Introduction

Following the Home Secretary’s evidence on 29 April 2020 to the House of Commons Home Affairs Select Committee on Home Office preparedness for COVID-19, here are 10 immigration policy steps that she could take as a matter of urgency. Public health is the first  public policy priority during the Coronavirus crisis as the Government and Parliament have recognised.  The Coronavirus Act 2020 and the emergency regulations made under the Public Health (Control of Disease) Act 1984 express that reality, see the area of my blog on Coronavirus/COVID19 Rules.

Without recourse to further legislation, the Home Office has the powers it needs to take the steps necessary to play its full part in contributing to the national effort. There is no reason for it to delay and every reason for it to act now. The suggestions below are straightforward, avoid delay, and enable whole classes of people to be helped at a stroke. They are just suggestions, there are and will be others. But the point is that as other Government departments have demonstrated, it is possible,  quickly, to take big, positive, decisions that help whole classes of people during the current health crisis and contribute to the public good, and not to postpone or refuse to take such action by conducting open-ended reviews and insisting on consideration of individual cases.

1. Increase Asylum Support to match Universal Credit Levels

 Asylum seekers and refused asylum-seekers receive too little by way of asylum support. It is not enough to meet their basic living needs even without the current crisis adding to their problems.  The amounts are way below the levels of welfare support provided by Universal Credit to the settled population. Like others, asylum seekers have to comply with the movement and gathering restrictions imposed during the Coronavirus crisis. Like others, they have a reduced range of options as regards purchasing food and other essential living items. Like others, they may fall sick or need to self-isolate. Even if the current public health restrictions on businesses are lifted, the cost of living is likely to increase in the short to medium term.

Asylum seekers do not need less to live on that any other person; it is time to do away with such thinking. They need the same support as anyone else. Moreover, generally, they do not have the option of working to support themselves, so the support they receive is all they have to live on. While Universal Credit levels are not generous, they are better than the sums paid out by way of asylum support.

To keep asylum seekers healthy as part of the population who are at risk of infection regardless of immigration status or citizenship rights, asylum support rates could be increased and elaborated to meet actual needs, and increased so that they match the levels paid out by way of Universal Credit.  It is possible to do that while making necessary allowances for any aspect of support, such as the provision of accommodation and utilities, received in kind. Further, all support could be paid in cash so that it can be spent where food and essential items are available. These steps could be taken for a 12-month period to remove anxiety and to enable people to plan and budget. At the end of that period there could be a consultation on how to move forward.

2. Increase the Supply of Asylum Support Accommodation

In response to the Coronavirus crisis, while the Home Office has taken action to maintain asylum-seekers and refused asylum-seekers in asylum support accommodation, delays are developing (i) in respect of deciding on applications for asylum support, support to refused asylum-seekers, and immigration bail accommodation support;  and (ii)  between the grant of such support and the actual provision of accommodation and support.

The excuse given in individual cases is that accommodation is in short supply as a result of keeping others asylum seekers in accommodation. It is said that this has led to pressures on the asylum support estate. In the result, many people are being left destitute and street homeless. However, it is the Home Office’s responsibility to secure such accommodation. At present, public health regulations made in response to the Coronavirus crisis prevent hotels and hostels from offering accommodation to the general public unless they need it. Thus, there is, potentially, a plentiful supply of temporary accommodation to be used immediately, while further longer-term accommodation is secured. The Home Office could increase the supply of asylum support accommodation immediately in order to ensure no one is homeless.

3. Suspend No Recourse to Public Funds Restrictions

Many people with leave to enter or remain are subject to a ‘no recourse to public funds’ (NRPF) restriction that prevents them from having access to means-tested benefits, universal benefits, tax credits, and housing and homelessness assistance. People subject to immigration control who are subject to such restrictions include those on family reunion routes (e.g. as the spouse of a British citizen) and those with work permits (under the Tier 2 (General) migration route). Although such people are permitted to work and often in work, these forms of support often function as in-work benefits  and support  to top-up earnings for those with modest incomes (e.g. housing benefit and working tax credit, and their universal credit equivalents), as well as being out-of-work benefits and support.

As a result of the Coronavirus crisis, many people have lost jobs, have less work, or are on furlough. Many will fall sick or need to self-isolate. The lack of access to both in-work benefits and out-of-work benefits for such people can no longer be justified. Further, the process for a person to apply for a ‘change of condition’ to remove the NRPF restriction is both slow and cumbersome.

Moreover, the current public health restrictions on movement brought in as a response to the Coronavirus crisis apply to people with NRPF restrictions as they apply to others in the settled population. In addition, everyone is affected by rises in the cost of living and the lack of work opportunities. To ensure that people with NRPF restrictions are able to have the funds they need to remain at home without having to choose between working to survive and potentially risking health, and guarding everyone’s health by remaining at home but without the means to survive, all NRPF restrictions could be lifted for a 12-month period or longer. This could be done using an Immigration (Variation of Leave) Order (statutory instrument) made under s 4 of the Immigration Act 1971. Such a step would remove anxiety and enable people to plan and budget. At the end of that period there could be a consultation on how to move forward. The forthcoming judicial review (May 2020) brought by the Unity Project will test the lawfulness of the Home Office’s current position. But it remains open to the Home Office to take steps of its own motion.

