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About JCWI

JCWI was founded in 1967 to ensure that the rule of law and human rights were 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 frequently research, examine, and analyse the discriminatory effects of immigration policy.

Background

During the pandemic we have seen certain groups disproportionately affected by the disease. In particular we have seen disproportionate rates of death amongst BAME groups. Several studies show that those disparities remain even when social deprivation, and comorbidities are controlled for. Death rates specifically broken down by immigration status are unavailable, and the government, when asked has been unable to provide data on this. In addition to population level data on deaths, there is a growing wealth of evidence from affected individuals, expert groups, lawyers, and frontline workers that migrants are also disproportionately vulnerable during the pandemic. The government’s failure to gather data on this, and the intersection between migration status and being a member of a BAME group, creates significant difficulties in understanding and responding to the pandemic. Nevertheless, there is substantial direct evidence of the impact the immigration system has on people’s lives in the UK.

Those affected are migrants, or their family members, or BAME British people caught up in the immigration system or the hostile environment. Some groups are particularly vulnerable to the pressures imposed by the immigration system and the Hostile Environment, such as BAME migrants, women, and those made vulnerable by exploitation and abuse.  In some cases, the immigration system places people directly in harm’s way, such as for those people trapped in immigration detention centres or prisons, or those deterred from accessing NHS care by charging and data sharing.  In others, it removes agency from people, for example by preventing them from leaving an unsafe job for fear of being unable to pay exorbitant renewal fees, or meet the income threshold set for their spouse’s visa. And in yet others, it places a finger on the balance, for example by making it less likely one is living in safe, spacious housing at a time when the ability to isolate may be a matter of life and death for family members. For example, earlier this year the Court of Appeal confirmed that the governments’ right to rent scheme causes race and nationality discrimination against migrants and ethnic minorities trying to rent a home in England. There will be BAME and foreign national families now trying to weather the pandemic in less than suitable housing, dangerous housing, or even without a home, because of this discrimination caused by government policy.

It is known that people have died, who would not have died but for the existence of state measures implemented in the name of immigration control.  For example, the charity Kanlangun identified the case of ‘Elvis’ a man from the Philippines, working as a cleaner, who was afraid to seek medical treatment lest he be charged for it and reported to immigration enforcement. What is not known is how many have died or been put at greater risk of death by the restrictions and hurdles imposed by the immigration system. There are huge gaps in the government’s monitoring of the immigration system and the effects of its own measures, including those gaps identified by the recent National Audit Office report into immigration enforcement. 

Government Response

At present not only has the government not taken the steps required to investigate its contribution to deaths or the risk of death imposed on certain groups, it appears to have actively suppressed evidence presented to Public Health England. The report was eventually released after public pressure. It is largely uncontroversial but reference was made within it to the government’s hostile environment.  JCWI was present at a meeting with PHE where they were presented with evidence on the impact of amongst other things, the NHS charging regulations and No Recourse to Public Funds, and the Hostile Environment on people’s ability to survive the pandemic. We were extremely surprised to see no reference to these specific issues in their originally published report, but also in their exploration of the stakeholder evidence published later, which brushes over and ignores these structures created by government policy.

What reform there has been of immigration rules, has been limited, and largely related to dealing with the administrative consequences of lockdown, rather than the substantive impacts of the immigration rules or enforcement on individuals and individual behaviour. It has been communicated unclearly, with changes being made piecemeal through press-release and selective emails to practitioners, leaving many confused as to the state of the law. In some cases, crucial changes have been put on the website, only to be silently retracted hours later, leaving people confused as to whether or not they will be able to renew their or their spouse’s visa. Since then guidance has been republished, but with a removal of an assurance that no-one whose income had been affected during the crisis would suffer a detriment.

At the beginning of the pandemic, JCWI set out in a briefing the urgent steps required of the Government to ensure people’s safety during the pandemic. These echoed and consolidated those made by many other expert groups. As well making specific recommendations for policy change, such as suspending NHS charging, the briefing set out four principles for action during the pandemic:

1. Changes must be as simple and easy to understand as possible;
2. They must prioritise protecting the health and safety of migrants and the public above all else;
3. No distinction should be made between migrants with leave and migrants without;
4. No one who currently has leave should lose it during the crisis.

Thus far, the response from the government has not followed any of these principles. Meanwhile, large sections of the Home Office have seemingly ground to a halt since the start of the pandemic at the end of March 2020. While some delay is understandable, the extent and length of the delays is extremely concerning and has already had serious impacts on our clients.

