The Impact of UK Immigration Law : Declining Standards of Public Administration, Legal Probity and Democratic Accountability

"In this hugely ambitious undertaking, Sheona York brings together her decades of frontline experience and meticulous scholarship to examine the post-war history of immigration controls in terms of their detrimental impact on standards of public administration, the rule of law and democratic accountability. She exposes the consequences of an imperial, exclusionary ideology and a half-century of under-resourcing and over-legislating. She calls for a debate on citizenship and what it entails, which has never yet been conducted, and the need to build a system based on new forms of political solidarity. This book is an important resource for anyone wanting to understand the profound damage done to our legal, political and cultural infrastructure by an immigration system built on institutional racism."--Frances Webber, human rights lawyer; author of Borderline Justice: the fight for refugee and migrant rights (Pluto, 2012); vice-chair, Institute of Race Relations This book provides an insightful analysis of recent developments in immigration, asylum and citizenship law in the broader social and political context. Written accessibly by an experienced practitioner, it critically examines the development of UK immigration control since the second world war, identifying and focusing on the grievous collateral damage being caused to the rule of law and to society. It examines the decline in standards of public administration, the secular failure to follow the rule of law, and the related issues of social corrosion and lack of democratic accountability. Speaking to academics, practitioners, policy makers and all those concerned about the impact of the hostile environment, it makes proposals for legal changes which prioritise social cohesion: a shared burden of proof, a simple regularisation scheme and clear path to citizenship, and details how these would operate in practice. Sheona York is Clinic Solicitor and Reader in Law at the University of Kent Law Clinic, UK. She has over 40 years' practitioner experience in immigration and asylum, with involvement in important reported cases over the years. At the Clinic she supervises students working on immigration and asylum cases for local clients. She also works closely with local NGOs and refugee charities, and contributes widely to academic and public debate on immigration issues"--$$c Back cover Foreword Acknowledgements Permissions About This Book Personal Acknowledgements Contents About the Author Abbreviations 1 Introduction, Conclusion and Recommendations 1 Conclusion 2 Recommendations 2 The Postwar Arrival of British Subjects—The Drive for Control Leads to Poor Public Administration and an Unequal Burden of Proof 1 Introduction 2 Empire’s Shadow: Capitalist Exploitation and Racial Thinking 3 Background to British Emigration and Immigration at the End of the War 4 Broken Promises?—From ‘Civis Britannicus sum’11 to Comprehensive Immigration Control 4.1 The Arrival of Commonwealth and Colonial Citizens: Racial Unrest and Political Responses 4.2 The Position of the Trade Unions and Left Organisations 4.3 The Commonwealth Immigrants Act 1962: Turning Commonwealth Citizens into Labour Migrants 4.4 The Labour White Paper 1965—The Turn to Control 4.5 The Commonwealth Immigrants Act 1968—Keeping Citizens Out 5 The Foundation of Modern UK Immigration Control—The Immigration Act 1971 6 1971–79—The Consequences of Continued Anti-Immigration Pressure 6.1 The 1972 ‘Ugandan Asians’ Debacle; Small Labour Reforms 6.2 May 1976—The ‘Malawi Asians’ in the 4-Star Hotel; ‘Back Door’ Immigration 6.3 Gender Bias, Unacceptable Practices and the ‘Culture of Disbelief’ 7 Internal Controls, Enforcement and Deportation 7.1 ‘Mission Creep’ and Retrospective Changes in Definition of ‘Illegal Entrant’, ‘Settled’, ‘Deception’ 7.2 The Emergence of Home Office Internal Policies 8 Control by Impoverishment and Poor Administration 8.1 Curtailment of Immigrants’ Rights to Benefits and Services 8.2 The Year 1988 and Onwards—Further Restrictions and Bad-Faith Measures 8.3 The Immigration ‘Shambles’ and the Citizen’s Charter 9 Civil Unrest, Confrontation and Colonial-Style Cooption 9.1 Unrest and Confrontation 9.2 Imposition of Visa Requirements on Commonwealth Citizens 9.3 Government Responses to Racism and Unrest—Cooption of Communities 3 The UK Immigration Control Responses to Asylum: Exclusion, Disbelief, Stigma and Neglect 1 Introduction 2 The Construction of Asylum-Seeking as Essentially Bogus: Choice of Destination, Credibility and Refugees ‘Of Concern’ 3 UK Responses