Guest Blog: Professor Sarah Singer

The award-winning poet and playwright Inua Ellams performed his one-man show – An Evening with an Immigrant – presented by Fuel on Thursday 19 October as part of the Bloomsbury Festival.

Born in Nigeria, he is a cross disciplinary artist, an internationally touring performer, a poet, playwright, screenwriter,  graphic artist & designer. In 2023 he spent time at the School of Advanced Study as Creative Practitioner in Residence at the Institute of English Studies. He has also been awarded an MBE for his services to the arts, as well as an honorary doctorate from the University of the Arts London.

The performance was presented by Fuel in association with Choose Love, an organisation that supports refugees and displaced people all over the world. Proceeds from this event went towards Choose Love’s vital work supporting refugees, including those here in the UK.

Sarah Singer, Professor of Refugee Law at the Refugee Law Initiative introduced the event.

How did we get here? A short history of UK immigration and asylum law

I recently had the pleasure of introducing the immensely engaging, and also very moving production Inua Ellams and Fuel present: An Evening with an Immigrant, as part of the Bloomsbury Festival 2023. Through this piece, Inua gave us a glimpse into the many facets of his world and identity, and traced his journey through the UK’s immigration and asylum system – a journey which unfortunately has lasted decades. One of the triumphs of this work is that, in his amazing person, Inua himself challenges the stereotypes often associated with migrants and refugees in public consciousness in the UK today. And through Inua’s poetry and narrative we were able to feel and understand the impact of these legal forces on his world.

As I mentioned in my introductory remarks, it is a really important time to be having these discussions about immigration, and to be recognising and celebrating the contributions of immigrants to the UK – adding face and humanity to the often very polarised debates about immigration, asylum and multiculturalism which dominate news headlines so much today. It is important because the UK is at a pivotal moment in its approach to immigration and asylum, one that is so profound it feels as though we are almost ready to fall off a proverbial cliff edge.

The UK’s ‘pivotal moment’

Earlier this year, then-UK Home Secretary Suella Braverman gave a talk in Washington DC in what can only be described as a scathing attack on the 1951 Refugee Convention – the cornerstone international treaty of refugee protection – and the European Convention on Human Rights. She argued that woman and LGBT+ asylum seekers are granted too much protection under the Refugee Convention, as they only had to show they were being ‘discriminated against’ in order to qualify for asylum. She threatened the UK would withdraw from the Refugee Convention if it wasn’t significantly amended. But her claims do not appear to be grounded in any credible evidence. As any refugee lawyer or decision maker knows, under the Refugee Convention all asylum seekers must demonstrate that they have a well-founded fear of ‘persecution’, i.e. very serious human rights violations, to be eligible for asylum.  One may question why, in her talk, she singled out these particular groups for attack, when it’s clear that today so many women and girls are facing significant human rights threats – one only has to look at the situation of women and girls in Taliban-controlled Afghanistan as an example – and that it is illegal to be gay in a third of the world’s countries. Singling out these groups in particular seems bizarre.

This was not, however, the first time the Home Secretary had made misleading statements. Only recently the Mail on Sunday had to issue a correction over an opinion piece by the Home Secretary in which she claimed that ‘almost all’ child grooming gangs were British-Pakistani, something she said was due to “cultural attitudes completely incompatible with British values”. But this statement was simply wrong. Research published by Home Office in 2020 showed offenders are “most commonly white” and come from diverse backgrounds. This led to the highly unusual situation of a newspaper printing a factual correction to a comment article authored by a leading cabinet minister. The Independent Press Standards Organisation (IPSO) said Braverman’s comments were “significantly misleading”.

It is not clear why these people are being singled out for hatred. And this litany of misleading, antagonistic statements and ‘dog whistle’ politics of course comes within the broader context of the Prime Minister’s ‘Stop the Boats’ campaign. We recently saw the passing into law of the Illegal Migration Act 2023 which mandates the detention of all irregular arrivals to the UK regardless of the reasons they came here. Ostensibly this detention is until the person can be removed to another country, but the UK government knows already how difficult it is to remove people, particularly those who have valid protection claims, so in practice this will only lead to indefinite detention of huge numbers of people.

