10. the Blurred Lines of British Citizenship and Immigration Control: the Ordinary and the Exceptional Devyani Prabhat

10. The blurred lines of British citizenship and immigration control: the ordinary and the exceptional Devyani Prabhat

Fifty years ago, while speaking about the effects of migration, Conservative MP Enoch Powell said, ‘As I look ahead, I am filled with foreboding; like the Roman, I seem to see “the River Tiber foaming with much blood”.’1 Delivered in 1968, Powell’s speech was about the presence of Commonwealth migrants and how it adversely affected the lives of natural-born British citizens. In Powell’s words, ‘For reasons which they could not comprehend, and in pursuance of a decision by default, on which they were never consulted, they found themselves made strangers in their own country. They found their wives unable to obtain hospital beds in childbirth, their children unable to obtain school places, their homes and neighbourhoods changed beyond recognition, their plans and prospects for the future defeated; at work they found that employers hesitated to apply to the immigrant worker the standards of discipline and competence required of the native-born worker; …’ The speech has been often quoted and criticised for its racial overtones. The evocative language was perhaps deliberately chosen to underline the heightened racial disharmony of those times. Yet, had the Romans who feature in this infamous speech been alive today, they would be unlikely to recognise Enoch’s depiction of mass migration and racial tension.2 Afterall, the Romans expanded their Empire to faraway locations strategically deploying Roman

1 Zoe Williams, Original speech in 1968 but still often cited. See e.g., Labour can win on immigration – but not by channelling Enoch Powell; https://www.theguardian .com/commentisfree/2016/sep/28/labour-can-win-immigration-enoch-powell-rachel -reeves; last visited 24 November 2018. Full text of speech available at https://www.telegraph.co .uk/comment/3643823/ Enoch-Powells-Rivers-of-Blood-speech.html; last visited 12 December 2018. 2 See Mary Beard, ‘Rivers of Blood’ — what Enoch Powell didn’t say https:// www.the-tls.co.uk/rivers-of-blood-what-enoch-powell-didnt-say/; 5 November 2007; last visited 24 November 2018.

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Devyani Prabhat - 9781788119214 Downloaded from Elgar Online at 09/29/2021 03:49:02AM via free access The blurred lines of British citizenship and immigration control 199 legal citizenship.3 They offered the legal relationship of citizenship to many diverse peoples, irrespective of ethnicity, as a way to embracing ‘Roman-ness’ and belonging to the Roman Empire.

INTRODUCTION

In studies of national security laws, it is often seen that emergencies give rise to exceptional legal measures which suspend or limit rights available in ordinary times.4 This premise has been challenged by researchers who argue that the concept of ‘emergency’ gets normalised with time so that the exceptionality of the suspension of rights does not persist for long.5 Yet sometimes the extraordinary and the ordinary merge in certain legal fields in a manner that synchronously limit rights. One such field is that of migration, or more precisely, for the purposes of this book’s focus, immigration and nationality laws in the UK. This chapter examines instances where retraction from rights has been normalised outside the national security framework in the context of nationality and immigration. It then analyses how national security has further weakened nationality rights. While nationality laws are about citizenship status, immigration laws are about identifying who can be legally present in a country and who cannot. Immigration control makes people subject to restrictions that do not apply to citizens. For example, citizens can re-enter the country at will after lengthy absences but non-citizens have to comply with immigration requirements and their entry is always conditional on gaining permission from immigration authorities. This chapter argues that such distinctions are not clear cut in the British context. Immigration and nationality are intertwined in British history in a manner that makes citizenship rights uncertain both in ordinary times as well as in times of heightened national security concerns. While exceptional jus- tifications are present in ‘emergency’ situations for suspending or restricting rights, these are generally only additional reasons in the field of immigration and nationality. In immigration laws, resentment towards ‘others’ of the kind captured in Powell’s speech above has often directed the course of state

3 Peter Garnsey, ‘Roman Citizenship and Roman Law in the Late Empire’, in Simon Swain and Mark Edwards, Approaching Late Antiquity: The Transformation from Early to Late Empire, OUP, 2006. 4 Hickman, T., ‘Between Human Rights and the Rule of Law: Indefinite Detention and the Derogation Model of Constitutionalism’, 68 Modern Law Review (2005) 655. 5 For instance, Jonathan Hafetz, Habeas Corpus After 9/11: Confronting America’s New Global Detention System, New York: NYU Press, 2011; Scheppele, Kim Lane, ‘Constitutional Ethnography: An Introduction’ (2004). Faculty Scholarship. Paper 54.

Devyani Prabhat - 9781788119214 Downloaded from Elgar Online at 09/29/2021 03:49:02AM via free access 200 Citizenship in times of turmoil? action.6 By recategorizing people in statutes, it has been possible to change the legal status of those who held formal, legal citizenship but were ethnically ‘others’. Operation of these powers over nationals and long-term residents has cost them their citizenship rights both in ordinary and in extraordinary times and made them subject to immigration restrictions. The manner in which immigration laws and rules determine the insid- er-outsider aspects of who belongs, and who does not, is often both unjust and unfair. Through its deliberate choice of mis-matched imagery, perhaps Powell’s speech is applicable more appropriately to the violence of immigration regimes than the violence of mass migration. The flux in who British citizenship includes has been so great over time that Dummett and Nicol write, ‘The history of British nationality law is a story without a central character.’7 Almost every episode of politics has left its mark on this area of law. Nevertheless, subjecthood and the story of Empire were foundational in creating a notion of citizenship and still loom large over modern nationality law. For instance, there are six different types of UK nationality in the British Nationality Act 1981 depending on where the person is located. One of these is still a British subject although the category is now much restricted.8 The status remains embedded in statutes because of the long historical connection between British nationality and links to Empire. Subjecthood was a broad status which created a legal relationship between the ruler and the ruled and embraced diverse peoples but did little in terms of creating horizontal formal equality or generating substantive citizenship rights.9 Thus, the legacy of subjecthood is that decolonised people have been unable to readily assert any citizenship rights and have come increasingly under immigration control.

