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Immigration system failure: where did it all go wrong?

Immigration system failure: where did it all go wrong?

On the face of it, the current immigration ‘system’ does not resemble a true system at all. A member of the public reading newspaper headlines about the latest immigration controversy; a migrant trying to understand what documents to include with an application; a lawyer attempting to explain the nonsensical requirements; a civil servant puzzling over a conflict between a law and a policy; or a judge trying in vain to discern some sort of purpose to it all: every one of these would question whether there is any intelligent design behind the shambles. Applications by non-citizens to enter or remain in the UK are governed by a cobbled-together conglomeration of incomprehensible and outdated laws, criteria that are set out in constantly shifting so-called ‘rules’ and apparently randomly privatised services delivered by the lowest bidder. Immigration laws, rules and procedures appear to have evolved chaotically in response to short-term political crises and economic pressures, with very little in the way of strategic planning.

The Home Office, the government department responsible for immigration, was memorably described as ‘not fit for purpose’ by then Home Secretary John Reid in 2006 and, if anything, its reputation has only deteriorated since. But to see only accident and misfortune is to miss an important point. Politicians and civil servants are not naive or powerless, nor has this ramshackle construction evolved of its own accord. There are architects and engineers behind it all and the broad way in which the present system operates is the result of deeply ingrained thinking, long-term policies and conscious choices. Sometimes those choices may have been decisions not to act, but that in no way reduces responsibility for the predictable consequences of inaction.

Policy of exclusion

Since 1962, successive governments have pursued an exclusionary citizenship policy. It is hard to escape the conclusion that this was and still is intended to preserve the existing ethnic composition of the population. In other words, and not to beat around the bush, the policy is racist. Contorted legal devices were initially deployed to maintain a facade of wide citizenship, but in practice they denied rights of entry to those citizens who were black or Asian. The pretence ended with the creation of new forms of British nationality and the abolition of birth-right citizenship in 1981. Since then, citizenship policy has been repeatedly tightened further by means of wider and tougher character tests, a written examination, dramatically increased costs, new bureaucracy for EU citizens seeking citizenship and the increased use of citizenship-stripping powers. For a short time, during David Blunkett’s tenure as Home Secretary, cosmetic attempts were made to present British citizenship as more potentially inclusive in nature, while, in reality, reforms only made citizenship harder to acquire.

This exclusionary approach heavily influences the shape and nature of the immigration system that acts as a gatekeeper to citizenship. The immigration system has also therefore been exclusionary, albeit with very significant exceptions during the decade from 2000 to 2010. Restrictions are imposed both directly, through rules, and indirectly, through complexity and cost. To enforce this approach, the United Kingdom’s border has been exported abroad and heavily fortified with fencing, scanners, guards and dogs. These twin policies of externalisation and securitisation have been very effective at keeping unauthorised migrants out but at a huge cost in migrant lives lost.

The myth of deterrence

A ‘pull factor’ is something that, in theory, attracts migrants to one particular destination country over another. Policies allowing migrants to work or claim benefits might be examples, as might fair treatment, a common language and a nice climate. Rather than seriously attempting to enforce removals, deterrent policies intended to eliminate as many of these supposed ‘pull factors’ as possible were introduced, beginning in the 1990s in the asylum sphere and then later for unauthorised and authorised migrants alike. The ‘hostile environment’ system of everyday citizen-on-citizen immigration checks, by employers, landlords, banks, hospitals and others, aimed at unauthorised migrants began tentatively in 2006 and was mas- sively expanded from 2012 onwards. Then, a seemingly never-ending series of rule changes targeting authorised migrants began in 2010, including a minimum income threshold of £18,600 for marriage and partner visas and increases to the length of time spent here and the qualifying salary needed to achieve settlement. The purpose of these changes was to break the link between migration and settlement, an explicit objective for both Theresa May as Home Secretary and David Cameron as Prime Minister.

Unlike the secure and external border, there is no evidence that any of these deterrent policies have achieved their overt objectives. What research is available suggests that reducing pull factors simply does not work. The result of these policies, combined with what have, in reality, been tokenistic attempts at detention and deportation, has been the growth of a significant population of unauthorised migrants.

Choices

What has made all of this possible is a highly centralised immigration system governed by total executive discretion with very weak oversight, whether by the legislature or the judiciary: there is no policy devolution and little to no input from departments other than the Home Office. None of this is accidental. The Immigration Act 1971, which continues to form the bedrock of immigration control today, embodies a deliberate decision to confer huge power – and huge responsibility – on the shoulders of the Home Secretary alone.

Seen in this way, today’s immigration ‘system’ includes lacunae and accidental outcomes, as well as explicitly expressed rules. Or, to put it another way, the law comprises the actual effects of the laws themselves, as well as the stated intent. Politicians and policy-makers are responsible for the whole system, including the unintended but often eminently predictable effects.

