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About JCWI

JCWI was founded in 1967 to ensure that the rule of law and human rights are respected in the immigration system. We are the UK’s leading immigration charity covering all aspects of immigration, asylum, and nationality law. Our clients comprise mainly of migrants from BAME backgrounds, and we research, examine, and analyse the discriminatory effects of immigration policy and lead advocacy efforts for systemic reform.

Background

This submission will focus on the impact of the UK Government’s immigration policies and Hostile Environment on the rights of BAME communities. The UK has a relatively large migrant population, and an immigration system, which thanks to the Hostile Environment, is embedded and pervasive in almost every aspect of everyday life. The Hostile Environment comprises a set of policies announced in 2012 by then Home Secretary Theresa May to make life impossible for people without status. It turned doctors, landlords, police and teachers into border guards, tasking them with conducting immigration checks and determining who could and couldn’t access basic services. Unsurprisingly, the effects of the Hostile Environment don’t stop at irregular migrants but play out in the lives of all migrants, anyone who “sounds foreign” and BAME British citizens, most famously with the Windrush scandal. It is therefore impossible to speak about or to analyse issues that affect BAME groups without also considering the effects of the immigration system, nor to talk about issues affecting migrants without considering institutional and structural racism, poverty and restriction of access to housing, secure and quality employment, and public services it engenders.

Unfortunately, there has been a failure across government to consistently collect data or monitor policies in a way that allows the government or others to assess the impact of policies and laws on different social and ethnic groups. Within the immigration system there is a widespread failure to collect data on race and ethnicity in things such as Home Office decisions on visas, appeal success rates, immigration enforcement activity, detention, removals, deportations, data sharing with other departments etc. This was commented on by Wendy Williams in the Windrush Lessons Learned Review saying she found the ‘monitoring of the racial impact of immigration policy and decision-making in the department to be poor’. As a result, while there is growing evidence from academics, NGOs, and others that immigration policy like the hostile environment and NHS charging creates and exacerbates racial discrimination, the government refuses to collect the data necessary to measure the extent of such discrimination.

Summary

The Right to Rent scheme  

  • The Government’s right to rent scheme causes racial discrimination against migrants and BAME British citizens.
  • Recommendation: Repeal the Right to Rent policy.

Race disparities in detention

  • BAME migrants are overrepresented in groups vulnerable to being detained and on average are detained for longer periods, in greater numbers, than white migrants.
  • Recommendation: Release everyone detained under immigration powers to reduce the risk of COVID-19 entering the detention estate and causing avoidable harm.

NHS charging and data-sharing

  • NHS charging and data-sharing with the Home Office operate in ways which are discriminatory towards BAME communities.
  • The integration of the Hostile Environment within the NHS deters migrants from accessing healthcare, even those who are entitled to do so.
  • Recommendations:
    -
    Roll back the NHS charging regime and introduce a comprehensive firewall between healthcare and immigration enforcement.
    - Launch a public information campaign that makes clear that healthcare services are available and safe for all migrants to use.

No Recourse to Public Funds (NRPF)

  • The NRPF condition disproportionately impacts BAME migrants and contributes to higher rates of poverty, destitution and insecure employment amongst BAME communities.
  • Recommendation: Immediately suspend NRPF conditions to ensure all migrants have access to public funds and a state safety.

EU Settlement Scheme

  • BAME EU citizens face additional barriers to the scheme and are therefore at greater risk of falling out of status and rights after the deadline.
  • The issue of EU citizens who have lived in the UK for less than five years being denied access to benefits disproportionately impacts BAME EU citizens.
  • Recommendations:
    -
    The Government must lift the EUSS deadline of June 30th 3021 with immediate effect.
    - Make pre-settled status an automatic ‘right to reside’.

Minimum Income Requirement (MIR)

  • People from BAME backgrounds are disproportionately affected by family migration policies that impose an income threshold on British citizens and settled residents with a partner from outside the European Economic Area.
  • Recommendation: Scrap the Minimum Income Requirement with a return to pre-2012 rules.