At all times, delay in the functioning of the Home Office causes our clients, almost all of whom are from black and ethnic minority backgrounds, to live in continued insecurity and often destitution. The worsening delays are now much harder for our clients to bear, coupled with isolation and a reduction in all support services. One black client with underlying conditions has waited 4 months for the Home Office to carry out the simple administrative task of issuing a grant of asylum and a BRP card following a successful asylum appeal. Meanwhile, he has been blocked from accessing mainstream benefits and has been required to put himself at risk by moving around insecure accommodation and visiting family members to access food. Another client, who is also black, with very serious mental health conditions had all her benefits stopped when her leave to remain expired. Although JCWI assisted her to renew her leave in time, she has had difficulty proving this to DWP as the progress of her application has been stalled for 2 months.  The local mental health charity she would usually rely on for practical and emotional support has closed as a result of the pandemic.

Race, Migration, Discrimination & Failures to Monitor

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. It is also a system that in some instances intentionally, and in others unintentionally, targets those of particular nationalities or races. 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 and the poverty and restriction of access to housing, secure and quality employment, and public services it engenders. The effects of the pandemic encompass both.

For a detailed analysis of the structural discrimination experienced by different ethnic groups in the UK and of the particular vulnerabilities of different migrant groups to COVID-19 please see the following three vital reports:

1. The Colour of Money: How racial inequalities obstruct a fair and resilient economy a 2020 report by the Runnymede Trust analysing racial and economic inequality in the UK;
2. COVID-19 Impact Assessment Framework: Risks and responses for people in the UK immigration system, which sets out research commissioned by Migration Exchange in April 2020 and published May 2020 assessing the risks posed by the pandemic to different groups within the UK’s immigration system;
3. Migrants and Discrimination in the UK, a report by the Migration Observatory in Oxford into UK migrants’ experiences of discrimination owing to their ethnicity, nationality, religion, or accent and analysis of labour market discrimination against migrants and the children of migrants.

Sadly, 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.

In other areas of government such as criminal justice and health, there is a failure to monitor  the effects of immigration status even though policies have been put in place that specifically target immigrants. For example, the government recently instituted a radical new requirement that defendants in criminal trials declare their nationality. Prior to this the right to silence meant defendants need only confirm their identity and address. Despite introducing this intrusive measure on defendants, prior to any finding of guilt, the government has done nothing to monitor its effects on the fairness of trials or the conviction rates of defendants of different nationalities and races. It was left to the non-profit law firm Commons to conduct an investigation, and its findings provide compelling evidence that the right to a fair trial for foreign nationals and for ethnic minorities has been compromised by the Home Office. During the pandemic there may be people in prison or in detention, facing deportation, or restrictive bail conditions who are there because of this measure, and the government is doing nothing to investigate its effects.

In another more direct example, the government is unable to say how many of the deaths caused by COVID-19 are those of migrants, nor give any breakdown by immigration status. It may well be that it is hard to do so. But 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. Your legal right in the same country as your family and your loved ones may depend on your turning up to work in a hospital or care home. It may determine whether you are entitled to Universal Credit if you lose your job, or whether you have the legal right to live in a safe rental property or are forced into a bed in a shed run by a criminal.  

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.

The Hostile Environment

Even  though population level statistics in this area are difficult to determine, there are clear, direct causal links between immigration policy and law and individual people’s exposure to risk during the pandemic. We mentioned the case of ‘Elvis’ above, a man who was afraid to seek help for his condition because of the NHS charging and data-sharing regime. His case is not an aberration, and indeed it would be strange if it were aberration because deterring people from accessing safety is the raison d’etre of the Hostile Environment.

The Hostile Environment is supposed to work by making people who do not have the right documents homeless, workless, destitute and without access to healthcare. When a woman was arrested as a suspected overstayer having gone to the police to report that she had been raped, that is not an oversight, it is an integral part of how the Hostile Environment is supposed to work. The point of the Hostile Environment is to remove any safe space in British society for someone who is undocumented. The idea is that, by doing so, you make life so unpleasant for those who are undocumented that they leave the country of their own accord. It’s a policy designed to starve people out, remove their supply lines, their places of safety and to leave them exposed to predators and criminals. Following the Windrush scandal the Hostile Environment was renamed the ‘Compliant Environment’, but the policies and laws that comprise the Hostile Environment remain.

The pandemic hasn’t changed the problems posed for public health and safety by the creation of a class of people who cannot approach any part of the state without fearing arrest and deportation. But it has brought into sharp relief the life and death problems this causes. Right now, more than ever before, we need all workers to feel safe raising concerns about workplace conditions and safety. We need everyone with a cough to feel safe going to hospital. We need victims of abuse and crime to be able to trust the police. The Hostile Environment makes that impossible.

It was  a startling failure of the cross-government Cygnus exercise to not consider the likely effects of the Hostile Environment on our pandemic response, which had been created by a cross-government group of Ministers and civil servants in the years and months before. The failure of the government to suspend the Hostile Environment during this pandemic is even less justifiable.

