Home Office broke the law with hostile environment policy, equalities watchdog finds

Department “effectively ignored” equality legislation when developing the policy, damning EHRC report concludes
A 2018 protest in solidarity with the Windrush generation. Photo: Yui Mok/PA Archive/PA Images

The Home Office broke the law with its hostile environment policy, the equalities watchdog has found, with negative consequences “ignored, dismissed, or disregarded” throughout its development.

In a damning report today, the Equalities and Human Rights Commission said the Home Office has displayed a “general lack of commitment… to the importance of equality” and failed to comply with the Public Sector Equality Duty when developing its flagship hostile environment policy.

The PSED is a legal requirement for public bodies to consider whether their actions reduce inequalities or meet the needs of people with protected characteristics.

But today’s report shows the department “effectively ignored” the legislation when developing the hostile environment – the collective name for a set of measures designed to make it more difficult for people to live, work and access public services in the UK illegally – interim EHRC chair Caroline Waters said.

Consideration of those impacts took place “too late to form a meaningful part of many decision-making processes”, the report found.

The EHRC said that when the Home Office was developing and implementing the policy, “negative consequences were repeatedly ignored, dismissed, or their severity disregarded at crucial points of policy development”.

And it said exceptions that exempt organisations from complying with the PSED, in limited cases relating to immigration, “were in many cases interpreted incorrectly or inconsistently, and there was a general lack of commitment within the Home Office to the importance of equality”.

The watchdog reiterated findings from the Windrush Lessons Learned Review, which found that unfair treatment of members of the Windrush generation because of the policy was “‘foreseeable and avoidable”. The EHRC said the department failed to engage enough with representatives of the Windrush generation, “even as the severe effects of hostile environment policies began to emerge”.

Those affected by the Windrush scandal had their access to public services and other rights curtailed, and some were wrongly deported or denied re-entry to the UK after travelling abroad.

Today’s report complements the work of the lessons learned review, which also found the Home Office had demonstrated “‘institutional ignorance and thoughtlessness towards the issue of race”.

Commenting on the report, Waters said: “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.”

Waters said the EHRC had also written to all government departments reminding them of their obligations under the PSED.

“The PSED is a crucial safeguard to prevent injustices from occurring… Every public body should take note and make sure it is using this vital piece of legislation properly,” she said.

'Meaningful action'

The Home Office has promised to come up with an action plan setting out how it will prevent similar injustices happening again.

Based on the report’s findings, the department has committed to entering an agreement with the EHRC about those actions.

The report made several recommendations to ensure the Home Office complies with the PSED “effectively and meaningfully” when developing, implementing and monitoring future policies.

Among other things, it must engage with the duty early on in the policymaking process, using a range of sources and evidence – particularly through engaging with groups the policies would affect, the human rights body said.

It must also take “meaningful action” to ensure staff understand and comply with the PSED, and be transparent and open to scrutiny about how it is meeting its commitment to advancing equality.

And it must “fully consider the historical context and cumulative implications of its immigration policies for certain groups” – something it did not do when considering the effects of its policies on the Windrush generation.

In a statement, home secretary Priti Patel and Home Office 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.

"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."

'Potential to drive real change'

The review was based on more than 130 pieces of evidence provided by the Home Office – including submissions to ministers and recordings of meetings – as well as input from external organisations and individuals, and evidence from the lessons learned review. It focused on policies that introduced stricter requirements for people to prove their immigration status and right to access services between 2014 and 2018.

The review also repeated its previous calls to strengthen the PSED, which it said “has the potential to drive real change” but must go beyond being seen “simply as a box-ticking exercise”.

“Public bodies and government departments need to be more consistent in the way they implement the duty, and take meaningful action by setting specific objectives and action plans to tackle the biggest barriers faced by people already experiencing disadvantage in Britain today,” the EHRC said.

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