COVID-19

  • We know that BAME communities are at greater risk of serious illness and death from COVID than white communities and there is emerging which suggests that a person’s immigration status impacts their likelihood of contracting and becoming seriously ill with COVID-19.
  • Recommendations:
    -
    Make assurances that no one will be penalised for missing appointments, reporting or court dates due to illness.
    - Make sure no one is made an 'overstayer' because of being self-isolated or unable to return to a country that is not safe to travel to, by extending or modifying visas.
    - Provide specialist support for those housed in shared Asylum Accommodation to enable safe access to medical services and testing.

The right to rent scheme causes racial discrimination

The Government causes racial discrimination in the housing market by forcing landlords to conduct immigration checks. The right to rent scheme is a cornerstone of the Hostile Environment, currently only in place in England. It was created by the Immigration Act 2014 and it transformed the law of private tenancies in the UK, by prohibiting landlords from renting accommodation to people in the UK without a ‘right to rent’. It was designed to force undocumented migrants to choose between destitution and a ‘voluntary’ departure from the UK. In reality, it simply forces undocumented migrants away from the legitimate private rental sector, and into more dangerous and exploitative living situations, unable to complain about health and safety violations or other abuses, because of fear of the Hostile Environment.

In addition to the disastrous impact this policy has on those denied a right to rent by the law, it also causes racial discrimination. Both the High Court and the Court of Appeal have now found that the right to rent scheme causes racial discrimination against foreign nationals, as well as ethnic minority British people who are seeking to rent a home. According to the government’s own data 25% of landlords would not let to non-British passport holders as a result of the scheme, while surveys by Shelter, JCWI and the Residential Landlords Association have consistently shown that around 40% of landlords will prefer British passport holders as a result of the scheme. The scheme incentivises landlords to prefer those with British passports, and where people cannot show they have British passports, landlords use cues like ethnicity, name or accent to determine who “looks or sounds British”. As a result, ethnic minority British people without passports and foreign nationals with leave to remain effectively are forced to compete in a different housing market to British people with some options closed off to them or only available if no British person wishes to take it up.

The right to rent policy compounds existing racial inequalities in housing conditions. BAME people were already more likely to live in poor and overcrowded housing than white communities and since the introduction of the right to rent policy many migrants and BAME people have increasingly been forced to settle for substandard housing which is overcrowded, lacks indoor and outdoor space, involves a more difficult and dangerous commute or some combination of the above. The policy cannot be morally justified at the best of times, but particularly not during a pandemic.

Recommendation: The Right to Rent policy must be repealed. Destitution, homelessness, and the risk of death are not acceptable tools of immigration control.

Race disparities in detention

BAME migrants are at greater risk of being detained and being detained for long periods than white migrants. In the context of a pandemic in which BAME people are more likely to contract and become seriously ill with COVID-19, the Government’s decision to continue housing large numbers of migrants in overcrowded and unsanitary detention centres is particularly concerning. Research shows BAME people are overrepresented among people vulnerable to detention and are liable to be detained for longer periods, and in greater numbers, than white people. During 2019, 90% of Australian nationals held in immigration detention were released in less than 28 days, compared with just 40% of Jamaican nationals. However, attempts to ascertain the full picture of the discriminatory use and impact of immigration detention on BAME communities are hampered by the failure of the Home Office to collect or publish statistics relating to the protected characteristics of people held in immigration detention.

Recommendation: Release everyone detained under immigration powers to reduce the risk of COVID-19 entering the detention estate and causing avoidable harm.

NHS charging and data-sharing discriminate against BAME communities

NHS charging and data-sharing with the Home Office operate in a manner that is discriminatory to all people from BAME backgrounds, including British citizens. In 2019 around 500 delegates of the British Medical Association backed a motion stating that asking overseas visitors to pay made medical staff ‘complicit in racism’. NHS charging regulations are extremely complex, especially for healthcare staff and overseas visitor managers who do not have specialist knowledge in types of immigration status and which are exempt from being charged for which types of healthcare. JCWI’s research suggests that a large proportion (48%) of healthcare workers are unaware of how charging regulations operate within their hospitals. With such a high proportion of staff unclear on who is chargeable and for what treatment, there are indications that, with trusts under budgetary pressure, patients will be asked to prove their eligibility for free treatment in a discriminatory manner, with those from BAME communities subject to questioning where their white counterparts are not. Such incidences break trust between patient and healthcare provider, with the potential for negative health outcomes for the patient and knock-on implications for public health.