The Right to Rent Scheme & BAME access to safe housing

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 homelessness 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, such as with rogue landlords, traffickers, and slavers. Such housing is inevitably overcrowded, with poor ventilation, and inadequate facilities for hygiene. Migrants forced to live in such places because of the removal of their legal rights to rent property, are not able to complain about health and safety violations or other abuses, because of fear of detention, criminalisation and deportation under the Hostile Environment if they report violations to the authorities. It is important to note at the outset that the government collects no data on such abuses or violations of rights, nor does it collect any data on whether the scheme has any positive effect as a tool of immigration control.

In addition to the awful and direct impact it has on those denied a right to rent by the law, the government was also warned that it would lead to a rise in racial discrimination. For example Eric Pickles, when in government warned the Cabinet it would cause racial discrimination against anyone ‘foreign-looking’. These fears have been borne out in reality. Both the High Court and the Court of Appeal have now found that the right to rent scheme causes racial discrimination against foreign nationals, and also against 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. This means as a result of the right to rent scheme many migrants and BME people have been forced to settle for substandard housing, which is overcrowded, lacks indoor space and outdoor space, and involves a more difficult and dangerous commute or some combination of the above. This is because they will have been denied a more satisfactory property because of a discriminatory preference for British people, and particularly white British people, created by the scheme.

Particularly vulnerable groups with a right to rent are worst affected. Those who require an online check confirming their ‘permission to rent’, such as members of the Windrush generation without documents, and those with pending human rights claims, will find it particularly difficult to find a landlord willing to consider them. JCWI’s mystery shopping research found that of 150 such mystery shopping enquiries 85% received no response at all. Only 3 responses explicitly stated that the landlord was willing to conduct an online check. The people in this category are likely to be those most vulnerable to COVID for other reasons as well and will include asylum seekers, victims of modern slavery, victims of domestic abuse, and trafficking victims.

There is substantial evidence that the spread of COVID-19 is highly dependent on housing conditions and overcrowding. The link between poor quality housing and public health has been long been known, particularly with reference to respiratory diseases. Inside Housing has published analysis showing a positive correlation between:

1. COVID-19 death rates and levels of overcrowded housing;
2. COVID-19 death rates and the prevalence of Houses of Multiple Occupation;
3. COVID-19 death rates and numbers of people housed in temporary accomodation.

This is a pandemic where public health recommendations rely on individuals being able to self-isolate safely, avoid unnecessary contact with others, and rest and recuperate fully, and which attacks the lungs and weakens the heart. Damp, overcrowded housing in areas necessitating a crowded commute and in which the vulnerable are unable to isolate from others, is likely to be deadly. For migrants and ethnic minorities the risk to their life of such conditions has been increased by the government’s right to rent scheme. Specifically there are foreign nationals and  ethnic minority British people who are now in housing which creates such risks, where had the right to rent scheme not been imposed, they would not be.

 For migrants without documentation or leave to remain such an effect is very much designed into the right to rent scheme. It is the threat of homelessness, destitution, and substandard or unsafe housing that creates the ‘Hostile’ in ‘Hostile Environment’, after all. The pandemic only heightens the risk to their lives of such conditions.

The Right to Rent scheme has been found to cause racial discrimination by the courts. It cannot be morally justified at the best of times, but particularly not during a pandemic. Nor is it acceptable to deny the prospect of a safe place to live to those without leave to remain. Destitution, homelessness, and the risk of death are not acceptable tools of immigration control. It must be suspended and all immigration checks removed from private rental accomodation.

NHS Charging & Data-Sharing

Policy-makers have been warned since the introduction of NHS charging and data-sharing with the Home Office about the risks associated with these policies. Now, during a global pandemic, the public health implications of barring some individuals from accessing healthcare could not be clearer.

Public Health England has warned that migrants are among the groups with the poorest health outcomes, due to “barriers in access to services.” Among these are the fear of being charged for accessing healthcare, and the fear of information about immigration status being passed to the Home Office. In June 2020, 57% of respondents in a survey of healthcare staff reported that migrants were not coming forward to access healthcare because of such fears. 4 out of 5 respondents warned that many were unaware of the exemption from charging for communicable diseases including coronavirus, and that the existence of status-based charging within the NHS would continue to present a barrier to people accessing the healthcare they need. Further, data-sharing between the NHS and the Home Office has remained in place throughout the pandemic, meaning those with insecure immigration status will fear that accessing healthcare would result in detention and removal from the country.

The public health implications of the above during a global pandemic are grave – not only that, but the government is well aware of this fact. In April 2020, 60 cross-party MPs wrote to the Health Secretary Matt Hancock, calling for the immediate suspension of data-sharing between the NHS and the Home Office. This followed the death of a man named Elvis, who had lived in the UK with his wife for 10 years. Despite developing symptoms of coronavirus, he did not seek care because of fears that his insecure immigration status would be reported to the Home Office. He died at home 2 weeks after developing symptoms. A survey of people with insecure immigration status found that only one in 13 who had experienced COVID-19 symptoms had sought medical help.

