Northern Ireland: unique challenges and unique tools
Utilising devolved powers to push back against the hostile environment
By immigration solicitor Úna Boyd
Wednesday 1 June 2022
Mark Basset BL has described how the phrase ‘hostile environment’ was historically used in many different ways, to describe war-zones in which journalists were unsafe, financial laws aimed at preventing the funding of terrorism, or workplaces in which an employee was subjected to discrimination or harassment.
Following Theresa May’s infamous speech, the term was deployed by the UK government, not against insurgents, terrorists or workplace bullies but against ordinary people lacking regular immigration status in the UK. The hostile environment expressly aims to make the lives of persons in an irregular migration status unbearable by removing access to basic human needs. In ten years, these abhorrent policies have not been proven to work, but they have been shown to cause discrimination, legitimize xenophobia and racism, and increase exploitation.
The UK government has long taken a ‘one size fits all’ approach to immigration law in the UK, largely dismissing the unique needs and impacts on different regions across the UK. This is particularly problematic in devolved regions where these policies intersect with devolved powers, policy, and legislation.
In Northern Ireland, the hostile environment sits uncomfortably alongside devolved powers and the commitment to equality and human rights enshrined in the Good Friday Agreement. With Brexit, the application of hostile environment policies in Northern Ireland raised unique concerns. Northern Ireland is the only part of the UK with a land border with an EU country. That border remains open and the Common Travel Area creates a system of check free travel over that border. Post Brexit, the UK government have been clear in their commitment to there being no checks whatsoever on the land border and to the continued functioning of the Common Travel Area.
However, concerns have been raised that instead, the UK government is increasing ad-hoc, in-country checks within Northern Ireland. Many of these rely on hostile environment policies wherein duties are placed on public services and private actors to police immigration status. In June 2020, The Detail published statistics which show that the rate of immigration checks in Belfast is almost four times higher than London. When this was queried, the Home Office responded that they were combatting “immigration abuse of the Common Travel Area and Ireland-UK border”. This has raised concerns that Northern Ireland will become ‘one big border’, increasing the use of hostile environment policies here and increasing discrimination and human rights abuses within our communities.
Fortunately, when facing these unique impacts, Northern Ireland also has unique tools with which to combat them. Not all hostile environment policies have been rolled out in Northern Ireland, for example the ‘Right to Rent’ policy does not yet apply here. This puts Northern Ireland in a position where it can ‘hold the line’ and refuse to permit the roll out of further hostile environment policies. Preventing a policy being introduced will usually be easier than unpicking existing policy and practice which has gone on for years. We saw an example of this in 2021 when the NI Minister for Communities spoke out against the Home Office policy on the removal of ‘rough sleepers’, stating that her department would not comply with it.
Immigration control is also not a ‘vote winner’ or key political issue in Northern Ireland in the way that it is in parts of Great Britain. The imposition of hostile environment measures often seems tied up with the current UK government’s political priorities. However, in Northern Ireland, political priorities are very different. In the 2022 Assembly election, immigration control did not feature as a key issue on any of the elected parties’ manifestos. Issues like racial equality, combatting hate crimes, and integration strategies were highlighted. As demonstrated by the previous action taken by the Minister for Communities, we have found broad cross-party support for welcoming and human rights compliant immigration policy in Northern Ireland.
Northern Ireland also has a unique opportunity to utilise its devolved powers in order to push back against hostile environment measures and their impacts. Hostile environment policies encroach heavily on areas of devolved competency including social welfare, employment, healthcare, and housing. In December, 2021 CAJ commissioned barrister Mark Basset to conduct a legal analysis, which examines where NI Executive Departments can use their devolved competencies to push back against the hostile environment, and take a proactive stance to protect the rights of migrant and minority ethnic people in Northern Ireland. This groundbreaking report maps the application of the Home Office’s hostile environment policies in NI, scrutinises the devolved interface for such provisions and highlights areas where it would be within the competence of Stormont Departments to act. These include the right to rent and housing provision; the regulation of driving licences; the provision of social security for people subject to No Recourse to Public Funds; the provision of healthcare; the regulation of marriage; and the protection of workers subject to labour exploitation.
The unique tools available to Northern Ireland, give us a chance to push back against the hostile environment here, and to protect the rights of migrant and minority ethnic people in our communities. The Good Friday Agreement was built on the promise of a rights based society in Northern Ireland and it is clear that allowing hostile environment measures to be applied to our friends and neighbours, is the antithesis of that commitment. Utilising the unique tools available to us, and building on the findings of our recent report, we hope to see Northern Ireland move from a culture of compliance with the hostile environment to a culture of defiance.