Introduction: bordering empire – migrating borders past and present

Modern-day bordering practices have their origins in past practices linked to colonial powers over people and their movement. Without the historical context of empires and power inequalities in the past, it is easy to think of migration as an aberration and as a modern-day challenge for rich countries that are increasingly unwilling to welcome people from less wealthy parts of the world. The persistence of the past in contemporary practices, mechanisms and institutions is palpable, and even with a quick examination it can become apparent that while immigration in contemporary times is mostly about nation-state control over who enters and who exits national borders, bordering practices pre-date the nation state. Drawing from Valverde’s work on scale (both temporal and spatial) it is possible to ask the large questions about migration and borders which may not have been apparent in those spaces and times but now reveal patterns of movement and expropriation (Valverde 2015). By tracing the long arc of human movement prior to modern-day borders, the connections between colonial arrangements in empires and the creation of conditions that lead to migration and its control in today’s world become visible. The heroic stories of many migrants who battled injustice in order to make new lives and contribute to their new societies also come to light under this scrutiny. To this effect, this book starts its analysis from colonial arrangements which for centuries controlled migration for the economic benefit of colonising nations and forced human movement as well as constrained it.

An attempt to historicise is not easy. Often there is a collective amnesia in former colonial states about past atrocities carried out in colonised territories. What was considered ordinary for colonial states is now excused as having been ‘a long time ago’. Even those people and institutions tasked with remembering the past fail to look too closely at some of these issues which have lasting consequences. For instance, Anderson (2021) writes how museums in the modern UK have no consistent approach to memorialising the impact of the British Empire, including its role in enslaving people. While the Black Lives Matter movement has been a catalyst for museums worldwide to change their practices, there has not been similar soul-searching across museums in the United Kingdom. There are a few exceptions, with Welsh museums notably stepping up to examine historical legacies of slavery. Yet all over England, Wales, Scotland and even Ireland (which was itself colonised), merchants, traders, shipowners and landowners have engaged in the activities of empire, profiting from the slave trade and other forms of colonial expropriation, and have generated enduring structural inequalities. Anderson asks of museums and cultural institutions, ‘As institutions of public memory, are we willing to publicly acknowledge the historical crimes committed by the British empire, from which our nations’ economies still benefit? Will we honour the promises many made last year to work to remove the structural inequalities minority groups face in museums?’

The ethical question raised by Anderson for museums is also relevant for legal scholars who examine how law operates to facilitate or deconstruct bordering practices. How do we approach nation-state borders in modern times when bordering practices precede nation-state sovereignty, and perhaps even the birth of democratic societies? How do we capture the inequities of colonial practices which have impoverished millions around the world and now, in new forms, obstruct their ability to move and search for better life conditions?

The role of empires

Throughout human history, regions and regional groupings under various forms of political divisions have tried to acquire and accumulate wealth for themselves through changing modes of economic production and trade while competing with others and protecting their own means of acquisition. One such mode of political operation has been through empires, where the central power has controlled far-flung territories. During these times, different empires were often in competition with each other to gain competitive advantages in accessing resources of the regions they controlled (including access to labour as and when needed) and transferring wealth from colonies to the centre, and over time they created developmental advantages that continue into the modern day in terms of who industrialised first and became developed economies. Colonies mostly lagged behind, and owing to centuries of disadvantage, they remain part of the poorer areas of the globe post-decolonisation. Former colonies are the very same places from where economic migration is now selectively permitted.

Modern nation states are built on core shared values (even if imagined ones rather than those empirically established) and on some links to linguistic, ethnic or religious similarities. Sometimes there are complications regarding how a multiplicity of identities could be incorporated into a single, national identity. This was not always the case. Europe had been ravaged in the early seventeenth century by conflict between the Holy Roman Empire and states such as France and Sweden and their allies until the negotiations that led to the Peace of Westphalia, through treaties signed in 1648 (referred to collectively as the Peace or Treaty of Westphalia). The Peace of Westphalia recognised the full territorial sovereignty of the member states of the empire. They were empowered to draw up treaties with one another and with foreign powers. By this and other changes the princes of the empire became absolute sovereigns in their own dominions. Thus, the Westphalian treaty initiated the process of nationality coinciding with territory, and the principle of sovereignty over territory for nation states. Prior to this, empires had different practices of control. Some were not even considered empires or perceived as colonial centres because they could raise moral authority for their rule over different regions. Such claims could be ethnic and cultural similarities or developmental assistance – reasons often proffered by Moscow, for instance, for its control over the vast reaches of the Soviet Empire. Constituent regions of the Soviet Union may not have viewed themselves as colonies (until quite recently), even while scholars and reporters outside of these regions analysed them as the periphery of the erstwhile Soviet Empire for decades. Such dissonances and complexities make the study of empires challenging but also demonstrate the powerful role of law in the political processes of territory gain and administration.

Empires did not wholly pre-date nation states; at times they simply co-existed, or were the result of different states losing sovereignty. Empires straddled remote regions, and the locales of bordering contained populations of different races and ethnicities while retaining a power core. Colonial authorities were not just engaged in displacing local people in positions of power worldwide, but were also fighting each other to gain control of the most lucrative regions of the world. They were to strategise flexibly and grapple with diverse situations while expanding territory and bringing more economically favourable opportunities within their grasp.

At the point of decline, empires in the past had created nation states, often with little insight of, or consideration for, the actual preferences of the local people they were governing. For example, after the World Wars of the twentieth century, re-alignment of global nation states took place and new countries emerged from decolonisation in many parts of Asia and Africa. European colonial powers drew up Africa’s borders amongst themselves during the Berlin Conference (1884–5) with no consultation with the people they had colonised. In Central Asia, and in Eastern and Central Europe, Soviet vassal states continued for a long time afterwards as part of the Soviet Union. It is thus not surprising that the more recent literature on decolonisation and empires comes from the Central and Eastern European nations and their separation from the Soviet Union as well as renewed attempts by Russia to bring them back to the fold through invasions (for instance, Georgia, Chechnya, and Crimea and Donbas in Ukraine) (Krpan 2022).

In the 1940s to 1970s, new borders in Asia and Africa and other colonised parts of the world were created through brutal violence or generated legacies of violence which have lasted to the present day in many instances (for example: India–Pakistan, Israel–Palestine, UK–Ireland (over Northern Ireland), Eritrea–Ethiopia). Yet it is during this period of continued turmoil after the two World Wars that there was also the emergence of a supervening human rights framework which aimed to bring about some universal standards of living and being for all human beings irrespective of their origins or nation-state citizenship. Human rights standards being adopted globally indicated a new consideration of the rights of people across and within national borders.

As empires straddled vast territories, heterogeneity of values and beliefs was integral to the experience of empires even if some of these preferred or imposed homogeneity with dominant religious, linguistic and other cultural values emanating from the centre. While travel was difficult because of a lack of cheap and reliable mass transport, borders were not just potentially between regions. They were also about the natural boundaries of power and wealth which sought to preserve access over colonial resources for the metropole (at the cost of the colonies) or which served elites from colonised lands well. Elites could (mostly) travel freely to forge new connections and acquire new advantages. Later this free (yet constrained) movement of populations created new challenges for nation states.

This panoramic view of human history and politics reveals a changing yet constant view of migration and migration control in tumultuous political landscapes. Understanding empires, and the many roles of law in bordering, provides an insight into why nation states continue to retain almost unbounded discretion on who can enter, who can reside and work and bring their families, how people can naturalise or otherwise gain citizenship and hold multiple nationalities, and who can be expelled. While these processes are supported and facilitated by legal provisions, national sovereignty and democratic legitimacy (the will of the people of a nation), they provide the justification for regulations that create tremendous hardship for those who are on the outside of borders and bordering practices and who previously were forcibly part of the territory and within the sphere of the force of empires. Ironically, the very same expectations of national sovereignty and democratic will, which are now treated as a basis for erecting borders, were disapplied and suppressed for colonised peoples in the past in their own lands.

