UK Immigration Act 1971: ECHR Articles 3 and 8 Enforcement

Introduction and Statement of the Problem

So many changes have taken place in the United Kingdom and its relationship with its European neighbors since the end of World War II that it is difficult to accurately fathom the full impact on citizens today. Beyond the reshaping of its former empire during the twentieth century, the United Kingdom also experienced fundamental shifts in its demographic composition. According to Spencer (1997), "In the space of less than half a century, Britain has shifted from being a virtually all-white society to one in which ethnicity and race are significant social and political factors." While the UK has embraced many harmonisation initiatives designed to bring the country into better alignment with its European counterparts, significant obstacles remain that adversely affect the ability of some immigrants to gain permanent residency status or to join family members who may already have emigrated.

Today, movement into and exclusion from the United Kingdom is regulated by the Immigration Acts 1971 and 1988, the Immigration and Asylum Appeals Act 1993, and the Immigration Rules 1994, along with rules of procedure made under those Acts. The Immigration Act of 1971 established the UK government's complete control over the immigration of people without a close connection to the United Kingdom by either birth or descent — referred to as "non-patrials" in the Act. According to Houston (2000), "Under the 1971 Act, patrials had the right to abode in the United Kingdom, whereas non-patrials did not. Additionally, the 1971 Act replaced the voucher with a temporary work permit, which, unlike the voucher, did not carry the right of permanent residence."

This patchwork system of immigration control is further reinforced by the Immigration (Carriers' Liability) Act, which became effective in 1987. The result of this mixture of legislative initiatives has been less than satisfactory. A report by Sanderson cites one UK immigration judge — "Judge J" — who, "After 20 years in immigration, has discovered nothing but chaos, confusion and a shambolic structure that does not work. She has stood helplessly by as thousands of illegal immigrants have arrived in the UK and watched the authorities routinely fail to deport them after their appeals were dismissed."

Compounding the problem for both the UK government and those it seeks to deport is the convoluted nature of the controlling legislation and the dynamic legislative environment in which it operates. Sanderson further reports that "Judge J" "has been appalled by the arrogance and incompetence of many of the judges who hear the appeals and the inexperience of the Home Office officials who present them. Prior to 1990 there were very few applications for asylum. And until 1992 there were only about six people in the country who could judge asylum appeals, and they had to have seven years' experience as a barrister or a solicitor. Now, there are thousands, increasing at about a rate of 100 a year."

According to Harris and Joseph (1995), the movement of European Economic Area (EEA) nationals and their non-EEA-national family members is controlled by the European Economic Area Order 1994. Movement within the United Kingdom is also governed by a wide array of legal provisions, including the Prevention of Terrorism Act 1989, which provides for the exclusion from mainland Britain of persons suspected of terrorism, and the Criminal Justice and Public Order Act 1994, which regulates the movement of travellers. These authors argue that, "The United Kingdom asserts that its immigration controls are applied in a non-discriminatory way, and indeed a prohibition on direct discrimination is contained in the Rules. However they indisputably operate in a manner which disproportionately affects the rights of members of the United Kingdom's ethnic minorities as well as of aliens who are non-whites."

This is not to say that the UK government has been without justification for its approach to immigration control; however, the UK government has found itself in an increasingly untenable position as it seeks to continue that approach in light of the provisions of the European Convention on Human Rights and other agreements to which it is a signatory. According to Guild (2003), "The right of the United Kingdom to breach international human rights norms in the exercise of a sovereign right to declare an exception depends on the rules that surround the use of the exception. The European Convention of Human Rights [ECHR] permits only the exercise of the article 15 right where there is a public emergency threatening the life of the nation." To date, the UK remains the only signatory to the ECHR that has taken steps to derogate any provision of the ECHR following the terrorist attacks of September 11, 2001. As Guild notes, "The Parliamentary Assembly of the Council of Europe in Resolution 1271 (2002) urged member states not to provide for any derogations to the ECHR. In particular it called on member states to refrain from using Article 15 to limit the rights and liberties guaranteed under Article 5."

The research methodology used was a critical review of the relevant peer-reviewed, scholarly, and governmental literature. Fraenkel and Wallen (2001) note that, "Researchers usually dig into the literature to find out what has already been written about the topic they are interested in investigating. Both the opinions of experts in the field and other research studies are of interest. Such reading is referred to as a review of the literature." According to Linn and Miller (2004), "There are three reasons to do a literature review before proceeding with a study: The literature indicates what research has been done in an area of interest; it also provides information on where gaps exist in current knowledge; and it provides a framework for, and establishes the importance of, a study."

The UK Immigration Act of 1971 (hereinafter alternatively "the Act") eliminated the categories of "alien" and "British subject" that had historically been used to divide the world into those from the Empire and Commonwealth who had rights and privileges in the United Kingdom and those foreigners who did not. Upon the passage of the Act, these categories were replaced by the essentially racially defined categories of "patrial" and "non-patrial": "Patrials were free from restrictions; non-patrials were all liable to controls."

