The New Immigration Act 2014 and the Banality of Immigration Controls
Time to read
This post by Ana Aliverti, Warwick Law School, University of Warwick, builds on the earlier one this week by Celia Rooney about the Immigration Act 2014. In this post Ana concentrates primarily on the nature and effect of the controversial new citizenship stripping powers brought in by this piece of legislation.
Last week the British Parliament passed the first major piece of primary legislation on immigration under the current Coalition government. Amid a heated electoral season in the run up to the elections for the European Parliament, which had as one of its focus Eastern European migration to the UK, the immigration bill made its way through Parliament without much fanfare. As Celia Rooney outlined, the Immigration Act 2014 has greatly reduced rights of appeal while limiting the right of those in detention to apply for immigration bail. It has also more strictly regulated appeals against removal and deportation orders based on Article 8 (ECHR) and incorporated a range of other measures to reinforce the view of the country as ‘hostile to migrants.’
Although the Opposition tried to discredit the government’s policy on immigration by recalling the shameful ‘go home’ campaign, on the whole, Labour supported the package of measures introduced by the Immigration Act. In the Commons, scattered dissenting voices―mainly by Labour and Liberal Democrat backbenchers―briefly unsettled the solid, general political consensus around the bill. The bill’s quiet progression through Parliament was disrupted by the hasty introduction by the Home Secretary, Theresa May, of the ‘citizenship stripping’ clause during the last debate before the House of Commons in January 2014.
The other side of the Immigration Act
The ‘citizenship stripping’ clause, as it was originally phrased, extends the grounds for depriving naturalised British citizens of their citizenship status, even if deprivation renders them stateless, when the Secretary of State is satisfied
‘that the deprivation is conducive to the public good because the person, while having that citizenship status, has conducted him or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom, any of the Islands, or any British overseas territory.’
The measure was introduced as a response to the Supreme Court case of al-Jedda and in light of the number of British citizens who had joined the rebel fighters in the Syrian civil war. Al-Jedda, an Iraqi refugee who was granted British citizenship, was accused of being involved in terrorist activities in Occupied Iraq. Last October, in Secretary of State for the Home Department v Al Jedda, the Supreme Court struck down the order to deprive him of his citizenship because such measure would make him stateless, thereby breaching domestic and international law, specifically section 40 of the British Nationality Act 1981 and Article 8 of the 1961 UN Convention on the Reduction of Statelessness.
Some MPs in the Commons questioned the government’s proposal on equality grounds because it would only apply to naturalised citizens while British born citizens would be exempted from it. Such critics argued that it will reinforce the status of naturalised citizens as ‘second class.’ Others attacked the proposal because it would be counter-productive and ineffective to fight fundamentalism. Yet another group of MPs considered it unfair to impose such a harsh measure outside the adversarial rules of a criminal trial. The government defended the proposal, claiming it was a proportionate response to those who had abused the privilege of British citizenship and necessary to protect the country’s national security.
Amid unease within the Parliament and criticism by human rights campaigners, Lord Pannick was successful in his attempt to curtail the scope of the original proposal in the House of Lords (242 peers voted in favour of it, while 180 opposed it). His amendment, however, was procedural in nature and didn’t modify the substance of the government’s proposal: it merely deferred the debate over the measure to a specially appointed parliamentary committee in order to remedy the procedural anomalies in the introduction of Clause 66. This was one of the few changes, albeit the most publicised, made by the Lords to the immigration bill.
Despite its modest scope, the amendment was finally defeated in the House of Commons by 305 against 239 votes on 7 May. The government managed to gain the necessary support in both Houses by including two safeguards:
the Secretary of State has to have reasonable grounds for believing that the person is able to become a national of another country or territory; and
the exercise of deprivation powers will be periodically reviewed by an independent reviewer―although details about the review proceeding were not laid down in primary legislation.
The new ground for citizenship deprivation once again conflates terrorism with foreignness. The debates around it are reminiscent of the now repealed powers to indefinitely detain foreign terrorist suspects (i.e., Part IV of the Anti-Terrorism, Crime and Security Act 2001). The government’s reluctance to extend the new ground for deprivation to British-born citizens brings the law back to the world war era when a distinction was drawn in the British Nationality and Status of Aliens Acts of 1914 and 1918 between British-born and naturalised citizens for citizenship deprivation purposes: only the later were characterised as ‘contractees’ and liable to be stripped of their citizenship should they break their duties to the country (see Gibney 2013). What the politics around indefinite detention and citizenship stripping show us is that issues of trustworthiness, national belonging, and national security are inexorably intertwined, and that politicians find little qualms in exposing foreign-born others to draconian measures, even if those stripped are formally citizens.
And back to the banality of immigration controls…
While the insertion of the citizenship stripping provisions into the Immigration Act 2014 has caused outcry and captured considerable media attention―and justifiably so―they constitute a small portion of the package of measures introduced. In any case, such matters populate the ‘margins of the penal’ in that they ostensibly depart from liberal norms to regulate a small minority of ‘dangerous others’ who cannot or should not be dealt with through ‘normal’ laws. As Lord Taylor put it, ‘It is a targeted policy to be used sparingly against very dangerous individuals who have brought the action upon themselves by terrorist-related acts.’
Yet, the Immigration Act 2014 is made of a myriad of new requirements which will considerably affect the everyday life of many more people and not just immigrants. Indeed, as repeatedly emphasised by witnesses and parliamentarians, measures to police foreigners without proper papers inside the country are likely to spill over on legal residents and nationals, particularly those from ethnic backgrounds and with ‘foreign’ sounding names. Many of these developments, especially those related to deportation and removal decisions, will have drastic and painful consequences on those affected. In relation to the restrictions on appeal rights against removal orders, Lord Ahmed noted: ‘It appears that tribunals will continue to exist for tax disputes, school place allocation, parking fines and welfare benefits, but not where one is faced with permanent separation from spouse or children or removal from the country.’
Most of these measures were perfunctorily scrutinised by members of both Houses, not just because the power to strip citizenship caught the attention and time of parliamentarians, but despite it. As immigration restrictions and controls pile up with every law, it seems as though they have become trivial and uncontroversial, and as such undeserving of close attention. New controls on landlords, restrictions on immigration appeals, and the introduction of the healthcare surcharge were supported by cursory data and advised against by witnesses at the committee stage. Yet, these objections were not strong enough to block their swift enactment. Such an approach to law reveals a worrying trend that all to often creates both ill-advised and unjust laws.