Monday, 24 September 2007

Race and the development of Immigration policy during the 20th century

In February 2002 the British government introduced a white paper entitled "Secure Borders, Safe Haven: Integration With Diversity In Modern Britain". On the subject of issues of Citizenship and Nationality, emphasis was placed on an aim to 'integrate ethnic minorities into mainstream British culture, but celebrate Britain's cultural diversity'. However it is worth considering the extent to which post-1945 policy and legislation on British citizenship and rights of abode in the UK were influenced by issues of race and racial exclusion. In order to assess this however, there must first be a clarification of the terms British citizenship and right of abode. A citizen of a state is defined as a person owing loyalty that state and entitled to protection and privileges within it. One such privilege being a right of abode within that state's territory, which is in essence having the freedom from immigration control and the ability to enter at any time. All British citizens are 'British nationals', however not all British nationals are British citizens, the latter being distinguishable from mere nationals from their having such a right of abode.

Prior to, and in the immediate aftermath of the second world war, the term 'British Subject' was used to described any person who owed allegiance to the British Crown, and was applied indiscriminately to anyone born where the monarch reigned, be it within the United Kingdom, in one of its colonies or in a self-governing dominion. Those who fell outside of this distinction were termed 'aliens' and their entry within the empire was subject to immigration controls. The philosophy of 'Civis Britannicus Sum', meant that it had long been assumed all subjects of the British empire had the equal right of abode in the UK. The passing of the British Nationality Act 1948 (henceforth referred to as the BNA 1948), had merely reaffirmed this pre-existing equality and did 'in no active sense…contribute to the flow of British subjects into the United Kingdom, nor was it seen at the time as likely to do so' (1).

The BNA 1948 reaffirmed the status of 'British Subject' on all those born within the empire and Commonwealth territories, but allowed for the creation of two sub-divisions within this term. The first was Citizenship of the UK and colonies (henceforth referred to as CUKC) which was created for Britain and those imperial territories yet to gain independence. The other being that of Commonwealth citizenship enacted by the self-governing Dominions, such as Canada, who began to create their own form of national citizenship and control over who entered their territories. Such dominions had however wished to retain a common empire-wide status. On gaining independence from the empire, inhabitants of the former colonial territory usually lost their CUKC status, but if that territory on independence joined the British commonwealth, they had gained commonwealth citizenship and thus retained their status as a British subject.

The notion of an equal right of abode had however been based more on theory than in practice. There had long been an informal policy of restricting the settlement of Asian and Black British subjects in the United Kingdom (often aided by the governments and colonial authorities of such territories) that had continued until the supposed ending of the 'open door' policy with the passing of the Commonwealth Immigrants Act of 1962 (henceforth referred to as the CIA 1962). There had not been discrimination towards such subjects at the point of entry to Britain, but on leaving they were required to possess a valid passport properly endorsed by the UK or colonial authorities, which in many cases was limited to those who were of European origin, or who possessed money and/or educational qualifications.

One example of this policy being put into practice is Spencer's quoting of a commonwealth Relations Office Official in 1954 and his satisfaction with 'the restrictions imposed by the Pakistanis on the issue of Pakistani passports which…operates to the advantage of the United Kingdom in keeping down the number of undesirable Pakistanis who came to this country' (2). British Home secretary R.A. Butler had also cited one reason for enacting the CIA 1962 being that 'the passport control system which had kept down the rate of immigration from the Indian sub-continent had now broken down completely' (3).

Britain had experienced a chronic labour shortage and fears of a diminishing population in the immediate post-war period, but issues of race had not been absent in seeking a solution to this. A 1949 Royal Commission on Population had advocated the solution was to encourage the migration only by those of 'good human stock…(who are) not prevented by their race or religion from intermarrying with the host population and becoming merged in it' (4). The British government had thus sought to solve such a problem through the European Volunteer Workers scheme, as many within the ministry of labour believed that 'displaced persons from Europe were preferable' (5), to non-white workers from its own empire and there had been 'very little opposition, either in the country or in parliament to those schemes' (6).

