The UK and Immigration

by J MW

The UK and Immigration

by J. Enoch Powell MBE (16 June 1912 – 8 February 1998)

The story which I have to unfold is unique, and that perhaps is the potential interest of it for nations other than the inhabitants of the United Kingdom, because it exhibits the peculiarity both of British law and of the British character. The uniqueness of my story is also a caution against the vulgar error of supposing that when we apply the same word (or its relevant equivalent in translation) to the affairs of different countries we are talking about the same thing or even about different things which have any significant commonality.

Every society has a definition to identify those who belong to it—I shall resolutely refuse to define the word ‘belong’ itself, regarding it as sufficiently understood for my purpose without definition—and to distinguish them from the rest of mankind who do not belong to it. In the case of a club that definition is to be found in the rules. In the case of a state it is to be found in its law of nationality or citizenship. (The two terms, nationality and citizenship, are not exactly interchangeable, but the course of my narrative may cast light upon their difference.)

Until recent times the nationality law of the United Kingdom was essentially feudal. It was based on the conception according to which, between whoever is born in a territory and the lord of that territory, there exists a nexus of reciprocal rights. Those who were born in England were consequently subjects of the Crown, and to be born with that allegiance was to be a British subject. The law of the United Kingdom thus divided mankind into two classes: British subjects, and the rest. (Strictly speaking, there was a third category, namely, ‘British protected persons’; but it was of no importance generally and I mention it only to defend myself against anyone complaining that I have overlooked it.)

Of course a person not born within the allegiance could become a British subject by being allowed to undertake that allegiance. This might be a formal legal act of naturalisation, or it might follow as a consequence of some other event. A woman, for example, became a British subject by marrying one, because it was inconceivable in that relationship that she did no share the allegiance which might require her husband to fight and die for his sovereign.

This law of nationality was a ius soli, ‘right of the soil’, as distinguished from ius sanguinis, ‘right of blood’. There were, it is true, circumstances in which children born to British subjects but born outside the allegiance were recognised as British subjects; but this anomaly—for such it was—was jealously limited and did not normally extend beyond one such generation. The idea, familiar to the nationality law of other nations, of an inherited status transmissible from generation to generation was, and indeed still is, foreign to the law of the United Kingdom.

To the status of British subject attached the bundle of rights and liberties of the sort which we ordinarily describe by the term citizenship. They included the right to enter or leave the realm at will and to be domiciled in it; as well as political rights, like holding office or exercising the electoral franchise, as the law attached to the status of British subject, with or without other qualifications.

From the middle of the eighteenth century onwards, notwithstanding the loss of the American Colonies, there occurred a striking expansion outside the United Kingdom of the dominions of the Crown, until those born within a quarter of the land surface of the globe were born within the allegiance, and were consequently British subjects indistinguishable from one another in the law of the United Kingdom. Britain, be it noted, did not, in that alleged fit of absentmindedness in which it acquired an empire, create in its metropolitan law any new status to accommodate the denizens of the empire. It simply allowed the consequences of the doctrine of allegiance to operate automatically wherever the sovereign of the territory of birth was the sovereign of the United Kingdom. Consequently by the end of the Second World War there were in the world some eight hundred million persons born outside the United Kingdom but endowed in the United Kingdom with all the rights of British subjects.

Every state claims and exercises as a natural aspect of its statehood the right to admit or exclude at discretion those who do no belong to it. In exercising that discretion it may have regard to the present or future interests of its inhabitants or to other considerations, which may include considerations of an altruistic nature. The policy involved in exercising that discretion is commonly and conveniently described as its immigration policy. The United Kingdom had, of course, always exercised this discretion in respect of aliens, as for example when it admitted to the United Kingdom, some 200,000 European Jews in the last decade of the 19th century and the first decade of this century and a further 50,000 in the 1930s. In respect of British subject, however—those eight hundred millions to whom I just referred—there neither was nor could be an immigration policy. All possessed under United Kingdom law the same unqualified right of entry and domicile.

This consequence of United Kingdom law applied of course in the United Kingdom only. By a curious irony, entry, including entry by other British subjects, into the territories composing the remainder of the British dominions was controlled by the relevant local government whosoever government that was. There was always and everywhere an immigration policy in the rest of the empire. Acts of discretion underlay Asian immigration into East Africa or, for that matter, into Fiji. Responsibility for immigration policy, as for every other discretion, devolved as part and parcel of self-government.