to the First ‘Asylum Crisis’: Exclusion, Stigma, Disbelief and Control 3.1 The Slow Development of UK Asylum Law, Rules and Procedure 4 The Asylum and Immigration Appeals Act (AIAA) 1993 and the Statement of Changes in the Immigration Rules 1994: Restrictive Legislation Amidst Administrative Turmoil 5 The Asylum and Immigration Act 1996—‘Relegislation’, ‘Destitution by Design’35 and Continued Administrative Turmoil 6 Legal Failings and Critiques: The Issue of ‘Credibility’ and the Overburdening of Proof 7 The 1996 Housing and Benefit Restrictions: Immediate Impact and Litigation Response 8 Labour’s Approach to Asylum: Relegislating, Destitution and Litigation 8.1 The Immigration and Asylum Act 1999: ‘Workhouse-Style’ Asylum Support 8.2 The Nationality, Asylum and Immigration Act 2002, Section 55 and the High Point of Human Rights Legal Activism 8.3 Further Relegislating: The Asylum and Immigration (Treatment of Claimants) Act 2004; the Immigration, Asylum and Nationality Act 2006 8.4 The 2006 Collapse of the Immigration and Nationality Directorate: The Legacy and Fresh Claims for Asylum 9 Asylum Under the Coalition and Conservative Governments: From 2010 to the 2021 New Plan for Immigration 4 Labour Migration: A Challenge to Social Solidarity? 1 Introduction 2 Post-War Labour Shortages—Resettlement of Refugees and Displaced Persons 3 Turning Commonwealth Citizens into Guest Workers: The Commonwealth Immigrants Act 1962, the Immigration Act 1971 4 Open Doors? Expansion of Work Permits; the Points-Based System 5 Unlimited Free Movement Following EU Enlargement in 2004 6 The 2008 Financial Crash and Aftermath: Brexit and Beyond 5 UK Immigration and Asylum Administration—A Public Administration Failure? 1 Introduction 2 The Catalysing Effects of Coalition and Conservative Policies 2.1 The 2012 ‘New Rules’ 2.2 The ‘Hostile Environment’ and the Windrush Debacle 3 The Origins and Development of Poor Public Administration in Immigration Control 3.1 ‘Large Backlogs and Waiting Times’ 3.2 ‘Not Fit for Purpose’—The Collapse of the Immigration and Nationality Department 3.3 ‘Not Good Enough’—The Collapse of the UK Border Agency and Aftermath 4 Pervading Problems of Public Administration in Immigration Control 4.1 Delay 4.2 ‘Harm’ 4.3 Accuracy 5 ‘This Is Not a Way to Run an Immigration System’: Official Criticisms 6 The EU Settlement Scheme [EUSS]—A Better Way? 6 UK Immigration and Asylum Administration and Adjudication: Home Office Indifference to Rule of Law Principles 1 Introduction 2 The Design and Preparation of Legislation and Rules 3 The Rule of Law and Operational Procedures: Legal Changes by Stealth12 4 Legal Conscientiousness: The Heavy Burden and Standard of Proof 5 Home Office Lack of Legal Conscientiousness in Decision-Making 5.1 Failure to Follow Its Own Policies and Guidance 5.2 Bad-Faith Reliance on Poor Evidence in Large Categories of Cases 5.3 Delay and Failure to Follow Legal Precedents 6 The Rule of Law and the Conduct of Appeals 7 Curtailing and Undermining Access to Redress—The ‘Revenge Package’ 7.1 Cuts in Legal Aid50 7.2 Reduction in Rights of Appeal, Limiting Grounds of Appeal; Limiting Access to Judicial Review 8 The Rule of Law and Delay, Mistakes, Legitimate Expectation and Retrospective Measures 8.1 People ‘of Concern’ 8.2 Retrospective Effect 9 Outsourcing and the Hostile Environment: ‘Legal Distancing’, Criminalising, Creating and Perpetuating Illegality 9.1 ‘Legal Distancing’ 9.2 Criminalising the Very Person of the Migrant 9.3 Creating and Perpetuating Illegality 7 ‘In the Light of What We Know’—Immigration Control, Social Cohesion and Citizenship as Common Purpose 1 Introduction 2 The Purpose and Meaning of British Citizenship 2.1 Review of the British Nationality Act 1948 2.2 The Nationality Green Paper of 1977; the British Nationality Act 1981 2.3 Encouraging Citizenship—The 1990 Report 2.4 Secure Borders, Safe Haven: Reimagining Citizenship in a Crisis of Social Cohesion 2.5 The Borders, Citizenship and Immigration Act 2009—Proposed Downgrading of Settlement and Citizenship Rights 2.6 Citizenship as Common Purpose 3 The Legal Conditions of Migrants Living in the UK: Precarity and Insecurity 4 Reimagining the Purpose and Content of External Control, ‘in the Light of What We Know’ 5 Conclusion 8 Immigration Control and Democracy—Who Belongs, and Who Decides? 1 Introduction 2 Democracy and the ‘Abstract Migrant’ 3 Democratic Accountability and UK Immigration Control 3.1 Citizenship 3.2 Legislation, Rules and Guidance 3.3 Legal Changes Through the Courts 4 Difficulties of Democratic Discussion 5 Conclusions on Democratic Accountability 6 Concluding Summary 7 Recommendations Index