In the middle of a global pandemic in which access to free healthcare has never been more crucial, the grave consequences of these policies are even starker and more far-reaching. Despite the fact that the Government announced early in the pandemic that migrants – including those who are undocumented – will not be charged for testing, treatment or vaccinating against COVID, the wider charging and data-sharing systems remain in place. There is significant evidence that these policies stop migrants, refugees and asylum seekers from accessing healthcare, even where exemptions exist and in cases where they are not the targeted group. For example, there is clear evidence the Hostile Environment deters individuals with tuberculosis from accessing care and that migrants are deterred from accessing healthcare advice for fear that they will be charged or targeted by immigration enforcement.

New research from JCWI has found that Hostile Environment policies in the NHS hamper public health efforts against COVID by making migrants afraid to access healthcare even when they are entitled to do so. Almost half of all the migrants surveyed (43%) said they would be scared to access healthcare if they got sick during this pandemic. We did not ask for ethnicity information but 60% of migrants from Africa and the Caribbean report being fearful of seeking healthcare. 56% of Asian respondents said they would be scared. This is compared to just 16% of respondents originating from North America, Australasia and Europe. Given that there is evidence that BAME populations are being vaccinated at far lower rates than the rest of the population and dying of the disease at higher rates for reasons not explained by underlying health conditions, these findings are extremely concerning.

Recommendations:

  • Roll back the NHS charging regime, found by the BMA to make it harder for medical professionals to do their jobs.
  • Introduce a comprehensive firewall between healthcare and immigration enforcement.
  • Launch a public information campaign that makes clear that healthcare services are available and safe for all migrants to use.

No Recourse to Public Funds (NRPF) disproportionately impacts BAME migrants

The NRPF condition, which bars most migrants from accessing most benefits, disproportionately impacts BAME communities and contributes to higher rates of poverty, destitution and insecure employment. Access to a state safety net has never been more important than during a global pandemic which requires us to self-isolate if we develop symptoms and has forced hundreds of thousands of people out of work and into destitution. Despite this, the Government has refused to suspend the condition, making it extremely difficult for many to self-isolate when necessary, especially those in insecure, low-paid work, and forcing significant numbers to make the difficult choice between protecting their own and public health and feeding their families. Recent research from JCWI found that people with NRPF are losing their jobs just like everyone else – particularly in hardest-hit sectors like hospitality where migrants are overrepresented - but cannot rely on state support.  Furthermore, surveyed migrants with NRPF were more likely to be living in shared accommodation where it would be impossible to isolate adequately, more likely to be afraid of going to the doctor, and more likely to be have gone into debt than their peers who are entitled to benefits.

Recommendation: Immediately suspend NRPF conditions to ensure all migrants have access to public funds and a state safety.

Barriers to the EU Settlement Scheme for BAME EU citizens

BAME EU citizens face additional barriers to the EU Settlement Scheme and are therefore at greater risk of falling out of status and rights after the June 30th 2021 deadline. In 2017 the UK Government decided that all EEA+ residents must apply to the EU Settlement Scheme (EUSS) if they wished to continue living in their homes and working in the UK after Brexit. For most, this process is straightforward, but for many it is complicated and inaccessible. The consequences for someone slipping through the cracks are devastating and far-reaching. Anyone who is unable to apply by the cut-off point of 30th June 2021 will lose their legal status and feel the full force of the Hostile Environment, including facing criminal charges, detention, and deportation. If even a tiny fraction of the estimated 4 million EEA+ residents are unable to apply in time, tens of thousands of people will lose their status overnight.