Further, doctors have warned that the existence of immigration enforcement infrastructure within the NHS means that the test, track and trace system – which it is hoped will enable restrictions to be further lifted – cannot function effectively.

“In order for contact tracing to be viable, all sections of the community must be willing to be contacted by NHS or public health staff. The community includes “overseas visitors” on the receiving end of the Government’s “Hostile Environment” policy, who may fear that any contact will incur NHS charges or lead to their being reported to the Home Office”

As well as deterring people with insecure immigration status – whether that is undocumented people or those with limited leave who fear that NHS debts incurred will have a negative impact on future applications for leave – there is evidence that the charging regulations in place within the NHS operate in a manner that is discriminatory to all people from BAME backgrounds, including British citizens. NHS charging regulations are extremely complex, especially for healthcare staff and overseas visitor managers who do not have specialist knowledge as to the different types of immigration status that people can hold in the UK, and which of these 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.

No Recourse to Public Funds

There has been extensive and detailed work done by expert organisations on the ‘No Recourse to Public Funds’ condition attached to most visas, and the denial of public funds to irregular migrants. Suffice it to say that the refusal by the government to disapply such restrictions during the pandemic has driven people into destitution and homelessness, including families with young children. Local authorities are unable and unwilling to cope with the demand, and frequently engage in unlawful gatekeeping contrary to their legal obligations. However, it is important to note that they have been asked to pick up the slack without any increase in funding or budget set aside to deal with the increase in families with NRPF needing support during the pandemic.

JCWI is also seeing these issues in our own casework. JCWI have seen an increase in our female clients with NRPF and with children seeking financial support and accommodation through local authorities since the start of the pandemic. With many temporary housing arrangements, previously offered by friends or community members, being withdrawn following the government’s advice to isolate in March, clients have been left with no other option but to present themselves and their children as homeless to their local authority. Almost all of our clients in this position are from ethnic minority communities.

The assessment process that women are subject to by local authorities in order to determine if they are eligible for support under s17 of the Children’s Act 1989 can be lengthy and intrusive,  issues that have seemingly been exacerbated by the pandemic and increased demand on services.  One extremely vulnerable black client was subject to a 3 hour face to face assessment with a social worker from Hackney local authority, in which she was directly accused of stealing her baby son for the purpose of obtaining leave to remain in the United Kingdom and told that she would be subject to a DNA test.  Another black client with a severely autistic son has waited for over 3 months for her s17 assessment to be completed, in the meantime, living in fear that she could be evicted any day. She describes this limbo as a living hell which has had a serious impact on her mental health.

Visa Fees & Conditions

Visa application fees  

Visa application fees, combined with the Immigration Health Surcharge (IHS), have put BAME migrants at greater risk throughout the COVID-19 pandemic. Having to pay thousands of pounds in application fees or risk falling out of status – including losing access to healthcare – means that migrants will have felt forced to continue working, often in unsafe conditions or when they should have been shielding.  

Application and IHS fees place a significant financial burden on those needing to apply – for example, a family of 4 applying for Indefinite Leave to Remain after completing a path to settlement will have to pay £9556. Someone in the UK as the spouse of a British citizen, meanwhile must pay an application fee of £1033 after 2.5 years in the UK, as well as an additional £1000 in IHS fees.  

Those working in certain healthcare roles in the NHS have been promised a free one-year extension to their visas, in recognition of the fact that visa fees present a significant barrier to those needing to apply to extend their leave in the UK. However, this extension has not been made available to any of the other key workers who may struggle to maintain their status because of difficulty paying visa fees.  

Many care visitors, for example, have had their hours cut due to clients shielding and companies changing their way of working in order to remain COVID-19 compliant. Many others who have themselves had to shield, or been furloughed, will have experienced a significant drop in their household income.  

These workers may now struggle to pay application fees to extend their leave. Those who are unable to afford the application fee and do not apply will become overstayers, and be vulnerable to the hostile environment. Facing this prospect, many will choose instead to take on more work, or continue working when they have been advised to shield, in order to make enough to pay application fees and the IHS. 

Visa conditions 

In the UK, the visa conditions to which non-EU nationals are subject mean that BAME people in frontline roles – in which migrants are overrepresented across Europe¹ –  have been placed at even greater risk during the COVID-19 pandemic than nationals. There is a wealth of evidence that workers in a range of roles – and especially those from BAME backgrounds – feel pressured to continue working in unsafe conditions, and fear speaking out or demanding adequate personal protective equipment.  

