Welcome to Britain: Fixing Our Broken Immigration System

by Colin Yeo;

  Senior civil servants at the Home Office were aghast. The director of the Immigration and Nationality Policy Directorate sent Blunkett a strongly worded memorandum urging him to ‘reconsider whether any action … is really necessary’. The document stated in bold terms that ‘nationality policy has been driven mainly by the immigration implications for the UK’ and that it ‘has, of course, been determined largely by numbers’. The idea in 1981, the director said, had been that the various lesser forms of British nationality would ‘die out within a generation or two’, leaving British citizenship as the sole remaining status. However, this policy had been ‘eroded over time’ by grants of citizenship or the creation of new forms of status following the Falklands crisis, the return of Hong Kong to China and the changing relationship with remaining British overseas territories.28 The memorandum was full of large, estimated numbers of potentially eligible British nationals who would acquire a right to enter the United Kingdom if Blunkett got his way.

  Finally, there is the racial dimension to British citizenship. This goes far beyond the modern use of citizenship-deprivation powers. Others have written more knowledgeably and eloquently than I can on the racist intent behind immigration laws in the 1960s and 1970s and the British Nationality Act 1981.29 The history can be traced back further than that to so-called ‘informal controls’ in the nineteenth and early to mid-twentieth centuries. It is incontrovertible that these reforms were carried out with the intention of limiting and preventing the entry of British nationals who were non-white but who, under the British Nationality Act 1948 and previous common law, had a right of entry to and residence in the United Kingdom. When nationality laws were reformed again in 1981, the stated intention of the government was that only those with ‘close ties’ to the UK would gain the new status of British citizenship that was introduced with that Act.

  However, the same government also planned to extend British citizenship automatically to third-generation, predominantly white emigrants in Old Commonwealth countries, such as South Africa, Canada and Australia. These were individuals whose grandparents had been born in the UK before emigrating away. Their parents had been born abroad and so had they themselves. They were citizens of independent Commonwealth countries and had no conceivable ‘close ties’ to the United Kingdom other than through their parentage, or, to put it another way, through their race. Meanwhile, automatic citizenship was to be denied to the predominantly black Commonwealth residents who had entered as British subjects and sometimes as citizens of the United Kingdom and Colonies, who were physically living and working in the United Kingdom at the time the law was passed. They would be able to register as British citizens if they met certain conditions, they were told, but a time limit of five years’ UK residence was imposed and a fee was payable. As it turned out, many did not register and those who did not were later caught out by the hostile environment and were to become the Windrush generation. The contrasting approach to the two groups was condemned for being racist and the government was forced to amend its plans, so the rule on inheritance of British citizenship would apply only to second-generation emigrants. Defeated but unbowed, the government then created the UK Ancestry visa to enable migration to the United Kingdom for these mainly white individuals, a visa which inexplicably persists to this day. ‘Close ties’ did not mean meaningful physical ties, it seemed, it meant ‘white parentage’.

  Race was also relevant to the ending of what is legally termed jus soli or birth-right citizenship. Before the 1981 Act, a child born in the United Kingdom was automatically born British. This approach to the conferral of citizenship offers the twin benefits that, firstly, no children born in the country may end up with insecure status, and secondly, integration for migrant families is promoted. Critics of such laws argue that birth-right citizenship laws inappropriately confer citizenship on the children even of temporary visitors, as the child concerned may well leave the country after birth and have no real connection to it afterwards. It also, they say, rewards unauthorised migration by enabling immigrants to establish links to the country. Whether intentional or not, one of the effects of jus soli citizenship is that it tends to broaden the ethnic diversity of a body of citizens. The alternative form of transmitting citizenship is referred to as jus sanguinis, meaning blood citizenship or citizenship by descent. Under this model, parentage (and therefore ethnicity) matters as well as or instead of place of birth. As Hiroshi Motomura observes, ‘Both jus sanguinis and restrictive naturalisation laws reflect the knowledge – and perhaps the intent – that citizenship laws preserve the ethnic origins of the population.’30 And that was precisely what law-makers achieved with the reforms of 1981.

