A) RESTRICTIVE POWERS
The use of legislation as restrictive power expresses the State's
desire to stop
immigration in England.
Before the 1980s, there was a conflation of asylum and
immigration. That is to say
any migration in this country was dealt under the scope of
Immigration Rules. In
those times, an immigrant meant a black or brown person coming
from the New
Commonwealth. The white men coming from other countries were
considered as
aliens. To curb the number of immigrants the governments passed
various Acts. As
politicians follow the desire of the population, as Acts as
passed to solve problems
and please the population.
Early the 1900s, the host population started complaining loudly
about the increasing
number of Jews entering the country as seen in chapter II. To put
an end if not reduce
their number, the government passed in 1905 The Aliens Act. It is
true that the Act
did not specifically mention the Jews but in practice many were
denied entrance on
the ground that they were poor and might be a burden to public
funds. Cohen sees that
Act as a mean to exclude `undesirable immigrants' defined as
someone who «cannot
show that he has in his possession or is in a position to obtain
the means of decently
supporting himself»(Cohen,1988,p12). At that time where
anti-Semitism feeling was
at its peak, the government turned his back to Jews as revealed
by the statistics: 505
Jews entered in 1906; 43 in 1907; 20 in 1908; 30 in 1909 and
finally 5 in 1910( Cohen
1988,p12). Within four years, the number of Jews allowed to seek
refuge was sharply
cut down from 505 to 5 that is to say 99%. A decade later, there
was the 1914 Aliens
Restriction Act which important feature was the power of the Home
Secretary to
deport any alien.
During and after the First World War, there was in England a
resentment of German
and Jews presence. The government therefore passed the 1919
Aliens Restriction Act
to make difficult their entrance but also stressed the powers of
the Home Secretary to
deport them and people deemed dangerous for the country. After
the end of the
second World War, for economical motivation ,the Nationality Act
of 1948 was
passed to allow in the Commonwealth citizens. That Act created an
escalation of
mass flow from New Commonwealth citizens as seen in table 2. The
majority of
them with black or brown skin labelled `coloured people'
triggered hostility and
racist comments. Sir Cyril Osborne, Tory MP said: «This is a
white man's country,
and I want it to remain so»(Daily Mail,7 February, 1961
cited in Hayter, 2004,p27).
His Tory MP colleague Mr Angus Maude went in 1965 in the same
vein: «It is not
unreasonable for a white people in a white country to want to
stay a white country»
(Hayter 2004, p27). There is no better illustration of racism and
xenophobia than
these statements from members of the Parliament, institution
where Acts are passed
to regulate the society. Face to the massive inflow of coloured
people in 1961 as seen
in table 2, an Act was passed to halt the `invasion'. The 1962
Commonwealth
Immigrants Act restricted access to England to Commonwealth
citizen who did not
belong to the United Kingdom. As the then Home Secretary put it:
«except from
control [are] persons who in common parlance belong to the United
Kingdom»(
Joppke, 1999, p108). The term `belong' to the United Kingdom
meant being born in
the country( the jus soli rule) or hold a United Kingdom passport
issued by the
government.The Act in its implementation stratified the society
in two layers:
citizens with passports issued in the country and those whose
passports were issued
by Commonwealth countries. The nature of the Act was racist as
the then Prime
Minister William Deedes confessed it; «the real purpose was
to restrict the influx of
coloured immigrants.[Although] we were reluctant to say as much
openly»(Robinson
1999,p xx). Unfortunately this Act showed its limits when the
period post
decolonisation drove out thousands of Ugandan Asians holders of
British
passport. Their massive arrival prompted the 1968 Commonwealth
Act to curb their
number. «Equally, there is no doubt about the problem which
can, and will, be created
if the rate of immigration goes ahead too rapidly...This clearly
is a racial problem
[that] arises quite simply from the arrival in this country of
many people of wholly
alien cultures, habits and outlook»( Joppke,1999,p109).
Indeed to avoid social
instability, the government passed the 1968 Commonwealth Act
which set as
condition to all the colonies citizens who did not have strong
connection with the
metropolitan country to obtain an entry voucher before coming.
The Act was not only
a flagrant violation of the international law and basic duties of
a State to accept its
own nationals but also a violation of the Article 3(2) of the
European Convention
which stipulates that «No one shall be deprived of the right
to enter the territory of the
State of which he is a national»(Fourth Protocol to the
European Convention for the
Protection of Human Rights And Fundamental Freedoms, 1963).
England did what no
civilised country would do to its own nationals. In the 1968 Act
like the 1962
one, the rhetoric of `jus soli' and `jus sanguinis' or
citizenship by birth and citizenship
acquired through descent was reasserted once again. This idea of
making a distinction
between nationals of the same country paved the way to the 1971
Immigration Act.