The Royal College of Nursing found that nearly a quarter of BAME nursing staff had no confidence that their employer was doing enough to protect them from COVID-19, with 56% saying they felt under pressure to work despite having inadequate PPE.  For migrant workers on Tier 2 visas, fear of speaking out about safety concerns is compounded by the fact that losing employment also means their visa being curtailed. This includes nursing and healthcare staff on Tier 2 visas. Once an employer informs the Home Office that a Tier 2 worker has had their employment terminated, the Home Office may curtail that worker’s visa, with no right of appeal. This power may be wielded by unscrupulous employers who are unwilling to ensure that workplaces are safe and COVID-19 compliant, and who use threats of termination to silence employees concerned about workplace safety.  

Fear of losing status has a direct impact on the safety of workers in this position. A recent survey by Unite of a meat processing plant affected by COVID-19 found that 65% of staff – the overwhelming majority of whom were migrant workers – had attended work whilst unwell, because they were afraid to speak out or lose pay.

“Migrant workers…are scared to speak out because they fear losing their jobs. Exploitation is so rife within the sector that Unite is also concerned that some workers are vulnerable to modern slavery.” 

Bev Clarkson, Unite national officer 

The Minimum Income Requirement

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. The Minimum Income Requirement (MIR) means that anyone earning less than £18,600 a year may not sponsor the visa of a partner from outside the EEA. This income threshold rises to £22,400 a year for those sponsoring a non-EEA national child, with an additional £2,400 for each child. This income threshold has to be met by those applying for a visa to allow their loved one to join them in the UK, and by mixed-nationality couples already established in the UK, who must apply for further leave after 2.5 years. 

This income threshold has been shown to have a disproportionate impact on people from BAME backgrounds. 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 equates to the average worker from a Bangladeshi background earning £5054 less than a White counterpart over the course of a typical full-time work year.  

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. The potential for the MIR to reflect and entrench existing racial inequalities was also recognised by Home Office policy-makers before the MIR’s introduction, with the impact assessment for family migration policy changes stating that “men and women of Pakistani and Bangladeshi ethnicity in the UK have a lower median wage compared to men from other ethnic groups considered,” and would therefore 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. Women from Pakistani and Bangladeshi backgrounds experience the biggest pay gap, earning on average 26.2% less than White male counterparts. This means that women from certain BAME backgrounds are much more likely than White male counterparts to suffer detriment as a result of not being able to sponsor a non-EEA national partner to join them in the UK.  

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.⁶ 

Barbara* is a Black British woman. She is currently pregnant with her second child. She works as a co-ordinator at an NHS oncology clinic, helping high-risk patients access the care they need. However, her salary from this job puts her below the MIR to sponsor her husband, who is a non-EEA national, to join the family in the UK. Barbara has therefore taken on a second frontline job during the pandemic in order to ensure that her income is over the threshold.  “People from an ethnic minority are more likely to contract COVID, and to die from it. That really scares me. What would happen to my one-year-old child, and to my unborn child? I’m juggling two jobs at the same time, just to try and bring my husband here”

Following several months of pressure, the Home Office made some limited concessions to the MIR in June 2020, in light of the economic impact of the pandemic and the knock-on effect this would have on families needing to meet the income requirement. These changes were not actively publicised by the Home Office, but were simply added to the web page of general advice for those affected by the pandemic. The changes meant that people whose income had fallen below the threshold due to being furloughed would still be allowed to apply, using their furloughed payslips as if they were earning 100% of their normal income. However, this announcement came 10 weeks after the furlough scheme began, after many had already taken on an additional job in order to keep their income above the threshold. 

These changes still fail to protect many BAME families put at further risk of contracting COVID due to the MIR. For example, those unable to meet the MIR in the six months to March 2020 for whatever reason will continue to struggle with the income requirement, and may continue to work when it is not safe to do so. 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.⁷ 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.   

Faisal* is a Syrian national, and is married to Sophie*, a British citizen. They have lived together in the UK for 2 years. They are coming up to apply for Faisal’s second spouse visa. Prior to March 2020 they were not jointly earning £18,600, as Sophie is training to become a nurse, and cannot use her nursing loan towards meeting the income requirement.   Faisal is a care worker. He is now having to work full-time in adult social care, but fears that he will not be able to cope with full-time work, as he suffers from PTSD due to his experiences in war-torn Syria. He also fears that he will be not be able to turn down hours even if there is no adequate protection at his place of work, as he needs to work enough hours per week to meet the MIR and remain in the UK with his wife.

Criminalisation & Policing

An essential route to safety during the pandemic for those such as workers being exploited in unsafe or unlawful conditions, for victims of domestic violence trapped with their abusers, is to seek state protection. Often this is supposed to be done by contacting the police, and in fact in many cases, the police force is the only part of the state with the powers and expertise necessary to take action. A number of laws and policies make it extremely difficult for irregular migrants or those with precarious status to take this route.

