Accepting the facts

What would a progressive immigration system with broad political and public support look like? We can surely agree that the current system is broken: it does not work for migrants themselves, the public or the government. The only people for whom the current system does work are immigration lawyers like me. And it is a very bad sign indeed if something is good for lawyers (see also: Brexit).

Any system of citizenship and immigration laws inherently discriminates between insiders and outsiders. The attempt to eliminate such discrimination within the European Union through free movement laws led to Brexit; it seems safe to conclude that immigration laws are here to stay for the foreseeable future. We therefore need to think about how to try to make those laws as fair as possible, both to the insiders and the outsiders alike.

The current system is fair to neither group. As British citizens we have few if any rights specific to that status. The right to vote in parliamentary elections and referendums is shared with settled Irish and Commonwealth citizens. Consular protection is also available to other British nationals such as British dependent territory citizens. The duty to serve on juries is shared with European citizens and other foreign nationals who are settled. Access to the social safety net is granted to foreign nationals who are lawfully settled. Harsh immigration laws mean that thousands of British citizens are prevented from living with their own family members. The Home Office estimated in 2012 that by 2020 between 108,000 and 142,000 couples would be affected by strict new rules introduced that year, with many of those couples having children.

Meanwhile, migrants are treated as if they are disposable beasts of burden, valued purely for their short-term economic contribution. This not only affects ’them’ but also ‘us’. A large, unauthorised, exploitable population estimated to number as many as 1.2 million by Pew Research has been allowed to grow around us. It has been separately estimated there are around 215,000 undocumented non-citizen children living in the United Kingdom today and a further 117,000 young people between the ages of 18 and 24 who were born in the country or brought here as children. As the coronavirus crisis has highlighted, our supply chains and economy depend heavily on these migrants in our midst and they are an indelible part of our community – yet they, and too often their children too, have no realistic route to equality, settlement or citizenship. Their lives are permanently precarious, and not only that but the problem is generational because children born in the UK are not automatically born British if their parents have no status. The policies intended to deter the arrival of new migrants in order to reduce net immigration have had no discernible impact on arrivals but what they have done is handicapped the migrants who came anyway. A family of four on a work permit have to find the money to pay around £20,000 of immigration fees over five years, and more if they want to become full citizens. This additional taxation has a serious dampening effect on the day to day lives of the migrants and their children, who are mainly from minority ethnic backgrounds. None of this is desirable in a healthy democracy.

The growth in the number of unauthorised migrants living in the UK was the predictable outcome of multiple facets of citizenship and immigration policy over many years. The abolition of birthright citizenship from 1983, the high immigration and citizenship fees and the sheer complexity of immigration law have all played a part. It is also a little known fact that the number of enforced removals has actually fallen year on year since 2010. In the year ended March 2020, Home Office statistics show that 6,778 migrants were forcibly removed, the lowest number since records began in 2004. There were only 10,421 voluntary returns recorded. Compared to the estimated size of the unauthorised population, these numbers are tiny. The whole ‘hostile environment’ policy of citizen-on-citizen immigration paperwork checks promoted and enforced by Theresa May as home secretary then, briefly, prime minister is not so much an attempt to reduce the number of unauthorised migrants living in the UK as a tacit recognition that they are here to stay. As the National Audit Office noted in June this year, there is no evidence to suggest the hostile environment policy actually encourages unauthorised migrants to leave or discourages migrants from coming in the first place.

Fabians well know that progress is hard fought, not inevitable; sometimes things get worse rather than better. The size of the unauthorised population is likely to increase yet further after Brexit for two reasons. Firstly, EU citizens currently resident in the UK are now required to apply for a new immigration status. No registration scheme like this will ever have a 100 per cent success rate amongst those eligible and it is inevitable that tens of thousands or even hundreds of thousands of EU citizens will become unauthorised once the deadline expires. Secondly, EU citizens not resident in the UK will continue be able to enter the country without a visa. It is inevitable that some will remain in UK to work and live without applying for the permission they will need to do so lawfully. They will be unauthorised migrants, as will their children.

Even if it were considered desirable, it would be impossible to detain and remove all unauthorised migrants. Families and communities would be torn apart and a massive programme of detention camp construction would be needed. Yet the existence of a large group of mainly black and ethnic minority non-citizens who live and work in real communities but are easily exploited and have no access to proper healthcare, decent housing or the social safety net is self-evidently undesirable. This all amounts to a public policy disaster on a huge scale.

Migrants should be treated as citizens in waiting. They are here to stay and government policy needs to accept and address this fact, not deny and ignore it. How would we reconfigure our immigration and citizenship policies if this were our starting point? Proper and inclusive routes to lawful status, settlement and citizenship would need to be established. The regressive, failed deterrent policy of handicapping migrants and their children by imposing sky high financial costs on them would end. Not only do these burdens have a dampening effect on all migrant families but it prices some out of lawful status once they are already within the country, which makes no sense at all. The hostile, unforgiving immigration rules which trip up many migrants with a toxic mixture of ‘computer say no’ rigidity and complexity need a fundamental rethink. Citizenship needs to be re-thought: positive incentives to become full citizens should be considered, such as enhanced rights to family migration. Where the future of a migrant does not lie in the UK, they should be assisted to leave: the withered remains of the Home Office’s old assisted voluntary return scheme should be revived and revitalised. As a last resort, some migrants will need to be detained and removed, but this should be seen as an avoidable policy failure rather than as success.

By all means the government of the day can be selective about who is admitted in the first place and that is something that should be open to discussion; but it should be non-negotiable that once inside the UK, migrants should be treated with respect and as future citizens.