IMMIGRATION AND ITS INTERSECTION WITH NATIONALITY: ENTRY OF NATIONALS

Unravelling in 1968 at the time of Powell’s speech was the denial of entry to East African Asians in newly independent countries who sought to enter Britain with their British passports. They were not just migrants; they were

6 Tyler, I., 2010. Designed to fail: A biopolitics of British citizenship. 14 Citizenship Studies 61–74. 7 Dummett, A. and Nicol, A. (1990) Subjects, Citizens, Aliens and Others: Nationality and Immigration Law, London: Weidenfeld & Nicolson, 2. 8 British Citizenship, British Overseas Territories Citizen, British Overseas Citizen. British Subject, British National (overseas), British Protected Person. 9 Dummett, A. and Nicol, A. (1990) Subjects, Citizens, Aliens and Others: Nationality and Immigration Law, London: Weidenfeld & Nicolson, 142.

Devyani Prabhat - 9781788119214 Downloaded from Elgar Online at 09/29/2021 03:49:02AM via free access The blurred lines of British citizenship and immigration control 201 exercising their citizenship rights. They were citizens but their status was stat- utorily weakened in 1962 and 1968 via different immigration Acts. Suddenly, East African Asians became part of a nasty political discourse of race.10 They became racialized outsiders who take away from the true British and provide challenges to law and order. The East African Asians who were British passport holders from Uganda and Kenya could not enter Britain by using their passports.11 In 1968, in order to prevent their re-entry from countries such as Uganda and Kenya, the British government passed an Immigration Act in three days. The affected people challenged this denial before the European Commission of Human Rights. The Commission found that inhuman and degrading treatment was meted out to them because of racial discrimination. These observations influenced British state action as it led to a new voucher system, which enabled the entry of many East African Asians in subsequent years.12 That citizenship rights can be changed by the ordinary statutory frameworks of immigration acts exemplifies the murkiness of immigration status and control as well as the lack of sanctity of the relationship of citizen and state in the British context. In this chapter, I demonstrate how the national security concerns of present times have modified citizenship and made it conditional on good conduct. This conditionality has become an enduring feature of modern day citizenship and is not just an aberration produced by exceptional measures. I invert Powell’s imagery, to reimagine the rivers of blood as that of citizenship rights which have bled down the ages of British history and continue to bleed in the present day and times through the strong association with immigration control. This has meant that the British state has not needed exceptional reasons for excluding its own nationals. Throughout the broad swathe of history, regulation of migration in Britain as well as access to British citizenship, has undergone vast transformations both in structure and in content. The ordinary, everyday display of state power can have crushing effects on individuals denied rights. The role of law in redrawing the lines of legality and illegality and how immigration law routinely reconfigures legal status is established in a manner that exceptional measures are not required for changing the nature or content of British citizenship. A complicated set of requirements and processes on who has entitlement to British nationality, and how nationality can be secured, has blurred the lines

10 Hansen, R., ‘The Kenyan Asians, British Politics, and the Commonwealth Immigrants Act, 1968,’ 42(3) The Historical Journal (Sep. 1999), 809–34. 11 Guild, E. (2016) BREXIT and its Consequences for UK and EU Citizenship or Monstrous Citizenship, Leiden/Boston, MA: Brill Nijhoff at 38. 12 Fransman, L. (2011) Fransman’s British Nationality Law, Haywards Heath: Bloomsbury Professional at 254–55.

Devyani Prabhat - 9781788119214 Downloaded from Elgar Online at 09/29/2021 03:49:02AM via free access 202 Citizenship in times of turmoil? between ‘illegality’ and ‘legality’ as constructed by law. The right to reside in the UK has been delinked from nationality and has become a matter of immigration through the introduction of the concept of a right of abode.13 The 1971 Act set out different standards creating two new categories of persons for immigration purposes, namely those having the right of abode in the United Kingdom (‘patrials’) and those not having that right (‘non-patrials’). Some Commonwealth citizens could continue to enter and live in the UK because of their special links with the UK which were represented through the right of abode (as patrials) but others can only enter as workers, students or family members (for example the Commonwealth Immigrants Act 1962 and 1968). These links depended on grandparents being born in the UK and often excluded the Asian and African origin British subject who could not ordinarily establish such grand parentage (e.g., the Immigration Act 1971 and the British Nationality Act 1981). The cross-linking of right of abode with being free of immigration control meant that nationality in law lost its significance and became a racialised notion (linked with ancestry and bloodlines). The prevention of entry of various kinds of immigrants has thus been conflated with denying the right to reside or even citizenship rights to various British nationals. This has normalised the application of state power to erode citizenship rights and to treat everyone as the ‘other’. Emergency laws have become additional measures to the normalization of national security measures. National security concerns as well as the linked hostile environment for irregular migrants are current episodes of a long series.