4. Suspend the ‘Right to Reside’ and ‘Habitual Residence’ Tests in Welfare Legislation

Having removed the NRPF restriction for people who have been made subject to it, the Home Office could also co-operate with other Government departments such as the Department for Work and Pensions to suspend the ‘right to reside’  and ‘habitual residence’ tests in legislation for access to means-tested welfare benefits, universal benefits, housing  and homelessness assistance, and tax credits. These tests are forms of in-country immigration control. Their suspension could be done by statutory instrument amending the relevant legislation. In particular, over above those people who would benefit from a removal of their NRPF restrictions, this would enable EU Citizens and their family members with Pre-settled Status or no documented immigration status to access these forms of support. As a result of the Coronavirus crisis, many such people have lost jobs, have less work, or are on furlough. Many will fall sick or need to self-isolate. The lack of access to both in-work benefits and out-of-work benefits for these people can no longer be justified.

5. Suspend NHS Charging to Overseas Visitors

 While the recent decision not to charge overseas visitors for testing and treatment for Coronavirus is welcome, charging remains for other conditions treated in hospitals. People subject to immigration control, who are classified as overseas visitors, with pre-existing conditions or developing conditions unrelated to Coronavirus, are still liable to be charged. This may deter people from seeking testing and treatment for Coronavirus and leave them in places where they may be liable to infect others. To optimise the prospects for public health, NHS charges for hospital care and other secondary healthcare could be suspended for 12-months and the implementation of that policy could be widely and clearly communicated.  At a stroke a deterrent to seeking help would be removed.

6. Extend Leave to Remain by Statutory Instrument

As regards all people subject to immigration control who are  unable to travel or renew their leave as a result of Coronavirus or having to self-isolate, where their leave is due to expire or has expired in 2020, the Home Office could extend leave until September 2020 automatically by using an Immigration (Variation of Leave) Order (statutory instrument) made under s 4 of the Immigration Act 1971. This would be a simple and administratively straightforward measure that would relieve pressure on the Home Office to deal with every case on an individual basis, avoid unnecessary fees being incurred, and allow people to plan for a time when the current restrictions on movement and travel are lifted. Prior to the end of the extended leave period, the Home Office could consider whether the then risks presented by the Coronavirus crisis merited a further extension of leave on the same basis.

7. An Amnesty for Those Without Leave

 There are a number of people without any form of leave to enter or remain living in the UK. Their health is as important as that of anyone else. Further, during the Coronavirus crisis, the health of everyone depends on the health of everyone else. And in reality, undocumented people may be more at risk on account of living in overcrowded accommodation without access to lawful work or means of state support. It is in their interest and that of the settled population that they be granted leave to remain on an exceptional basis, In that way, they can access the health and social services they need without fear, work lawfully, access appropriate support, observe public health restrictions, and contribute thereby to the common good of public health. Leave to remain could be granted on application to those without status in order to ensure the public health of all.

8. Suspend Right to Rent Checks

In order to ensure that people subject to immigration control are able to access private residential accommodation easily, without facing racial discrimination, and in order to ensure that landlords are able to able rent accommodation to those that need it during the Coronavirus crisis, right to rent immigration status checks could be suspended for 12-months. No person who needs accommodation, not least in order to comply with public health movement restrictions and guidance or in order to self-isolate, should be left without accommodation. No landlord or agent should face liability for a civil penalty for having renting to such a person. After 12-months, the Home Office could review whether to continue the suspension.

9. Decide on Whether to Continue the Immigration Detention of Remaining Detainees Within A Fixed Period

Notwithstanding the success of Detention Action in securing the release of many people in immigration detention, as well as its success in forcing changes to Home Office policy and practice, many people remain detained under immigration powers. The Home Office could take steps to fix an early date by which it aims to decide whether to grant immigration bail to remaining detainees and to supply them with accommodation that protects their health and that of others. Such a step would avoid further delay in considering those who remain in detention.

The immigration detention of people in removal centres and in prisons may place them at greater risk of infection than if they were at liberty. There appears to be no systematic testing of those detained. Nor is it clear that the conditions of detention do not present an increased risk of infection, both generally and also specifically to those vulnerable to the particular consequences of health issues.  Further, as a result of the Coronavirus crisis, for many people, either flights to their country of nationality are no longer possible or their country is not accepting people back, and so there is little or no prospect of removal within a reasonable period of time. While taking appropriate measures to safeguard the public where necessary, those detained could be released on immigration bail. By fixing an early date for deciding whether to grant immigration bail in the remaining cases, and by mobilising the necessary resources behind that initiative, the Secretary of State could ensure the health of those in her care.

10. Suspend Family Reunion Financial Requirements

Many family members of British citizens and other people settled in the UK will be unable to satisfy the financial requirements of Appendix FM of the Immigration Rules to apply to enter or remain in the UK on account of a change in fortune brought about by Coronavirus or the need to self-isolate. For example, a partner of a British citizen may no longer earn a gross annual income of £18,600 or over. To enable families to be brought together quickly without delay and with the minimum of administrative inconvenience, and in order to reduce the burden on Home Office staff to examine individual cases, the Secretary of State could suspend the family reunion financial requirements of the Immigration Rules. Such a step would leave all the other requirements as to suitability, etc., intact but would deal with the principal obstacle presented by changes in fortune as a result of the Coronavirus crisis.