be scrapped. This is a nonsense.

If we want to remain an open society, with large numbers of people flowing pretty freely over the external border, coming to work and study and visit, then we need an efficient, humane system of internal border controls to reassure citizens that the immigration system is working and people are here legitimately. Without such an internal border life becomes even more of a free-for-all, especially for people at the bottom of the pile.

The modern, open, liberal worldview has tended to see borders as a necessary evil, associated with national exclusivity and hostility to outsiders. But most people in the world would probably agree with the proverb that good fences make good neighbours—and more open neighbours too; if people believe that their national borders are well managed they are likely to worry less about the numbers crossing them.

As the cost of transport has dropped, including for people in poor countries, and the value of citizenship in rich, stable countries has risen—including, in most cases, free health care, education and welfare support—the number of people wanting to move permanently from poor to rich countries has, of course, increased. The greater transparency of the rich world thanks to the internet has contributed to this effect.

But so long as rich countries remain “owned” by their own citizens, a large majority are likely to want to share their good fortune with only a limited number of outsiders. Moreover, today most movement in and out of rich countries is only temporary (only just over three per cent of the world’s population live permanently outside their country of birth) in the shape of tourism or temporary work or study, and this has to be managed and enforced.

The Brexit Irish border argument was a crash course for many people in how borders in rich countries have evolved in recent years. They are no longer, if they ever were, single lines on the earth but rather they extend outside countries through visa requirements, juxtaposed borders, “pre-clearance” of goods and special status for “trusted traders” and “trusted travellers”, and they extend inside countries through biometric residence cards and other forms of citizen identity management and the attempt to identify and deport illegal immigrants (which went so wrong in the Windrush scandal).

For many people on the liberal Left, including it seems Gentleman, this is all beside the point—borders are a form of prejudice. And it is true that it is people from poorer countries who have the greatest incentive to move permanently to rich ones and people in poorer countries are usually non-white. Most of the victims of the Windrush scandal were of Caribbean background but plenty of others were caught in the same net, including white Canadians (not mentioned by Gentleman). It is also worth pointing out that the largest national category turned away at the border every year are Americans (mainly white) and the top three countries for forced returns in 2019 were Romania, Albania and Poland.

Gentleman believes that pressure to remove people was driven by an obsession with getting immigration numbers down and by targets. But the numbers are too small to make much difference to headline migration figures. And removal targets—pitched a few hundred above the previous year’s outcome as a standard bureaucratic measure—have been narrowly missed in most recent years and have only been very indirectly linked to staff incentives or sanctions.

Having witnessed Home Office enforcement officers in action, I can reassure Gentleman that they are a very different generation to the Heathrow immigration officers who signed a petition in support of Enoch Powell in 1968. For a start, half of the team I witnessed were from ethnic minority backgrounds and they were very well aware, as one put it, that “offenders are often victims too” and that combatting modern slavery is an important part of border control. Some of them may well be Guardian readers. Yet many of the decent people who work in immigration enforcement have been made to feel dirty about the important public service they perform. Too many are now leaving.

I was hoping this book would clear up two things. First, exactly how many people were impacted by the Windrush mistake. Second, why those of Caribbean origin were so disproportionately impacted.

Gentleman provides no definitive figures but Sajid Javid when Home Secretary reported that the number wrongly deported was 83. The government has set aside £200m to cover compensation for them and several hundred others who were seriously harmed (for example by being denied NHS treatment or losing their jobs).

She also has no explanation for the preponderance of British Caribbeans. The answer seems to be partly numbers: people coming from the Caribbean were the second largest group, behind Indians, arriving in the 1950s and 1960s who were then granted permanent residence (but without papers). They also felt the most British of those arriving—though most would have preferred to go to the US until that avenue was cut off in 1952—and therefore the least in need of regularisation. (Unlike India, most Caribbean countries did not become independent until the 1960s or 1970s.) There were also a disproportionately high number who were too poor for foreign holidays and therefore never needed a British passport.

Two good things have come out of the Windrush scandal. First, it helped to revive the debate about a citizen identity system, which would have avoided the misery for those caught in the Windrush nightmare. Second, the outcry from the British public (including the Daily Mail) when the story emerged showed the extent to which British Caribbeans have come to be regarded as part of the national family. It also helps place in perspective the comments about xenophobic Brexit-Britain that pepper the book, topped only by the magnificently snooty comment by Kath Viner, the Guardian editor, who writes in the foreword that “the scale of the outcry showed . . . that British people are not quite as racist as their government took them to be.”

But this misconceived campaign against the so-called hostile environment, in other words the necessary status-checking internal border, is having consequences. The Labour party is promising, if elected, to abolish all detention centres used to temporarily house those who are facing involuntary deportation. But the current detention centres are now only about half full because of the post-Windrush nervousness about deporting anyone against their will, reinforced by the Stephen Shaw report on the welfare of vulnerable people in detention.

As one official said to me: “We are back to the situation where once you get here you will never be forced to leave, unless you are in prison.” That creates a huge incentive to get here in the first place on a boat or in a lorry (sometimes with tragic consequences, as we have seen recently).

That should mean that the hostile environment is left to do all the work of discouraging people from staying. But that too has been heavily constrained since the Windrush scandal, with only the employer checks working properly. Information about suspected illegal immigrants is no longer handed over by landlords, banks or NHS managers to the Home Office. Survival is now easier for illegal immigrants.

In recent years we have seen a slow shift from a laissez-faire border—symbolised by the abolition of entry and exit checks in the 1990s—to a much more controlled one. The UK border was overwhelmed by the significant increase in numbers in almost all categories, starting in 1997, and a sense of control only began to be reasserted towards the end of Labour’s period in office and then during Theresa May’s period as Home Secretary from 2010 to 2016. The Windrush scandal was an egregious mistake stemming from an over-zealous striving for greater control.

That is not a reason to scrap the current system but to make it work better and make sure with the introduction of a Home Office ombudsman and other such measures that the Windrush scandal cannot be repeated. And if status checks tend to be demanded more from people who do not look or sound like the British majority then the simple answer is to make everyone submit to a status check when taking a job or renting a property. I would also favour offering much more money to illegals to leave voluntarily and providing a low-key amnesty for those who have been here for 10 years or more if they have not been on the wrong side of the law.

But, alas, we are now seeing both voluntary and involuntary deportations plummeting, which means that illegal immigration will rise sharply, and no doubt bring more tragedies in its wake. The Wendy Williams review of Windrush lessons, due early next year, is likely to further weaken the internal border and hammer the Home Office.

This book is a classic example of “expressive but not persuasive”. Gentleman’s persistence on behalf of a powerless group caught up in a bureaucratic nightmare showed a creditable striving for justice. It is a shame she cannot extend her empathy to the overwhelming majority of the public who regard illegal immigration as a scourge and want people coming to the country to abide by the rules.


The Windrush Betrayal:
Exposing the Hostile Environment
By Amelia Gentleman
Faber, 336pp, £18.99


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