This applies to anyone who enters the country irregularly. This is what is being targeted, irregular entry, which is almost laughable because of course for the majority of these people there are no legal routes to enter the UK unless they fall under narrow bespoke schemes such as for those fleeing Ukraine or Hong Kong.

While this legislation was being debated, a number of amendments were proposed by the House of Lords to try and mitigate the effects for some of the most vulnerable of this already very vulnerable group. They included protections for children, pregnant women, and victims of modern slavery. All were rejected. The legislation is so extreme that Theresa May, who oversaw incredible restrictions on the UK’s immigration framework during her time as Home Secretary and Prime Minister, argued that the government had gone too far. And to what benefit? As has been pointed out by the Council of Europe, conflating migrants with criminals in this way is dehumanising. It will also be immensely costly and damaging to the UK’s international reputation.

The UK-Rwanda asylum deal was successfully challenged before the Supreme Court last month, and the Supreme Court held that, contrary to the governments assertions, Rwanda is not a safe country to remove asylum seekers to. But there remains speculation that the government will nevertheless try and push through with these plans despite them being in breach of the UK’s international obligations. What has the UK come to when removing vulnerable people to Rwanda is being held up as a shining placard for a well-functioning society?

This is the pivotal moment we are at in the UK today. And in this context it is useful to reflect on how we got here, because, for the vast majority of our history we had no immigration law in the UK. No asylum law. It’s really a very recent development.

The initial development of immigration and asylum law in the UK: antisemitism and Germanophobia in the early 20th Century

We first saw the development of UK immigration and asylum law in the early 20th Century. This was in response to the arrival of thousands of Jews from Russia and Poland, in the late 19th and early 20th Century, as they fled pogroms and economic repression. This movement of persons sparked public campaigns demanding immigration restrictions. Arguments in the press, in Parliament and at public meetings may have sounded quite familiar to a modern onlooker. They centred around concerns over competition for housing and work, and ideas that the ‘invasion’ of migrants threatened to undermine British culture. There were, of course, strong antisemitic undertones to these debates. Against this background, the development of UK immigration law in the first half of the 20th Century was characterised very much by a distinction between British subjects and ‘aliens’. British subjects here were considered to encompass those of the wider British Empire, whereas aliens referred to all non-British subjects.

In 1905 the first Aliens Act placed restrictions on who could, and could not, be granted entry to the country. The Act permitted aliens to be admitted to the country only through certain specified ports of entry, and gave immigration officers the power to refuse to admit ‘undesirable aliens’. The definition of ‘undesirability’ was usually based upon the ability of the alien to support themselves in this country, which remains a requirement up to the present day. Importantly, however, the Act also provided for the first time a legal definition of refugees and their rights to safe haven in Britain.

The 1905 Aliens Act really ‘broke the mould’ and cemented the idea that a country had the right to keep out unwanted immigrants, and this theme continued in a series of immigration acts throughout the first half of the 20th Century. At the outbreak of World War I, ‘Germanophobia’ led to panic legislation being passed in the first days of the war, which gave the Crown extended powers over immigration in times of national danger, including imposing restrictions on entry, restricting the movement of aliens in the UK, and the power to detain or deport any aliens seen as a threat to Britain. Many of these powers were then extended into peacetime in the 1919 Aliens Act, but unlike the 1905 Act there was no provision made for refugees. This was the legislation which governed the entry – or often non-entry – of refugees from Nazism in the 1930s. We know the impact that had on millions of Jewish people who couldn’t get access to safety in the UK and elsewhere because of the immigration restrictions which were placed on them.

Windrush and the Commonwealth Immigrants Acts: racialised distinctions as to who is, and is not, ‘British’

If the first half of the 20th Century was focused on distinctions between British and Commonwealth citizens, on the one hand, and aliens, on the other, in the second half the focus shifted towards increasingly fine distinctions between different citizens of the UK and its colonies.