Yet not all empires were formed in the same manner or operated similarly. Some colonised contiguous lands while others, like Britain (being an island nation), competed for expansion further afield and on different continents. The manner of formation influenced operations. In general, empires of contiguous or nearby lands had more direct means of enforcement and focussed more on assimilation and direct control. Others who controlled territory located at distance did so often out of necessity as European powers competed with each other for land. Britain, with its island geography, strength in ship building and industry, and proficiency in naval operations for defence, spread its wings (or rather sails) further than most others.

The colonisers who went further afield were more likely to use presumptive legal rules (legal fictions which may not be true but are allowed to operate widely) and mechanisms (such as trading companies and the guarantees of subjecthood). Such colonies had more local participation in the enforcement of colonial authority which meant there were means of accommodating variations and generating consent to foreign rule often through the use of law. It would also be resource-intensive to create homogenised values over vastly disparate regions. Thus, empires with far-flung territories like the British Empire did not really aspire for sameness and there was no universal political participation guaranteed by being a member. By contrast, the Ottoman and Russian Empires, which had contiguous territories, tried to create internal sameness, often organising these according to a hierarchy of closeness to the dominant ethnic, linguistic, religious and cultural forms and practices. Thus, Khoury and Glebov (2017, 52) write about the Russian Empire that: ‘It was the urgent desire for uniformity rather than the social and political fact of diversity that had the potential to unravel in genocidal practices.’

The British Empire also sometimes emphasised the unity and sameness of the empire, although this was more the exception than the rule. This was the case during the two World Wars when the British Empire fought as one. The idea of sameness also manifested in lesser-known plans for joint activities such as participation in games and sports as a joint team. When British performance in the 1912 Olympics games was poor, the British Olympic Association planned to bring in a single British Empire Olympic team for 1916 (Llewellyn 2012). Plans for greater glory aside, laws in the British Empire were not uniform, with customary rules and religious laws finding place in more generic laws in a dual system that existed in colonised lands. Mostly the British Empire was considered an alliance of people who would share allegiance rather than in any manner being the same or similar. Therefore, British strategies on how to generate and retain colonies were considerably different from those of the Russians.

The complexities revealed in comparative studies of different empires are beneficial for understanding how bordering has evolved and why. For instance, scholars have found that there are links between the natures of empires, their dissolution process, the regimes of naturalisation and other means of acquisition of nationality that exist in the modern age. The British Empire attempted to maintain special relationships with former subjects after the British Empire became defunct. Yet similar parallels were not observed when the Soviet Union dissolved. Over time though, special considerations regarding who can have Russian passports (e.g. in Baltic areas) have emerged and Russia has been found to use forced passportisation as a means of creating a ‘Russian’ population in the Eastern Ukraine border regions which Russia has invaded, where people cannot access healthcare or education unless they hold Russian passports (Burkhardt et al. 2022).

For empires with non-contiguous, far-flung lands, with time it became expensive to extract resources, particularly as local rebellions became common. Migration would be inconsistently facilitated, compelled or even prevented depending on the needs of empires and specifically the economic needs of the cores of empires from the more distant lands. Although wider-reaching empires permitted greater migration, the majority of the poor were unable to travel, due to a lack of resources; in reality, the permissiveness of the laws did not lead to mass migrations, even if a small minority did travel in search of better lives for themselves.

In the British Empire, examples of movement of both the rich and the poor are found aplenty. Wealthy colonial subjects came to England for better education and training. Some even settled long-term in England or other parts of the empire while others went back with competitive advantages to their home turf. People from British colonies were not barred from settling in Britain. However, the poor only found employment in the sectors unpopular with residents of the metropole. For example, working as ayahs (nannies) for low wages or working as seamen (lascars) on ships, where the working conditions were harsh, or serving in the British army, work which was fraught with danger. These jobs were seen to be in the imperial interest and were thus available as low-waged labour. At this point there was hardly any welfare provision for the poor (whether citizens or not), so these low-waged workers often found themselves in absolute penury once out of work. A similar situation existed for Algerians and other peoples colonised by the French in France.

In this book however the primary focus is on the British Empire, because first, it had a profound impact on the lives of diverse peoples with present-day legacies which are clearly identifiable around the world. Secondly, and arguably more importantly, because of its non-contiguous expansion it had to use law in many forms both during and after colonisation, resulting in many new legal mechanisms and practices, including a notion of imperial citizenship which is useful for this study of different bordering practices and the free movement of people. Further, after decolonisation we can trace the emergence of the UK as a new global power forging powerful alliances with the Commonwealth, a united Europe and the United States, all of which have had impacts on the political context of present-day bordering.

Durability of empires and the role of law

In the case of the British Empire, the very form of colonial authority and governance transformed over time. In the beginning, the British had developed colonies such as India as trading partners through companies set up for exploration and trade. The original colonisers started as independent merchants in the 1600s who then formed trading companies such as the East India Company and thereby had limited liability. These companies, such as the East India Company in India, operated under royal charters but were largely autonomous. On 31 December 1600 Queen Elizabeth I granted the East India Company a royal charter, ‘The Governor and Company of Merchants of London Trading into the East Indies’, and announced from the start it should be ‘one body corporate and politick’, that is, a corporation. The new legal properties of companies were very handy as they could sue and be sued but not commit crimes. They did not have the problems of disloyalty or treacherousness like human beings. Though its first charter was experimental and limited to fifteen years, by 1607 the Crown agreed the Company could expect a ‘perpetual succession’.

Initially, trading companies negotiated with the local rulers to just set up trading arrangements. Later, when their activities became truly profitable, they needed means of safeguarding their highly favourable business arrangements. Mixed with this was a paramount belief in European racial superiority. The early English East India Company laid the necessary, though perhaps not sufficient, conditions for its later transformation into a territorial empire (Stern 2011, 7). Lawrence James writes in The Rise and Fall of the British Empire (James 2002, 123) that the East India Company was purely a commercial enterprise which imported and exported goods from its factories in Bombay, Madras and Calcutta and was not involved in the internal politics of India. In practice, the Company was a hybrid corporation. This merchant–state hybridity refers to the private function of the Company as a joint-stock corporate established to trade and make profit for its shareholders, while simultaneously exercising public state governance as rulers of India. As the Company strived for profits, this was inherently contradictory to ruling a state of people. They raised private armies to fight against local rulers and acquire territory and then proceeded to become administrators and enforcers of foreign rules and laws in these vastly different places. Its increasing public role alienated both Indians and the British government as it faced increasing criticism regarding how it dealt with people.

By 1815 the Company owned the most powerful army in India and governed both directly and indirectly Bengal, much of the Upper Ganges basin, and extensive areas of eastern and southern India. Although there were several independent native princes in India, they all feared the power of the Company, and many sought its friendship and protection, but the Company’s flexing muscles was a major issue. It was at this time that various initiatives were undertaken to set up British courts in India. These courts often pronounced on the idea of subjecthood and associated rights. Around the same time there was a transformation towards direct rule from England with the monarch taking over from the trading companies at the highest level. For all purposes, the Company operated as an agent for British imperialism, and its status continued to decline until the Company was replaced by direct British rule.

Eventually, the British government took over administration of many colonies. The empire both erased nations by taking over territories and usurping established sovereigns. It was eventually forced to create new ones by drawing new borders and withdrawing from these territories. So, what did the law do to enable these social and political changes? As we shall see in this chapter, during colonial times the role of the law was primarily to underpin the structures of power which normalised the movement of Europeans as traders and rulers around the globe and which sanctioned the expropriation of resources from the East to the West. The law extended jurisdiction for colonial powers and ensured the supply of labour and raw materials for the heart of the empire from the early days of colonisation. The exact mechanisms varied, but were often rooted in a deep-seated hegemonic belief of racial superiority.