13 See, Abdulaziz, Cabales, and Balkandali v UK (Application nos. 9214/80; 9473/81; 9474/81, the European Court of Human Rights, 28 May 1985) is a leading case on right of abode and the 1971 Immigration Act. In this case three lawfully and permanently settled residents of the UK, sought to challenge the Government’s refusal to permit their husbands to join or remain with them on the basis of the 1980 immigration rules in force at the time. The rules applied stricter conditions for the granting of permission for husbands to join their wives than vice versa. The Government claimed this measure had been put in place in order to protect the domestic labour market and maintain ‘public tranquillity’. These conditions did not apply to the wives of male permanent residents. The applicants claimed discrimination on the grounds of race and sex, and in the case of the third Applicant, Ms. Balkandali, on the grounds of birth. The Court unanimously found a violation of Article 14 together with Article 8 of the European Convention on Human Rights on the basis that there had been discrimination on the grounds of sex.

Devyani Prabhat - 9781788119214 Downloaded from Elgar Online at 09/29/2021 03:49:02AM via free access The blurred lines of British citizenship and immigration control 203

THE WINDRUSH GENERATION: THE HOSTILE ENVIRONMENT AND SHIFTING SANDS OF LEGAL CATEGORIES

The hostile environment policies introduced by repeated Immigration Acts (2014 and 2016) demonstrate the continuity with the manner in which nationals were excluded. These Acts introduced new requirements to check documents for establishing a right to work in the UK and even the right to rent (as explained by Smith in this volume). The hostile environment has brought into sharp focus how immigration and nationality laws categorise people according to their date of entry, national origin, length of residence and attainments while in residence. These attributes confer legality if people come within relevant categories but exclude those who do not. It creates inequality in society through the impact on rights. In this book, Bertram argues that such practices undermine the equal status both of citizens and more generally of those subject to the law on the territory. There is now a spectrum of statuses running from full citizen through various forms of semi-citizenship to subordinate outsiders. The stories of the ‘Windrush generation’ captured with such poignancy by Bawdon in the previous chapter, illustrate how Afro-Caribbean nationals in the UK have been devastated by immigration regimes. The life-situation of Dave from Brixton, London, of Caribbean origin but resident in the UK for the past 42 years is another case in time.14 Dave says, ‘I came with my mother in 1966 from Jamaica. I was 7 years old at that time. In those days, children travelled on their parents’ passport but my mother was a commonwealth citizen and she could travel and live in the UK without any problem at all. I attended school here, have family here. I worked in the UK so paid taxes here. Yes, have national insurance number. Only in 2015 I was asked to show my papers at work regarding something to do with pensions. Since then I have been told I am not a citizen and at risk of losing my job. It is a nightmare.’ Dave’s entry and residence rights for the UK originate from subjecthood (colonial days in Jamaica citizenship). On 22 June, around 500 migrants from the Caribbean arrived at Tilbury Docks in Essex in 1948 on the ship Empire Windrush. The ‘Windrush generation’ refers not only to the ship entrants from 1948 but also others, like Dave, who came afterwards from the Caribbean islands over the next few decades. Dave’s initial entry was at a time when Caribbean nationals could readily enter the country and settle here without having to take any proactive action to change their legal status.

14 Pseudonym used. Data collected as part of a research project on Citizenship path- ways (ESRC funded project ES/L010356/1).

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In 1948, the Caribbean entrants were considered British subjects. The British Nationality Act 1948 came into force on 1 January 1949 to change the status of Caribbean subjects to ‘Citizens of the UK & Colonies’ (CUKCs). Dave’s mother, being a subject in 1948, could automatically enter and exercise a right of abode in the UK. Those who held colonial British passports which were not stamped on arrival as British subjects were not considered immigrants at all. Dave, as a child, in those days could travel on her passport. Children, like Dave, who travelled on their parents’ passports, could not evidence their arrival unless they produced their parents’ passports from many years back. Most people had lost these passports. From 1962 onwards landing and embar- kation cards were mandatory for all arrivals, but the government has recently admitted these records were destroyed and are thus unavailable for confirming anyone’s arrival dates or status. At no point was either Dave or his mother required to establish their right through specific documentation. Dave presumed he was British. He had never applied for a passport and not travelled outside the UK. His mother’s documents were long since missing but presumably in 1949 her status had changed to CUKC automatically. This status also allowed her and her family to reside in the UK. Everything changed when the ‘hostile environment’ policy of Theresa May’s government introduced new requirements for documentation for employment (Immigration Act 2014). Conflating, irregular migration with national security threats, the Act generated much turmoil in the lives of those who had entered through claims of subjecthood or commonwealth. It was around this time that Dave was asked to provide paperwork to establish his legal status in the UK by Human Resources personnel at work who were conducting checks. The staff checking documents were not aware of the complicated history of Caribbean migration. Dave could not convincingly explain why he had no records as he did not know himself why he had missing papers. News reports of deportations to Jamaica became a regular feature after the Immigration Act 2016 created the ‘hostile environment’. When Dave was asked to present his papers in 2015, he felt vulnerable and liable to be deported although nothing had changed in his personal life situation. The hostile environment had seeped into his daily existence and had shaken him to the core.

