Can only victims win? – how UK immigration law has moved from consideration of rights and entitlements to assertions of vulnerability

Abstract

Looking at two prominent moments in UK immigration law, I assess how UK political changes have affected immigration law and practice. In 1968, the newly-independent Kenya’s ‘Kenyanisation’ policies had a catastrophic impact on those ‘Kenyan Asians’ who had elected to retain British passports rather than take Kenyan citizenship. As growing numbers fled to the UK, the Labour government rushed the Commonwealth Immigrants Act (CIA) 1968 through Parliament. This deprived the Kenyan Asians of the rights flowing from their citizenship. The debates in Parliament, in the media and in wider society confronted head on the UK’s arguable breach of international law, and the political and practical difficulties of arguing for a multiracial society with equal rights for all, in circumstances in which many migrant communities faced poor housing, inadequate school provision and discrimination at work. In contrast, the 2012 introduction of new Immigration Rules on family migration, considered in the House of Commons on 19 June 2012, had engendered little public debate beyond lawyers and NGOs. Virtually ignoring the underlying aim of reducing net migration to the ‘tens of thousands’, and the likely effect of the rule changes on ordinary families, the Commons debate concentrated on how judges’ interpretations of art. 8 ECHR rights had prevented deportations of ‘foreign national criminals’, requiring a clear statement in the Rules of how art. 8 would be applied in future. Since then, Home Office policy and practice and applicants’ legal strategies and public campaigns have focused on vulnerability. Courts struggle over definitions of ‘exceptional circumstances’, ‘unduly harsh’ consequences, ‘insurmountable obstacles’ and the ‘precarious’ migrant, while campaigns focus on unfortunate individuals, children, trafficked and other abused victims. I suggest that this apolitical resort to assertions of vulnerability, analogous to Samuel Moyn’s ‘last utopia’ of human rights, is a blind alley, and that instead we need to start, or re-start, a political debate about ‘belonging’ and migrants’ rights and entitlements