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Home Office failed to comply with equality law when implementing ‘hostile environment’ measures

Equality and Human Rights Commission

5 min read Partner content

A review of the Home Office’s compliance with equality legislation when implementing ‘hostile environment’ immigration policies has found that it failed to fulfil its legal duties, contributing to the serious injustices experienced by the Windrush generation.

The Equality and Human Rights Commission (EHRC) assessed how and whether the Home Office complied with the Public Sector Equality Duty (PSED) when developing, implementing and monitoring the hostile environment policy agenda, particularly in considering its impact on Black members of the Windrush generation.

The assessment has found that negative consequences were repeatedly ignored, dismissed, or their severity disregarded at crucial points of policy development. There was limited engagement with representatives of the Windrush generation, even as the severe effects of hostile environment policies began to emerge.

Equality impacts were often considered too late to form a meaningful part of many decision-making processes. Exceptions to the PSED for 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 findings of the assessment endorse the conclusion of the Windrush Lessons Learned Review that the experiences of that group were ‘foreseeable and avoidable’.

The Home Office has committed to enter into an agreement with the EHRC which will set out the actions the department will take to avoid such events ever happening again.

Caroline Waters, interim chair of the Equality and Human Rights Commission 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.

“Our review has identified where the Home Office fell short of its legal obligations. The department has worked constructively with us throughout our assessment, and we are pleased that it has willingly committed to enter into an agreement with us to learn the lessons from the experiences of the Windrush generation so they can never be repeated.

“The PSED is a crucial safeguard to prevent injustices from occurring. The recommendations that we have made will drive better public policy-making beyond just the Home Office. We have written to all government departments to make sure they are actively considering how they meet their obligations under the PSED. Every public body should take note and make sure it is using this vital piece of legislation properly. We are committed to working with government to put equality at the heart of its decision-making so that everyone has a fair chance to thrive.”

The EHRC has made a series of recommendations to help the Home Office comply with the PSED effectively and meaningfully in the future development, implementation and monitoring of immigration policy and practice. Among others recommendations, the EHRC has said that the Home Office should:

  • Prioritise, act early and use a range of sources and evidence to understand the equality impacts of its policies and practices – particularly through proper engagement with affected groups.
  • Fully consider the historical context and cumulative implications of its immigration policies for certain groups.
  • Take meaningful action to improve its internal capability to fully understand and comply with the PSED, to fulfil its commitment to equality.
  • Be fully transparent and open to scrutiny about the department’s commitment and approach to advancing equality.

The causes and effects of the hostile environment were analysed extensively in the Windrush Lessons Learned Review, which concluded that what happened to Black members of the Windrush generation was ‘foreseeable and avoidable.’ It also found that the Home Office had demonstrated ‘institutional ignorance and thoughtlessness towards the issue of race’. The department accepted the review and recommendations in full and apologised publicly for the experiences of the Windrush generation. The EHRC’s assessment compliments the work of the Williams Review, looking specifically at the application of the PSED in developing policies.  

The EHRC assessed specific Home Office policies that imposed stricter requirements on individuals to produce documentation proving their right to access services and to confirm or change immigration status, from 2014 to 2018, and focused on the PSED’s requirement to advance equality of opportunity.

The Home Office shared over 130 pieces of evidence with the EHRC, including submissions to ministers and recordings of meetings, to demonstrate its policymaking process. The EHRC also received external representations submitted by individuals and organisations, and used relevant evidence from the Windrush Lessons Learned Review carried out by Wendy Williams.

A proposed Home Office action plan will be shared with the EHRC by the end of January 2021.

The PSED has the potential to drive real change, but the EHRC has repeatedly made clear that it needs to be strengthened and more targeted if it is going to be a meaningful intervention and not 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

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