In post-war Britain, migration from Britain’s empire and newly independent nations was at first encouraged to facilitate reconstruction and post-war economic growth. 2023 marks 75 years since the Empire Windrush docked in Tilbury in Essex, carrying passengers from the Caribbean to the UK. The UK needed workers to help fill post-War labour shortages and rebuild the economy. Many of those who came became manual workers, drivers, cleaners, and were invited to become nurses in the newly-established National Health Service – it is no coincidence that 2023 is also the 75th birthday of the NHS! However, new arrivals in the UK not only experienced hostility and racism, but also faced growing restrictions on their entry.

Whereas the label ‘British citizen’ once referred to a wide range of people from mainland Britain to the colonies, the changing political atmosphere of increasing racism and antiimmigration sentiment led to restrictions to this definition and the right to residence in the UK in the Commonwealth Immigrants acts.

Until 1962, citizens of the British Commonwealth were not subject to immigration control. This changed when the Commonwealth Immigrants Act 1962 came into force, which made a distinction for immigration control purposes between citizens of the UK and the Commonwealth (who were considered British subjects) on the one hand, and citizens of independent Commonwealth countries (who were not) on the other. Only those with a British passport or with a firm connection to the UK by birth or descent had a right of entry to the UK.

Then, prompted by the arrival of hundreds of British-passport-holding Kenyan Asians fleeing the ‘Africanisation’ policies of newly independent Kenya, the government responded to media and public pressure by placing further limitations on who could be considered a ‘British Commonwealth Citizen’. The 1968 Commonwealth Immigrants Act further restricted the rights of Commonwealth citizens and limited the right of entry to those whose parents or grandparents were born or naturalised in the UK. There were overt racial undertones here given that white Commonwealth citizens would be much more likely to meet this criteria than Asian citizens, and a special work permit system was put in place with the clear expectation of facilitating white Commonwealth immigration. One month after the Act came into force Enoch Powell gave his famous ‘Rivers of Blood’ speech.

Again, no provision was made in this legislation for refugees, which is stark given the background against which it was legislated. But the truth is this legislation was designed to keep out East African Asian refugees rather than facilitate their protection. Suella Braverman’s own father secured entry to the UK only shortly before the passing of this legislation into law. The rights of Commonwealth citizens have now been eroded even further of course, and now only the category of ‘British citizen’ – not a citizen of Britain’s overseas territories – carries an automatic right of entry and residence in the UK.

By 1971 the UK system of immigration control was a hotchpotch of legislation which had been enacted primarily to deal with the perceived threats posed by different waves of people coming to the UK to live, work and seek safety.

Immigration and asylum law today

Today UK immigration and asylum law has only become more chaotic. Over the last 30 years, attention has focused largely on ever-restrictive legislation surrounding refugees and asylum seekers and is in a constant state of flux – at present a new immigration and asylum bill is presented almost every year, and repeated amendments are made to legislative provisions scattered across Acts of Parliament from the past four decades. Much immigration and asylum law is not even included in this primary legislation but the Home Office’s Immigration Rules – which have been termed by a senior judge “so difficult to comprehend that it is hard even to describe their complexity”. The intensification of migration legislation and regulation in recent years results in what has been described as “layer upon layer of inadequately thought out, hastily drafted legislation all too often incompatible with human rights’ and rule of law guarantees”.

I have mentioned already some of the pernicious effects of this ‘dog whistle’ law and policy which has intensified in recent years. Unfortunately, the chaos and incompetence seem only worse as the Home Office launches from one crisis to another. The impact on people’s lives cannot be overstated.

But we do see signs of resistance, including the success of the legal challenge to the UK-Rwanda asylum deal recently heard by the Supreme Court, challenges to the Illegal Migration Act 2023, to immigration detention, from civil society groups and from our own devolved human rights commissions. Viewing this through an historical prism demonstrates the importance of upholding human rights and crushing xenophobia and racism, which have no place in our legal system today.

Sarah Singer

Photographs taken at Bloomsbury Festival 2023 by Stuart Keegan

Guest Blog: Professor Sarah Singer