Immigration Law

I

Introduction

Immigration Law, law governing the entry of people into a country other than their native country. In particular, it is concerned with people who intend to settle in another country permanently. Immigration became a widespread phenomenon in the 20th century, partly because of increasingly easy means of transport over long distances and between countries. The history of immigration laws has been a process of developed countries seeking to make it more and more difficult for people from poorer countries, especially those from ethnic minorities, to enter and settle.

The United States' tradition of welcoming immigrants began in the 19th century when large numbers of Europeans left their homelands to escape the economic distress resulting from, for example, the transformation of industry by the factory system, as well as political and religious persecution. The results of this may be seen in the existence of, say, the Irish-American and Italian-American communities, although the United States has now thoroughly reversed its policy and has introduced much more stringent controls on immigration. Britain, which was formerly more often a source of immigrants to other countries than a recipient, has consistently and with increasing severity tried to stem the large number of people attempting to come from the former British Empire, most notably from the Indian subcontinent (see Migration into Britain).

Some countries, notably those of Eastern Europe before 1989, practised movement control of the opposite kind, preventing people leaving their country. The most graphic example of this was the Berlin Wall. Such restrictions are unknown in most countries, where the only restrictions on exit apply to those in exceptional circumstances: for example, people who are, or should be, in prison.

II

The Development of Immigration Control

Modern British immigration law began in 1905 as a response to Jewish immigration to the country from Russia and Eastern Europe, following the pogroms (campaigns of violent persecution against the Jews). The legislation created immigration officers who could refuse entry to aliens (non-citizens) who appeared unable to support themselves. There were, as there have always been since, exceptions for refugees from political or religious persecution. This law was extended to allow the imposition of conditions on entry at the start of World War I, and the extension continued in force after the war's end. A similar system remains in place today. The structure of the restrictions on alien immigration leaves much to the discretion of the officials in charge. In general, aliens will not be permitted to settle unless they have permission to work, or bring large amounts of money to invest in Britain, or in certain circumstances are married or related to a British citizen.

Citizens of the Commonwealth of Nations were subject to no restrictions at all for the first half of the 20th century. As British citizens themselves, being resident in former Empire countries, they were not distinguished from residents of the United Kingdom. However, large-scale immigration from so-called “coloured” colonies led in 1962 to the first restrictions, aimed principally at West Indian immigration. During the 1960s increasing immigration restrictions were reciprocally imposed by a series of legislative measures; these covered citizens from all Commonwealth countries, including Canada, Australia, and New Zealand. They were succeeded in 1968 by an attempt to stop the immigration of East African Asians, who had been guaranteed British citizenship on the independence of Kenya, as a guarantee against oppression. However, when such oppression did occur, an attempt was made to prevent them entering by introducing a new distinction between those with recent connections in the United Kingdom (a grandparent or parent who was or had been resident in the United Kingdom) and those without. This has been construed by some as an attempt to discriminate between white and other Commonwealth citizens: among other things, the greater material prosperity of white people in the empire meant that a family connection with the “home country” was far more likely for a white person. The 1968 legislation was found to be racist by the European Convention on Human Rights and withdrawn by the government. Eventually, after a public outcry, many Kenyan Asians (who had been joined in their plight by Ugandan Asians) were admitted as refugees from persecution.

European settlers elsewhere showed a similar inclination throughout their history to restrict immigration to white people. Various stratagems were used, including an education test in Natal, South Africa, subsequently used elsewhere, which left much to the discretion of the immigration officer; in Canada a requirement was made that all immigrants come by a direct journey, which was not possible from some countries with a large black population; in New Zealand, Chinese immigrants were specified as requiring an education test.

Australian immigration laws proved more stringent still. During the Gold Rush of the 1850s the number of settlers in Australia increased dramatically: between 1850 and 1861 the settler population increased from 400,000 to well over 1 million. Around this time Australia became an unwelcoming host to a number of Chinese settlers, attracted along with the Europeans by the prospect of gold. In 1856 the state of Victoria restricted entry to the Chinese, and by 1890 all Australian states had legislation to preserve the purity of “white Australia”. The Immigration Restriction Act of 1901 legislated to exclude non-European settlers, and a dictation test in a prescribed European language was introduced in 1905. This policy of exclusion continued until the late 1950s, but was relaxed in the 1960s and formally abandoned in 1973. Initially most non-European immigrants to Australia came from Latin America and the Middle East, notably the Lebanon, although it later received settlers from Asia, especially South East Asia and China.