The demands to enact legislation to limit the rights of abode for non-white British subjects in the early post-war period, had little to do with numbers and was not 'of the need to restrict immigration in general - (as) far larger migrations of Europeans from Eire and the old commonwealth arrived without comment' (7). It also had little to do with the needs of the British economy, as the Treasury noted by the early 1960s Asian and Black immigrants 'added more to the value of the gross national product than they consumed or remitted abroad…found employment without creating unemployment for the natives and…(by) easing labour bottlenecks, contributed to the productive capacity of the economy' (8).

The central tenet behind enacting the CIA 1962 was therefore the racial objective to limit the settlement of non-white British subjects within the UK. However Britain's political and moral leadership within the newly multi-racial commonwealth, had held great importance to its standing as a world power in the early post-war years, therefore an overt colour bar had to be avoided. This importance was equalled by Britain's reluctance to place restrictions on 'old' commonwealth citizens, many of whom held familial connections in the UK, or restrictions upon citizens of the Irish republic due to the practical difficulties involved, and Ireland's providing of a large source of 'assimilable' migrant labour (who remained exempt from restriction under the CIA 1962).

When the British government passed the CIA 1962, commonwealth citizens seeking entry for settlement, had a right of entry if they came to study, visit for a limited period supporting themselves financially without working, or were a dependent accompanying or rejoining a resident of the UK. Those who did not fit in any of the above had to be issued with one of three categories of employment voucher by the Ministry of Labour, which had the appearance of being racially neutral, but in practice they had an entirely different effect.
Category A vouchers were applied for by an intending employer, on behalf of a named worker who already had employment awaiting them in the UK. However 'the whole process could take a long time and was a source of irritation to employers, most of whom refused to have anything to do with it' (9). Those on whose behalf employers did carried out this process mostly 'would be white immigrants from the Old Commonwealth' (10). Category B vouchers were for migrants who possessed special skills that were in short supply in the UK, however 'the ability of the new commonwealth to supply such highly skilled persons was its own limiting factor' (11). Category C on the other hand were the unskilled without an offer of employment and whose numbers the government limited, and gradually phased out entirely by 1965.

The declining influence of the Commonwealth to Britain's world standing by the late 1960s had meant that the British government lacked its earlier inhibitions toward a seemingly overt racial narrowing of citizenship and rights of abode. The Labour government, influenced by the defeat of their Shadow Home Secretary by an overtly racial anti-immigration campaign by Peter Griffiths at Smethwick in the 1964 election, had perceived a need to counter-balance the enacting of legislation aimed at improving race relations and integration, with tighter controls on the entry of non-white migration.

It is noticeable from this period onwards that the defining of British citizenship had began to transform from one based around the place of one's birth to a quasi-biological definition. This is highlighted by the 'Kenyan Asian crisis' that had developed in the late 1960s. British subjects of non-African origin who had settled in Kenya, were given the option of retaining their CUKC status, rather than attaining the local citizenship when Kenya gained independence in 1963. Under the British Nationality Act 1964, anyone with a UK born father or grandfather (who were almost certain to be white) could regain their CUKC status, if they previously had needed to conditionally renounce it to obtain citizenship of another commonwealth country.

Those Asians who had retained CUKC status were not subject to the CIA 1962 as their passports, issued by the British High Commission, were considered as issued by the UK government. Their CUKC status had given them a right of abode in the United Kingdom, and 'it had been understood at the time of independence negotiations that this citizenship was to be their protection' (12) from any possible discrimination by Kenyan government policies. Many had exercised this right in February 1968, which thus provoked the passing of the Commonwealth Immigrants Act 1968 (henceforth referred to as CIA 1968) within three days.
This act had subjected all holders of UK-issued passports to immigration control unless they, a parent or grandparent had been born, adopted or naturalised in the UK. The provisions of the BNA 1964 and the CIA 1968, had the combined effect of privileging white, over non-white commonwealth citizens, and also privileged whites who had renounced British citizenship over non-whites who had retained theirs.