The breadth of the British Empire and its long durability over centuries raises questions as to how this empire was able to encompass different territories and what was the secret of its longevity. Naked powerplay and military might (guns, gunpowder and gunboats) would have necessarily played a huge part in acquiring new territory but would not explain its longevity. Creative legal mechanisms aided in the making of inroads into foreign territory and the taking over of their governance for considerable advantage. Legal transplantation from common law ideas drove perceptions of superiority of the British.

As mentioned earlier, a creative legal instrument was the idea of subjecthood. In the British Isles, the landmark Calvin’s Case [1608], 77 ER 377 established that subjects were people who lived on any territory that came under the Crown. In 1608 English common law did not apply to Scotland and this became a contentious legal issue when James VI of Scotland succeeded to the English throne, leading to the unification of the Crowns of Scotland and England. Calvin’s Case came to court at this time and raised the question of whether Calvin, a Scot, could hold land in England. This was possible if Scots were subjects of England as well as Scotland. If this were the case, English property law would apply to Calvin. The court decided that for a person to be a subject he had to be born in the ‘King’s dominion’ and have parents who were ‘under the actual obedience of the King’ (Travers 2007). It was decided this was the case for Calvin after the unification of the Crowns. In effect, Calvin’s Case connected subjecthood to territorial control and allegiance to the ruler.

While Calvin acquired property rights because of the holding of this case, the case did not always enhance individual rights. In the eighteenth and nineteenth centuries many colonial territories changed hands several times between imperial powers and it was possible for the Crown to claim allegiance and control over the newly acquired territories using the Calvin precedent (Everson 2003). This meant subjecthood, while initially about rights, also led to the justification for widespread colonisation. Eventually, subjecthood became the key legal relationship between the British Crown and colonised people across the globe.

Subjecthood and borders: race, poverty and the unfree ‘free’ movement

While Calvin’s Case laid out the bare elements of subjecthood, it is a complex concept which has gathered different dimensions over time. The legal content of subjecthood facilitated a veneer of formal, legal rights which tied the ruler to the ruled and the ruled to the ruler, even if they had never set eyes on each other and did not resemble each other. It also linked with allegiance and loyalty as a relationship between the sovereign and people. Muller writes how it provided a common bond between people of distant lands in times of empire (Muller 2017). The ruler was distant but was perceived as present in diverse lands through connections fostered by ceremonies and rituals to celebrate royal life events. In theory, subjecthood operated the same, whether the subject was located in England or India. But subjecthood also remained indeterminate in character with a wide range of inbuilt discretion regarding its substantive content. It could demand allegiance, become rights-linked or facilitate subjugation of people, depending on the situation. Thus Muller (2017, 13) writes, ‘Subjecthood … was constantly shifting both in response to, and to accommodate, the vagaries of imperial rule.’ The indeterminacy of subjecthood was compounded by the uncertainty about whom it applied to. Dummett and Nicol quote Sir Francis Piggott, who in 1907 wrote, ‘there must be a multitude of persons who cannot say with certainty whether they are British subjects or not’ (Dummett and Nicol 1990, 113). MacPhee and Poddar (2007, 78) write that imperial subjecthood meant that if a territory was annexed by the British all people living there automatically became British subjects. Theoretically this meant that they acquired the right to travel, as free movement was a corollary of subjecthood in empire. The availability of free movement of subjects over territory (even if such a right to free movement was rarely exercised) indicated that the sovereign had command over this territory which was accessible to the subjects. A twentieth-century judgment that re-confirmed this is that of Lord Diplock in DPP v Bhagwan [1972] AC 60 (72) where Diplock held that a British subject had the right by law to enter the UK without let or hindrance when and where he pleased and to remain in the UK as long as he liked. In practice, subjecthood in the service of empire was inherently unequal. This will be exemplified in the restrictions to free movement explored in the next section.

During days of empire there were significant differences in how the legal status of being a British subject in dominions or colonies and within England operated in practice. Subjecthood, and its portability across the vast breadth of the countries of the former British Empire and new Commonwealth nations, performs different functions. For example, Mamdani (1996) ably demonstrates the complex dimensions of subjecthood in late colonial Africa and the effects of these on contemporary Africa while Mongia (2018) shows how it works in the context of India and Indian migration throughout the empire.

The countries of the old Commonwealth (Canada, Australia, New Zealand) were also called ‘dominions’. These are White settler colonies where local governance was usually autonomous. Locally elected representative governments were in charge in these places. In colonial territories, there were large non-European populations. The White residents were a small minority. These colonies became self-governing later than the dominions and became known as the new Commonwealth. India had an exceptional position within the British Empire as it was not considered a colony because the East India Company’s rule came to an end in 1858, and the British Crown took direct control and appointed a government there. Yet India was often treated as a colony in terms of economic exploitation as well as a dominion when Britain needed political support on the world stage. For example, after the First World War, Indian representatives at the 1923 imperial conference were formally treated as equals of the representatives of the dominions for greater support from Indians. Thus, the British Empire is not a combination of similarly placed political entities but a grouping of differentially governed regions. It is not surprising then that the concept of subjecthood also differed within the empire. For instance, Indian British subjects were mockingly referenced as being of two kinds: victim Gentoos (Hindus) and conquering Moors (Muslims), with Gentoos waiting to be rescued from their subjugated state by the British (Sen 2002).

Subjecthood encountered different issues in settler societies than in colonies. In settler societies, the presence of Indigenous people was a factor that did not exist in colonies. While Indigenous people were part of subjecthood they were often denied citizenship of the emerging nations, a situation rectified only after many struggles for equality. Colonial oppression was thus replicated in settler societies in the dominions. In dominions, which primarily consisted of settler White populations, subjecthood was perceived as a direct relationship with the king through shared history and ethnicity. In time, as dominions carved out their own destinies, their views on closeness with the British monarch and state changed. There was no shared long-term association with White rulers with whom the vast majority shared no ethnicity, therefore, being a subject was seen as being subordinate to foreigners. Between dominions and colonies, however, there was a clear hierarchy, and dominions considered themselves far superior in terms of wealth and culture.

Within Britain, the term ‘British subject’ stood for British people’s own national identity as well as imperial supremacy. Subjecthood was considered an instrument of enlightened liberation rather than oppression. This rang true even at the time of the dissolution of empire. For instance, in 1948, Lord Chancellor William Allen Jowitt, 1st Earl Jowitt, speaking in a Parliamentary debate on the British Nationality Act 1948 said, ‘I believe that we have managed to combine a sense of unity and a sense of individual freedom, now the link the bond which binds us together is of course primarily the fact that we are all proud to be subjects of his Majesty the King.’

Movement of people during empire

Colonial appropriation of Indigenous lands and peoples depended upon ideologies of European racial superiority as well as legal narratives that equate civilised life with English concepts of property. It was not only the English; many prominent Scots were also slave traders (Alibhai-Brown 2015, 71). In direct contrast to the idea of subjecthood, the British Empire participated in the forced movement of people, for example as slaves, for centuries. Slavery ensured a supply of free labour at the heart of empire. Human beings outside Europe were transported as property rather than as humans. They were traded as slaves or moved as indentured labour to provide for colonial needs (Bhandar 2018). Harris’s article ‘Whiteness as Property’ (1993) demonstrates how whiteness becomes a value encoded into property law and social relations. Race-based chattel property captures the move from whiteness as status symbol to whiteness as an entitlement to social goods. The right to use and enjoy, the reputational value, the power to exclude, are all characteristics of whiteness shared by various forms of property. Bhandar writes about the racial regimes of property ownership that have evolved in settler societies in the context of colonialism. She examined settler colonialism in Canada, Australia, Israel and Palestine to demonstrate how modern property law contributed to the formation of racial subjects in secular colonies. Research on the participation of the British Empire in slave trading demonstrates the contribution of the slave trade to the British economy, including in the industrialisation of the economy.