PRIVATE PARTIES IN IMMIGRATION CONTROL

The creep of measures which nurture the hostile environment underlines how everyday lives have changed from 2012. Extraordinary situations are no longer required for changing immigration rules or laws and everybody can be involved in immigration control. As in Dave’s office, ordinary employers and their personnel are now involved in document checking. Private actors such as transport companies have been involved in immigration control since the early

Devyani Prabhat - 9781788119214 Downloaded from Elgar Online at 09/29/2021 03:49:02AM via free access The blurred lines of British citizenship and immigration control 205 twentieth century, for instance in the USA through the Passenger Act 1902. In 1944, through the Convention on International Civil Aviation, nearly all (the now) EU countries increased carrier responsibility. In more recent times, over the last two decades, prisons and detention centres have been contracted out to private actors with private companies providing a whole range of services, including security and administration of services. However, these were con- tractual arrangements between parties to operate the premises. In more recent times, participation of private individuals in immigration control is enhanced by inducements as well as by fear of sanctions. People who have access to critical resources (such as jobs, housing or health care), for example, employers, landlords and doctors, are increasingly involved in immigration control through creation of legal duties. There are new criminal liabilities on private actors for non-compliance. For example, section 35 of the Immigration Act 2016 broadens the mens rea requirement under section 21 of the Immigration, Asylum and Nationality Act 2006 and makes it a criminal offence to ‘employ another person knowing, or where an employer has reasonable cause to believe, that the worker is disqual- ified from employment by reason of their immigration status’. This means that even if an employer has no actual ‘knowledge’ of lack of legal immigration status of a worker there is still criminal liability. Civil penalties can also apply on the employer if the employees have no right to work. The economic incen- tive for cooperation is a discount on fines where employers report ‘suspected illegal workers’ (for reporting an employee) and another further £5,000 where there is evidence of ‘active cooperation’. Similarly, through the Immigration Act 2014, the Right to Rent scheme that prohibits irregular migrants from accessing private-sector rented housing was rolled out across the whole of England from 1 February 2016. Under this scheme (examined by Smith in his chapter in this volume), private landlords, letting agents and homeowners who let rooms need to check the right of prospective tenants to be in the country by conducting document checks, for example, a passport or biometric residence permit. If a landlord finds that an existing tenant is an irregular migrant the landlord will be expected to act to ensure that the illegal migrant leaves the property. The Joint Council for the Welfare of Immigrants (JCWI) this year found that, when reporting duties were placed on landlords through Right to Rent legislation to report tenants without regular status in the housing sector, there was a spike in discrimination against minority ethnicity tenants.15 Medical personnel have also been drawn

15 Available at: http:/ /www.cih.org/resources/PDF/Scotland%20Policy %20Pdfs/ Homelessness/LGCC%20call%20for%20evidence%20on%20homelessness%2013 %2006%202017%20FINAL.pdf (last visited 24 November 2018).

Devyani Prabhat - 9781788119214 Downloaded from Elgar Online at 09/29/2021 03:49:02AM via free access 206 Citizenship in times of turmoil? in to inform on patients’ immigration status in recent pilot projects in the UK. A prominent example is St George’s Hospital, Tooting, where, ‘under this scheme, ... St George’s University Hospitals NHS Foundation Trust has reported 153 patients to the Home Office to follow up possible immigration sanctions’.16 In the US context, Walsh has studied laws requiring non-police actors to regulate migrants’ access to public goods, spaces and institutions and charac- terized the process as deputization; incentives are economic, while constraints are sanctions or fines. Deputization emerged with California’s passage of Proposition 187 in 1994. It denied illegal immigrants all social services, including health care and public education, by deputizing service providers — teachers, doctors and social workers — to be the reporting agents. Whilst Proposition 187 was ruled unconstitutional and ultimately became a symbolic gesture,17 it marked a new approach where states and localities began playing a substantial role in regulating migration ‘through the back door’.18 The process of deputization is a continuation of the crimmigration project as it takes private agents outside the reach of judicial scrutiny. It introduces new market players who commercialize immigration control in a manner similar to the military–industrial or prison–industrial complex.19 Traditionally, neoliber- alism is understood as deregulation or privatization, but broadly it is about the replacement of state functions which is what we see with deputization.20 In the housing sector, landlords contract out to sub-agents the duties to carry out rent checks so that they can establish they were diligent about checking the immigration statuses of tenants. This contracting-out creates a secondary market of commercialization in immigration control.

16 See reply to freedom of information request https://www.whatdotheyknow .com/request/nhs_charges_for_overseas_patient (last visited 24 November 2018). After a recent legal challenge the Home Office announced that it would no longer use data obtained from the NHS for immigration control: See 14 November 2018 report: Data-sharing agreement between NHS and Home Office scrapped following legal challenge by Migrants Rights Network available at https://www.ein.org.uk/ news/data-sharing-agreement-between-nhs-and-home-office-scrapped-following-legal -challenge-migrants; last visited 24 November 2018. 17 Calavita, K. ‘The New Politics of Immigration: “Balanced-Budget Conservatism” and the Symbolism of Proposition’, 43(3) Social Problems (1996) 284–305. 18 Varsanyi, M.W. ‘Immigration Policing through the Backdoor: City Ordinances, the “Right to the City,” and the Exclusion of Undocumented Day Laborers’, 29(1) Urban Geography (2008) 29–52. 19 Salter, M. ‘Risk and Imagination in the War on Terror’, in L. Amoore and M. de Goede (eds), Risk and the War on Terror (2008) Routledge, 233. 20 See also Trouillot, M.R. ‘A Fragmented Globality’, in Global Transformations (2003) 47–78.