The Immigration Act 1971 developed further the biological distinction within citizenship by 'inventing a quasi-nationality, for immigration purposes only' (13), with the requirement of 'patriality' for rights of abode in the United Kingdom. Those who were deemed 'patrial' included CUKCs who were born or naturalised in the UK, or who have a parent or grandparent who is so; as well as Commonwealth citizens with a parent born in the UK, or commonwealth citizens who have settled in UK for five years and applied to register for UK citizenship. On the other hand non-'patrials' who were either a CUKC or commonwealth citizens were restricted by immigration control, on exactly the same basis as aliens from any other part of the world.
The Immigration Act 1971 had scrapped employment vouchers, which conferred rights of permanent residency and to bring family members, and had simultaneously become part of UK law as Britain entered the EEC on 1st January 1973. Employment vouchers were subsequently replaced with tightly controlled work permits, which conferred upon non-patrial commonwealth citizens 'a status which was closely akin to that enjoyed by guest workers in…other European states' (14), who could be 'deported almost at will if…(their) presence is not conductive to 'the public good'' (15). The cumulative effect of the passing of the Immigration Act 1971 and the European Communities Act 1972 was that they 'increased the number of people entitled to enter Britain but as these comprised almost entirely of people of 'European extraction'…this caused no political difficulty' (16).

From the enactment of the CIA 1968, the common citizenship of CUKC had been decoupled from that of the right of abode in the UK, the purpose of the British Nationality Act 1981 (henceforth referred to as BNA 1981), was an attempt to re-integrate the two, but also a continuation of the process of narrowing the scope of citizenship shared by most of the UK's inhabitants. The BNA 1981 discontinued the recognition of commonwealth citizens as British subjects, and the status of CUKC was replaced by that of British Citizen.

The BNA 1981 completed the removal of the central notion of 'jus soli' (based around place of birth) and increased the element of 'jus sanguinis' (based around familial connection) within British citizenship. Any person born in the UK after 1st January 1983 could only to be regarded as a British citizen if at the time of their birth at least one of their parents is a British citizen or ordinarily resident in the UK for more than five years without restriction. In contrast commonwealth citizens, who were not born in the UK, but had 'patriality' under the Immigration Act 1971 were now considered to be British citizens. Two other categories of British nationals were created from those eliminated from CUKC status under the BNA 1981, that of British Dependent Territory Citizenship (henecforth referred to as BDTC) and British Overseas Citizenship (henceforth referred to as BOC). Being mere British nationals as opposed to British citizens, neither BDTCs or BOCs had rights of abode in the UK.

BOCs were those who held CUKC and did not acquire citizenship of a former colonial territory on independence, an example being East African Asians. Those among the BDTC category were inhabitants of the few remaining territories under British rule, the vast majority of which comprised of non-white populations. Two exceptional dependent territories, whose inhabitants were entitled to full citizenship rights, were that of the Falkland Islands, (partly as a justification for the 1982 war) under the British Nationality (Falkland Islands) Act 1983, and Gibraltar whose inhabitants under s5 BNA 1981 were entitled to register as British citizens, because they are a 'United Kingdom national for European Community purposes'.

Gibraltarians and the Falkland Islanders were also predominantly of European origin. One reason cited as motivating the creation of the BDTC category was the impending handover of Hong Kong to communist China and 'fears that many Hong Kong CUKCs would want to enter the UK rather than live under Chinese control' (17), and thus the BNA 1981 had legislated to prevent these CUKCs from attaining a right of abode in the UK. It is a striking observation from these new categories which the BNA 1981 created, that 'virtually all the existing British nationals who were non-European and who were outside the United Kingdom were to receive a practically valueless form of nationality' (18) .

It can quite clearly be seen therefore, that the development of British citizenship and rights of abode in the UK during the late twentieth century has been greatly influenced by issues of race, and the definition of British citizenship itself significantly narrowed on the grounds of race. By the turn of the century however due to increased fears over the number of asylum claims, public and political anxieties had less emphasis on non-white economic migration. A 1998 DTI White paper, titled 'Our Competitive Future: Building the Knowledge Driven Economy' had also signalled a change in perspective, emphasising the necessity of attracting 'bright people with scarce skills to work for UK businesses and set up businesses of their own which create jobs….this requires a positive attitude to immigration' (19).