There are two simple points here:

1. The criminalisation of irregular migrants for undertaking employment vastly increases their risk of suffering exploitation, trafficking and modern slavery and causes the harm to them and to other workers that criminalisation purports to address;
2. The Home Office has failed to enforce labour rights infringements against those committing the infringements, but instead targets the victims of such crimes for immigration enforcement purposes.

Case Study 1

Anjay (a pseudonym) a recognised refugee was living undocumented in the UK for several years before he was able to get the legal representation he needed to be recognised by the Home Office. During this time, he worked in various key worker roles providing essential goods and services. He says that while he is now safe, he has many friends who continue to work in these exact conditions throughout the pandemic. Indeed, the crisis has made them all the more desperate to work, as their families are also facing increased financial hardship due to Covid-19 and need support.

"We were hired because we are not entitled to sick pay and we’re desperate to help and save our families. We have to work to make a living. Being a sensible, responsible and practical person – risking everything and tolerating all the exploitation is the only way to survival if you are classified as illegal or failed asylum seeker. “After the first months, the agents who had got me the job in the shop took my salary, consequently I was unable to pay the rent and was evicted from my accommodation. I was homeless, but I was working at the shop from 4am to 4pm. I would roam around until it was dark to sleep at the bus stop. “Eventually, I explained that I wasn’t seeing any of my salary and the shop owner’s wife gave me £20 every week from my salary. At this point I was fortunate when one Indian man offered me to a place above a restaurant to sleep. “However, I was told that I had to work as a cleaner to stay in that place. My cleaning shift was from 6pm to 2am every day. For about 9 months I survived like that. Food, you get to eat from the leftovers from the restaurant. Well, the more interesting bit was there were 21 or 22 people sleeping in the two-bedroom flat above the restaurant at that time. “I would spend £1 every day to buy 2-for-£1 boost to keep me going until I would get to eat at the restaurant. I came down with chickenpox that summer and everything crashed as I was forced to leave the restaurant and eventually the shop. Behold, back to the streets. “I got work in a petrol station, cleaning and filling cars. They promised to pay £100 per week for 7 days’ work 7-10 hours with food and accommodation. But after 2 months I had to run away from that place because I never got paid, I was restricted from getting more than one sandwich, one packet of crisps and one drink per day. “At the next job in a late-night shop one night there was a client who misbehaved, he attacked me and I got stabbed. I called the owner, but they told me to leave. They warned me never to go to hospital because he will be in trouble for employing me as I was illegal, and he warned me I would be sent back home if I go to hospital because the police will be involved.”

Case Study 2

Tanvir* has been living in the UK since 2003. He had no understanding of the visas & immigration system and his travel was entirely arranged, through family, by an agent. He did not even know that he was headed to the UK and did not speak a word of English. He and his family were told Tanvir would be able to work and earn good money once here and send it back to the family to support them. He had no choice in coming and says that going back is in no way an option. Once here, the agent brought him to a 2-bedroom flat outside of Birmingham, where he and 9 other undocumented migrants were to live. In order to pay their rent, the agent told him he must work on a farm, where the agent had an arrangement with the farmer. He doesn’t know for sure if the farmer knew he was undocumented, but he had a deal going on with the agent and all the migrants in the flat had to work on that farm. It was hard work, picking vegetables and weeding. He was paid less than £3/hour (min wage in 2003 for an adult was £4.50/hour) but almost everything went directly to the agent to cover his rent and the rest was barely enough to buy food. Hours were irregular. There was no question of sick pay, health and safety training or equipment, or the possibility of isolating himself in the flat which was poorly maintained and severely over-crowded. Tanvir was not aware of the minimum labour standards that are required in this country, or even that he was not entitled to work and was being deliberately exploited, but he knew his situation was bad and that he would not be able to send any money back to his family. He didn’t know anybody or have any money or English or any way to escape, however, so he remained in that situation for 2 years. Finally, one of the other migrants who came to live in the house became his friend. He had been to Slough before and knew some people there and could rent a room. They thought they could make a better life for themselves if they went there, so one day the two of them left and Tanvir stayed with that friend in the room he was renting. Tanvir didn’t know that his friend, who was also undocumented, was not entitled to rent. He didn’t know what the arrangement was but was just grateful to get into a slightly less crowded living situation. There he found cash in hand work through that friend for a builder, who would bring him to the site. The builder would give him money every day that he worked, so he could save to give money to his family. It was hard physical work and if he got sick there was nothing for him, he had no security in the job, no sick leave provision, just cash in hand for the hours he worked. He still didn’t have any understanding that he could have a legal contract with rights for the work he was doing.

