‘Someone must have been telling lies about Josef K.’ We never find out whether or not the opening line of The Trial is true, or what the lies might have been. Instead we are led into a suffocating world of innuendo and gossip, which slowly builds towards a judicial decision that doesn’t in the end arrive. Unable to discover what he’s been accused of, Josef K focuses on trying to navigate a system that is as senseless as it is cruel, ultimately without success. The world portrayed in The Trial is one in which judiciary and bureaucracy have collapsed into each other. The intimidating symbolism of the courtroom is married to the pettiness and absurdity of bureaucracy, creating a web that traps the book’s hero for no clear reason. It isn’t so much that he is suffering an injustice, as that he can barely work out what the justice system wants of him or how he might provide it. The real trial is the constant process, rather than the hearing itself.
It is difficult to imagine anything more Kafkaesque than the experience the ‘Windrush generation’ has undergone at the hands of the British state in the past few years. Cases are accumulating of individuals seeking NHS treatment, passports, jobs or housing only to find themselves having to prove their right to live in the country where they have been legally resident for more than 45 years, or risk being deported. Harrowing stories have emerged of individuals being made homeless, jobless and stateless, after they failed to produce proof they were never given in the first place. One man suffered an aneurysm which he believes was brought on by the stress the situation caused him, only to be presented with a bill for £5000 for his NHS treatment – again because his paperwork didn’t measure up – while also losing his job and his home. He was left on the street. As it turns out, the one source of evidence that might have put a stop to this torture – the landing cards that recorded arrivals from the Caribbean until the 1960s – was destroyed by the Home Office in 2010.
The Windrush generation’s immigration status should never have been in question, and the cause of their predicament is recent: the 2014 Immigration Act, which contained the flagship policies of the then home secretary, Theresa May. Foremost among them was the plan to create a ‘hostile environment’, with the aim of making it harder for illegal immigrants to work and live in the UK. By forcing landlords, employers, banks and NHS services to run immigration status checks, the policy pushed the mentality of border control into everyday social and economic life. The 2016 Immigration Act extended it further, introducing tougher penalties for employers and landlords who fail to play their part in maintaining the ‘hostile environment’, and adding to the list of privileges that can be taken away from those who cannot prove their right to live and work in the UK.
Another key feature of the 2014 Act was that it empowered the Home Office to deport people more quickly and cheaply, avoiding lengthy and repeated appeals. The ‘deport first, appeal later’ provision was eventually ruled unlawful by the Supreme Court. The Act greatly restricted the right to appeal via tribunal, replacing most appeals with an administrative review carried out by the Home Office itself. Before the Act was introduced, 50 per cent of appeals were upheld at tribunal; at administrative review, the figure is 18 per cent.
Immigration policy necessarily involves complex alliances and tensions between legal and bureaucratic logic. People move across national borders for any number of reasons, and practicality (not to mention compassion) requires that these be recognised in a variety of different visas and entitlements. The Home Office is under constant pressure, not least from other parts of Whitehall, to recognise the needs of business, universities and the economy as a whole, and therefore to let valued migrants into the UK, at least for a period of time. The nature of Britain’s economy and labour market means that immigration law cannot be cleanly separated from issues of employment, welfare, health and education. One of the dangers of the ‘hostile environment’ policy is that it deliberately collapses the distinction between judicial due process and bureaucratic administration. It’s almost as if, on discovering that law alone was too blunt an instrument for deterring and excluding immigrants, May decided to weaponise paperwork instead. The ‘hostile environment’ strategy was never presented just as an effective way of identifying and deporting illegal immigrants: more important, it was intended as a way of destroying their ability to build normal lives. The hope, it seemed, was that people might decide that living in Britain wasn’t worth the hassle.
