Rina Banti. Thatcher’s government immigration policy as an example of national priorities maintenance in view of European Union.

This article analyses the unique features of M. Thatcher’s government approach in the area of national legislation aimed at reduction of colour immigration from former British colonies to the UK in view of the EU general requirements on ‘open-door’ policy development for the member-states. The article also highlights ‘new’ measures taken by the Conservatives especially the deportation and the illegal immigration fight directed towards the protection of the British national priorities in spite of the government’s obligations in the framework of the EU legislation..

 

Keywords: colour immigration, the British Commonwealth of Nations, citizenship, Conservatives, Great Britain, M. Thatcher, the European Union, ‘open-door’ policy, illegal immigration, deportation.

 

Britain’s experience under M. Thatcher’s leadership is remarkable due to its being an EU member-state and recognizing an open-door policy, on the one hand, while restricting the rights of those who entered its borders and, on the other hand, Thatcher managed to refuse those, who had a perfect right to immigrate.

V. Bevan, University of Sheffield expert on British law, gives the following definition of ‘an open-door policy’: «An open-door policy does not mean that aliens are unrestricted in what they can do once admitted or that they are free from the possibility of explosion. Thus, the grant of citizenship may be denied to them or carefully regulated, their economic activities may be circumscribed, e.g. by the payment of extra taxes, the denial of trading licenses, an obligation to train local workers in their business; legal, civic and political rights» [2, p.29–30].

In order to understand particularity of the approach taken by Thatcher’s government in terms of colour immigration and the measures taken to prevent former British colonies dark-skinned people from entering the country, we should briefly recall basic legal functions of the European Union, which Britain joined in 1973, dealing with entrance and residence rights, free movement, employment and social benefits.

The European Union (EU) is an autonomous and supra-national establishment having uniform and unitary legal norms. Its two basic law regulations are European Union Law based on the Foundation Treaties and National Law based on the EU Constitution which are independent from one another. The Treaty of Rome (1957) defined filling of gaps principles in the subsidiary legislation of the EU member-states. The European Commission functions as a ‘watchdog’ handling the EU violations.

And if necessary, it can bring legal actions to the European Court of Justice, powers of which were allocated to it by the national states to solve issues. Interaction between the Court and local legal systems consists in creating new legal rights and responsibilities which, in their turn, penetrate in their legislative field and influence local legal norms being, in such a way, a powerful stimulus of national sovereignty restriction.

It should be noted that despite the Rome Treaty provisions on workers’ free movement within the EU member-states (Article 48 and 49), abolishment of any obstacles to free movement of people, goods, services and capital (Article 3) and a ban against any kind of discrimination based on ethnic background (Article 12) [38], rights of individuals weren’t granted. These legal regulations just outlined the objectives which should be achieved by certain EU member-states or the time limits within which they should be achieved. The Court of Justice didn’t stop the functioning of these obligations, even though it decreed that national states could exclude people going on a premise of public policy, security or health. One way or another, all mentioned above principles could be contested in the national state courts.

The Treaty of Rome, Article 48, entitled the workers who already had a job to enter the country. The second provision of Directive 68/360/EEC gave citizens and their families the right to leave their territory in order to engage into a job search and undertake a job on the territory of other EU member-states [38]. British immigration rules restricted this period up to 6 months. Within this period all the EU citizens had to be given a work permission or they were required to leave the country. Thereafter, British Immigration Act of 1988 annulled a demand to leave the country for the EU nationals.

Freedom of movement of workers couldn’t be realized only through common entrance and residence regulations. Equality of applications meant abolition of obstacles to workers mobility to realize their rights on family reunion as well as measures meant to help a family to integrate in a host country. Article 5 of the Treaty stated that applicants, not being the EU citizens, should be given an assistance in a job search. Direct or indirect discrimination on the ground of a national identity was banned by Article 70 of the Treaty. These principles, stated in the British legislation, were not actively followed both by member-states and by Britain itself. Expenses of new immigration, confirmed in all the EU normative acts, and alleged high social benefits for foreign workers required from the UK to change the situation when receiving individual had to provide for their relatives from non-member states.