Dummett and Nicol write that African slaves transported to the New World were for most purposes regarded as chattels – neither they nor their children were counted as subjects nor were they even aliens (Dummett and Nicol 1990, 74). Citizenship by birth (jus soli) did not make a Black child a natural-born subject. Even when the slave trade was abolished in Britain, slaves could be still traded in the colonies. Many were in plantations in the Caribbean islands even as Lord Mansfield declared in England that slavery was not permitted, in the case of Somerset v Stewart [1772] 98 ER 499:

The state of slavery is of such a nature that it is incapable of being introduced on any reasons, moral or political, but only by positive law, which preserves its force long after the reasons, occasions, and time itself from whence it was created, is erased from memory. It is so odious, that nothing can be suffered to support it, but positive law. Whatever inconveniences, therefore, may follow from the decision, I cannot say this case is allowed or approved by the law of England; and therefore the black must be discharged.

The court in this case decided that an enslaved person could not be forcibly removed from England and sent to Jamaica for sale. He was free in England.

Meanwhile, Indigenous people in America struggled over the crucial question of ownership of land. In the colonies of the New World, labour of every kind was in great demand. Voluntary migration and generous naturalisation laws were not enough to satisfy this demand. Hence, throughout the seventeenth and eighteenth centuries there was forced immigration from Britain to the Americas. After the wars in Ireland Cromwell sent thousands of Irish people to the West Indies as involuntary migrants. They worked on plantations in British colonies (Dummett and Nicol 1990, 71).

Once industrialisation eliminated the need for plantation labour, the empire was still displacing people from one part of the empire to another to serve as indentured labour, that is, where individuals are contracted for work without pay. The terms were usually unfair and created abysmal conditions for life and work. People were held compulsorily to the terms by third parties who owned these contracts and who deprived the poor migrant workers and their families of most of their earnings. Many researchers point out their conditions were nearly as unfree as those of slaves, with exploitation rife. Visram (1986, 9) writes that people of Indian origins were planted all over the Empire.

The Act of Abolition in 1833 banned slavery in the British Empire but India was a source of cheap labour for developing infrastructure around the empire such as railways, mines and plantations across Asia, the Caribbean islands, Pacific areas and Africa. Indian sailors worked for the British navy and Indian soldiers also served in the British army in colonial wars. Economic migration by carers for children and families (ayahs) and seamen (lascars) did not always lift people out of penury. Ayahs who served on long sea voyages between India and England, taking care of British families and their young, had no work once they arrived in England and very little to support them and were often unable to secure a return voyage. Visram writes that they would care for the children, the baggage and the wives of the families during the long voyages but then would be discharged in England (Visram 1986, 29). Ayahs were treated as docile and ‘child-like’ and there was no reason to care for their needs as they gave no trouble. Some of them found temporary lodgings but these were usually overcrowded and expensive (such as a separate ayahs’ home in London). Lascars and ayahs who became destitute would sometimes be brought to the notice of the India Office in the UK (Visram 1986, 25). For instance, in 1870 someone who was previously an officer in the Royal Navy was selling curry powder and doing occasional work for English families, but he was desperate to return to India. The India office held strictly to the view that according to law they were only responsible for individual lascars and therefore contributed £200 a year to the strangers’ home for destitute seamen but they were not responsible for servants and other people who became destitute.

The 1820s legislation was however detrimental to the shipping industry, which suffered from an inability to hire lascars. Parliament was therefore forced in 1849 to revise the existing laws, and lascars, who were not treated as equal subjects, were redefined as British by statute for shipping purposes, enabling shipowners to hire labour more profitably. The shipping industry was in a growth phase at this time with the opening of the Suez Canal in 1869 and the introduction of steam navigation. This created a demand for labour in the engine rooms, such as firemen and trimmers needed to stoke the furnaces. European sailors did not want these jobs in tropical zones and so lascars were recruited to do the unwanted jobs for low wages. By 1914 some 51,000 lascars made up 17.5 per cent of the total number of seamen employed on British-registered ships. Visram writes that many passenger and cargo ships employed only lascars, who were hired not simply because they were cheap, but because they were good and efficient sailors. They did the most difficult jobs on ships, such as working in stiflingly hot coal-fired engine rooms for little pay (1986, 52–4). Yet despite lascars being highly skilled, by the 1820s discriminatory legislation restricted their numbers on British ships to protect jobs. Unlike ayahs, they were also considered a potential threat on British shores as they were identified as drunks and vagrants.

Dummett and Nicol (1990, 160) write that at the same time in the first half of the twentieth century the shipping industry worked jointly with the British authorities to control entry by foreigners. Shipping companies also cooperated with the Board of Trade – the Ministry of Labour and the Home Office in practice – which laid the foundations of racially discriminatory controls over certain British subjects, namely seamen settled in or frequenting the major seaports. The 1905 Aliens Act required ships’ masters to provide lists of immigrants subject to such controls – the shipping company committed an offence if such a person embarked without leave, and if an immigrant was admitted but expelled within six months the Home Secretary could recoup the cost of the return passage from the shipping company which had brought him or her to shore. Herein lie the origins of border control through placing the responsibility on companies that operate carrier services, such as present-day airlines.

While borders were internally porous in the British Empire, the barriers of resources and powerplay were significant. Though in theory all subjects were equal, in practice poorer subjects of empire were restricted in their options for movement and received virtually no support after moving. The elite acquired more resources, but others were moved/allowed only to move to meet the needs of empire, mainly labour requirements. Another group of people of Indian origin who travelled throughout the British Empire were soldiers in the British army spread far and wide across the empire. Gurkhas and Sikhs as well as others (mostly from hilly regions) fought for empire. Later in this chapter I will discuss the Sikhs and their transformation from loyal subjects to potential security threats. Many people from the Indian sub-continent continue to serve in the British forces today and yet, until recently, they had to contend with continued exclusions from the benefits of British citizenship. Visram writes that recruits for the Indian army came mainly from the tribes who lived in hilly regions of India, who were considered professional and loyal. Yet they mostly served at lower levels and were organised along caste or ethnic lines. Officers were entirely White Europeans, thereby maintaining the racial hierarchy of colonisation (Visram 1986, 114). The Indian army provided a huge number (2.5 million) of soldiers across the world, who fought in Burma, North Africa and Italy during the Second World War.

In terms of travel across borders from the colonies to the metropole, the British Empire had arguably very little requirement for borders within the empire, since mass travel was scarcely possible until the empire was nearly at its end. Migration control was not institutionalised formally into a set of documents and practices. Even passports were not formalised as means of authorised travel documents until the World Wars in the early to mid-twentieth century. MacPhee and Poddar (2007, 76) write that at the time of the East India Company prior to 1858 there was no real passport as such. The description of a British subject or English gentleman travelling with his wife and servants on a document was sufficient to ensure travel virtually anywhere in the world. Britishness was thus not tied to having a national passport. This would change on 19 February 1858. At that point different countries discontinued the practice of issuing passports to each other’s subjects, so the French government no longer issued passports to British subjects and vice versa. Prior to this point, it was only wealth that largely determined the ability to acquire passage on any means of travel, which was mostly via ships. As we have seen, at this point migration was neither exceptional nor a problem, but a necessary part of the exploitative substructure of colonialism. Migration was at the service of empire and people could move or were even forcibly moved in the service of empire. Later in this chapter I will look at how elites from the Indian sub-continent travelled to England for further education and training and acquired greater standing in their regional societies as a result. However, migration became a problem in the eyes of the British government when people in colonised lands started claiming equal rights as humans and could no longer be treated as property or as docile bodies. The extent to which this problem operated can be assessed by examining how the ordinary subject was stopped from exercising full free movement within empire.