  If it ever really was, citizenship is no longer seen as any meaningful tool for integration, and successive governments have been content to first create and then later allow the further growth of a sizeable population of long-term resident non-citizens. The purpose behind British citizenship laws and policy is to restrict the numbers of new citizens and preserve the existing ethnic origins of the already established citizenry.

  NOTES

  1 Freedom of Information request, available at: https://www.whatdotheyknow.com/request/number_of_valid_british_passport#incoming-765591

  2 See Chapter 3 on the hostile environment, for example.

  3 ‘Commonwealth migrants arriving before 1971, year ending June 2017’, Migration Observatory. Data available at: https://migrationobservatory.ox.ac.uk/commonwealth-migrants-arriving-1971-year-ending-june-2017/

  4 Jolly, Thomas and Stanyer, ‘London’s children and young people who are not British citizens: A profile’.

  5 Hiroshi Motomura, Americans in Waiting: The Lost Story of Immigration and Citizenship in the United States (Oxford: Oxford University Press, 2006), pp. 151 and 166.

  6 Jolly, Thomas and Stanyer, ‘London’s children and young people who are not British citizens: A profile’.

  7 See for example Thom Brooks, Becoming British: UK Citizenship Examined (London: Biteback Publishing, 2016) and ‘The Ties that Bind: Citizenship and Civic Engagement in the 21st Century’, House of Lords Committee on Citizenship and Civic Engagement, 18 April 2018.

  8 ‘Life in the UK Test Pass Rates’, Garuda Publications, 5 March 2017.

  9 ‘The Deprivation of Citizenship in the United Kingdom: A Brief History’, Journal of Immigration, Asylum and Nationality Law (2014), vol. 28.4, no. 326.

  10 See for example ‘HM Government Transparency Report 2018: Disruptive and Investigatory Powers’, CM 9609.

  11 ‘Shamima Begum: Isis Briton faces move to revoke citizenship’, The Guardian, 19 February 2019.

  12 ‘Shamima Begum would face death penalty in Bangladesh, says minister’, The Guardian, 4 May 2019.

  13 For example see ‘Thank God, Sajid Javid grasped Shamima Begum is the one person uniting Britain – against her’, Daily Telegraph, 19 February 2019.

  14 For example see ‘Britain needs a new treason law to tackle returning jihadis’, Daily Telegraph, 17 February 2019, and ‘The evil of Shamima Begum’, Spiked Online, 11 February 2019.

  15 ‘Secure Borders, Safe Haven Integration with Diversity in Modern Britain’, CM 5387, Home Office, February 2002.

  16 Sajid Javid, speech to Conservative Party conference on 2 October 2018, available at: https://blogs.spectator.co.uk/2018/10/full-text-sajid-javids-conservative-conference-speech/

  17 House of Commons debate, 12 July 1918, quoted in Gibney, The Deprivation of Citizenship in the United Kingdom.

  18 Lord Mackay of Clashfern, Hansard, House of Lords debate, 23 July 1981, vol. 423, col. 448.

  19 Jacqui Smith, Hansard, House of Commons debate, 4 December 2008, vol. 485, col. 162.

  20 Lord West of Spithead, Hansard, House of Lords debate, 9 December 2008, vol. 706, col. 273.

  21 David Davies MP on 20 February 2008, Chris Grayling MP on 2 June 2009 and Damian Green MP on 14 July 2009.

  22 ‘Immigration Bill Fact Sheet: Deprivation of Citizenship (Clause 60)’, Hom
e Office, January 2014.

  23 ‘1 million new British citizens under Blair’, Daily Telegraph, 24 May 2006.

  24 ‘The great passport giveaway: Up to 250,000 foreigners to get UK citizenship every year’, Daily Mail, 21 February 2008.

  25 ‘We Want to Be Like Eu: Thousands of EU citizens rush to get their hands on a British passport before Brexit, new figures reveal’, The Sun, 9 May 2017.

  26 Hansen, ‘The Kenyan Asians Crisis of 1968’, Citizenship and Immigration in Post-War Britain, pp. 153–78.

  27 David Blunkett, Hansard, House of Commons debate, 24 April 2002, vol. 384, col. 354.

  28 Lodged in House of Commons Library HDep 2006/336, dated 19 June 2002, available at: https://publications.parliament.uk/pa/ld200506/ldlwa/60503wa1.pdf

  29 For recent examples see Goodfellow, Hostile Environment, and Nadine El-Enany, (B)ordering Britain: Law, Race and Empire (Manchester: Manchester University Press, 2020).