Development of immigration legislation. Starting from the late 40s and till 60s of XX century mass immigration from Asia and Africa to the United Kingdom led to a social tension in a British society. As a protective counter-measure aiming at reduction of colour population, British authorities had to restrict the right for this category of people to enter the «mother country», which they had as ex empire subjects.

The Commonwealth Immigrants Acts of 1962 and 1968 became first legislative measures aiming at prevention and reduction of colour immigrants` number from the New Commonwealth. Anti-immigration measures reached their climax on passing of The Immigration Act 1971 which came into effort in 1973 under E. Heath’s conservative government, that shared the positions of the right-wing representative – Enoch Powell [22, p.68]. Enoch Powell very often used the term ‘Britishness’ in order to outline more tightly the frontiers of the identity around the British Isles and disengage Britain from any obligations to colour nationals inherited from the empire. Strongly criticizing the immigration policy of the two ruling parties for a failure to stop colour immigration, Powell, in the words of R. Cohen, “developed the theme of ‘an alien wedge’, which threatened the notion of legality that had hitherto informed the British national culture” [3, p.77]. Powell succeeded in touching the nerve of popular sentiments among representatives of almost all parties and in having a significant impact on strengthening of a negative attitude of natives towards colour immigrants] 31, p.373–374, 377]. As D. Studlar notes, Powell managed to fuel electors’ sentiments and direct their votes to the Conservative Party, which served as a key factor of 1970 general elections victory [32, p.44–64].

Discriminating ‘partial’ principle of Immigration Act of 1971 dividing citizens into two groups on the ground of skin colour, pursued a hidden goal to stop colour immigration to Britain. This Act gave a right of abode in the country for “partials” – the UK and Commonwealth nationals who had been residents for 5 or more years or gained citizenship through naturalization or registration (it related only to a small qualified number of non-white citizens) as well as to those who became citizens through their background. Almost all individuals from that category were descendants of white British settlers. At the same time, this Act denied that right to «non-patrials», most of which were colour citizens, e. g. were descendants of dark-skinned British colonies residents. Despite such kind of classification, the idea of «partiality» helped to avoid apartheid labels and include a small group on a non-racial ground [16].

Having introduced the status of “non-patrials” from the Commonwealth countries, Immigration Act of 1971 levelled their rights to the rights of alien workers from Germany and other European countries. At that time “non-patrials”, the Commonwealth citizens and foreigners could enter Britain on equal terms. None of them had a right to become a resident or bring their family. The Act de jure increased the number of people who could enter Britain without control but, in fact, it related only to those who had close links with the UK, i. e. mostly to citizens of European descent, presence of whom didn’t raise any fears [26, p.46– 47].

On January 1st 1973 the Great Britain entered the European Economic Community as an equal member. Once it agreed to recognize free movement of labour principles within the EU, the EU nationals – Germans, Spaniards, Greeks and Italians – were granted a right of free entry to settle there. The position of the United Kingdom in respect of the dark-skinned immigrants, intensively becoming its citizens during the 60s – 70s, differed sharply from the position in respect of the white immigrants from the European countries. I. Spencer notes that weakening of immigration restrictions for 200 million people from the countries with which Britain used to be at war, sparked some public outcry [30, p.144].

The dramatic alternation in immigration issues observed during the second half of the 1970s as well as a conflict on the racial grounds between extreme right-wing and extreme left-wing forces in 1977 gave legitimacy to a demand to introduce a strict control over the colour immigration in Margaret Thatcher’s election campaign in 1979.

Qualitative difference of ‘new’ Conservative’ position on immigration issues turned on closer associations of the Conservative Party with Powell’s ideas. To play with ‘Powellism’ more openly, taking into account unpredictable outcomes of the politics of the streets and perhaps open racial violence, was unpredictable and even dangerous. Since that moment ‘immigration and race’ issue became a common topic of new Conservatives’ debates.

M. Thatcher in her TV interview in January 1978 admitted that she herself firmly linked to that tradition. Referring to the trends in New Commonwealth and Pakistani immigration, she stated: «I think it means that people are really rather afraid that this country might be rather swamped by people with a different culture … the British character has done so much for democracy, for law and done so much throughout the world that if there is any fear that it might be swamped people are going to react and be rather hostile to those coming in» [21].