The emergence of national borders

As already mentioned, dominions had greater control over their own destiny, and it is in this context of uneven understanding of subjecthood that dominions started regulating migration to their territories from other parts of the empire which were poorer and predominantly not White (mostly the colonies). Canada was one such dominion which received and welcomed huge numbers of European immigrants while simultaneously keeping out Asian migrants. Canada went on to reorganise its immigration and nationality legislation in a manner that excluded most Asian migrants, charging head taxes and placing quotas on their entry despite simultaneously recruiting European migrants in large numbers. National security, public health and employment control had merged to bring about the Canadian government’s first attempt to restrict immigration from India through an Order in Council passed on 8 January 1908 that prohibited immigration of persons who ‘in the opinion of the Minister of the Interior’ did not ‘come from the country of their birth or citizenship by a continuous journey and or through tickets purchased before leaving their country of their birth or nationality’. While supposedly neutral, in practice this continuous journey regulation applied only to ships that began their voyage in India, as the great distance usually necessitated a stopover in Japan or Hawaii. Canada attempted to redefine who is truly Canadian from around 1910: Section 2 (a) of the Immigration Act of 1910 stated that for the purposes of the Act, ‘Alien means a person who is not a British subject’, but for immigration purposes, British subjects were divided into Canadian citizens and others, and only Canadian citizens possessed an unqualified right to enter and remain in Canada. A Canadian citizen was in turn defined as ‘(1) a person born in Canada who had not become an alien, (2) a British subject domiciled in Canada, or (3) a person naturalized in Canada not having lost domicile or become an alien’.

In 1914 in Hong Kong, an Indian Sikh businessman, Gurdit Singh Sandhu, decided to charter a ship for travellers from the Indian sub-continent to Canada. By starting from Hong Kong, the Indians would be able to come via a continuous journey to Canada and thereby comply with the formal requirements of the law. Gurdit Singh was aware that Canadian exclusion laws were preventing Punjabis from immigrating to Canada (Wallace 2015). Prior to this voyage, Gurdit Singh told press reporters. ‘We are British citizens and we consider we have a right to visit any part of the Empire’, thereby expressing his faith in British notions of fair play and justice. Yet the ship, the Komagata Maru, upon arrival in Canadian waters, was not allowed to dock in Vancouver (Berkeley Library 2020). Immigration officials were sent to meet it on small boats. There was violent opposition to the ship and its passengers from the Canadian public, with public meetings and protests organised on the shore. Meanwhile the passengers remained trapped on the ship over two very hot summer months and with little food and water.

Immigration officials ordered extensive medical examinations of the passengers and tried to put legal hurdles in their way. They were not able to contact their lawyer, J. Edward Bird. While other Sikhs in Canada were trying to support them by raising funds and setting up a Shore Committee, the passengers often could not contact anybody on the shore at all. The court challenge brought by the passengers failed because they were presented to the court as violent and disruptive on the ship. The full bench of the British Columbia Court of Appeal eventually delivered a unanimous judgment that under new orders-in-council it had no authority to interfere with the decisions of the Department of Immigration and Colonization. In its judgment, Canada v Munshi Singh [1914] B.C.J. No. 116, Judgment B.C. Court of Appeal, 6 July 1914, it said:

Our fellow British subjects of the Asiatic race are of different racial instincts to those of the European race … In their own interest their proper place of residence is within the confines of their respective countries, not Canada where their customs are not in vogue and their adhesion to them here only gives rise to disturbances destructive to the well-being of society.

One quote that captures the reception of the ship is from Canadian Conservative MP H. H. Stevens in 1914:

I challenge any man living to bring out a single instance in the whole history of the Indian nation to show that their civilization has done anything at all to uplift the other races of the world. I say their civilization is unproductive of good to the human race as a whole.¹

It is clear that the British government was aware of this reception of Indian subjects. As far back as 1896 Joseph Chamberlain expressed his sympathies for racial exclusion in a conference:

We quite sympathise with the determination of the white inhabitants of these colonies which are in comparatively close proximity to millions and hundreds of millions of Asiatics that there shall not be an influx of people alien in civilisation, alien in religion, alien in customs, whose influx, moreover, would most seriously interfere with the legitimate rights of the existing labour population. An immigration of that kind must, I quite understand, in the interests of the Colonies, be prevented at all hazards, and we shall not offer any opposition to the proposals intended with that object.²

Only 22 passengers out of the 376 passengers were permitted to disembark in Vancouver. Three weeks from losing this appeal, the ship was made to turn around (Bird 2014). Even the departure was a spectacle, with the navy called to escort the ship out and thousands of spectators watching and cheering from the harbour (Kazimi 2004).

Most of the Komagata Maru passengers were Punjabi Sikhs. Following their construction as a martial race by the British and their preferential recruitment in the imperial army from 1857 onwards, the Sikhs were forced to move between different parts of the British Empire, which produced a culture of mobility in Punjab. Sikhs from Punjab were preferred as fighters in the British army and were amongst the most well-travelled British subjects from the South Asian sub-continent (Roy 2016). The Sikhs began to perceive themselves as favoured British subjects and entitled to work and settle in any part of the empire and were, in fact, encouraged to do so through grants of lands, employment in ancillary services or setting up their own businesses in Shanghai, British Malaya, Hong Kong and East Africa. They were also circular migrants, because often after travels across empire they would retire to their villages in Punjab. These porous borders that they crossed however started closing, as perceptions about Sikhs as loyal subjects changed in the early twentieth century (Talbot and Singh 2008), primarily because by this time the Sikh was regarded as a hostile subject because of violent anti-imperial groups set up by Sikhs in North America, such as the Gadr party. When the rest of the Komagata Maru passengers were forced to return to Budge Budge near Kolkata they were still considered threats, and they were shot at and detained. Many were under British surveillance because of suspected involvement in Indian independence.

The idea of the violent ‘Asiatic’ comes up in the Komagata Maru court documents in British Columbia, Canada. The racialised politics of exclusion of White Canada thus caused widespread ripples across empire. Settlers who had displaced Indigenous populations and controlled them had a fear of losing their land to others ethnically different from themselves. Public health was the other popular trope against migration from ‘the tropics’, as was the suitability of Asians for the cold climate of Canada. When the Komagata Maru came into Canadian waters, there was concern that ‘Asiatics’ would have diseases such as hookworms, which they would bring into Canada (Wallace 2013). There was also anxiety about jobs lost to migrants who would be willing to work in low-end jobs for less, such as in the mills of Canada, again a major reason for controlling migration in the contemporary world as well. It appears that border control a century ago was about overt racial concerns and ethnic purism manifested in concerns about economy, public health, infection and threats of violence.

What did this incident establish in terms of bordering and the role of law? Borders are not always physical or constant with clearly drawn lines of legality and illegality. The Komagata Maru and its 376 passengers were not ‘foreign’ by law but became undesirable and bordered in a manner that had not taken place until their arrival. Although as subjects of the British Empire they drew on the rule of law to challenge the redrawing of borderlines, they could not succeed in the face of national security, public health, anxiety about employment and economy, and basic racism.