  30 Hiroshi Motomura, Americans in Waiting, p. 146.

  CONCLUSION: WHAT NOW?

  We like to think of Paddington Bear as being quintessentially British, yet we also know he is Peruvian. He is informally adopted by the Brown family almost immediately after their fortuitous meeting at the left luggage department of his eponymous railway station, but author Michael Bond, perhaps understandably, somewhat glosses over the precise details of how Paddington becomes legally resident; perhaps he never does. Whatever his legal status, he adapts to life with the Brown family and they adapt to him – a clear example of two-way integration. That Paddington never quite loses his observer status – one of the features of the books that makes them such a triumph – injects a note of melancholy with which many migrants will be familiar. Nevertheless, given that Paddington’s migration story is such a success story, it is sobering to think that in Britain today we deliberately make the heart-warming tale so impossible to recreate for modern migrants.

  Any system of citizenship and immigration laws inherently discriminates between insiders like the Browns and outsiders like Paddington. This is not the place to discuss whether such laws should or should not exist. The fact is that they do and will do for the foreseeable future. My concern is how to try to make those laws as fair as possible, both to the insiders and the outsiders alike. Current citizenship and immigration laws are fair to neither. Migrants are treated as if they are disposable beasts of burden and this affects not just ‘them’ but also ‘us’. As British citizens we have few if any rights specific to that status. Thousands of us are prevented from living with our own family members and a large, unauthorised, exploitable population has been allowed to grow around us. Our society and economy depend heavily on having these migrants in our midst and they are an indelible part of our community – yet they, and sometimes their children too, have no realistic route to equality, settlement or citizenship. None of this is desirable in a healthy democracy.

  American academic Hiroshi Motomura has outlined three different ways of conceptualising immigration laws: as contract, as affinity and as transition to citizenship.1 On a contractual analysis, a migrant in effect signs up to pre-determined terms of entry and stay. This implies that a migrant need not be treated as an equal of existing citizens, that they need not be offered a route to settlement or citizenship and that the terms of entry may be harsh. A migrant signals acceptance by entering on the terms offered. As long as notice is given, any terms would seem to be fair on this contract-based analysis. Where migration routes are based on the ties that a migrant acquires, this is considered the affinity-based approach. Via this method, migrants earn increasing equality over time because it is considered unfair to disrupt the ties they have acquired in this way. Where the deportation of a migrant is characterised as unreasonable because of her residence, family links or similar, it is the affinity approach that is being applied. The final approach, seeing migrants as citizens-in-waiting, is a potentially very different way of thinking in which migrants are treated as potential citizens from the start, preferably with rights equivalent to fully-fledged citizens.

  These three perspectives are not mutually exclusive. One route of entry might be contractual, a route to remain might be based on acquired affinity with the host society and throughout the migrant might be regarded as a potential future citizen. Motomura advocates in favour of treating migrants as citizens-in-waiting on the basis that this is the least discriminatory approach. He argues that doing so allows for the maintenance of a bounded society in which meaningful versions of equality can flourish, but where those granted admission are treated respectfully and as peers.

  If we apply Motomura’s different lenses to the treatment of migrants by British citizenship and immigration laws, the prevailing approach appears to be that of a very strict, tightly defined contract.2 Generally, the broad qualifying criteria for settlement at the point of entry will be preserved for those migrants who have then entered, even if the rules are changed for future entrants. Breaches of the explicit or implicit conditions of entry, for example by working without permission or committing a criminal offence, lead to a voiding of the contract and draconian enforcement action. The same approach applies to breaches of the specified procedures that are set out in fine print in various annexes to the main contract.