That was exactly the message that most part of British electors wanted to hear. If previous Immigrants Acts led to cessation of the British Caribbean population immigration based on ‘breadwinner’ format, then it went about control strengthening over Indian, Bangladeshi and Pakistani spouses and dependants who wanted to join their breadwinners in Britain.

Right after the Conservatives came into office, Home Secretary W. Whitelaw proposed on December 4th 1979 to adopt «White Paper on Proposals for Revision of the Immigration Rules», passed later by the House of Commons [15]. New measures restricted the entry of dependants (women and children) of the immigrants from the British Commonwealth of Nations and marriageable young men from the Indian subcontinent. In Whitelaw’s opinion those citizens right to entry was the result of British imperialistic legacy [8, cols.253–382; 15]. Labour Party politician Eric Deakins noted in his critical speech that new measures obviously violated Articles 3, 8 and 14 of The European Convention on Human Rights and were of racist, humiliating and inhuman nature since they infringed on rights of Asian women and the elderly. In spite of the fact that the government realized that they could be accused of discrimination and Asian women-immigrants’ complains could reach The European Court of Human Rights, new Conservative authorities were firm in their deeds aimed at ultimate stopping of colour immigration. The government officials who realized the immigration policy, were recommended to openly explain the effects of marriage institution abuse by immigrants. At a later time, new Immigration Rules adopted by the British Parliament in 1980 were changed in 1983 in the light of demands of The European Court of Human Rights [9, cols.360–431; 10, cols. 360–375].

Thatcher’s government success in the field of immigration consisted in passing The Nationality Act in 1981 which came into force on January 1st 1983 [11; 12]. This Act changed a definition of the British nationality functioning since 1948 in accordance with which all empire nationals could become permanent residents of the UK. Despite the fact that this Act was rather a tool to balance nationality definitions which had to be in line with a developing immigration legislative practice rather than an immigration act, it served for many years as the main act regulating immigration issues. Tough immigration policy followers represented by the ruling Conservative party managed to re-shape British national identity and coordinate it with geographical frontiers of the UK. Thus, the right of former UKC nationals to settlement was dramatically restricted, at the same time, the act enabled the British «partials» from «Old Dominions» (Canada, Australia, New Zealand and South Africa) to immigrate to Britain and register as British citizens. Usage of such terms as ‘blood’, ‘family’ and ‘relatives’ enabled to differentiate between ‘insiders’ and ‘outsiders’ and precisely define the category of people who should have a right of abode.

New British nationality definition based on the discriminative grounds enabled the Conservatives to realize their strategic intention to reduce colour immigration stated in Clause 4 of The Conservative Party General Election Manifesto [4].

In 1986, Britain signed the Single European Act (SEA), Article 8a of which stated that the internal market shall comprise «an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of this Treaty» [37, p.228].

Stephen Wall notes in his memoirs that in Foreign Office workers’ opinion this definition didn’t guarantee freedom of movement for all EU nationals independent of their looking for a job or not, let alone the Third World citizens living on the EU territory [39, p.70]. Despite the fact that this statement was not legally sustained and merely was of political agreement nature, Britain tried to backstop the security of its internal interests by the following phrasing in the Resolutions-Declaration of the Act: «Nothing in these provisions shall affect the right of Member States to take such measures as they consider necessary for the purpose of controlling immigration from third countries, and to combat terrorism, crime, the traffic in drugs and illicit trading in works of art and antiques» [37, p.1070].

In Geoffrey Howe’s opinion (the Foreign and Commonwealth Secretary), the outcome of the European summits discussions on this issue which took place on the 2nd-3rd December 1985 could be called satisfactory and the United Kingdom achieved all its goals. In particular he said: «National competence on frontier controls against terrorism, crime, drugs and immigration from outside the Community was not affected. Furthermore, the arrangements (the ‘Luxembourg compromise’) by which a member state could invoke a very important national interest had not been challenged or changed» [34, p.418]. Nevertheless, the European Commission never shared British position, while the Court of Justice held the common member-states opinion on the commitment to frontier-free travel zone idea, in other words, absence of passport control for EU nationals or Third World nationals who met the requirements for entering the EU member-states at their first visit. This concept was not accepted by Margaret Thatcher. A passport check by immigration service officers was an important impediment for those who tried to violate the law and had to be detained. The UK Home Office understood the real meaning of this position aiming at control maintaining both over international criminals and traffic in drugs and illegal immigration.