More than a century later, on 18 May 2016, Canadian Prime Minister Justin Trudeau finally gave a formal ‘full apology’ for the Komagata Maru incident in the House of Commons. In modern Canada where multiculturalism is often celebrated, there have been many attempts to present this shameful episode in different lights and to ‘own it’ as a tragic event. Several plays have depicted the many angles and captured the pathos of early migration to Canada from the Indian sub-continent. Playwrights Sharon Pollock, Ajmer Rode, Sadhu Binning and Sukhwant Hundal have all depicted the story of the Komagata Maru in Canada. In 2004, a documentary feature film, Continuous Journey, by Ali Kazimi brought to life the Komagata Maru incident from newly discovered rare film footage of the ship. The film received worldwide acclaim and finally there was recognition of the costs of transitioning out of the exploiter–exploited relationship of colonisation.

In the early days of the formation of Canada such incidents were not limited to Brown and Black men from the colonies. The first Indian woman to become a lawyer, Cornelia Sorabji, was stopped on her way to address a gathering in Toronto in 1931. The immigration official refused to let her enter on the grounds that she did not possess the necessary visa. When she said that she did not require such documentation as she was from British India and was thus equal to Canadians of the British Empire, the official reportedly replied that Canada was not part of the empire and even if Canada was part of the British Empire, he was still unwilling to let Sorabji enter (Banerjee 2010, 116; Sorabji 1934, 292). The reply captures the ambiguity about Canada’s changing status within the Empire. By the early twentieth century, the term ‘dominions of the British Empire’ was informally used to refer to Canada, Newfoundland, Australia, New Zealand, the Irish Free State and South Africa.

In 1931, the Statute of Westminster was passed by the British parliament. It more formally conferred ‘dominion’ status on these six countries. It described them not as colonies, but as independent countries. They were equal to Britain, but ‘united in free association [as] members of the British Commonwealth of nations’. So, at the time of Sorabji’s arrival there would have been considerable confusion about how immigration control operated.

In practice, these borders did not exist only between colonies and dominions. Racialised British subjects (even the wealthy ones) could be barred from travel anywhere at will. For example, when Oudh (a Mughal province in Northern India which was a princely state) was annexed by the British in 1856, its king was deposed and the royal family became British subjects. The British foreign office however did not grant travel documents to the queen mother and her son when they wanted to travel to France as British subjects (MacPhee and Poddar 2007, 78).

Dummett and Nicol write that in Britain racial origin made no difference to subject status in law, but since poor subjects of any colour had no votes and fewer enforceable rights it was possible for the British government to operate outrageously racist schemes such as in 1786 for the compulsory settlement of Black Londoners on the coast of Sierra Leone in West Africa (1990, 79). Similarly, many poorer subjects, including babies born to unwed mothers and children, who were accused of minor offences were transported to Australia and Canada from Britain (Kershaw 2009). In England other kinds of subjects came under the scope of immigration control in the 1900s. The Aliens Act of 1905 defined for the first time in British law the notion of the ‘undesirable immigrant’ as ‘criminal aliens, the destitute, the ill or the infirm’ who would place a burden on the early welfare systems, that is, on poor law institutions and the emerging health and welfare systems (Bashford and McAdam 2014). In Britain, the concern was to restrict the entry of destitute Jews fleeing repression in Russia and Eastern Europe (Bashford and McAdam 2014). The principle, though, was the beginnings of immigration systems that differentiated between the wanted and the unwanted. The 1905 Aliens Act made a seminal connection between immigration and welfare; in particular, the concept of ‘recourse to public funds’ was introduced so that migrants could not draw on social welfare reserved for the deserving ‘British’ (Miles and Cleary 1993). This restricted access to welfare to the ‘deserving’ and not those of undesirable conduct or circumstances.

These issues of movement, work, and lack of material welfare of subjects of the British Empire as well as the continuing legacy of unequal subjecthood raise questions about the value of British subjecthood both in the past and in the present. As we have seen, the fracture between subjects became apparent at this time as a division opened up between those White settler colonies where the British government granted a very large degree of autonomy to locally elected representative government and the colonial territories with large non-European populations, where White residents were a small minority concern regarding administration and commerce. The former type became what is now called the old Commonwealth, that is, Canada, Australia, New Zealand and, from 1902 to 1961, South Africa, and later became known as the new Commonwealth (Dummett and Nicol 1990, 115). Thus, the legal mechanism of subjecthood was not really the equivalent of citizenship, as it failed to create internally any sense of belonging to a single political unit. Similarly, in the context of the Ottoman and Russian Empires, Khoury and Glebov (2017, 52) write that ‘no single narrative can account for the multiple ways in which citizenship and subjecthood were imagined, articulated, practiced, and claimed’ at the time of empire. In many instances, the careful deployment of different kinds of political membership within the scope of political power could even prevent the recognition and articulation of colonial relationships. The Soviet project of jointly serving the purpose of socialism, whether as ‘little Russians’ (for example, used pejoratively for Ukrainians), Belarussians or Russians at the core of power, or as less advanced parts of the Soviet Republic (Kazakhstan and Tajikistan, for instance) which required ‘development’, concealed colonial expropriation to a large extent. The exploitation continued until the dissolution of the USSR, and in some instances even for decades afterwards (Pirie 1996). Ukrainians arguably did not view themselves as colonised in the same manner as India or Kenya until the invasions and wars of the twenty-first century, when they started re-examining the Soviet-era political hierarchies within state-sponsored socialism. Rethinking events such as the human-made famine (known as the Holodomor) in Ukraine from 1932 to 1933 that killed millions of Ukrainians reveals the systemic manner in which people were deprived of livelihood (their farmlands), food and lives as well as cultural artefacts and language in the name of becoming part of the Soviet collectivisation of agriculture and homogeneous Soviet collective identity project (Mattingly 2020).

Learning from the experiences of the British Empire and the use of law in this context seems even more relevant now than ever before. Indeed, there are many generalisable lessons to be drawn from the British Empire for others such as the Soviet/Russian, French, Belgian or Dutch empires. For most of these European empires, while the empire was supra-national, the arrangements of empire accentuated the exclusionary characteristics of nation-state membership along racialised lines rather than facilitating robust supra-national rights. Those of White European ethnicity retained their citizenship privileges in rich metropoles no matter where they were located, while Asians and Africans who were colonised were often left with unilaterally assigned citizenships of their newly independent and impoverished countries (Manby 2023, 7). This is not surprising, as the colonial context was specifically designed as a political and economic system to provide competitive advantages at the core of empire while exploiting the colonised lands, so decolonisation carried over many relationships of exploitation inherent in imperialism through the new nationality arrangements.

The context of racialised and monetised unequal subjecthood continues to influence modern manifestations of nationality and immigration control. Take, for instance, the story of Ms Diane Elias, who in 2006 was litigating to be compensated by the British government [2006] 1 WLR 3213. She had been born a British subject. Ms Elias and her entire family had been held in a Japanese camp in Hong Kong because they were British subjects. After her liberation in 1945, Ms Elias lived sporadically in the UK and then permanently became a UK citizen in 1976. Ms Elias had been a British citizen for decades and had lived in the UK from the 1970s.

In November 2000 the government announced a £167m compensation scheme for British civilians interned by the Japanese during the Second World War with each receiving £10,000 as a ‘debt of honour’. Several months after details of the scheme were published, the government decreed that claimants should show a ‘blood-link’ with this country, disqualifying up to 2,400 whose forebears worked and lived in the Far East, often for the armed forces or the colonial administration.

Ms Elias was denied compensation under the scheme because it had introduced a requirement of blood-link to British national parents in order to qualify for the compensation. To be eligible for the non-statutory Far Eastern Prisoner of War Ex-gratia Compensation Scheme (2000), a former internee had to have been born in the UK or have a British parent or grandparent: Ms Elias was born in Hong Kong. Both of Ms Elias’s parents were British subjects but were of Indian and Iranian origin. In short, as Ms Elias herself poignantly stated at the time of the case, she was British enough to be detained but not British enough to be compensated.

