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Background

The government has plans to digitalise the borders and immigration system, starting with EU citizens.

EU citizens who have obtained Settled, or Pre-Settled Status now hold a ‘digital only’ status, which can be verified online but does not include any physical documentation. This new system will also apply to any Hong Kong BNO passport holders entering through the new Hong Kong visa route who have a biometric passport, and will gradually be phased in for the entire migrant population. The Home Office aims to be operating a “fully digital” system for all migrants by 2024.

This briefing outlines some of the key concerns that digitisation raises, provides links to further detailed information, and seeks to bring together the interests of impacted groups to mitigate risks.

This digitalisation agenda is being pursued across multiple arms of government, including the use of algorithms to determine risk in housing, crime and justice, and benefits systems. It also includes the building of a vast digital infrastructure of surveillance at our borders, alongside a general expansion of police and immigration officials’ surveillance powers.

The Hostile Environment is the process by which these border controls infiltrate every aspect of our society, with a wide range of service providers forced to check immigration status. Where digital border surveillance systems, and technologies being applied to welfare, housing, and other services, come together, there is a serious risk for all migrants as regards privacy, data security and safe access to vital amenities. Reliance on a digital system and the lack of a physical document to evidence status is already causing anxiety among EU citizens, as well as creating discrimination, wrongful denial of access to services, and delays for those communities.

The Hostile Environment

The Hostile Environment is a sprawling web of immigration controls embedded in the heart of our public services and communities, implemented primarily by the 2014 and 2016 immigration acts. It forms part of a longer history of policies designed to limit migrants’ rights and deter them from accessing services.

Under the Hostile Environment, the government requires employers, landlords, private sector workers, NHS staff, DWP and other public servants to check a person’s immigration status before they can offer them a job, housing, healthcare, or other support. Landlords and employers can face fines and even criminal sanctions if they fail to do so. The existence of a wide range of immigration offences means that undocumented migrants may find themselves criminalised for doing what they must do to survive, including working.

A key part of the Hostile Environment is a swathe of datasharing arrangements between different public agencies that allow the Home Office to access people's personal information for the purpose of immigration enforcement.

The ultimate effect of the Hostile Environment is to prevent people from accessing the support and services they need – whether that’s healthcare, benefits or education – due to the fear that they will be arrested, detained, and deported. It causes extreme hardship and creates the conditions for exploitation, destitution and discrimination. The Hostile Environment is by its very nature discriminatory, and its implementation encourages racial discrimination. People of colour and visibly ‘foreign’ people are more likely to be asked for proof of the entitlement to services than white British people. In response to a challenge brought by JCWI, both the High Court and the Court of Appeal have found that the government’s ‘Right to Rent’ policy makes it harder for black people, ethnic minorities and migrants to rent a home than for white British people.

What are the risks of digitising the Hostile Environment?

The digitisation of Hostile Environment status checks means that the government will be storing the details and entitlements of all migrants in a centralised database. This database is already accessible to the department for work and pensions, HM Revenue & Customs, NHS trusts, and businesses and private individuals who are employers or landlords.

There is currently no transparency as to who will be entitled to access the data in the database nor how decisions to expand access to the data in the future may be made. Cross-departmental and further sharing of data is already of considerable concern, but there is a fundamental lack of clarity how, for example, bank employees or the DVLA or others may eventually also be able to obtain access to the database in order to perform their Hostile Environment status checks.

The Home Office has a proven track record of being untrustworthy in managing people’s sensitive, personal information. The department has been criticised by the Public Accounts Committee as presiding over a ‘litany of failure’ in a recent report into digital services.

The clearest example of this is the Windrush scandal where the department wrongly identified people as being ‘disqualified’ from having a driving license or a bank account and wrongly shared data of others so that they became targets for immigration enforcement.

Mismanagement of personal data under the new digitised system may yield similar devastating consequences.

There are indications that this may already be happening for EU citizens. Shortly before the deadline for the Settled Status scheme, for example, there were reports that women from the EU who had been registered to the Scheme in their birth names rather than their married names were finding difficulties proving their status to Local Authorities and employers due to a technical glitch.

A digital-only status, that provides migrants with no physical documentation risks allowing the Home Office to ‘switch off’ a person's status and entitlement to services when it decides – rightly or wrongly – that a person no longer has the right to be in the UK.

Evidence has shown that this too often occurs through no fault of their own, either due to the complexity and expense of visa rules and renewals, or due to simple mistakes on the part of decision-makers. Under this new digital system this may mean that eligibility and access to vital services such as benefits or healthcare can be removed with immediate effect, locking people out of vital support.

There has been a worrying lack of clarity and transparency from the Home Office as to the procedures and safeguards that will be in place to allow a person to get advice and to adequately challenge any instantaneous impacts of decisions made by the department.

The digitisation of the Hostile Environment will also make it easier for the government to increase surveillance – and subsequently criminalise and punish – migrants, who have no choice but to interact with public services on a daily basis. The Home Office’s insistence that data will only be shared with the migrants’ consent becomes meaningless in a context where they must consent in order to access necessary services and employment.

With the passing on July 30th 2021 of the EU Settled Status Scheme deadline, civil society has warned that there is a high risk of discrimination against EU citizens who gained status through that Scheme, particularly black and brown EU citizens. They will be the only group of migrants with no form of physical proof of status. There have already been numerous examples of EU citizens wrongly being denied access to benefits and rental accommodation.

However, it is those EU citizens who have not successfully applied for Settled or Pre-Settled Status who will be at greatest risk. Especially since many may still be unaware of the requirement to apply and that they risk encountering impacts of the Hostile Environment further down the line, as happened to members of the Windrush generation.

Future risks and areas for action in the wider digitisation agenda

The most immediate risk caused by the digitisation of the Hostile Environment is to undocumented migrants.

Analogue Right to Work checks have been shown to directly force migrants who are unable to demonstrate their status out of secure work and into situations of abuse and exploitation. The risk of data-sharing between the NHS and immigration enforcement means that migrants are too scared to access necessary healthcare, including during the pandemic. Data-sharing between institutions that are intended to protect people, such as the police and labour inspectors, makes it impossible for undocumented migrants to report abuses, empowering criminals. A new digital system risks further entrenching these inequalities and make them more difficult to challenge.

There are particular risks for ethnic minorities under the new system, who already face increased risk of being subjected to immigration stops and status checks and are exposed to learned prejudices which are reproduced through AI systems, including facial recognition systems and automated visa-decision-making algorithms.

The digitisation of the Hostile Environment fits in with the wider move towards privately provided, opaquely instituted digital systems across government departments that target and impact the poorest and most vulnerable

There is a concern that EU citizens who have obtained Settled or Pre-Settled status are being treated as the ‘guinea pigs’ for the new digital system and are already experiencing numerous issues as outlined above. In addition, they are at risk of discrimination as the only group of migrants forced to use a new and unfamiliar system in their everyday interactions with essential services. This system was introduced for EU citizens without their consent or meaningful consultation, and in defiance of a clearly stated preference for the security of a physical form of documentation.

Conclusion

The government’s digitalisation agenda is being pursued with a fundamental lack of transparency, safeguards and accountability.

There are serious concerns about the poor definition of the parameters of the project and considerable evidence that the process entails significant risks for several different vulnerable groups of migrants.

It is necessary and urgent that representatives of the migrants’ rights sector familiarise themselves with these risks and demand a far greater degree of transparency and accountability in this process.

While there are numerous different groups of migrants immediately impacted, this agenda will eventually impact the entire migrant population, and it is vital that we develop ways of addressing the potential threats which are inclusive of the needs of all groups.

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