The suggestions of the DTI white paper had in no doubt been greatly influenced by the noted economic benefits to Canada and Australia in the last 30 years, by the removal of immigration colour bar policies in favour of a flexible points system 'to admit well-educated and skilled newcomers of any racial origin' (20). Two pieces of legislation have to some degree attempted to redress the stance of racial narrowing in British citizenship law, and implement to a certain degree the Canadian and Australian models. One is the British Overseas Territories Act 2002 which had renamed BDTCs with the less paternalistic British Overseas Territory Citizens (henceforth referred to as BOTCs), who in their near entirety were granted full British citizenship with rights of abode. The other being the Nationality, Immigration and Asylum Act 2002 (henceforth referred to as NIAA 2002).

Under s12(2) NIAA 2002, the position of BOCs, along with British Protected Persons and British Subjects Without Citizenship, were allowed to register for full British citizenship if they neither held, nor voluntarily relinquished or lost, any other form of citizenship or nationality through an action or inaction on their behalf by the 4th July 2002. This provision was described by Beverley Hughes, a Home Office minister at the time, as 'righting a historical wrong which has left a number of overseas citizens without any right of abode, either in the UK or elsewhere' (21). S6(2) NIAA 2002, had also removed the s19D Race Relations Act 1976 exception of nationality decisions to the unlawfulness of a public authority performing discriminatory acts on the grounds of nationality, ethnic or national origins. It had thus brought such decision making within the scope of the act.

Chapter Two of the Home Office white paper 'Secure Borders, Safe Haven: Integration With Diversity In Modern Britain' had noted an intention to further the BNA 1981 requirement of sufficient knowledge of the English (or any other British) language, and 'to require applicants for naturalisation to demonstrate that they have achieved a certain standard….applicants would need to produce certificates showing they had passed a test' (22). This was also a requirement that would extend to 'spouses of applicants who are…not at present subject to the language requirement' (23). Under s1 NIAA 2002 a further requirement of 'sufficient knowledge about life in the United Kingdom' is added to this BNA 1981 provision, as well as s3's provision for public ceremonies to award citizenship and an updating of the oath and pledge sworn on attaining citizenship.

The 'Secure Borders, Safe Haven….' white paper, that had influenced much of the content of NIAA 2002 was published in February 2002, and was greatly influenced by the findings of the Home Office Independent Review Team's report into the race riots that broke out across Northern England in the summer of 2001, published a few weeks earlier. This report had noted that 'the team was particularly struck by the depth of polarisation in our towns and cities….(which) operate on the basis of a series of parallel lives' (24) and had recommended that 'the rights - and in particular - the responsibilities of citizenship need to be more clearly established….This should then be formalised into a form of statement of allegiance' (25)

Although the s1 NIAA 2002 provisions were considered to be a racial inclusive remedy to social disturbances that were claimed to have been caused by the social exclusion of non-white groups in society, Habib Rahman, the chief executive of the JCWI, had criticised it as being 'the intellectual residue of the same racist debate brought to the fore by Enoch Powell' (26). The JCWI had also stated that 'the issue of social exclusion does not relate in any strong way to the concept of citizenship, since there are many people who are British citizens who are excluded and equally many non-citizens who are integrated into British society' (27).

The s1(1) NIAA 2002 requirement of 'sufficient knowledge about life in the United Kingdom' also 'raises connotations of ethnicity rather than nationality' (28) and can be said to suggest a cultural deficiency on the part of ethnic minority groups within the UK, and in this respect can be seen as a continuation of the post-war discourses of 'new racism'. 'New racism' is considered to be a perspective that has arisen since the post war discrediting of biological inferiority and superiority between 'racial' groups, and sees 'culture' often as a new euphemism for 'race' in the discourse of social exclusion. New Racism has been described as implying the existence of a 'unified white nation state who participate in a shared British culture, history and identity and who have a common sense of belonging….that there is a need to protect the British nation and the national culture from those who are presumed to pose a threat to its existence' (29) and that 'Black groups whether born in Britain or not are not viewed as part of the nation state and as such their alien cultures are thought to pose a threat to its existence' (30).