The 1971 Act was an important one in the sense that it shaped the
following Asylum
and Immigration Acts. It set the criteria to recognize asylum
seekers. It replaced the
employment voucher by work permit; increased the powers of the
State to deport
aliens lawfully living in the country, allowed permanent rather
than temporary
settlement. It created two categories of citizenship, patrials
and non-patrials. Patrials
were exempt of immigration control and had the `right of abode'
because their
citizenship was acquired either by birth, adoption, registration,
naturalization in the
United Kingdom or by a parent who was born in the country. The
non-patrials
though holders of British passports were subject to immigration
control.
In the 1980s, after the interview of Thatcher stressing anxiety
over immigration, new
laws were passed to exorcize the fear of foreigners from the host
population and
reduce the number of newcomers. Thus a number of Acts ranging
from the restriction
of citizenship to carriers' liability were passed. Indeed in 1981
the British Nationality
Act was introduced to restrict the entry of Asians and Blacks to
England. The Act
created three categories of citizenship: British citizens,
British Dependent
Territories citizens and British Overseas citizens. Among them,
only British citizens
were entitled to settlement and abode in the United Kingdom
whereas the others were
excluded. This Act also removed citizenship by birth in the
country (jus soli) and
emphasized patrial background to settle in the United Kingdom.
Years later, the Immigration Procedure Rules in 1985 introduced
visa requirement. Its
explicit aim was to hinder the arrival of asylum seekers from Sri
Lanka at the time
when Tamils were fleeing their country on ground of persecution
by the State agents.
It is useful to say that the use of visa control is not new since
it has been used in 1938
against German and Austria citizens. Later the visa control was
extended to other
countries such as Ghana, Nigeria, India, Pakistan and Bangladesh
and many other
Commonwealth countries. In November1992 during the Yugoslav civil
war, the
government introduced visa control for those fleeing for their
lives and wishing to
seek refuge here. One noticeable fact is that England always
turns its back to asylum
seekers when they need it the most.
The most important legislation passed in the 1980s to stop asylum
seekers in this
country was the 1987 Carriers' Liability Act. It held carriers
responsible for carrying
passengers with fake, incorrect or without document of
identification. A fine of £
1000 then £2000 on airline companies for carrying such
passengers. The Act, since
2000, was extended to trucking companies. Obviously the Act
contravenes the
article 31 of the 1951Convention which forbids any penalty for
unlawful entry:
The Contracting States shall not impose penalties, on account of
their illegal
entry or presence, on refugees who, coming directly from a
territory where
their life or freedom was threatened in the sense of article 1,
enter or are
present in their territory without authorization, provided they
present
themselves without delay to the authorities and show good cause
for their
illegal entry or presence(1951 UN Convention Relating to the
Status of
Refugees).
The war against asylum seekers went on in the 1990s where
governments
were more creative in their attempts to curb if not crack down
asylum number.
Asylum seekers were labelled `bogus refugees' or disguised
economic migrants
coming to England for `pull' and not `push' factors. Michael
Howard, former
Conservatism leader said:
By claiming asylum, those who have no basis to remain here cannot
only substantially prolong their stay, but gain access to benefit
and
housing at public expense...Of the 40000 asylum applicants
currently
being supported on benefit, very few will be found to merit
asylum or
exceptional leave to remain...My right honourable friend the
Secretary
of State for the Environment has concluded that the same
arguments
apply in relation to social housing(Michael Howard cited in
Schuster,
2003, p147).
By branding asylum seekers with negative terminology, the
government
psychologically prepared the national and international opinion
to accept the coming
laws.
The 1993 Asylum and Immigration Appeals Act introduced new right
of appeal,
faster deportation and restriction on those who apply for asylum
in the United
Kingdom. In 1996 the Asylum and Immigration Act removed the right
to welfare
benefits from asylum seekers who made their applications
in-country rather than at
the port of entry. The 1999 Immigration and Asylum Act created a
new directorate,
the National Asylum Support Service (NASS) to deal with the
social support of
asylum seekers. It also introduced the use of vouchers,
compulsory dispersal scheme
regarding accommodation and finally removed entitlement to a
variety of benefits.
It is clear that the three Acts we mentioned above were intended
to impoverish asylum
seekers to the extreme and set to be an example to anyone who
would be tempted to
claim asylum in this country.
Driving asylum seekers out England, cutting down their number,
preventing others
from coming to claim asylum have been the core provisions and
clear message
embodied in the laws passed since the 1900s up to now. But all
the laws cannot
intrinsically work and achieve the purpose without dissuasive
powers.
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