Digital-only status disadvantages groups with protected characteristics – namely, disability, age and race
A newly published academic article argues that the Government's policy of granting digital-only proof of immigration status for certain groups of migrants is unlawful and threatens to grow into another Windrush scandal.
The open access article, Discrimination in digital immigration status, was authored by Joe Tomlinson and Alice Welsh of the University of York Law School, and Jack Maxwell of the Public Law Project. It was published in the Society of Legal Scholars' Legal Studies journal and can be read online here.
According to the article, there are around 4.5 million people reliant on digital-only proof of their entitlement to reside lawfully in the UK (as of March 2021) and that number is expected to increase significantly over the coming years.
The Government favours digital status as it meets three objectives: increased convenience; reduced costs; and enhanced security.
The authors argue that the use of digital-only status is unlawful. They find that it seriously disadvantages various groups with protected characteristics in a way that is not proportionate to its underlying objectives.
Using the EU Settlement Scheme (EUSS) as a case study, the article highlights how EU citizens from groups such as the disabled, older people and Roma/Travellers are being indirectly discriminated against as they are more likely to suffer from digital exclusion (and lack internet connections, smartphones, etc).
The article states: "For people who are digitally excluded, digital-only status not only offers no convenience, but risks disconnecting them from proof of their lawful entitlement to reside in the UK. … [T]he benefits and burdens under the digital-only status policy are unfairly distributed. Even accepting the importance of the objective of improving convenience, it cannot justify a blanket policy which risks disconnecting lawful residents from proof of their status."
The authors are unconvinced by Home Office claims to have taken steps to eliminate the disadvantage caused by digital-only immigration status in the context of the EUSS. They say: "At the very least, the Home Office is yet to present a shred of convincing evidence that the steps it has taken go close to eliminating the disadvantages caused by digital-only status."
In concluding, the article finds: "The government's digital-only status policy – at least as it is being rolled out within the EUSS – is unlawful. It indirectly discriminates against a range of groups with protected characteristics, namely disability, age and race. There have been no effective steps taken to eliminate that discrimination, there are no compelling objectives which can justify the discrimination, and there are patently alternative, less intrusive options available. Managing migration and borders is a legitimate aim for states and governments should be exploring the use of technology to improve public services. But there is no legal entitlement to do so in a way which is unjustifiably discriminatory.
"Though our analysis has been based in equality law, it reveals important defects in the general policy of digital-only status. Even if our legal conclusions are not accepted, the underlying systemic risks we have identified ought to be a continuing source of concern. The appropriate course now is for the policy to be reviewed and adjusted promptly. Without such action, the roots of digital discrimination in immigration policy and administration will be allowed to spread. They may quickly grow into another Windrush."