Government’s hostile environment policy breached equality laws, says EHRC

A recent report by the Equality and Human Rights Commission (EHRC), found that the Home Office’s hostile environment fundamentally breached equality laws, subjecting many to “serious injustices”.

Responding to the deeply troubling report, the Home Office has pledged to “right the wrongs” caused by the policy. However, for many this pledge is too little, too late, with the scandal branded a “shameful stain on British history”. 

Further concerns have been raised around the politicised appointment of David Goodhart, a vocal supporter of the hostile environment, to the role of EHRC commissioner. As the government appears to take further control over the watchdog, some have voiced their fears over it’s future as an independent body.

Impact of the hostile environment

The human impact of the hostile environment has been devastating and wide ranging. Former Prime Minister Theresa May successfully delivered on her promise to give “illegal migrants a really hostile reception”. As a result, thousands were subjected to discrimination, abuse and exploitation.

The Institute for Public Policy Research released a report on the policy’s impact in September 2020. Its findings were disturbing. It was found that the Home Office’s hostile environment had forced many into destitution. Elsewhere, the policy was discovered to have fostered racism and discrimination. In addition to this, the policy also detrimentally affected the lives of those who had the legal right to live and work in the UK.

The report outlined that as a direct consequence of the policy, the criminalisation of work via ‘right to work’ checks, and a lack of financial support from the government, migrants were put at risk of being forced into the “shadow economy”. Further to this, it was found that the policy forced women specifically into exploitation and modern slavery.

Elsewhere, the report noted that the hostile environment policy and right to rent checks encouraged a discriminatory environment for migrants, and citizens from minority ethnic backgrounds.The NHS charging regime was also found to subject those most vulnerable to significant costs and health risks, while restrictions on welfare caused many to face the same kind of anguish.

The EHRC’s damning findings

The EHRC’s study set out to discover whether the Home Office had complied with its duties under the Public Sector Equality Duty (PSED) when formulating, implementing and monitoring hostile environment policies. Its findings were damning. Ultimately, the EHRC concluded that the Home Office had failed to comply with Section 149 of the Equality Act 2010 (the PSED), which has been a legal duty since 2010.

The report outlined that the EHRC agreed with the findings of the Windrush Lessons Learned Review, which had concluded that the experiences of the Windrush generation were both “foreseeable and avoidable”. On top of this, despite the fact that negative equality impacts were identified by the Home Office and stakeholders, this was “repeatedly ignored, dismissed, or their severity disregarded”.

In addition to disregarding the severity of these negative impacts, the report said that the Home Office had also failed to engage with representing members of the Windrush generation when issues emerged. Moreover, the EHRC stated that the department’s approach to PSED compliance was merely “perfunctory”.

In its recommendations for change, the EHRC stated that the department must improve transparency and scrutiny around its commitment to advancing equality. Additionally, the report outlined that the Home Office must do more to ensure that the negative impacts of such policies are mitigated, and the cumulative implications for certain groups, more thoroughly considered.

The EHRC also recommended that to ensure measurable action is taken, the department should enter into an agreement with it, under section 23 of the Equality Act 2006, by the end of January 2021. The Home Office has agreed to this.

Commenting on the report’s findings, Halima Begum, director of the Runnymede Trust, said: “This latest report is yet more evidence of the discriminatory nature of the government’s hostile environment. The report’s findings are nothing short of a national scandal”.

The commission’s interim chair Caroline Waters, added: “The treatment of the Windrush generation as a result of hostile environment policies was a shameful stain on British history. It is unacceptable that equality legislation, designed to prevent an unfair or disproportionate impact on people from ethnic minorities and other groups, was effectively ignored in the creation and delivery of policies that had such profound implications for so many people’s lives”.

In a statement, Home Secretary Priti Patel and Permanent Secretary Matthew Rycroft, said: “We are determined to right the wrongs suffered by the Windrush generation and make amends for the institutional failings they faced spanning successive governments over several decades”.

They added: “This report highlights a number of important areas for improvement by the Home Office, building on the work we are already doing in response to the Windrush Lessons Learned Review to apply a more rigorous approach to policy making, increase openness to scrutiny, and create a more inclusive workforce – including by launching comprehensive training for everyone working in the Home Office to ensure they understand and appreciate the history of migration and race in this country. We are working closely with the EHRC on an action plan designed to ensure that we never make similar mistakes in the future”.

Backlash over new EHRC commissioner appointment

Hopes that a sufficient and effective action plan will be designed to prevent “similar mistakes” being made in the future have been dashed. On the same day that the Joint Committee on Human Rights published its report on the EHRC’s failure to tackle “racial inequality in the protection and promotion of human rights,” David Goodhart was selected as an EHRC commissioner.

David Goodhart currently works as a journalist and heads immigration and integration at the right-leaning Policy Exchange think tank. He has also repeatedly expressed support for hostile environment policies, saying in a 2018 Telegraph article that, the windrush scandal was merely a “an error of over-zealous control” which “must not lead to a radical watering-down of the so-called ‘hostile environment”. This appointment has subsequently been faced with backlash from equalities campaigners. Reflecting on the recent appointment Halima Begum said the move had “completely eroded her confidence in the EHRC”.

Meanwhile, the Institute of Race Relations, tweeted: “The appointment of David Goodhart as an EHRC commissioner, who has in the past attacked diversity and opined about the need to understand ‘majority grievances’, suggests the very real danger of an end to a progressive equalities agenda in this country”.

In an email written to the Guardian, Mr Goodhart said: “I am a journalist and before being appointed an EHRC commissioner I did write about the Windrush Scandal and always described it as a shameful episode. This was not the so-called ‘hostile environment’ working, it was an egregious error. The real question is how we make status-checking fair, given that people who don’t look or sound like the majority will potentially be discriminated against. I look forward to contributing to the debate about how we create such a fair and transparent system”.

Only time will tell what impact this new appointment will have on the functioning of the EHRC. However, it certainly seems a step in the wrong direction, and dilution of democratic scrutiny.