The Immigratin Act passed on May 10th 1988 became another conservative government legislation initiative [18]. This Act annulled the right of New Commonwealth immigrants, settled in Britain before 1973, to bring their families and obliged them to provide evidences of having decent housing facilities and financial ability to support their dependants. In accordance with the new provisions, illegal entry and abode or legal entry but postliminary failure to comply with abode requirements could be legally punished. It only related to colour New Commonwealth citizens while EU citizens were no longer required to leave the country.

Illegal immigration fight. Wishing to bring British immigration policy into compliance with European legislation, Thatcher’s conservative government pursued a tough policy against illegal entry by immigrants. Immigration Service officers were responsible for issuing entry permits and exercising the controlling measures. All the people who sought entry were thoroughly checked. Especially it related to husbands and intended wives who wanted to join their spouses and spouses-to-be having British citizenship [35].

Among the institutions conducting internal control over immigrants were found such institutions as The Department of Health and Social Security (DHSS), The National Health Service and Social Security, Unemployment Benefit Offices, hospitals, Offices of Vital Records and the local authorities responsible for giving grants to students. Thus, for example, the new rules of The Social Security Act of 1980 denied the right to receive benefits for all illegal immigrants, individuals subjected to deportation, overstayers, as well as individuals allowed to enter the country providing that they had not applied to public funds for benefits before [19]. By checking the lists of all institutions, using the Home Office computerized database and cooperating with information department of illegal immigrants and Health and Social Security Services, suspects were traced [25, p.437–452].

In addition to the existing measures, The Police and Criminal Evidence Act 1984 gave the police even wider powers including a right to investigate immigration rules violations, a right to gather information and a direct control over immigrants [7, p.97–98].

Deportation. The Conservatives’ intention to fulfill their pre-election promises led to their attempt to realize an idea of colour immigrants’ deportation to the country of origin. This idea was based on The Immigration Appeals Act of 1969 and Clause 29 provisions (Voluntary Repatriation Scheme) of The Immigration Act 1971 [17]. This idea was supported by the right wing of the Conservative Party before ‘new’ Conservatives came to power [36; 29] After 1973 the immunity from deportation, previously possessed by the Commonwealth nationals who had live in the IK for 5 years, could be obtained only by those who entered Britain on the basis of marriage to a British citizen or received citizenship by naturalization procedure. The status of an ‘illegal entrant’ meant «a person unlawfully entering or seeking to enter in breach of a deportation order or of the immigration laws» [17].

In order to implement the policy of illegal immigrants’ deportation, the authorities resorted to the courts and to the wider powers of the Home Office, which also contradicted the European Convention on Human Rights. Alleged illegal immigrants were imprisoned, as a rule. At the same time, the Home Office decided on the proper form of a court action for them, and they faced two options – either a court accusation requiring a proof or a detention cancellation. It should be noted that the latter was never practiced. In spite of the fact that the alleged illegal entrant during their detention had a right of habeas corpus, the success of appeal depended mostly on judges readiness to support Home Secretary’s decision concerning the evidence which became the grounds for the detention [24, p.24–25].At the same time, there were no effective measures against excessive powers of the Home Office or the Immigration Service officer responsible for issuing entry permits. Thus, the introduction of new immigration rules was accompanied by a significant increase in administrative and judicial proceedings initiated by the Home Office against immigrants.