She sought judicial review on two grounds: the eligibility criteria entailed both direct and indirect racial discrimination in breach of s71 Race Relations Act 1976, which imposed on the Secretary of State the duty to have regard to the need to eliminate unlawful race discrimination in carrying out his functions. The Court of Appeal found that the discrimination was not directly racial; however, the eligibility criteria was indirectly racially discriminatory and disproportionate to its aim and thus unjustified. Mummery LJ held that the restriction of compensation for wartime internment to UK-born subjects or those with British parents or grandparents was racially discriminatory and disproportionate under the Race Relations Act 1976. He referred to s71 Race Relations Act: ‘“Although place of birth is not a racial ground, it may be prohibited as an indirect form of discrimination, subject to the defence of justification”: [122]’.

We will revisit subjecthood again in the context of resistance to empire, movement of elites for education, and also restrictions placed on Commonwealth nationals in more recent times to further evaluate whether subjecthood had any emancipatory potential or simply was repressive in colonial times and fizzled out with time and changing political contexts.

Bordering empire: the hegemonic effect of the rule of law

So far, we have established the usefulness of subjecthood in expanding empire and also maintaining a veneer of rights. Later we will see that it could also be mobilised in resistance. But first we need to assess why British legal mechanisms gained currency in establishing long-term rule by empire. Subjecthood was only one legal institution and mechanism of control. There were many more at the service of empire for maintaining newly drawn and redrawn borders. While the violent redrawing of borders in former colonised lands and the forced displacement of people in the affected lands is well documented, violence fails to explain the durability of the colonial arrangements across empire. Colonial arrangements rested on the infrastructure of law. As we have seen, there is a lot of difference between settled territory and colonised countries. Settler societies usually had some form of representative body and rejected any right to be taxed from the centre of empire. By contrast in colonised places law was used as well as violence to extract natural resources and exorbitant taxes (Darwin 2013, 233). Subsequent to partitions in various countries, nationality laws in those countries conferred citizenship on their people as per their constitutional arrangements. Yet this was only after centuries of exploitative rule.

It is perhaps impossible to explain how so few could have ruled over so many for so long without the real, as well as symbolic, and performative aspects of law. In the early days of empire and during its continuation, there was less concern about borders than there was about legitimising a rule that clearly was unfavourable in economic terms for those being ruled. Law had subtle and pivotal roles in defining and setting up the boundaries of empire throughout history, not just through the enforcement of geographical borders but also through its role in imperial domination. Local participation in British armed and police forces meant locals often maintained the day-to-day law and order and used violence against fellow subjects. The legitimacy of such violence was accepted or tolerated by the vast majority because it was bolstered by institutional arrangements with the trappings of legality, including mechanisms for challenging decisions and seeking justice. There was often a permanent sense of national security emergency across empire which further justified law and order interventions. The national security needs even justified banishment, such as through transportation to external penal colonies or offshore prisons, and the use of capital punishment on rebels. Entire peoples were declared criminal for more effective control. Indeed, entire penal regimes were coded and enacted to govern local populations through disciplining and punishment. Why such arrangements could be imposed is unfathomable without the moral expressiveness of law.

The superiority of British laws and processes throughout the empire as opposed to ‘native’ means of dispute resolution was fed by the colonial narrative of both racial and cultural superiority of White Europeans. Approaching British judges and lawyers or legally trained administrators who had claims to expertise in that system also contributed to those very same relations of superiority and inferiority. In the early days of institutionalisation of British justice overseas, courts where English law was practised were considered superior to the law practised by ‘natives’. English law was mostly written, and while oral advocacy was important there were copious written submissions and records kept which facilitated the enforcement of judgments. Local justice systems were often only oral in form with very few written records. As countries industrialised, people moved from villages of small communities governed through traditional and less distanced forms of authority to cities where they were strangers to neighbours. At that time written and recorded forms of adjudication became more popular and local populations started preferring courts with formalised justice systems. The distance between the core and the peripheries of empire contributed to this hegemonic rule, perhaps as much as military or technological advantages of the centre. The long-term hegemonic maintenance of colonial arrangements is reminiscent of Lukes’s understanding of the third dimension of power, where some of the real interests of people can be hidden by its operation (Lukes 2021). Instead of action or inaction, the third dimension hides the arrangements of power despite its being in open view, because it creates certain legitimate conditions of operation in the eyes of those being dominated. Sometimes these interests may coincide with the real interests of elites in the colonies (such as in their business arrangements) but mostly these operate to legitimise extractive relationships. The British Empire was renowned for the import of its legal traditions and structures and the ‘rule of law’ throughout its territories. The purported neutrality of law reassured the ruled of fairness and equal treatment. Mostly this was untested, as subjects from different parts of the world did not have intersecting lives which prompted adjudication in a manner that needed them to be treated as equals in the same place and time. When, unusually, conflicts did arise, should there be unfairness, this was explained away through legal reasoning or as exceptional in the context of security needs. In India the representatives of the East India Company who ruled through imperial mandate often resented being brought before the British courts, which wealthy Indian traders and elites could afford and access. Yet through transportation and transplantation of English legal systems into colonised areas, it was possible to demonstrate superior moral values such as impartiality of the justice system and fairness as well as rule of law, all of which created a hegemonic impression of the overall fairness of British imperialism even when there were clear miscarriages of justice or political subjugation. Drawing on Fitzpatrick (1990), Merry writes that law was conceptualised as ‘the gift we gave them’ (Merry 2004).

Empire is not just about territorial conquest – it is also about cultural imperialism, about disparaging the values, social practices and religious beliefs of non-western people. In general, the non-European other was and had to be saved from this disaster by colonisers (Darwin 2013, 5). Categorising and applying measures to bring civilising ‘order’ to native ‘disorder’ demonstrated administrative and organisational superiority. It is through these specific mechanisms that law had a hegemonic effect on local populations. Law became an ideological export throughout the British Empire and facilitated the domination of different populations around the globe. Merry (2004) writes that law was central to the ‘civilizing mission’ of imperialism, particularly British imperialism of the nineteenth and early twentieth centuries.

Empire: law as legitimacy and jurisdiction

The British administration was sensitive to popular perceptions of its rule: British justice was projected as superior in terms of efficiency and being impersonal in nature (Wilson 2016). There are instances where it indeed favoured locals, for example when the Calcutta Supreme Court was established by the British through the Regulating Act of 1773 (Alibhai-Brown 2015, 71). The court quickly showed itself to be a new and potentially highly destabilising force in Bengal politics. Whereas the old Mayor’s Court had been staffed by men of local English influence, the judges of the Supreme Court were outsiders (some from Scotland, Wales and even Ireland). They were not necessarily well disposed towards the British in India. The East India Company’s Indian subjects exploited new opportunities for legal redress, and the judges took an expansive view of their powers to hear cases involving Indian plaintiffs and defendants. The court’s legal proceedings challenged the Company to justify the workings of its territorial government, especially its law courts (adalats), and rapidly exposed the gap between the rhetoric of regulated government, and the loosely coordinated network of powerholders sheltering under the Company’s sovereignty. The Company, meanwhile, was forced to validate its administrative practices by a strident defence of ‘Asiatic’ customs, supposedly under attack from the alien invasions of the English judges (Travers 2007, 184). The Supreme Court was also used by the Company to sue its misbehaving servants, and for Company servants to sue Indian agents whom they accused of fraud. By the end of the nineteenth century, seven of the eight large Indian provinces were headed by Irishmen, while the chief justices of Bengal and Hong Kong were both Welshmen (Colley 2014, 120). Hence bonds with England and the Crown were that much weaker.