Roma people are one group facing specific and heightened challenges due to high rates of insecure housing, illiteracy, digitally exclusion, criminality and social isolation. The Roma Support Group found there to be ‘substantial barriers’ to Roma people gaining knowledge of and access to the EUSS system. In addition, they discovered that women, older people, children and rough sleepers within the Roma community face further barriers in accessing the scheme. According to their report, the ‘vast majority’ of Roma people knew about Brexit but didn’t know how to apply for the EUSS. This report crucially highlights not just the barriers Roma people face now in securing their status, but the continued discrimination they and many other EEA+ citizens are likely to face after the cut-off point due to issues with wholly-digital systems and a lack of physical documentation. 

In addition, people with derived rights of residence face particular risk of being left out by the scheme. The September 2020 Quarterly EUSS statistics show that overall, derivative rights refusals (the vast majority of which were for Zambrano applications) account for 7% of refusals issued, despite only making up a tiny fraction of applications. Further, Zambrano applications had a much higher proportion of refused outcomes (63%) than other derivative right to reside routes (less than 1%).  Zambrano carers are the sole carers of children and disproportionately women and/or BAME. Many of them are also survivors of domestic abuse. When seen in the context of socioeconomic barriers to the scheme it is unsurprising but entirely unacceptable that this community is facing so much additional hardship securing status than their white, European counterparts.  

Recent research from JCWI has found that as well as extremely vulnerable groups, EU care workers and other key workers – the very people we are relying on to pull us through the COVID crisis – are in real danger of being left behind by the EUSS. There is an overrepresentation of BAME workers in the care industry and other “at risk” key sectors. BAME people are disproportionately more likely to work in jobs with low pay, insecure employment arrangements and exploitative working conditions. Roughly 24% of England’s care industry and 18% of the UK’s EU care workers define as BAME, compared with 14% of the UK’s overall population. We discovered a concerning lack of awareness and understanding about the scheme amongst EU care workers. 1 in 7 surveyed online did not know what the scheme was and 1 in 3 surveyed in person had never heard of it before we met them.[29]

Many EEA+ citizens  who have lived in the UK for less than five years are being denied access to Universal Credit, an issue that will likely be felt harder by BAME EEA+ residents.  ‘Settled status’ counts as an automatic right to benefits, whereas those with ‘pre-settled status’ must take the Habitual Residence Test (HRT) and demonstrate they are ‘exercising treaty rights’, eg working, in order to access benefits. However, with hundreds of thousands out of work, for many this is simply not possible. IPPR found that the number of UC claims that have closed due to the HRT has been increasing over time, with around 45,000 claims closed in the last 12 months of available data, which will likely have grown considerably due to Covid-19. Many of these will have been claims from EU citizens and their families. Considering the factors and risks outlined, we are strongly concerned that BAME EU citizens and non-EU family members will be bearing the brunt of this wrongful denial of state support, due to higher levels of precarious employment arrangements alongside increased reliance on social security benefits. As such, BAME EU citizens and non-EU family members with pre-settled status face a double threat of COVID, due to their ethnicity and increased chances of being laid off work without access to a vital safety net.

Recommendations

  • The Government must lift the EUSS deadline as the only way to prevent tens of thousands of EU citizens and non-EU family members falling out of status and rights after the deadline.
  • Make pre-settled status an automatic ‘right to reside’ to protect BAME EU citizens and their families from COVID-19, destitution and to help control the spread of the virus.

Minimum Income Requirement (MIR) hits BAME communities hardest

Family migration policies that impose an income threshold on British citizens and settled residents with a partner from outside the European Economic Area are felt hardest by people from BAME backgrounds and entrench existing racial inequalities. The MIR means that anyone earning less than £18,600 a year may not sponsor the visa of a partner from outside the EEA, rising to £22,400 a year for those sponsoring a non-EEA national child, with an additional £2,400 for each child. Black African and Bangladeshi households in the UK, for example, have 10 times less wealth than White counterparts. Workers from a Bangladeshi background have a median hourly pay of £9.60, compared to £12.03 per hour for a White British worker. This discriminatory impact has been acknowledged by the Supreme Court, which in 2017 found that “sponsors from certain ethnic groups whose earnings tend to be lower” were disproportionately affected by the MIR. Further, Home Office policy-makers outlined in the impact assessment for family migration policy changes that people of Pakistani and Bangladeshi ethnicity in the UK would be disproportionately affected by the introduction of a fixed income threshold.  Women from BAME backgrounds are particularly hard hit, as they are affected by both the ethnicity and the gender pay gap.