The case of Zamir from Pakistan who entered the country without revealing the fact of his being married became the reason for widening the notion of illegality [6]. It started to include fraudulent actions, such as use of false documents, a false evidence of previous legal stay in Britain, a false evidence of being a dependant of another immigrant who abode legally in Britain, as well as concealment of important facts from immigration officers when entering [1, p.425–427]. The Home Office also accused two other entrants – Khawaja and Khera of falsely receiving an entrance permit [5]. The House of Lords ordered that Home Secretary had to prove that those individuals did breach an immigration order before carrying out his powers and deporting them. Zamir’s case was used as a precedent to make an award on those two cases. Thus, developed trend revealed the fact that court system openly supported tougher government control over immigration and turned courts into pretty much of immigration tools. These infamous court trials attracted attention of The European Court on Human Rights and The European Commission on Human Rights. The main claims laid by these institutions on the British Government consisted in the fact that they used a detective evidence as a ground for adjudication against immigrants which violated The European Convention on Human Rights [1, p.425–433].

On passing the Act of 1981, those people who didn’t manage to obtain a citizenship on the grounds of jus soli status (on the grounds of birthplace) also could be deported. The most sensitive as well as widely debated and argued clause of this Act was the one abrogating a right of an automatic British citizenship for those who were born in Britain. Since the Act came into force, citizenship of the children who were born in an immigrant family in UK (previously automatically qualified as full British citizens), became dependent on their parents state. In accordance with the new provisions, children and their parents had to prove their right to become British citizens. As a result, a child’s state eroded a legal status of their parents who had resided for a couple of years in Britain but then could be viewed as illegal immigrants. Possibility of statelessness for minors and their possible deportation could create big difficulties at the level of international relationships.

With respect to deportation, the Act of 1988 contained really tough measures [18]. As Clause 4 dramatically limited availability and scope of appeals for those without UK citizenship and those who sought a refugee status. In case of an alien who had been in the UK fewer than 7 years, an appeal was not allowed. In practice, the government started to view the courts as a tool of immigration control and of interfering in Home Secretary’s discretionary powers.

The Home Secretary extended authorities to decide on a deportation at the administrative level. Now immigration officers at the inspector level (instead of the Immigration and Nationality Department workers) could issue deportation orders. In the first months of 1989 alone, almost 1000 people were deported. Immigration officers were allowed to offer alleged infringers a speedy exit instead of waiting 14 days in prison until all formalities completed. About 70 per cent of deportees took this option [3, p.86]. On top of that, the police got more intensively involved in immigrants issues which led to an increase in number of joint raids by the police and The Immigration Service.

From there, one can outline some general trends. The Home Office workers used their own assessment for deportation different from prison officers’, social workers’ assessment and assessment of an individual’s close people and even from a court one. They deported colour immigrants so decisively, that they totally ignored further destinies of deportees’ relatives be it a wife or children.

It is interesting to trace the number fluctuations of the deported during the three Thatcher’s terms of office. If in 1979 the total number of the deported made 1,382 people, in 1984 – 1,545 people, then it started to increase gradually and, in 1990, it already made 5600 people. After Thatcher’s resignation in 1990 and during first two years under the leadership of John Major this trend retained. In 1991, the total number of the deported made 5,600 and, in 1992, it made 6,100 people [3, p.81]. Thus, the total number of the deported increased during this period by.

According to the data from the Home Office, 394 people were found ‘illegal entrants’ and 420 people were deported or left Britain voluntarily in 1979. In 1980, the number of illegal immigrants made 583 people, among which 462 people were deported or left Britain voluntarily. In 1981, these numbers made 431 and 351 people. In 1982 – 607 and 431 people, in 1983 – 426 and 281 people [13; 14]. On the basis of these figures, it could be concluded that during the Conservative term of office the obvious trend to use state powers for exclusion and deportation was observed. According to the data from The Joint Council for Welfare of Immigrants the total number of deportation orders increased by 145 per cent in between 1979–1983 and the number of forced deportation orders increased by 64 per cent [13; 14]. With the help of computer database to exercise the tough measures against illegal immigrants, the total number of deportations in between 1979 and 1987 made 16,460 and entry was denied to 7,300 people. The half of this amount made dark-skinned individuals from the British Commonwealth [27, p.71].

Conclusions. When decolonization process was over and British immigration policy towards former colonies citizens was shaped, British authorities realized that the future of the country lies in a plane of relations development rather with Europe than with the Old or New Commonwealth. In early 1980s, Europeans who did not have a right to entry the UK for more than 30 years ago, now had a free entry possibility. At the same time, the status of Commonwealth nationals was equated to the status of aliens in the post-war Britain.