The policy has echoes of the ‘benefit sanctions’ regime the coalition government introduced in 2012 to penalise ‘jobseekers’ who failed to meet specific conditions such as attending daily appointments at job centres. Claimants have had their income cut off at a moment’s notice for reasons beyond their control: one man was sanctioned for nine weeks after having a heart attack on the day of his appointment. The thread linking benefit sanctions and the ‘hostile environment’ is that both are policies designed to alter behaviour dressed up as audits. Neither is really concerned with accumulating information per se: the idea is to use a process of constant auditing to punish and deter. If it seems senseless, that’s the point (as Hannah Arendt wrote, ‘To use reason when reason is used as a trap is not “rational”’). The coalition government was fond of the idea of ‘nudges’, interventions that seek to change behaviour by subtle manipulation of the way things look and feel, rather than through regulation. Nudgers celebrate the sunnier success stories, such as getting more people to recycle or to quit smoking, but it’s easy to see how the same mentality might be applied in a more menacing way. Policies such as the creation of a ‘hostile environment’ work by cultivating anxiety among those they target, in tandem with campaigns such as the quickly aborted ‘Go Home’ vans introduced on Britain’s streets in August 2013 in an effort to persuade illegal immigrants to hand themselves in.
One problem with governing via mood is that there is no precise way of controlling who you affect and how. It’s no good saying that the innocent have nothing to fear: fear doesn’t work like that. In any case, the argument for creating a ‘hostile environment’ rests on the assumption that legal and illegal residents are prima facie indistinguishable, and can only be separated through constant hounding. The Home Office’s frustration with the courts is that they place the burden of proof on the state. The 2014 Act sought to shift it onto the individual. If, like members of the Windrush generation, you can’t prove you are British, you become de facto illegal.
Another problem with governing via mood is that the effect of policy becomes a subjective matter. This is where racism comes in. The ‘hostile environment’ and associated campaigns don’t have to be conceived and designed by racists in order to look, feel and be racist, especially given certain family resemblances between these policies and everyday racist practices of the past. Granting landlords additional powers to evict tenants who can’t prove their legal status (as the 2016 Immigration Act did), or plastering the words ‘Go Home’ across a billboard, creates a sense of déjà vu.
The ‘Go Home’ vans, which were introduced along with a range of other Home Office information campaigns challenging the image of Britain (and its public services) as a soft touch, had two different audiences in mind. First, those it hoped to persuade to ‘go home’. The Home Office can cover the cost of illegal immigrants leaving the country, and wanted to get the message out there. The problem was that May and her advisers feared this might look over-generous. They were more mindful of a second audience: the voters and the Daily Mail. This is what caused the messaging to be toughened up, until it (deliberately or otherwise) revived a notorious bit of racist graffiti from the 1970s.
The ultimate ambition of the Home Office in all of this is to reduce the number of people living illegally in the UK. Under May, it pursued this goal with a set of techniques designed to comfort a majority and frighten a minority. But whether an individual falls into the first or the second camp doesn’t depend only on their legal status. It is also a matter of how settled and welcome they feel in the UK, not to mention their capacity to produce paperwork. Nobody has suffered from this policy as badly as the Windrush victims, but countless British citizens of colour will have seen pictures of the vans, been asked for additional paperwork by landlords (perhaps more often than their white counterparts) and wondered if, deep down, this country really wants them. The news of the past month will have deepened their anxiety.
Is the prime minister a racist? It’s a provocative question that has been asked repeatedly since Home Office rhetoric on illegal immigration was ratcheted up around 2012. Her 2016 party conference speech, containing its infamous dismissal of ‘citizens of nowhere’, raised the question once more. Lord Kerslake, head of the civil service between 2012 and 2014, has said that some inside the government saw May’s immigration policies as ‘almost reminiscent of Nazi Germany’. But reducing the current situation to the politics or prejudices of an individual doesn’t really explain how Britain descended to the point where black citizens were being stripped of their dignity and livelihoods, and threatened with being slung out of the country. This isn’t just a matter of something rotten in the Home Office, as Amber Rudd had the nerve to suggest. That we have ended up in this mess suggests that senior politicians have gradually lost all sense of proportion on the matter. Someone must have been telling lies about immigration.
The tabloid media are culpable, with their talk of ‘floods’ and ‘swarms’, happily echoed by Nigel Farage. But the most significant precursor to the ‘hostile environment’ was David Cameron’s ill-fated pledge of 2010 to reduce net migration (the number entering the UK minus the number leaving) to less than 100,000 a year, at a time when the figure was more than 250,000. New Labour had treated immigration merely as a labour market issue, without much political significance. Cameron’s policy was a desperate bid to hang on to voters who might drift towards Ukip, but it was wildly undeliverable. The government soon introduced a cap on the number of skilled non-EU migrants that could enter the country, which was broken month after month.