During the coronavirus pandemic, the MIR has meant that men and women from BAME backgrounds with non-EEA partners have felt compelled to continue working, even where it was not safe to do so, in order to meet the income threshold and keep their families together. This has compounded the risk for people in this situation, given that people from BAME backgrounds are more likely to contract COVID-19, and more likely to die from it, than White people. Many of those who were previously unable to meet the MIR will be ‘key workers,’ carrying out the most essential and risky jobs, often on zero-hours contracts, during the pandemic. Since the MIR is set at a level well above the minimum wage, it affects people in a huge range of essential but low-paid jobs, in which BAME people are also over-represented. People in precarious jobs who fear that their family’s future together will be impacted by any absences from work will feel they have no choice but to continue working, even where it may be unsafe to do so.

Recommendation: Scrap the Minimum Income Requirement with a return to pre-2012 rules.

COVID-19 poses disproportionate risk for BAME communities

People from BAME backgrounds are at greater risk of serious illness and death from COVID if they contract the virus than white people. The Intensive Care National Audit and Disparities in the risk and outcomes from COVID-19 40 Research Centre (ICNARC) report published on 22 May found that Black and Asian patients were over-represented among those critically ill with confirmed COVID-19. Further, ONS analysis showed that, when taking age into account, Black males were 4.2 times more likely to die from a COVID-19-related death than White males. The risk was also increased for people of Bangladeshi and Pakistani, Indian and Mixed ethnic groups. The increased risk of contracting COVID for BAME communities is found to be due to a variety of factors including being more likely to live in urban and/or deprived areas, overcrowded households and precarious employment arrangements with a higher risk of exposure to COVID. As Runnymede argue, the COVID crisis has ‘thrown into sharper focus the way racial and other inequalities blight people’s lives from cradle to grave.’

There is growing evidence that suggests that being a migrant – particularly a BAME migrant - puts you at greater risk of COVID and yet the Government is continuing to make decisions that put their lives at greater risk of the virus. By failing to monitor immigration status, the Government is unable to say how many of the deaths caused by COVID are those of migrants. Further, in recent weeks it has emerged that the Home Office is housing asylum seekers in Napier Barracks, the ex-military camp in Kent, deemed by experts as unsuitable for accommodating residents. The decision to place hundreds of asylum seekers in a prison-like conditions with 20+ sharing dormitories not only retraumatises those inside but puts them at huge risk of COVID. At a HASC evidence session on the 24th February 2021, the Home Office confirmed a total of 197 positive COVID tests in the barracks between January-February this year, exposing their assurances that the accommodation is in line with COVID-guidelines to be absurd falsities. Just yesterday, a damning NHS inspection report deemed social distancing to be ‘impossible’ in the barracks, and yet the Home Office is still refusing to move out residents.

The government expects landlords to determine people’s nationality and immigration status. It expects overworked doctors and nurses to do so, while making life and death decisions about care. Your visa may determine what job you are allowed to do. It may require you to earn a certain amount, however unsafe the conditions of your work. If the government is unable to measure the consequences of the immigration policies it creates, then it must take a precautionary approach during the pandemic. Many of these policies raise a clear risk to those caught by them during the pandemic, and they must be suspended or modified to alleviate that risk until the government is able to show that they are safe to impose.

Recommendations:

  • Make assurances that no one will be penalised for missing appointments, reporting or court dates due to illness.
  • Make sure no one is made an 'overstayer' because of being self-isolated or unable to return to a country that is not safe to travel to, by extending or modifying visas. 
  • Provide specialist support for those housed in shared Asylum Accommodation to enable safe access to medical services, testing, and where necessary, re-housing for particularly vulnerable people

For more information please contact:

Caitlin Boswell
Project Officer, JCWI
[email protected]

JCWI is an independent charity campaigning for justice and
fairness in immigration, nationality and asylum policy since 1967.

115 Old Street, London EC1V 9RT     |     www.jcwi.org.uk

Registered Charity No. 1117513