M. Thatcher’s attitude towards Britain’s joining the EU was ambiguous. If in 1959, Thatcher as an MP was dead sure that entering the EU under any suggested terms was a right step to take which seemed necessary from the point of British national and economic interests, however, once Britain joined the EU in January 1973, she changed her position which became similar to Churchill’s one who believed that «the attitude of Great Britain towards ‘federal links’ would be determined by its dominant conception of a United British Empire… We are one with Europe but not of it». Later on, admitting the truth of E. Powell’s warning that Britain’s entry into the Common Market would lead to unwanted loss of sovereignty, the policy of the last Conservative government under the leadership of M. Thatcher was clearly expressed in the motto ‘with Europe but not absorbed’ [33, p.361–363]. Thatcher’s approach of post-consensus both in general politics and towards colour immigration issue found its expression in balancing between a strategy of the Parliament influence strengthening, efficiency of the executive power, undermining of a traditional role of the state institutions and a push on intermediary institutions (on trade unions, in particular) and tactics of everyday concessions and recognition of politics practical limits [28, p.70–75].

A. Mullen states that significant further changes in UK immigration practice were the result of changes in the balance between anti- and pro – EU forces, which on their own were linked to competing social forces at the global, European, national and institutional levels [23, p.217–231]. Thus, in the 1990s, British immigration rules and policy of asylum grant started to be brought in line with European standards established by the European Court of Justice and The European Court on Human Rights. In 1990, Britain together with the EU member-states signed The Dublin Convention in accordance with which Britain could reduce the number of asylum-seekers and hand them to another EU member-state. Despite the refusal of Britain to become a member of the Schengen Area in June 1992, the agreement between France, Germany, Belgium, Luxembourg and the Netherlands contained the principles that formed the basis for the EU immigration policy model. In December 1991, in Maastricht, when these proposals as a draft copy were adopted by the External Frontiers Convention (signed by 12 member-states including Britain) for the further development and an agreement conciliation on immigration control. Taking into account that the European Court of Justice viewed The European Convention on Human Rights as an essential part of an EU member-state legislation, human rights were not going to be ignored. Since Britain as an EU member-state recognized existence of racial equality between members of this union, in 1992, the British government had to support The Statement on Racism and Xenophobia adopted in 1991 in Maastricht. This Statement required to introduce the anti-discriminatory practice in order to influence such areas as immigration procedures, employment, education, attitude of the police towards immigrants as well as family reunification rights [20].

In 1997, the Labour government signed a new version of The Maastricht Treaty, the best part of which was dedicated to workers and their families’ rights protection in the EU member-states. A significant part in this process was assigned to asylum policy and correspondence of the immigration policy to the European standards established by the European Court of Justice and The European Court on Human Rights. At the same time, in spite of a big number of appeals by the Third World immigrants to these courts and findings in their favour, the British government managed to dismiss their claims to protect state interests under new circumstances.

It goes without saying that difficulties were faced at attempt to differentiate between issues of internal minorities, immigrants and refugees. In Satvinder’s opinion, freedom of movement of people could be justified providing that there is an economical equality between nations. Otherwise, one nation risks bigger migration flows than the other one [26, p.113]. This argument doesn’t consider the fact that a big number of the Third World non-EU citizens working in Britain do not enjoy a free movement guaranteed by the EU legislation. Undoubtedly, there is a contradiction between forecasts on increasing the number of workers from the Third World countries needed to sustain European economic growth, and a withdrawal of the United Kingdom from any agreement abolishing its national border control and an attitude to those who are seeking a political asylum here. But even in the case when the individual rights, embodied in the EU immigration rules, aim primarily at achieving a strong economy and high living standards in Europe, they do not guarantee the circumstance in which the receiving party will be able to avoid the social burden of immigration.

Thus, providing a legislative framework for the rights of immigrants at the individual level demolishes a wide-spread view that Britain, with its vanished Empire, can no longer afford to develop its own immigration policy in order to maintain their national priorities.

 

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