Today marks a significant date in the immigration lawyer’s calendar: it is 50 years exactly since the Immigration Act 1971 received royal assent. Free Movement staff have planned a party to celebrate the occasion (not).
The 1971 Act is the root of British immigration law. 50 years on, it seems fair to reflect on whether it is still up to the task. The world (at least outside of East London) has moved on from pageboy haircuts and bell sleeves; perhaps it’s time we moved on from 1970s-style immigration control as well.
Setting the Windrush trap
The 1971 Act was passed with the intention of bringing all immigration powers into a single statute. Sensible enough, but as with all Immigration Acts, the political context cannot be ignored. The 1971 Act followed a series of attempts by successive governments to restrict the entry of (non-white) Commonwealth citizens to the UK, having previously encouraged them over to fill post-war labour shortages.
A key tool in restricting migration from Commonwealth countries under the 1971 Act was the concept of “right of abode”. Those without this right now needed permission to live in the UK. The language now seems rather old-fashioned, as new terminology has come into use for day-to-day practice. But it was radical at the time, and it was arguably this tinkering which left Commonwealth citizens and their descendants vulnerable to the further erosion of rights that culminated in the Windrush scandal. As the Williams Review put it:
The 1971 Immigration Act entitled people who had arrived from Commonwealth countries before January 1973 to the “right of abode” or “deemed leave” to remain in the UK. But the government gave them no documents to demonstrate this status. Nor did it keep records. This, in essence, set the trap for the Windrush generation.
For some readers, this may have a similar flavour to the changes currently underway for EU nationals who lost their free movement rights with Brexit. We can only hope that the digital immigration status given to EU residents proves less ephemeral than the assurances given to the Windrush generation.
Lacking on fundamental rights
The 1971 Act has of course been substantially amended since coming into force at the beginning of 1973, but it started life with just 37 sections. Today’s immigration lawyers can only dream of such a short piece of legislation being tabled. The Nationality and Borders Bill 2021, as introduced, runs to 71 sections.
Simple is good, but vague legislation can be dangerous when it comes to people’s fundamental rights. Schedule 2 of the Act, which provides for people to be detained for immigration purposes, contained a distinct lack of safeguards for detainees. Since the 1970s, the detention estate has dramatically expanded, and the length of time for which individuals are held under immigration powers has skyrocketed.
It has fallen to the courts to provide for the main safeguards for detainees, with legal protections such as grace periods and the Hardial Singh principles emerging from case law. There is still no actual upper time limit for which someone can be held in detention, and policy on the detention of vulnerable people has been left to the Home Office to this day.
As late 1993, there were just 250 places in detention centres, compared with several thousand places today. If the Home Office is going to continue detaining people for administrative convenience, Parliament should at least legislate on the matter in a way that better protects the rights and freedoms of those detained. The Borders Bill, needless to say, contains no such provisions.
Source of the notorious Immigration Rules
The 1971 Act provides the legal basis for the Home Office to write its own Immigration Rules (“The Secretary of State shall from time to time… lay before Parliament statements of the rules… for regulating the entry into and stay in the United Kingdom”). While the legislation itself is simple, the Rules created under its authority are not.
Occupying a fuzzy legal space somewhere near secondary legislation, the Rules give the Home Secretary an enormous amount of power over the immigration system. That power has been exercised to create a monster, an unwieldy beast that frustrates almost everyone who deals with it: judges, litigants and politicians alike.
Following the Law Commission’s intervention, the Home Office is now simplifying the Rules bit by bit. We are supremely unlikely to see a return to the Rules in use in the 1970s: just 40 pages long.
Here’s to the next 50 years
During its second reading in the House of Commons, the then-Home Secretary stated that the 1971 Act’s purpose was to bring “order to the confused legislation on the subject”. Since then there have been at least a dozen major pieces of immigration and asylum legislation, resulting in a messy and complex legal framework.
Law and policy is very different in the 21st century, and yet it is a 1970s vision of migration that is built into the foundations of Britain’s immigration system today. Perhaps if future governments, instead of continuing the tradition of the 1971 Act by crafting reactionary legislation, could focus on producing a durable set of future-looking immigration laws, the next Immigration Act may not look quite so outdated half a century on.