III

Europe and Immigration

Today, nationals of member states of the European Union (EU) have exceptional immigration rights within the EU. This is principally for the purposes of the common market, and grants the national the right to work, and reside for the purpose of work, in any country of the EU. There are limited provisions for those made unemployed in a foreign country to reside there, and they will generally be unable to draw state benefits for the length of time and to the extent that a native may, if at all. Deporting a foreign national of an EU state is a serious step, and generally only takes place when the person is relying on public funds without being involved in the job market (having or seeking a job), or is convicted of a very serious crime.

A free movement area exists between the United Kingdom, the Republic of Ireland, the Channel Islands, and the Isle of Man. This is subject in UK law to exclusion orders for the prevention of terrorism, which may exclude a named person from entering any specified territory in the United Kingdom—usually the mainland. The Channel Islands and the Isle of Man have their own immigration systems, and in particular issue their own work permits.

With the collapse of Communism in 1991, those European countries whose borders adjoined the former Iron Curtain were faced with a growing influx of would-be immigrants. Germany, which operates a complex system of application for immigration, appeared to absorb the largest numbers, but has mostly failed to grant them German citizenship. France, whose legislation automatically gave French citizenship to members of its former colonies, experienced a severe right-wing nationalist backlash in the 1990s.

IV

Current UK Law

Although the criteria aimed at East African Asians were withdrawn, similar rules were enacted in 1971 and remain in effect today. The right of abode in the United Kingdom is allowed only to “patrials”, that is, those with a parent who had a right of residence in the United Kingdom. The criterion of having a grandparent with UK right of residence was abolished, but the effect of the new rules on most would-be immigrants was similar. The terminology was changed when the immigration criteria were used to determine nationality status in a new structure of nationality. Patrials with a right of abode became British Citizens, while those nationals without the right became either British Dependent Territories Citizens (in the few remaining imperial possessions) or British Overseas Citizens (Commonwealth citizens without citizenship in an independent Commonwealth country). The last two have no right of abode and in seeking admission are subject to much the same tests as aliens.

Entry to the United Kingdom is controlled at ports and airports. Those with the right of abode require no documents to enter, although it is wise to have a means of proving the right of abode. Others require identification documents (usually a passport), and unless there is an agreement in force between Britain and another country, a visa or similar entry-clearance document. Leave to enter will not be granted if a visa is required but has not been obtained in the country of origin; in addition, the carrier that brought the entrant to the country will be subject to a fine, and required to pay the costs of detaining and removing the entrant. Immigration officers may examine all entrants, and search their people and baggage, but they should only refuse entry to a person with valid entry clearance if it is clear that the document was obtained wrongly, circumstances have changed, or there are medical grounds for refusing entry.

The significant point for most would-be immigrants is therefore the entry-clearance process in their home country. The decision is made by an entry-clearance officer who may carry out investigations, including visiting the place where the applicant lives. The officer is under a duty to act fairly, but this does not grant any protection against delays, and in the Indian subcontinent there are very considerable delays in having applications processed.

Appeals are available from the entry-clearance officer and the immigration officer at the port of arrival. However, these appeals are heard in Britain, and the applicant will not usually be present. For some time in the 1980s this problem was circumvented by applicants who remained in detention in Britain and sought judicial review of the immigration officer's decision, not by way of appeal, but by claiming that the decision-making process was irrational. Eventually these applicants were directed to appeal before seeking judicial review, and the requirement on carriers to pay for the return of unauthorized entrants meant that most applicants had to return to their own country.

After entry, the Home Secretary, a British government minister, has the power to grant leave to remain or alter the conditions of leave, except where the leave is indefinite. People with indefinite leave cannot have that leave made subject to conditions, and they enjoy most of the rights of citizens with the right of abode. They are considered “settled” and may only be deported if they commit serious crimes, or if deportation is conducive to the public good. They may obtain the right to be naturalized as British citizens. Aliens, whether on limited or indefinite leave, are required to register with the police, giving details of where they are living and working.