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Salter explains how neoliberal ideology replicates a ‘project of inequality’ through the criminal marketplace and punishment built around mass incarcer- ation, surveillance and an unprecedented level of social control directed at the lowest strata of American society.21 This understratum includes the urban poor and unauthorized immigrants. Andreas and Price have also shown how neoliberal market policies lead to a post-9/11 commercialization of immigration enforcement through the expansion of immigration agents, fences and technologies at the border.22 The implications of these developments are to spread out sovereignty and render it all pervasive in immigration control. Walsh’s scheme lays out three manners in which state power may strengthen private participation in immigration control of which deputization is only one. Deputization looks at institutionalized partnerships between government authorities and private citizens through laws that require non-police actors to control migrant access to public goods, spaces and institutions. There are also two other heightened versions of state–private relationships in immigration. One step above deputization is responsibilization. This process authorizes and encourages citizen participation, often through technical, financial or logistical support, but on a voluntary basis. An example would be a Neighbourhood Watch run by volunteers who are given CCTV cameras by a local authority to carry out surveillance. A step above responsibilization is autonomization which is automatic citizen participation without government solicitation, e.g. civilian-led border patrols or vigilante groups. While examples of responsibilization and autonomization are rare in the UK, deputization as delegation of immigration control to institutions as well as people, as already mentioned, is now not uncommon. Given the risks already identified in the US studies, and the recent JCWI study in the UK, it seems likely that enlisting private parties carries many risks. Without clear guidelines and accountability systems, people will often make mistakes, resulting in over- enforcement. These measures ask landlords, employers and medical personnel to make value judgements about who is British and therefore increase chances of stereotyping and discrimination. The impact of these kinds of private participation is that non-citizens and minority citizens who can become identified as non-citizens because of their appearance or accent can become reported as dangerous, threatening, or suspect by others in their immediate communities who control access to resources they need. Walsh claims that when ordinary citizens are transformed into monitors, surveillors, enforcers and informants

21 Salter, M. ‘Risk and Imagination in the War on Terror’, in L. Amoore and M. de Goede (eds), Risk and the War on Terror (2008) Routledge, 233. 22 Andreas P. and Price R. ‘From War Fighting to Crime Fighting: Transforming the American National Security State’, 3(3) International Studies Review (2001) 31–52.

Devyani Prabhat - 9781788119214 Downloaded from Elgar Online at 09/29/2021 03:49:02AM via free access 208 Citizenship in times of turmoil? there are strains placed on communal bonds. A climate of fear and hostility ‘undermines citizenship’s relational and solidaristic dimensions’ in such circumstances.23 Once private agents report and control access, border control does not remain of sole concern to the sovereign government. Private contractors and resource holders can abuse their authority over irregular immigrants without the sovereign government being held primarily responsible for the abuse. Those who pursue challenges on behalf of irregular immigrants in order to forward claims will now first have to pursue the contractors, establish and prove a link to the sovereign government, and then pierce any veil of sovereign immunity. In this manner, human rights become difficult to pursue and thus the lawlessness in exceptionalism is further consolidated through this agentic shift of deputization, responsibilization or autonomization.24 Walsh discusses these processes in terms of ‘diffusion’ rather than ‘displacement’, because through these mechanisms the state is not moving out of immigration control but rather spreading out its enforcement powers.25 While it is true that there is diffusion of the power to control immigration, this article uses displacement as the preferred term in respect of the shift in sovereignty itself. It is because of the shift of sovereign functions to individuals located in society that consequences for actions cannot be readily traced back to the central locus of sovereignty any more. There are two further implications of involving private agents. The first is that over time the agents may start ‘seeing like the state’. This is a phenome- non studied by Scott in the context of failed cases of large-scale authoritarian plans.26 He argues that centrally managed social plans or private actors often replicate the state in behaviours. Private agents would in time start acting as various tiny sovereigns; a process which exemplifies the Foucauldian phenom- enon of multiple deployment of power.27

23 Walsh, J.P. ‘From Border Control to Border Care’, in J.A. Dowling and J. Xavier, Governing Immigration through Crime: A Reader (2013) Stanford University Press, 15 24 Walsh, J.P. ‘Remapping the Border: Geospatial Technologies and Border Activism’, 31(6) Environment and Planning D: Society and Space (2013) 969–87. 25 Walsh, J.P. ‘Watchful Citizens: Immigration Control, Surveillance and Societal Participation’, 23(2) Social and Legal Studies (2014) 237–59. 26 Scott, J.C. Seeing Like a State: How Certain Schemes to Improve the Human Condition Have Failed (1998) Yale University Press. 27 Foucault, M. Discipline and Punish, Alan Sheridan (trans.) New York: Random House (1977).

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The second is an observation made by Lahav in terms of how liberal states continue to project a liberal ethos while taking a hard stance on immigration.28 When private agents enforce immigration agendas nation-states are free to demonstrate their own liberal commitment on paper without implementing it in practice. Immigration powers are traditionally a site of contestation of state power; a zone of exercise of national sovereignty with few limits placed on them, such as a duty to not act arbitrarily. But, as discretion cannot be traced back to the sovereign in these mechanisms, even the duty to not act arbitrarily does not apply anymore. Sovereignty becomes all pervasive and limitless even as it moves out spatially and is more fragmented in its presence in society. The normalized features of this ‘exceptionalism’ are perhaps even more dystopian than the contained anomie of the state of exception. The necessity for an emergency period or a delimited zone of lawlessness is no longer there. Increasingly, anyone can be co-opted as immigration enforcers at anytime and anywhere.