For the purposes of the Act, patrials were defined as British or Commonwealth citizens who were born or naturalised in the United Kingdom, or who had a parent (or grandparent, in the case of British citizens) who had been born or naturalised in the United Kingdom. The patrial category also included British and Commonwealth citizens who had been settled in the United Kingdom for a period of five years and had registered, or had applied to register, as British citizens. As a result, British citizens who were non-patrial were subject to controls, while non-citizens who were patrials were not.

According to Spencer (1997), non-patrials were allowed to seek residence and could apply for a work permit; however, these steps did not provide them with the right of permanent residence or the right of entry for their dependants from 1973 onward. In other words, the net effect of the Act was to "abolish the last vestiges of the old Empire-embracing concept of British subject or citizen.... The rights of non-white Commonwealth citizens to migrate to and settle in the United Kingdom were finally ended, whereas the rights of white settlers in the Empire/Commonwealth, so long as their settlement overseas had occurred in the last two generations, were strengthened."

The bottom-line impact of the Act was to expand the entitlement to movement within the UK, but only for those deemed most likely to successfully assimilate into the larger English society. Spencer observes that, "Overall, the Act increased the number of people entitled to enter Britain without restriction, but as these comprised almost entirely people of 'European extraction' who had 'special ties of blood and kinship' this caused no political difficulty." Likewise, Brown and Louis (1998) advise that, "Following Britain's entry into the European Economic Community in 1973, people of 'British stock' from such places as Australia found themselves waiting along with U.S. and other aliens to pass through UK immigration while Europeans swept past."

The UK Immigration Act of 1971

The years following the end of World War II were characterised on the one hand by UK initiatives intended to bring the country into a more seamless economic and political relationship with its European counterparts and on the other hand by efforts to more carefully regulate movement within its borders — efforts that have caused concern among international observers who suggest that it is not possible to have it both ways. Spencer explains:

"The Immigration Act of 1971 was closely associated, in its content and its timing, with Britain's moves towards Europe. Not only did the Act terminate the last rights to settle of those who belonged to the old all-embracing 'British subject' category, it also introduced for those non-patrial Commonwealth citizens who came to Britain to work a status which was closely akin to that enjoyed by guest workers in the Federal Republic of Germany and other European states. From 1971, non-patrial Commonwealth citizens and aliens came to Britain on the same terms. Neither had the right to settle or to bring their family."

The implications of the Act were heightened by the UK's subsequent efforts to become a full economic and political partner in the European Union. The Act assumed new relevance when the UK joined the European Economic Community, a membership carrying certain fundamental responsibilities toward other member states and their citizens. Spencer reports that, "By a highly symbolic coincidence, on the same day that the Immigration Act of 1971 became law, 1 January 1973, Britain entered the European Economic Community. In doing so, Britain pledged itself to the principle of the free movement of labour within the community."

Notwithstanding these formal commitments, some observers detected a deliberate design in the Act's consequences. In The Oxford History of the British Empire, Brown and Louis (1998) emphasise that, "Changes in demography and in the political economy marched hand in hand.... The Immigration Act of 1971 removed with finality the distinction between Commonwealth and foreign immigrants, thus repudiating the Imperial mobility and the integrity of the Empire upheld since the beginning of the century."

Cornelius, Martin, and Hollifield (1994) similarly note that, "Britain's entry into the European Community on January 1, 1973, was viewed by many Commonwealth countries as the final act undermining the unity of the Commonwealth and ending the myth of common interest and allegiances between Britain and her former colonies." Although there were other compelling reasons involved in the formulation of the Act, its impact was nevertheless widely regarded as being targeted at those considered less desirable. As Cornelius and colleagues emphasise, "New citizenship legislation defining British nationality more narrowly to those with close links to the United Kingdom by birth, settlement, or descent from a citizen would provide a more rational and less overtly racist basis for defining who had the right of access to and abode in the territory of the United Kingdom."

The overall impact of this legislation on UK immigration control as of 1973 is shown in the table below.

Table 1. British Immigration Control, 1973.

Not Subject to Control: British citizens (patrials); Irish citizens; Commonwealth citizens (patrials).

Subject to Limited Control: British Asians (from East Africa); Other EC nationals; EC nationals seeking work, and their dependants.

Subject to Full Control: Aliens; Commonwealth citizens.

Source: Cornelius et al., p. 286.

As restrictions on immigration were relaxed during the 1970s and 1980s, citizens of the European Community gained the basic right to freely enter the UK for the purposes of settlement — a relaxation that potentially extended to more than 200 million people. According to Spencer, "The change was symbolised by the new signs which appeared at the principal points of entry, such as Heathrow Airport: 'United Kingdom citizens and EEC nationals' now marked the channel for those entering free of restrictions." In this environment, any efforts to thwart or otherwise diminish the free movement of citizens from member states appeared to represent an abrogation of certain of the UK's responsibilities under the European Convention on Human Rights.

The European Convention on Human Rights (ECHR) is the only Council of Europe instrument that applies to all persons residing within the territories of its member states. According to Jayawickrama (2002), twelve states signed the ECHR in Rome on 4 November 1950. It entered into force in September 1953 and has since been ratified by all member states of the Council of Europe. The following fundamental rights are contained in the ECHR: