An Idea Whose Time Has Come

It's clear that the defence of the hostile environment for illegal immigration has been successful. While special measures are being taken to address the Windrush "anomalies", and some of the more unpopular features - such as hospital checks on nationality - are being watered-down, the basic policy remains intact. Some of its defenders are even taking the battle to the opposition, insisting that now is the time to revisit the merits of a national ID card. This may well be an idea whose time has finally come, after the half-baked 2006 Identity Cards Act was repealed by the coalition government in 2010. The heart of this successful defence is the acceptance that "some kind of 'hostile environment' for illegal immigrants is inevitable". I think we can question that on two counts: first, it repeats the error evident in the Windrush cases in assuming that the definition of "illegal" is clear cut; and second, it  ignores that overt hostility is a political choice and therefore not inevitable at all. However, whether you consider immigration a matter of rights rather than criminality, or if you imagine that hostility is the only viable strategy, the common conclusion of either approach is likely to be the adoption of a national identity register.

Chris Bertram has suggested that "There’s no such legal category as 'illegal immigration', rather there are people who have the legal right to be in the country and, perhaps, to do certain things like work or study. And then there are people who may lack the legal right to be present and to do those things." If we think about immigration in terms of rights, the first thing we need to consider is how rights are assigned. Contrary to popular belief, being born in the UK does not automatically make you a citizen, while the state also has the power to revoke citizenship (though it is bound by international treaty not to make people stateless, it can get round this if you also have the right of citizenship elsewhere - e.g. through parentage). The right of abode in the UK is therefore a conditional right, which can be extended (along with the right to work or study) in qualified form to non-citizens. The Windrush scandal did not occur because the Home Office is incompetent or racially biased (though both will have coloured operational decisions), but because the default assumption is that no one has an incontestable right to remain in the UK. The emotional power of the incident (our empathy) arises from the sudden realisation that everyone's status is contingent.

If living in the UK is a right, then logically the people we describe as "illegal immigrants" are simply those who lack this right, or who have exceeded any limits set on a qualified right. While people-smuggling does happen, the majority of people in the UK who lack the right of abode are actually individuals who are on licence and who have breached their terms, e.g. overstaying a student or tourist visa. If there is an argument for ID cards, it isn't that everyone who has the right of abode in the UK should have one, so that we can identify "illegals" by a process of elimination, which would be ridiculously inefficient, but that those on licence should have them so that they can prove their qualified rights. In fact, these already exist for non-EU citizens in the form of visas and biometric residence permit (BRP) cards. The Home Office may need to do a better job of tracking the status of licence-holders, but it does not need to extend surveillance to the entire population, not least because even the most thorough system would still fail to catch those who decided to go off-grid. Though there is growing public support for ID cards, after the low of the late 2000s, it's unlikely that there is much support for roadblocks or the mass inspection of buses and trains during the daily commute.

Having civil society - in the form of hospitals, schools and landlords -  patrol our borders at a remove, by asking for proof of the right of abode and to work, is clumsy and often arbitrary, not to mention a prompt for racial discrimination and the petty abuse of power. Clearly the real purpose is not to improve the effectiveness of the enforcement regime but to make the hostile environment visible to the domestic audience for political reasons. Those famous 'Go Home' vans were a photo opportunity on wheels rather than a rational tactic for increasing deportations. Involving civil society is propaganda rather than subcontracting, and part of the propaganda is performative intolerance. In this regime, unfairness and collateral damage are features not bugs. As Chris Bertram goes on to note, "The UK government has deliberately built a zero tolerance system with the inevitable consequence of inflicting injustice on people by denying their rights. Unless that system is changed, the problem will continue: the fevered tabloid-driven hunt for 'illegal immigrants' will catch many people who are not, even by the standards of those politicians using this language."

One way of thinking about the Windrush scandal is that the hostile environment is not a means to an end so much as an end in itself: essentially a compensation for the impossibility of hitting the "tens of thousands" target that successive Tory Prime Ministers have committed to for net migration. Given that the target is both practically unachievable and politically sacrosanct, this means the hostile environment must be maintained for as long as immigration remains a popular concern. While it's entirely possible that the level of concern might wane, particularly relative to the state of the economy, as it has done in the past, it's hard to imagine it happening in the context of a post-Brexit UK. Not only will we still be saddled by a xenophobic press looking for enemies and saboteurs, but the Tories (assuming they are still in government) may find that "taking control of our borders" is pretty much the only substantive achievement they can point to, and that may well be a hollow victory for some leavers if the termination agreement with the EU preserves the rights of its citizens, currently in the UK, to live and work here indefinitely.

The worse the economic situation becomes after 2019, the less likely Brexiteers will be to admit any link between immigration and growth. Ironically, the best hope for the demise of the hostile environment is if the UK is obliged to agree trade deals with other countries and blocs (such as the EU) who insist on greater mobility. While some libertarian free-traders would be happy with this quid pro quo, they are clearly in a minority within the Brexit camp. The more likely outcome is that the UK will turn down certain trade gains in order to avoid ceding "too much" on freedom of movement. Protectionism will trump free trade because most leave supporters are either ambivalent about the latter or see it purely in terms of goods. In this scenario, the pressure will be on to further intensify the hostile environment as a sign of political virility, and as compensation for an increasingly hostile international scene in which the UK lacks influence and is regarded as the new sick man of Europe. It is likely that the government will then move towards national ID cards simply because there will be few other substantive actions it can take to further harden the environment.

A more optimistic scenario would see a UK government junk the targets for net inflow and flex immigration policy specifically to drive economic growth, which would mean a bias towards skilled migrants. This would apparently be acceptable to most people (though class-inflected opinions of this sort need to be taken with a pinch of salt), and could still be sold as "taking back control". Were this to happen, we would probably revert to the older model of a less hostile environment for immigrants. This wouldn't mean an end to hostility as such, but would probably just shift the appetite for the punitive back towards the native unemployed and other benefit claimants who were deemed to be free-loading or holding back the new, vibrant UK economy. In other words, it would be a bit New Labour, even if enacted by the Tories. Were this to happen, the combination of the need for more sophisticated controls on migration and the general anxiety arising from the Windrush scandal over the fragility of the right of abode in the UK would probably lead to growing support for the adoption of mandatory ID cards, which has long been the Holy Grail of the Home Office.

The political stars appear to be aligning. The final agreement with the EU on citizens' rights is likely to massively extend the BRP regime, while the promise of both greater control over immigration and formalisation of long-term residents' rights will encourage popular acceptance of a national identity register. The Tories, no longer constrained by the Liberal Democrats' civil liberties concerns in coalition, will probably support a scheme that notionally protects against another Windrush (though of course it won't) while preserving the hostile environment. The authoritarian centre in the media will overplay their hand as usual, with much harrumphing about the additional benefits in combating crime, terrorism and welfare fraud, but this will simply allow a narrower scheme with "safeguards" to pass muster. The Labour right are already on-board and the left, while wary about surveillance and operational bias, will probably come round if the scheme can be crafted in terms of access to entitlements (notably the NHS) rather than state invigilation, and if police powers in particular can be restrained (to avoid a new stop and search). This could be the final legacy of New Labour.