  But, in reality, there is none of the fair dealing you would expect to find in a consensual contractual relationship. One of the terms of the contract to which migrants purportedly agree through their very entry is that the United Kingdom can unilaterally increase the costs imposed by the contract (in the form of application fees), change the procedures for extensions of the contract and even alter the terms on which an extension might be sought, as Dr Odelola discovered to her cost.3 If this were a contract, it would be the model of one we would expect to be struck down as unfair in the commercial courts. It is certainly no way for the two parties to build a constructive, long-term working relationship with one another. There are affiliation-based routes in existence today, but they are generally weak. For example, it will normally take twenty years for a migrant with any period of unlawful residence to become eligible to remain on the basis of ties, and a further ten years after that to be eligible for settlement. To the extent that migrants are seen as citizens-in-waiting, this is often considered undesirable. Since 2010, government policy has been to weaken not reinforce the link between migration, and settlement and citizenship has deliberately been made unattainable for more and more migrants.

  CITIZENS-IN-WAITING

  Given our unenviable starting point, how might the current system be improved? Since so much else flows from it and since politicians across the spectrum are potentially persuadable on this issue – it is overtly about what happens to migrants after they arrive and stay rather than how many should be admitted in the first place – I would suggest beginning with a rethink of British citizenship policy. A less exclusionary and more inclusive approach is needed in which it is seen as desirable for migrants to become citizens. Integration is a potentially problematic word meaning different things to different people. Personally, I understand it as a two-way process in which the migrant and the host society mutually and respectfully adapt to one another. Whatever it means, though, politicians of all hues would surely agree that the acquisition of citizenship is a significant aspect of migrant integration. Clarifying the rights attached to citizenship and attaching concrete benefits to it would reassure existing citizens that their status has value, while simultaneously outlining to potential citizens the value proposition of joining the political community as full members.

  It would be a mistake to punish migrants for failing to become citizens by, for example, taking away their existing rights to access the social safety net. There may be many reasons why some migrants chose not to become citizens, and some may not be able to, for instance because they cannot pass the written citizenship exam. To take away their social rights would be retrograde. However, the same does not necessarily apply to civic rights. The right to vote in parliamentary elec
tions could be re-examined and the faster route to citizenship for those married to a British citizen could be revived, having been rendered redundant by changes to settlement criteria wrought in 2012. Perhaps controversially but in a similar vein, citizens could be given preferential rights of family reunion over settled migrants. The criteria for and use of citizenship-stripping powers should be reviewed and the social effects of implicitly designating citizens of migrant parents as second-class, conditional citizens need to be both carefully considered and publicly discussed.

  Treason laws are undoubtedly problematic and there is a clear risk of their being deployed disproportionately against certain racialised or religious groups, but it is worth discussing whether a revival of treason laws might be preferable to and more principled than citizenship deprivation. While it is hard to see law-makers relaxing the statutory criteria for acquiring citizenship, there is much that could easily be done to make citizenship more accessible without any need for new legislation. Reducing the sky-high fees is an essential start. A more nuanced approach to the good character test could also be adopted that is less punitive of minor, past immigration law breaches and more forgiving of criminal offences committed by children and young people.

  THE HOSTILE ENVIRONMENT AND UNAUTHORISED MIGRANTS

  Even where migrants are currently denied a route to citizenship, they are often permitted to remain physically present in the country, sometimes lawfully and sometimes unlawfully. The boundary between ‘lawful’ and ‘unlawful’ sounds clear enough, but it is porous in both directions. As we saw in Chapter 3, it is all too easy for an authorised migrant to become unauthorised by mistake. It is also possible, though considerably harder, for an unauthorised migrant to become authorised.

  Unauthorised migrants are a tolerated group. Asylum seekers whose claims are rejected, for example, find themselves unauthorised but not removed and the same is true of other migrants who somehow enter illegally or overstay their visas. The hostile environment policies do enough to make their lives marginal and exploited by denying regular employment, good-quality accommodation, healthcare, banking services and the social safety net, but in the end all these measures are insufficient to persuade them to ‘self-deport’. Some will inevitably form friendships and relationships with citizens or authorised migrants, thereby exposing a much wider group to the insecurity of their existence; it is unimaginably hard when your partner or one of your parents is suddenly deported. Some will be children and young people and will probably, eventually, be allowed to remain through one of the weak affiliation-based immigration routes. Yet, to deny these children further and higher education, as we do at present, is to cause them permanent disadvantage. It is also a good example of a self-defeating policy: further and higher education are not a pointless drain on public resources; they are good for society and the economy as a whole as they increase productivity and future GDP growth. To deny a particular individual this benefit on the grounds of limited resources is to fly in the face of good economics.