Unauthorised migrants

The growth in the number of resident unauthorised migrants was the foreseeable outcome of multiple facets of citizenship and immigration policy over many years. Politicians have repeatedly stated that unauthorised migrants are not welcome and have continually passed laws criminalising their presence, yet no government has been willing to detain and remove them. A radical and controversial programme of building detention camps and tearing families and communities apart, similar to what we saw under President Trump in the United States, would have been needed to enforce such ideas. Instead, for example, asylum seekers whose claims are rejected are unceremoniously evicted from their accommodation, while their departure from the United Kingdom is not enforced. The same applies to migrants who overstay their visas. Birthright citizenship was abolished in 1981 and high fees have been introduced in recent years, both of which prevent children born in Britain from registering as British even when they qualify, and thus making this precariousness generational.

The outcome of choices like this over many years is that the population of unauthorised migrants could now be as high as 1.2 million, according to Pew Research. It is thought there are around 215,000 undocumented non-citizen children living in the UK today and a further 117,000 young people between the ages of eighteen and twenty-four who were born in the country or brought here as children. The size of this unauthorised population is likely to increase significantly after Brexit for two reasons. Firstly, policy-makers have chosen to require EU citizens currently resident in the UK to apply for a new immigration status. It is inevitable that tens or even hundreds of thousands of EU citizens will not do so and will therefore become unauthorised. Secondly, EU citizens not resident in the UK are still today able to enter the country without a visa even after Brexit. It is inevitable that some will then remain in the country to work and live without applying for the permission they will need to do so lawfully. They will be unauthorised migrants, as will be their children.

I am not saying for a moment that these unauthorised migrants should have been removed previously or that they should be removed now. Rather, I believe that policy-makers and politicians should face up to the choices they have made. It seems to me self-evidently undesirable that there should exist a large group of mainly black and ethnic minority non-citizens, who live and work in real communities but who can be easily exploited, with no access to proper healthcare, decent housing or the social safety net. We cannot pretend to ourselves that our society is a fair one while this gross inequality is allowed to fester.

No government is forcibly going to remove as many as one million migrants, many of whom are deeply embedded in our communities. Another way forward is needed.

Opposing views of immigration

These various exclusionary policies and practices are founded on the premise that migrants are a threat. Immigrants have variously been regarded as a danger to racial purity, to culture, to religion, to values, to traditions, to solidarity, to security, to public funds, to jobs, to women and more. Some politicians have described migrants in almost biblical language, as a ‘flood’ or ‘swarm’ against which (not whom) existing residents need to be protected and shielded. The days are gone when politicians could make explicit reference to race but, as Maya Goodfellow argues in Hostile Environment: How Immigrants Became Scapegoats, references to culture, values, traditions and solidarity have become proxies. Major political figures continue to associate migrants with crime and terrorism, despite the evidence showing that migrants commit fewer crimes than existing residents, or the fact that major acts of terrorism on British soil have been carried out by British citizens born and brought up in the country. Even discussing ‘migrants’ as a group at all seems peculiar, given that they are a hugely disparate range of individuals defined only by not being ‘us’.

An opposing view, that migrants should be regarded as an economic opportunity, has become an important strand of contemporary thinking on immigration. However, those migrants who are perceived as desirable tend to be defined as exceptional compared to others; they are ‘the brightest and the best’. There is nothing inherently wrong with seeing immigration as an opportunity, but the discourse around economic migration often only serves to reinforce the idea that migrants are a threat in general and too often this way of thinking has degenerated into treating migrants as a natural resource to be managed, mined and exploited.

We cannot and certainly should not go on as we have. We need to move on from seeing immigration as a ‘take it or leave it’ contractual transaction in which the United Kingdom can dictate the terms of entry and stay no matter how harsh or unfair those terms might be. Instead, we should see newly arriving migrants as citizens-in-waiting who will join and be part of our society. The fact is that most migrants who arrive in the United Kingdom to work, join family members or seek sanctuary will be allowed to stay. It is wrong to disadvantage them deliberately from the start, and wrong to treat them as a disposable servant class.

Meaningful change should begin with citizenship policy. Drawing up an explicit rather than implicit policy would be a good start; one that is inclusive, which regards and treats migrants as future citizens and treats them and existing citizens with respect and fairness. This means recognising the existence of the unauthorised population, offering an amnesty (or at least proper routes to regularisation), reforming family migration routes to take account of not just economic concerns but social ones too, and rationalising economic migration routes.


This is an extract from the introduction to my book Welcome to Britain: Fixing Our Broken Immigration System. If you would like to read more you can order a copy from your Lovely Local Bookshop, from the publishers Biteback (use code WTB43 for a 20% discount) or from Amazon and other internet retailers.

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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