NATIONAL SECURITY EXCEPTIONALISM AND IMMIGRATION CONTROL

Given that even at ordinary times citizenship rights can be quite easily linked and delinked from rights: what is the role of exceptionalism in British citizenship rights today? Exceptionalism comes up in times of heightened national security such as after terrorist attacks. Italian thinker Agamben writes that the ‘state of exception’ is a special situation when the sovereign can use the power of law to suspend its own operation.29 He explains that, ‘The state of exception is an anomic space in which what is at stake is a force of law without law ...’.30 Agamben says that everything is possible in camps which are anomic spaces :31 This is because, ‘There is no rule that is applicable to chaos.’32 Exceptionalism enables a weakened protection of human rights which worsens conditions in ordinary times. Article 15 of the ECHR is one such mechanism which provides

28 Lahav, G. ‘Migration and Security: The Role of Non-state Actors and Civil Liberties in Liberal Democracies’, in Second Coordination Meeting on International Migration. New York. United Nations, Department of Economic and Social Affairs, Population Division (October 2003). 29 Agamben, G. State of Exception (2005), University of Chicago Press. 30 Agamben, G. State of Exception (2005), University of Chicago Press at 39. 31 Agamben, G. Homo Sacer: Sovereign Power and Bare Life (1998), Stanford University Press at 170. 32 Agamben, G. State of Exception (2005), University of Chicago Press at 16.

Devyani Prabhat - 9781788119214 Downloaded from Elgar Online at 09/29/2021 03:49:02AM via free access 210 Citizenship in times of turmoil? for derogation from the normal human rights protections in times of war or public emergency.33 In Agamben’s theory, territory can be internal or external but is spatially connected. As he says: ‘In truth, the state of exception is neither external nor internal to the juridical order, and the problem of defining it concerns precisely a threshold, or a zone of indifference, where inside and outside do not exclude each other but rather blur with each other.’34 The camp in this sense is a met- aphorical space which is able to extend through time and space and in which exceptionalism can thrive. Although immigration status changes can take place in ordinary times, the exceptional times foster more invasive measures designed specifically to deter the exercise of rights. In the UK context, the post 9/11 and 7/7 terror attacks prompted a number of ‘exceptional measures’. For example, indefinite detention of foreigners who were terrorism suspects was disallowed by the UK House of Lords (now renamed for judicial purposes as the UK Supreme Court) in A and others v Secretary of State for the Home Department [2004] UKHL 56. This led to the use of control orders and terrorism prevention and investigation measures (TPIMs) which restricted the movement of suspects and contained them in modified house arrests. Control orders and TPIMs were also challenged in a number of high-profile cases in court as overly restrictive of liberty and the challengers were often successful.35 The development of pre-emptive measures such as control orders, which draw on criminal law powers and sanctions related to immigration status without providing commensurate criminal justice protections to suspects in

33 Article 15 (derogation in time of emergency) of the European Convention on Human Rights provides that: ‘1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. 2. No derogation from Article 2 [right to life], except in respect of deaths resulting from lawful acts of war, or from Articles 3 [prohibition of torture and inhuman or degrading treatment or punishment], 4 (paragraph 1) [prohibition of slavery and servitude] and 7 [no punishment without law] shall be made under this pro- vision. 3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.’ 34 Agamben, G. State of Exception (2005), University of Chicago Press at 23. 35 Prabhat, D. Unleashing the Force of Law: Legal Mobilization, National Security, and Basic Freedoms (2016), Palgrave Macmillan at 136–40.

Devyani Prabhat - 9781788119214 Downloaded from Elgar Online at 09/29/2021 03:49:02AM via free access The blurred lines of British citizenship and immigration control 211 legal procedures, have been termed ‘crimmigration’.36 The criminal turn in immigration law enforcement has been described as follows by Coleman:37 ‘the recent criminalization of immigration law, the sequestering of immigration enforcement from the court oversight and the enrolment of proxy immigration officers at sub-state scales have been actively pursued to make interior enforcement now central to US immigration geopolitics.’38 These developments are often presented as reactions to heightened national security concerns and the control of risky populations. Temporally, most such follow terrorist strikes and, in reach, most target so-called ‘suspect’ populations. Scholars express concern about the ‘knee-jerk’ nature of the measures because of the rapidity of their adoption. In terms of reach, the measures are often critiqued as having discriminatory effects on minorities. In national security literature, these measures have been critiqued for the criminalization of immigration and the penalization of people through denaturalization. These important critiques focus on process and function in terms of affected people and have led to challenges in court in terms of their discriminatory effects. The losses in court for the British government led to the rethinking of its counter-terrorism strategies. Meanwhile, from around 2013 an increasing number of British citizens began leaving the UK to fight in Syria. The focus shifted to how to prevent their re-entry. One of the measures that became a prominent strategy was to cancel their British citizenship so that their re-entry could be prevented. Yeo’s chapter in this book on deprivation of citizenship ably demonstrates citizenship stripping conflated citizenship status with immigration control by effectively blocking re-entry of those identified as ‘dangerous’. While denaturalization as a state power originated from the early context of war (1914) it was sparsely used at other times.