The Independent Chief Inspector of Borders and Immigration found in 2018 that the Home Office was failing to implement a coherent strategy to tackle labour market exploitation:

“3.14 Windrush has led to questions about whether sufficient safeguards were in place when IE identified individuals they believed to be migrants without the right to live and work in the UK. Certainly, stakeholders were clear with inspectors that they considered ICE teams to be ill equipped in terms of expertise, time and incentive to identify where an individual encountered working illegally was in fact a victim of modern slavery or some other form of exploitation, and the small sample of case records examined by inspectors tended to support this view. Inspectors also heard concerns that fear of falling foul of IE might encourage some employers to discriminate against individuals who found it difficult to evidence their right to work.”

The UK is an outlier in its approach to such issues. PICUM have singled the UK out as the only one of 15 European countries to criminalise undocumented workers for working:

“This runs contrary to fundamental rights, undermines labour standards, and represents a new level of state facilitation of the exploitation of migrant workers, including in the context of efforts to reduce modern slavery“

These issues are crucial to understanding the exceptional vulnerability of our highly racialised undocumented migrant population to effects of the pandemic, and the degree to which that vulnerability is caused by the state.

Detention

In general Immigration Detention is only lawful where there is a realistic prospect of removal. As recently as 29 June 2020, the Home Office has claimed that “decisions to detain are made on a case-by-case basis, [and] in each case, there must be a realistic prospect of removal within a reasonable timescale.” However, the evidence is that in reality detention is used indiscriminately with little regard for individual circumstances, vulnerabilities, or the prospect of removal. In May 2020, for instance, the European Court of Human Rights found that the Home Office had unlawfully detained a man with severe mental health issues for over a year when there was no prospect of removal. The man was detained under immigration powers for a total of nearly 5 years.

During a global health crisis, the dangers of using immigration detention – for which there is no time limit – in this way are multiplied, with an impact on BAME people that has been shown to be discriminatory. With restrictions on travel in place across the globe, the Home Office has been unable to pursue any but an extremely small number of removals during the pandemic. Instead, people have been held in prison-like conditions in immigration detention centres with limited access to healthcare, and in cramped conditions. An inspection in May 2020 by HM Chief Inspector of Prisons found that 39% of the hundreds of people still detained by May – over 3 months after many border closures came into place – were classified as at risk, many of them because they were required to shield because pre-existing health conditions made them extremely vulnerable to COVID-19.

“There was a high level of assessed vulnerability among those who remained in detention, and many had been held for long periods at a time when the prospect of removal appeared remote”

Peter Clarke, HM Chief Inspector of Prisons

Bail for Immigration Detainees, which works to secure the release of individuals held in immigration detention, has reported a 94% rate of success for bail hearings between March and May 2020, suggesting that maintaining detention under the current conditions does not stand up to judicial scrutiny in the vast majority of cases. Detention Action, which works with people detained at the Heathrow IRCs (the largest in Europe) report that clients have been unable during the pandemic to access basic sanitation items such as soap and hand sanitiser, and have been detained in close proximity with no prospect of being able to socially distance.

The Home Office has so far settled in court on one case regarding the legality of upholding detention despite the global travel restrictions in place, and the distant prospect of removal for many of those currently being held under immigration powers. It is facing ongoing legal action over its failure to disclose the list of countries to which it is currently unable to effect removals.

The decision to maintain detention during the COVID-19 pandemic has a disproportionate impact on BAME communities not just because BAME communities are overrepresented among people vulnerable to detention, but also people from BAME backgrounds have been shown to be liable to be detained for longer periods, and in greater numbers, than white counterparts. Nationals from countries with a majority white population are detained for far shorter periods than those from countries with a majority black population – figures showed, for example, that 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, nature 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.

Of course release from detention is no panacea. Once released detainees are too often left to fend for themselves in the environment described elsewhere in this briefing:

“Upon release, there are reports of former detainees not bring given adequate housing or healthcare provision, including a lack of medication and follow up medical care. Many GP surgeries are refusing to register new patients during the COVID-19 pandemic, leaving people bring discharged into the community without access to primary care. This is especially concerning for those managing pre-existing conditions and for those with medication needs.”

EEA and Swiss Nationals and their Family Members

BAME EU citizens and non-EU family members with pre-settled status denied benefits

BAME people face disproportionate socioeconomic disadvantages and have been found to be more reliant on social security support. The Runnymede Trust found that BAME people in Britain face “extensive and persistent economic inequality” characterised by lower employment rates, poor housing and worse health outcomes. In 2015/16, 50% of Bangladeshi households, 46% of Pakistani households and 40% of Black African/Caribbean households were living in poverty compared to 19% of White British households. Official Government figures on the proportion of ethnicities claiming Income Support outline this as 4% of Black families, 4% of Bangladeshi families, 4% of Mixed families, 3% of Pakistani families, compared with only 2% of White families. Moreover, there is a higher prevalence of precarious work amongst BAME communities, which can exacerbate low pay and the need for state support. The Trade Union Congress (TUC) found that 1 in 13 BAME employees were in insecure work, rising to 1 in 8 for Black employees, compared to an average of 1 in 17. Further, they found that the proportion of the Black community in all employment on zero hour contracts is 1 in 20, compared to the national average of around 1 in 36. These figures are likely to be similar to the BAME EU population and their family members resident in the UK, who will be subject to the same biases and systemic racism as the wider UK population.