Both Enoch Powell's 'Rivers of Blood' speech in 1968, and Margaret Thatcher's 'swamping' remarks in 1978 have been seen by many to be 'new racist' stances because of a 'racialization' of cultural aspects of Britain's non-white populations. Powell's statements were cited as influencing much of the content of the Immigration Act 1971 and it was under Thatcher's premiership that the BNA 1981 had been introduced. The effect of both had been a racial narrowing of citizenship and rights of abode in Britain.

It can be seen therefore that issues of race and racial exclusion were undoubtedly the biggest factor in legislation and policy developments regarding citizenship law and the right of abode in the UK during the second half of the twentieth century. The central focus of such policy and legislation since the turn of the century has slightly shifted to the needs of the British economy, in attracting investment and skilled workers, as well as filling labour shortages at the unskilled end of the employment market at wage levels that satisfy employers. It is for these reasons, therefore that the British government has needed to place less emphasis on the racial character of potential British citizens.

There has however been an increased emphasis on their cultural characteristics, be it in their existing educational qualities, or their abilities to adapted to the values of British society. This could be viewed as a potential positive in laying a basis for the corresponding social responsibilities that come with the rights of British citizenship, after all predominantly Anglo-Saxon such as Canada, Australia and New Zealand who have had 'multiculturalism' as an official poilcy for longer than Britain have long since had such citizenship tests. On the other hand it could also be seen as a negative development in citizenship law that merely replaces the cultural characteristics of non-white groups for racial ones in discourses of social exclusion, after all such nations previously mentioned have their own problems with racism and racial exclusion. Only the passage of time can give us a clearer picture.

(1) Ian R. G. Spencer, British Immigration Policy Since 1939: The Making Of Multi-Racial Britain (1997), p.53
(2) Ian R.G. Spencer, British Immigration Policy Since 1939: The Making Of Multi-Racial Britain (1997), p.27
(3) Ian R.G. Spencer, British Immigration Policy Since 1939: The Making Of Multi Racial Britain (1997) p.122
(4) Ann Dummett and Andrew Nicol, Subjects, Citizens, Aliens and Others: Nationality and Immigration Law (1990), p.174
(5) Ian R.G. Spencer, British Immigration Policy Since 1939: The Making Of Multi-Racial Britain (1997) p.40
(6) Paul Foot, Immigration And Race In British Politics, (1965) p.119
(7) Ian R.G. Spencer, British Immigration Policy Since 1939: The Making Of Multi-Racial Britain (1997) p.82
(8) Ian R.G. Spencer, British Immigration Policy Since 1939: The Making Of Multi-Racial Britain (1997) p.115
(9), (11) Clifford Hill, Immigration and Integration: A Study of the Settlement of Coloured Minorities in Britain (1970) p.12
(10) Ian R.G. Spencer, British Immigration Policy Since 1939: The Making Of Multi-Racial Britain (1997), p.116
(12) Ann Dummett and Andrew Nicol, Subjects, Citizens, Aliens and Others: Nationality and Immigration Law (1990), p.199
(13) Ann Dummett and Andrew Nicol, Subjects, Citizens, Aliens and Others: Nationality and Immigration Law (1990), p.217
(14) Ian R.G. Spencer, British Immigration Policy Since 1939: The Making Of Multi-Racial Britain (1997), p.144
(15) Robert Moore and Tina Wallace, Slamming The Door: The Administration of Immigration Control, (1975), p.5
(16) Ian R.G. Spencer, British Immigration Policy Since 1939: The Making Of Multi-Racial Britain (1997), p.144
(17) Gina Clayton, Textbook On Immigration and Asylum (1st edn), (2004) p.43
(18) Ann Dummett and Andrew Nicol, Subjects, Citizens, Aliens and Others: Nationality and Immigration Law (1990), p.245
(19) Duran Seddon, JCWI: Immigration, Nationality and Refugee Law Handbook: 2006 Edition (2006), p.414
(20) Ann Dummett and Andrew Nicol, Subjects, Citizens, Aliens and Others: Nationality and Immigration Law (1990), p.231
(21), 08/05/2006.
(22), (23), 08/05/2006
(24), (25), 08/05/2006
(26), (27), 08/05/2006
(28) Gina Clayton Textbook On Immigration and Asylum: First Edition, Oxford University Press, (2004) p.52
(29), (30), 09/05/2005

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