Between the Blair and May governments, the source of immigration changed substantially. Only 13 per cent of people entering Britain between 2000 and 2003 came from the European Union. By 2015, almost half were from the EU, which meant that the power of the Home Office to limit the number of arrivals was falling fast. Yet Cameron reiterated his pledge (downgraded to an ‘ambition’) at the 2015 election, by which point net migration was close to 300,000 a year. Cameron was backing himself to persuade the EU to make an exception for Britain in relation to free movement, which he could then use as the basis to win a referendum on EU membership. The first wager ended in farce and the second in tragedy.
What does any of this have to do with the ‘hostile environment’? The net migration numbers obviously don’t capture the number of people entering the country illegally in the backs of lorries. There is no data on how many people get into the country that way, though a pessimistic report by the thinktank Civitas put the number at forty thousand a year (based on figures from the summer of 2015 for the number being caught – at the time, a thousand per month). While it is politically expedient for the Home Office to conjure images of criminals and people-trafficking when unveiling their latest crackdown, the people ensnared by the ‘hostile environment’ policy rarely fit this profile. Most will have entered the country legally for work, study or tourism, but outstayed their visa or abused its terms. Many will be honestly unsure of their exact status. Some of the rules are so complicated, and the financial cost of navigating them so high, that people are unable to discover or prove their status conclusively, no matter how hard they try.
In a politically desperate situation, with Cameron having repeatedly pledged to deliver the impossible, May put forward two measures that would reduce the net migration rate. First, hounding people to provide paperwork at every turn would reduce the likelihood that immigrants would make a life for themselves in the UK. If you can’t limit the number of people coming into the country legally, then maybe you can boost the number going out. Second, casting doubt on people’s legal status: ‘sham marriages’, fake colleges and dodgy employers would be unmasked. The number of legal routes into the country can be restricted by exposing some of them as not so legal after all. The trademark Home Office suspicion that the law on its own is too generous and open to abuse has made it a matter of border enforcement to address such thorny questions as what constitutes a real marriage, or who is a real student. This is an area ripe for legal challenge and embarrassment, as doubt is cast on legitimate practices as well as less legitimate ones. In March 2016, a court ruled that the Home Office had behaved unlawfully in deporting thousands of foreign students accused of cheating in an English language test, when the only evidence against any of them was the confession of the firm that administered the test. The students, who were mostly Indian, had been rounded up in dawn raids and deported without the right to appeal.
In total, the Home Office manages to remove around forty thousand people from the UK every year, either forcibly or through ‘voluntary departure’ (what the ‘Go Home’ vans were ostensibly seeking to encourage). This number includes those who have got as far as a British airport or port, but have then been refused entry. No doubt the number could go higher as additional hostility and extra-legal measures are threaded into civil society and the economy. As the Windrush scandal has unfolded, it has emerged that the Home Office has internal targets for the number of ‘voluntary departures’, raising the pressure on its staff to track down anyone whose documents aren’t in perfect order. But at what point will a home secretary place a cap on the level of fear and paranoia they are willing to manufacture? The suffering of the Windrush generation is not a result of administrative ‘incompetence’, as defenders of the ‘hostile environment’ have argued. The system exists to harass people who are trying to live ordinary, non-criminal lives.
Net migration will fall only when fewer people want to come to the UK, and when universities, employers and the tourist industry stop inviting them. Thanks to Brexit, the first of these things is already happening: net migration suddenly fell by a third in the year following the referendum. The worry is that if ‘hostile environment’ policies are sustained after Brexit, they will start to affect EU citizens who (like the Windrush generation) entered the country with unambiguous rights, so never built up the paperwork needed to document them.
There is nothing accidental about the grotesque events that have befallen the Windrush generation. We need to ask how public policy and administration became so warped as to enact them. Not only has the politics become delusional, nowhere more so than in the case of Cameron’s pledge: our entire way of understanding and talking about migration has gone awry. When home secretaries speak of ‘illegal immigrants’, they mostly mean people who entered the country legally. When they speak of ‘borders’, they often mean hospitals, homes, workplaces and register offices. As the experience of the 20th century warned, when language stops working, all manner of things are possible.