The populations which eventually amounted to the eight hundred millions I have mentioned made a quantitatively negligible use of their rights of entry and domicile in the United Kingdom until after the Second World War, when economic conditions in Britain, coupled with the enormous capability of air transport for shifting large numbers of persons, hitherto negligible would become so massive as to alter substantially the composition of the population of Britain. If this was not to happen, it would be necessary so to alter the law of nationality of the United Kingdom as to detach the right of entry and abode from the status of British subject and attach it to a narrower category, however defined, of those who belonged to the United Kingdom itself.

I have brought my account down to the point where the inevitability of that alteration of British nationality law was fatefully fended off between 1949 and 1961. Before I proceed to describe and explain that drama there is a tale within a tale that must be told first. It is surpassingly bizarre.

When British rule in India came to an end in 1947, it was evident that the principal successor state, the Indian Union and probably also the other successor state ‘Pakistan’, would wish not to recognise the British monarch as their sovereign. In consequence they and their populations would automatically, being outside the allegiance, become foreign states whose citizens were aliens, as had been the case with Burma in 1946. For a Britain which was engaged in telling itself that the Empire was in process of evolving into a worldwide Commonwealth of Nations on which the sun would never set, this was an appalling prospect, and they applied to themselves—nobody else wanted it—a hallucinatory drug. They abolished allegiance as the basis of British nationality. Instead they declared that British subjects would in future be those who were the citizens of a list of self-governing countries which grew longer and longer as colonies became independent. That left the United Kingdom itself and the colonies that were still dependent unaccounted for. To accommodate them the British invented a new category called Citizens of the United Kingdom and Colonies. The whole lot were to be called Commonwealth citizens and equated for the purposes of UK law with British subjects. Thus did the British bravely hold reality at bay, and ensure incidentally that the overhanging entry rights of eight hundred millions would remain intact, however many of their countries became, like India, republics.

This passionate attachment of post-war Britain to the myth of a continuing Commonwealth has to be grasped in all its fullness if the disaster of the 1950s is to be understood. By the time Churchill ceased to be Prime Minister in 1955, a Bill to restrict in the United Kingdom the right of entry and domicile, as every other country on the face of the earth restricts it, to belongs was in draft and awaiting introduction into Parliament. There is no reason for supposing that it would have been particularly controversial there or elsewhere. That the old law was obsolete in modern circumstances was generally recognised at the time. Instead, however, after a year spent searching for alternative wheezes, such as making admission conditional on housing or employment, Macmillan shelved the whole matter for the duration of the 1955 parliament. Quite suddenly, in the middle and later 1950s, not only did the reform come to be perceived as a threat to the multi-racial Commonwealth, but the idea grew up that there would be actual merit in the presence in Britain of those whom the reform would have excluded if it had been in force already.

It was thus in a different atmosphere and only after the Conservative Government had won a majority of 100 in the General Election of 1959, that the original Bill was at last put before Parliament in 1961 and came into force in 1962. That Act created for the first time two classes of British subject—now alias ‘Commonwealth citizen’—those who did and those who did no possess in UK law the right of entry and abode. However fate played a malign trick.

There was a flaw in the drafting, which was to have serious and continuing consequences. The category of British subjects who were to retain the right of entry and domicile was basically defined as those ‘born in the United Kingdom’; but for convenience and to avoid verification of birth at the point of entry, an alternative definition was provided, namely, those ‘who hold a UK passport or a passport issued by the government of the United Kingdom’. Now, when a Commonwealth country became independent and created its own citizenship, persons belonging to that country who did not obtain that citizenship but remained therefore Citizens of the United Kingdom and Colonies would look to obtain their passports from the local High Commissioner (who else?), who, unlike the former Governor of Governor-General, represented ‘the government of the United Kingdom’. Thus quite unintentionally the right of entry and abode was conferred upon large numbers of persons, notably Asians in East Africa, who did not become citizens of the newly independent states. When substantial numbers availed themselves of this facility, it was obvious by 1968 that an amending Act had become unavoidable. By then however the whole subject was surrounded by great excitement and the allegation was being widely made, for which no evidence has ever been produced, that the provision was in fact intended in the first place and had even been promised. As a result, the Government were forced to purchase that passage of the amending Bill by promising that although the right of entry was withdraw all such persons would eventually be admitted by discretion.