It has recently emerged that many EU citizens and non-EU family members who have lived in the UK for less than five years are being denied access to Universal Credit. ‘Settled status’ counts as a right to reside so people with this form of status have automatic access 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, in the midst of a pandemic when hundreds of thousands have been forced out of work and into reliance on social security support, for many this is simply not possible. Between the end of March and 17^th April 2020, campaign group The 3 Million collected testimonies from EU citizens and their families. They report that by far, the most common issue amongst those contacting them was being refused Universal Credit or other support, particularly for the self-employed who had lost their jobs due to COVID. 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. As of April 2020, 1.3 million EU citizens and family members had been granted pre-settled status. The Government is discriminating against EU citizens based on the length of time they can evidence having lived in the UK and forcing those with pre-settled status to choose between facing destitution or returning to work and risking their own and public health.

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. We strongly recommend the Government 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.

BAME EU citizens and non-EU family members more reliant on postal applications

We know that Black, Asian, and minority ethnic (BAME) people face disproportionate socio-economic disadvantages which will make it harder for them to access the EUSS and thereby secure immigration status (e.g. because of lower levels of literacy, digital capacity and digital access). Now that EUSS postal application routes have reopened, applicants who apply on a paper application form or cannot scan their identity documents at home must go to the post office to submit their documents to the Home Office. For example, non-EU family members are expected to post their Biometric Residence Cards (BRCs) to the Home Office. This requires (potentially vulnerable) applicants to travel to a post office, increasing their risk of contracting and transmitting the virus. Further, non-EU family members without a BRC are asked to attend a biometric enrolment appointment at the UK Visa and Citizenship Application Services (UKVCAS). Those unable to pay fees for local biometric enrolment appointments have to travel across the country to access a free appointment at one of only 5 free appointment centres in the UK (3 in England, 1 in each devolved nation).

Vulnerable EU citizens and non-EU family members including BAME people face a double threat of COVID as they are more likely to die if they contract the virus and are also more reliant on EUSS postal applications which will further their risk of contracting and spreading the virus. Higher levels of destitution, poverty and lower levels of digital access mean BAME people are more likely to have to travel to one of the few free appointment centres and submit documents in a post office, both things which will heighten their exposure to COVID. When we raised this in a Home Office User Group, we were told that there is still plenty of time to apply to the scheme and that they would not want vulnerable people to put themselves at risk. However, we know that vulnerable people’s cases are often more complex and can take much longer, and in the midst of a global pandemic that shows no sign of easing up, to suggest these individuals should wait to apply puts them at risk of missing the deadline and falling out of status. Thus, the Home Office is placing an undue burden on such individuals to decide whether to risk their own and the public’s health in order to apply to the EUSS, which no applicant should have to do.

The Government must begin monitoring protected characteristics of EUSS applicants with immediate effect, in order to understand who the scheme is and is not reaching, and which individuals are more reliant on postal applications and thus at greater risk of COVID. At present, the Home Office provides monthly statistics and more detailed quarterly statistics on the EUSS, which tell us how many applications have been made and concluded, the pre-settled to settled split, and break down results according to region, nationality and age group.We welcome this information but the Home Office must do more to ensure that we are aware of and understanding all groups of people at risk of slipping through the scheme’s cracks. The current statistics do not include sex, ethnicity or disability, yet these are all factors which impact both a person’s vulnerability to COVID and their likelihood of requiring a postal application. Further, without such monitoring and understanding of who the scheme is failing to reach, the Home Office will not be able to introduce necessary adjustments to the scheme in order to fix these problems.

It is crucial the Government waives all requirements that put any person at greater risk of contracting and spreading COVID whilst the virus is still in circulation. The WEC should strongly advise the Government to introduce necessary adjustments to the postal application route in order to protect BAME and other high-risk people from contracting COVID and prevent the spread of the virus. For example, non-EU family members should not have to post their Biometric Residence Permits (BRP), a requirement that is entirely unnecessary since the Home Office already holds the information on file from the time that it first issued the BRC. In addition, when non-EU family members do not have BRPs they should not have to travel across the country for a biometric enrolment appointment. The Government has chosen to make this compulsory but it is not essential travel and in some instances these journeys are entirely unnecessary as the Home Office already holds past biometric enrolment information relating to the individual. At the height of a global pandemic, the Government should be following its own guidance and ensuring that protecting public health and containing the spread of the virus are utmost priority.