36 Stumpf, J. ‘The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power.’ American University Law Review 56(2) (2006): 367–419 (where Stumpf first coined the term crimmigration in the American context). See also, Bosworth, ‘Deportation, Detention and Foreign-National Prisoners in England and Wales’, 15(5) Citizenship Studies (2011) 583–95, for the English and Welsh context. 37 Coleman, M. ‘Immigration Geopolitics beyond the Mexico–US Border’, 39(1) Antipode (2007) 54–76. 38 See also, van der Woude and van der Leun, ‘Crimmigration Checks in the Internal Border Areas of the EU: Finding the Discretion that Matters’, 14(1) European Journal of Criminology (2017) 27–45 on the connections between crime, security and migration at a theoretical and empirical level. V.E. Pin-Fat, J. Edkins and M. Shapiro (eds), Life, Power, Resistance. In Sovereign Lives: Power in an Era of Globalisation (2004); Salter, M. ‘Risk and Imagination in the War on Terror’, in L. Amoore and M. de Goede (eds), Risk and the War on Terror (2008) 233; Van Munster, ‘The War on Terrorism: When the Exception Becomes the Rule’ 17(2) International Journal for the Semiotics of Law (2004) 141–53; Johns, ‘Guantanamo Bay and the Annihilation of the Exception’, 16(4) European Journal of International Law (2005) 613–35.

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It became a popular counter-terrorism measure in the past few years. A Home Office freedom of information response in June 2016 revealed that there had been 81 deprivation of citizenship orders made in the years 2006–15. Thirty-six orders were made on the grounds that deprivation was conducive to the public good.39 In these cases, the person affected had another surviving citizenship and was not rendered stateless, although in some of these the presence of another citizenship was an issue of contention. In all of them invariably the person who lost citizenship was already outside the country and was stranded there. The L1 case (L1 v SSHD [2013] EWCA Civ 906) demonstrated that the Home Office was using the power in this manner as ‘operational necessity’. There are a number of other means of exclusion and removing the person (such as temporary exclusion orders and passport cancellation), but Zedner explains that with cancellation of citizenship there was no need to continue with diplo- matic protection.40 It was the complete civic and political death of the citizen to cancel their citizenship. In terms of exercise of sovereignty, it is the ultimate exercise of the power of expulsion. Sometimes the affected parties have successfully claimed they became stateless as a result of losing their British citizenship, for example, the Al Jedda case (Secretary of State for the Home Department v Al-Jedda [2013] UKSC 62). Mr Al Jedda claimed that he did not have a surviving Iraqi nationality in addition to his British nationality and the court agreed that indeed Mr Jedda did not have any other existing nationality at the time he lost his British nationality. The UK’s statelessness obligations in international law at that time meant Mr Jedda could not be stripped of his British citizenship. This was an unexpected challenge to displacement powers. In the Pham case of 2015 there has been an opportunity for the Supreme Court to examine the statelessness issue.41 Pham was born in Vietnam but came as a child to the UK with his family. He acquired British citizenship but did not take any steps to renounce his Vietnamese nationality. It was not possible to determine whether he had any surviving Vietnamese citizenship at all. In 2011, the Home Secretary deprived him of his British citizenship under section 40(2) of the British Nationality Act 1981 because she suspected that he was involved in terrorist activities.

39 McGuinness T. and Gower, M., Deprivation of British Citizenship and Withdrawal of Passport Facilities, Briefing Paper No. 06820 (9 June 2017). 40 Zedner, L. ‘Citizenship Deprivation, Security and Human Rights’, 18(2) European Journal of Migration and Law (2016) 222–42. 41 Pham (Appellant) v Secretary of State for the Home Department (Respondent) [2015] UKSC 19.

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Pham raised several issues before the Special Immigration Appeals Commission (‘SIAC’) including that of statelessness. on various grounds, including that he had lost his Vietnamese citizenship and therefore the decision made him stateless, contrary to section 40(4) of the 1981 Act. On a preliminary hearing on this issue, SIAC allowed the appeal on the basis that in practice it was the Vietnamese executive who made nationality decisions, and Mr Pham would not have been considered to be a Vietnamese national by the executive on 22 December 2011 had it been asked at that point. The Court of Appeal allowed the Secretary of State’s appeal and held that Mr Pham was a Vietnamese national on the relevant date under the text of Vietnamese laws. Pham tried to raise issues of EU law on proportionality in citizenship deprivation but the appeal was unanimously dismissed. Meanwhile, the government’s loss in the Al Jedda case led to further expansion of deprivation powers as the government proposed an amendment to section 40 of the British Nationality Act 1981 in 2015 and successfully amended the section.42 The amended section enables the government to deprive any naturalized citizen, whether a dual nationality holder or not, of their citizenship, even at the risk of statelessness. The Secretary of State can use these powers irrespective of issues of statelessness if the conduct in question is ‘not conducive to the public good’ and is ‘prejudicial to the vital interests of the country’. Thus, there is now a shift in relevant categories for the differential exercise of deprivation powers from multiple and single nationality holders to naturalized and birth citizens. In September 2018, Pham again brought the issue of his loss of citizenship before the Court of Appeal. By this time, he was already incarcerated in the US and he argued that he was no longer a current risk of harm to British national security. In the judgment, the Court of Appeal held that the right to citizenship is important and weighty, but that it also carries obligations related to loyalty as a citizen.43 The British Nationality Act 1981 only requires whether the Home Secretary considers it ‘conducive to the public good’ for denaturalisation. Given that Pham had already been convicted for terrorism-related offenses, Arden, LJ, said para 51 of the judgment, ‘In the present case, the appellant has over a significant period of time fundamentally and seriously broken the obligations which apply to him as a citizen and put at risk the lives of others whom the Crown is bound to protect. I do not consider that it would be sensibly argued that this is not a situation in which the state is justified in seeking to be relieved of any further obligation to protect the appellant.’

42 Gower, M. Deprivation of British Citizenship and Withdrawal of Passport Facilities, Library House of Commons (2015). 43 Pham v Secretary of State for the Home Department [2018] EWCA Civ 2064.