An important consequence of the absence—indeed, the legal impossibility—of what in other countries would be an immigration policy was the dearth of reliable information as to what had been happening: statistics and a policy of control go hand in hand. Huge numbers of Commonwealth citizens enter and leave the United Kingdom all the time. Theoretically, if you subtract the number who leave from the number who enter, you arrive at the number who stay—whether legally entitled to do so or not. The scope for error, however, when the gross totals were so large, was great and, in the absence of any device for matching individual departures against individual entries, the method was hopelessly inadequate. Moreover after 1972 documentation was to be further impeded when freedom of internal movement within the European Economic Community came into force. In the middle 1960s it would not be unfair to say that no British government really knew in quantitative terms what had happened.

It was natural, in retrospect, that for a long time attention continued to be concentrated upon the crude numbers of New Commonwealth citizens who had entered before the Act of 1962 (necessarily an unofficial figure) and of those who were admitted afterwards. Only in the later 1960s did information become available on the proportion of births within the United Kingdom which were attributable to parents who had themselves been born outside it. This information at first collected locally by the health authorities, was given a statutory basis in 1969, when the place of birth of parents was required to be notified at the registration of all births. The figures thus obtained cast some light upon the prospective future make-up of the population, both locally and for Great Britain as a whole; but these implications were confused by the debate over the likely future pattern of fertility. Moreover, with every year that passed, more and more parents of New Commonwealth origin would themselves have been born in the United Kingdom, so that births to parents born outside would trend downwards even while New Commonwealth births were increasing.

The focus of interest has shifted in recent years, as the central importance of population profile, or the age structure of the population has begun to be appreciated. It is the profile of one element in a country’s population, compared with that of the rest, which determines future relative magnitudes. This is subject of course to any assumptions that may be made as to differential fertility; but it still holds good and produces a reliable minimal model if that differential is taken at zero. The current official projection of a Great Britain in 2000 AD with a minimum 7 per cent ethnic minority population derives from population profiles which ave been increasingly based upon direct surveys of the population initially undertaken for other purposes—for employment policy, for example. The existing age profile is, of course, the product of what took place before 1962 combined with the manner in which the policy governing control thereafter was exercised and notably the principle, successively refined by remaining broadly in force, of admitting the children, spouses and dependents of previous arrivals.

These surveys, on which population statistics in Britain are now based, rely upon the visual self-identification of those surveyed in terms essentially of colour. The replacement of more objective classification, such as place of birth, by ethnicity, and the supersession of older terminology such as ‘New Commonwealth origin’ by the now almost standard term ‘ethnic minority’ are the end product of a process that has extended over thirty years. It was, you will recall, in 1962 by a fundamental change in its law of nationality that the United Kingdom acquired the possibility and therefore the obligation of an immigration policy—something which every other nation, under different systems of law, had possessed. Immigration politics take account inter alia of the prospective consequences of a change in the population of the receiving countries and in particular, in the case of long established and densely populated countries, of acceptability to the existing population and of governability under the existing constitutional modes. When the United Kingdom enabled itself lawfully to control the entry of British subjects not defined as belonging to it, the measure was inherently neutral: the UK differentiated itself thereby for nationality purposes from the whole of the rest of the Commonwealth indiscriminately.

However, the motive which compelled the change was alarm at the consequences anticipated from unlimited entry from the New Commonwealth such as took place between 1948 and 1962 and the implications of further growth of that element in Britain’s population. Any attempt therefore to measure and to observe had to be in terms of an element defined not by status but by another criterion. This was an ethnic criterion; and it is significant that in official publications the term ‘ethnic minority’, which no longer distinguishes at all between those who are Commonwealth citizens and those who are not—it would for example include mainland Chinese and Philippinos—has replaced the older terminologies, ‘New Commonwealth’, ‘New Commonwealth and Pakistan’, or even ‘New Commonwealth ethnic’, which retained a basis in status and embraced for example, Maltese and Cypriots.

The term ‘race’ first made its way into the law of the United Kingdom in 1965 in a measure which referred, without further definition, to ‘colour, race or ethnic or national origins’, and has been pronounced by the courts to differentiate the Scots and the Welsh from the English. Indeed, the introduction of that term borrowed from biology was intended to abort specifications of the apprehensions which underlay the decision to legislate in 1962. The 1965 Bill was in fact the earliest essay in the attempt, by the creation of offenses and a new distinction at law between one citizen and another, to avert those consequences of which the apprehension had led to the abandonment of the old United Kingdom law of nationality. Thus it came about that the delay between 1954 and 1961 in moving to bring United Kingdom nationality law into consonance with contemporary realities has entailed upon Britain what the modern world understands as the politics of race. A government decision, albeit a decision by default, in the middle 1950s wears in retrospect all the dignity and significance of tragedy.

This essay was first published in The Salisbury Review (December, 1988)

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