UNIVERSITY OF LONDON See over for Abstract of Thesis notes on completion Author (full names) H K .L -filV A £ L k ! A £ . ! k f r X t......... ( Title ofthesis A„STRANae.g..........IN ....T ± \.£........ .tiO.(Vv.G...L.. TO..TfjS UK ............Th.grQU .$.£!.. ...B&Q/)A.....\3..k2r. Degree P .k .:.2 > ........................... This thesis is concerned with the British state’s response to marriage immigration after 1962, Admission of foreign spouses places strangers at the symbolic heart of national life and their claims have often been denied. Meanwhile, British residents who enable such claims may be regarded as having thereby partially excluded themselves from national life. This has been particularly so for women for whom marriage is often considered a statement of public allegiance as well as a private act. The thesis establishes this argument through analysis of decision-making by the legislature, the judiciary and the entry clearance service. It argues that all decision­ makers exercise discretionary powers and will usually do so in accordance with their sense of their institutional function informed by their understanding of the nature of the world. Where this understanding is shared across institutions, congruity in patterns of decision-making may emerge. This is argued to be largely the case for the period from 1962 to 1997. The thesis argues that, since 1997, perceptions of the threat posed by marriage immigration have become more complex and less uniform. Skin colour, gender and formal married status have become less significant. Obedience to state-erected hurdles, cultural conformity and social class have become more prominent although tempered by other competing priorities, particularly human rights values which the courts have recently begun to assert more vigorously. The conclusion places these arguments within the context of the continued desire of nation states to prevent unwanted immigration despite global movement and porous borders. Many British residents are now part of international diasporas or are themselves recent immigrants. It is even more difficult to use immigration control to reinforce the role of marriage and family in maintaining an idealised conception of national life even if recent indications are that efforts to do so will continue. ProQuest Number: 10731741 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a com plete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. uest ProQuest 10731741 Published by ProQuest LLC(2017). Copyright of the Dissertation is held by the Author. All rights reserved. This work is protected against unauthorized copying under Title 17, United States C ode Microform Edition © ProQuest LLC. ProQuest LLC. 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106- 1346 A stranger in the home: immigration to the UK through marriage from 1962 By Helena Wray Thesis submitted for the Degree of Doctor of Philosophy Department of Law School of Oriental and African Studies University of London September 2008 Declaration The work presented in this thesis is my own Helena Wray September 2008 2 Abstract This thesis is concerned with the British state's response to marriage immigration after 1962. Admission of foreign spouses places strangers at the symbolic heart of national life and their claims have often been denied. Meanwhile, British residents who enable such claims may be regarded as having thereby partially excluded themselves from national life. This has been particularly so for women for whom marriage is often considered a statement of public allegiance as well as a private act. The thesis establishes this argument through analysis of decision-making by the legislature, the judiciary and the entry clearance service. It argues that all decision­ makers exercise discretionary powers and will usually do so in accordance with their sense of their institutional function informed by their understanding of the nature of the world. Where this understanding is shared across institutions, congruity in patterns of decision-making may emerge. This is argued to be largely the case for the period from 1962 to 1997. The thesis argues that, since 1997. perceptions of the threat posed by marriage immigration have become more complex and less uniform. Skin colour, gender and formal married status have become less significant. Obedience to state-erected hurdles, cultural conformity and social class have become more prominent although tempered by other competing priorities, particularly human rights values which the courts have recently begun to assert more vigorously. The conclusion places these arguments within the context of the continued desire of nation states to prevent unwanted immigration despite global movement and porous borders. Many British residents are now part of international diasporas or are themselves recent immigrants. It is even more difficult to use immigration control to reinforce the role of marriage and family in maintaining an idealised conception of national life even if recent indications are that efforts to do so will continue. 3 Acknowledgements My thanks go to Middlesex University for their financial and other support, to Judy Vaknin, archivist at Middlesex University, for her help in locating historical materials, to Mandy Ivemy and her colleagues in the entry clearance service for facilitating my visit to entry clearance posts, to Mahmud Quayum at Camden Community Law Centre for the initial inspiration, to Professor Werner Menski for his valued advice and support throughout the supervision process and finally, conventionally but sincerely, to my family. 4 Table of Contents DECLARATION...., ..................................................................................................2 ABSTRACT........ .............................. 3 ACKNOWLEDGEMENTS ............. 4 TABLE OF CONTENTS............................ 5 TABLE OF CASES... ............... 10 TABLE OF STATUTES................................................................................................14 CHAPTER 1: INTRODUCTION.......... ........................ 15 1.1 Introduction to the thesis............................................................... 15 1.1.1 Subj ect of the thesis............................................................................................ 15 1.1.2 The law....................................................................................................................17 1.1.3 The literature................................................................................... 19 1.1.4 Structure of the thesis..........................................................................................22 1.2 Context............................... 23 1.2.1 Married w om en's nationality............................................................................ 25 1.2.2 The Aliens Act 1905 and the entry of spouses...............................................29 1.2.3 D iscussion............................................................................................................. 33 CHAPTER 2: DISCRETION AS A FRAMEWORK FOR ANALYSIS .......35 2.1 What is discretion?.................................................................................................36 2.2 Discretionary decision-making............................................................................ 38 2.3 Discretion and legal theory: Austin, Hart and Dworkin..................................42 5 2.4 Discretion and interpretation.............................................................................. 48 2.5 Law, discretion and the conceptual framework.............................................. 60 2.6 Conclusion ............................................................................................................... 63 CHAPTER 3: LEGISLATIVE DECISION-MAKING BETWEEN 1962 AND 1997...... -65 3.1 The Commonwealth Immigrants Act 1962....................................................... 65 3.2 The 1965 changes................................................................................................... 69 3.3 The 1969 changes: The ban on husbands and compulsory entry certificates............................................................................................................................73 3.4 Reversing the ban: The 1974 rule changes........................................................77 3.5 The defence of equality ....................................... 80 3.6 The birth of primary purpose ..............................................................................84 3.7 Refining primary purpose ........................... 86 3.8 The forced march back to equality...................... 90 3.9 Conclusion.................................................... 97 CHAPTER 4: JUDICIAL DECISION-MAKING BEFORE 1997....................103 4.1 ‘Having it both ways’: judicial attitudes in non-primary purpose cases 104 4.1.1 The marriage of convenience........................................................................... 104 4.1.2 Degrees of hardship........................................................................................... 108 4.1.3 Intention to live together................................................................................... 110 4.1.4 Parties have met .................................................................................................