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What does this enhanced power to cancel citizenship indicate in terms of the state of exception? The framework of ‘exceptionalism’ has further eroded citizenship rights and extended state powers of immigration control. New penalization through denaturalization reflects a concentrated focus on sovereignty as the exercise of creation of territorial order through control of populations who cause ‘risk’ in the nation-state territory. Individualizing risk management through focus on conduct removes the requirement of derogating from any general rights protections or, indeed, of the setting-up of any physical area of detention. Expelling people from or controlling them within the nation-state territory has taken on new characteristics which demonstrate a resurgence of fortified and all-pervasive national sovereignty. The ability to abandon former citizens in extrajudicial territories from where they can no longer hold the sovereign accountable through legal review effectively neuters any kind of democratic check on sovereign power. Thus, the state of exception shifts the spatial locus of immigration control and displaces the necessity for localized immigration control at physical borders.

NORMALIZATION OF THE EXCEPTIONAL: THE STORY OF MODERN IMMIGRATION CONTROLS

Scholars have argued, exceptionalism becomes routinized and regularized into the everyday legal framework as emergency measures become normalized and acceptable with time.44 Thus, Yeo writes in this volume that current deprivation powers are being used for much lesser offences than national security threats. In immigration control as well, what was once exceptional use of powers, such as of detention, has now become normalized. There were no permanent detention centres in the 1990s in UK. Asylum seekers in the 1990s from Sri Lanka were detained on a ferry (the Earl William).45 By contrast there are now 11 permanent detention centres in the UK. State action in deportation is also an example of how exceptionalism is no longer reserved for exceptional circumstances but has become normalized. Detention and deportation were hardly ever used against EU nationals residing in the UK. There has now been a steady rise in the numbers of EU nationals affected by detention and deportation. In 2010, EU nationals were 2.7% of

44 Scheppele, K. ‘Law in a Time of Emergency: States of Exception and the Temptations of 9/11’, 6(5) University of Pennsylvania Journal of Constitutional Law (2004) 1001–83 and D. Prabhat, Unleashing the Force of Law: Legal Mobilization, National Security, and Basic Freedoms (2016), Palgrave Macmillan. 45 Brotherton B. and Kretsedemas, P. Keeping Out the Other: A Critical Introduction to Immigration Enforcement Today (2008), Columbia University Press at 144.

Devyani Prabhat - 9781788119214 Downloaded from Elgar Online at 09/29/2021 03:49:02AM via free access The blurred lines of British citizenship and immigration control 215 those detained and this rose to 11.4% of detainees in 2015.46 In the third quarter of 2016, 1,227 EU Citizens were detained, amounting to 17% of all new detentions. In the same quarter 1,000 EU Citizens were removed from the UK, amounting to 31% of all enforced removals. Overall, in 2015, 3,699 EU citizens were detained under UK immigration powers, an increase of over 500% from the 768 detained in 2010. These statistics demonstrate how exceptional measures can become increasingly commonplace and result in control of new populations because of changing geopolitics and the re-assertion of national sovereignty.

CONCLUSION

Hannah Arendt defines sovereignty as ‘nowhere more absolute than in matters of emigration, naturalization … and expulsion’.47 Indeed, denaturalization of terror suspects and the spreading out of immigration control to the general population are relatively new measures that permeate immigration control to reshape and strengthen sovereignty. Yet, earlier accounts of the East Asian Africans who sought to enter as British citizens and the Windrush British-Caribbean people who face renewed challenges, are instances of when the lines between legality and illegality in migration shift in the sand. The winds of politics obliterate or redraw the lines drawn in the sand. Exceptionality in emergency laws facilitates further shifts in rights. Such exceptionality also normalizes with time. The recent national security measures such as denaturalization and deputization provide instances of exceptionalism but in more effective and regularized manners than in a contained camp. Thus, the state of exception is not just limited to a particular space or site of exceptionalism anymore, or to even a particular set of actors acting as public authority. Indeed, the territorial displacement of anomie elsewhere outside the sovereign territory (displacement to somewhere else: for example, through deportation or cancellation of citizenship of British citizens located outside the country) and the delegation of sovereign functions to other private actors (deputization of immigration control to someone else) provide insights into how the modern day ‘state of exception’ operates to consolidate immigration control. Through these new mechanisms the effective operation of sovereignty has been able to order chaos and to displace it in such a manner that the creation of anomie is now located far from the territory of the sovereign. Actions by

46 Source: Bail for Immigration Detainees. See http://www.biduk.org (last visited 11 June 2018). 47 Arendt, H. Origins of Totalitarianism (1973), Schocken Books at 273.

Devyani Prabhat - 9781788119214 Downloaded from Elgar Online at 09/29/2021 03:49:02AM via free access 216 Citizenship in times of turmoil? private agents also cannot be readily attributed to the sovereign. This displacement of anomie, rather than its containment in a site such as a detention camp, creates sovereign power that transcends both space and time in terms of immigration enforcement. The new surge of sovereignty is an enhanced version which operates at all times, rather than limiting itself to exceptional national security situations. These developments have the advantage over the older detention–deportation powers or of statutory re-categorization as it leaves behind little trace of disorder which can be directly connected to sovereign exercise of power. Thus, Enoch Powell’s anticipation of bloodshed in his speech can now only be understood in the context of the disguised violence of immigration control. This is the most effective exercise of sovereign power because it is power that is almost invisible in its operation as the state is removed from the locus of immigration control both in function and in territoriality.

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