In order to access jurisdiction of British courts, applicants approaching the courts would raise issues of subjecthood to establish their connection to the courts. Many of them were involved in commercial disputes. Thus, although subjecthood is often presented as the foundation of a relationship of allegiance and protection between the ruler and the ruled (Dummett and Nicol 1990, 142), for many people, it was an instrumental means to access courts and to be heard and recorded. Several cases exist on jurisdiction and subjecthood. People approached courts set up by the British rulers to be declared as ‘subjects’ so that they could seek the protection of the common law (Majumdar 2013). One example is Killican v. Juggernauth Dutt [1777] 1 Ind. D. 946, where jurisdiction of the court extended over all those born in Calcutta or residing in Calcutta.

One of the key byproducts of migration during times of empire was a strengthened legal transplantation of English common law around the world because legal education in England became a career necessity around the empire (Wilson 2016). The high status of English common law and British courts in India meant there was a professional demand for legal training in English law. In the beginning there was a monopoly of lawyers trained in England, and local elites, despite being educated in English, could not qualify to practise in the courts. Wealthy elites started sending their sons to England for training in the law. In the nineteenth century the first set of Asian, African, American and Caribbean Bar students were enrolled in the Inns of Court in London. The Inner Temple archivist Clare Rider (1998–2009) writes that the first Asian member of the Inner Temple was Aviet Agabeg from Calcutta, a student of St John’s College, Cambridge, who was admitted on 11 June 1864 and called to the Bar in 1868 (Rider n.d.). The first Indian student to join and become qualified was Ganendra Mohan Tagore of the famous Tagore family, who was admitted in 1859 and called to the Bar on 11 June 1862. By 1885, 108 Indian barristers had been educated in England, encouraged by the Indian government, the Inns of Court and the Council of Legal Education, which granted concessions to Indian students to facilitate their training. Lincoln’s Inn also recruited a number of students from further east in the nineteenth century. It still retains a special association with India and Hong Kong.

Alongside many male Indian barristers who studied in the UK, the first female Indian lawyer was Cornelia Sorabji (whose name has already been mentioned in this chapter). Sorabji was also the first woman to study law at Somerville College, and indeed at Oxford University, and the first woman to graduate from the University of Bombay. Along with her work as an advocate for individual women and children, she became an advocate of social reform, campaigning in particular for education for girls, for legal rights for women subject to segregation (purdahnashins), for abolition of child marriage and for protection and support for widows (Banerjee 2010, 116).

In 1846, a Parliamentary Select Committee, and in 1854, a Royal Commission on the state of legal education both asked for more formalisation of training in England and Wales. Soon there were exams and also periods of training (Articles) and by 1909 there were eight law faculties in England and Wales. This meant academic and professional education/training were kept separate. The presence of a large number of Indian students led to a hub of student networks, for example, India House in London. However, there was no serious suggestion that Indians should play a part in imperial government until the 1830s, when the question was considered in the lead-up to the passing of the India Act of 1833. Foremost in the movement for native recruitment to the East Indian civil service were Sir Charles Trevelyan and Thomas Macaulay, who were serving in India at this time. While many amongst the British establishment feared that the education and employment of Indians would threaten the British Empire, Trevelyan and Macaulay argued the reverse, although appreciating that it would take some time to achieve true integration. Macaulay declared in a speech on the India bill in 1833:

I feel that, for the good of India itself, the admission of natives to high office must be effected by slow degrees. But that, when the fullness of time is come, when the interest of India requires the change … to refuse to make that change lest we should endanger our power … is a doctrine of which I cannot think without indignation. (Rider n.d.)

Central to this development was the education of the Indigenous population. In arguing that this education should be in the English language and should follow the British tradition and syllabus, Macaulay wrote in his famous ‘Minute of 2 February 1835 on Indian Education’:

In one point I fully agree with the gentlemen to whose general views I am opposed. I feel with them that it is impossible for us, with our limited means, to attempt to educate the body of the people. We must at present do our best to form a class who may be interpreters between us and the millions whom we govern; a class of persons, Indian in blood and colour, but English in taste, opinions, in morals and intellect. (Rider n.d.)

Although universities and colleges were subsequently established in a number of Indian towns and cities, the sons of the rich continued to be sent to England to receive a traditional education at the Indian civil service college at Haileybury, at the universities and at the Inns of Court. The majority were to return to their native country to pursue a career in the Indian civil service and judiciary. It is significant that the first Indian to return from England to serve in the Indian civil service, in 1864, was Satyendranath Tagore, a relative of Ganendra Mohan Tagore, the first Indian to be called to the Bar in London. Training for the Bar had the added advantage of equipping students with advocacy skills and conferring status, prestige and potential wealth at home. In this manner, law was a multi-pronged tool of empire.

Banerjee writes that British education demonstrated to many educated Indians that humans are born free and equal, and this contradicted the position of British government that Indians were not yet ready for self-governance (Banerjee 2010, 11). Many of the leaders of the early independence movements had been trained as barristers in England. These included Gandhi, Nehru, Seretse Khama, the first president of Bechuanaland (modern Botswana) and Tunku Abdul Rahman, founder of modern Malaysia, all of whom had been educated at the Inner Temple. Gandhi was disbarred from the Inner Temple in 1922 for his conviction for sedition in a British Court. That did not bar Gandhi from becoming a household name worldwide (Banerjee 2010, 9). Other lawyers too struggled for liberty, equality, justice and truth and went on to bring down colonial structures in their homelands in the independence movements (Venkatesh 2019). Some British barristers too worked for local sovereignty, for example, Eardley Norton. They deployed the law in the resistance against imperialism.

Mobilisation of rights and subjecthood

The indeterminacy of subjecthood has led to its widespread use as a pragmatic policy linked to selective categorical operation in demographic control. Despite the production of legal elites who became steeped in the rule of law as part of their training, there was no impetus from the centre to decolonise. People could be subjects of the ruler, and access resources such as higher education, but still not become full citizens of empire. The training of lawyers did not compensate for the inherent inequality of status between the ruler and the ruled during empire.

Historian Mike Davis (2017) has discovered that there were at least thirty-four famines and other holocausts in India during colonisation. Indians suffered iniquitous high taxes and trade restrictions, and Indian artisans were persecuted. For instance, muslin, silk and cotton cloth weavers were unfairly restricted so that British mill-made cloth could be sold at high prices by the East India Company instead. Previously rich provinces became poor because of unfair trade prices. Farmers were forced to grow cash crops such as indigo and as a result there was widespread starvation. Yet imperial monies continued to be spent on celebrating British rulers (such as in the Delhi Durbar in 1911 to celebrate the accession of George V) instead of providing relief for the starving millions. These atrocities largely went unnoticed in the metropole. As Gorman (2006, 12) writes, ‘There are gaps between the Imperial Metropole and imperial periphery’.

Despite the oppression of colonisation worldwide, within Britain, imperialism was considered benevolent and beneficial for Britain as well as for the colonies (Gorman 2006, 4). Gorman writes that it was not just the Conservative party that supported the idea of a superior empire and imperialism, but also the Liberals, finding empire a source of support and intellectual sustenance. Educated and aristocratic elites were part of a small circle and were also politically active across parties. They saw the advantages of pro-imperial policies for Britain without sharing in the pain of those in the colonies. There were however different shades of imperial citizenship, for example, a more cosmopolitan imperial citizenship and a less cosmopolitan (and quite parochial) nationalist imperial citizenship which focussed more on being British in Britain (2006, 5).

Within Britain, imperial citizenship was conceived of as an extension of, rather than a replacement for, the identity of British-subject children. Here the rights attached and became about receiving the protection of the Crown and free movement in the empire whereas externally such rights were mostly symbolic and illusory for the vast majority. Gorman (2006, 9–10) writes that one could not really be a citizen of empire. Citizenship is technically a republican concept as it is horizontal in nature. Indeed, Greek city-states with a democratic body of polis were more likely to be precursors of citizenship as understood today with mutual obligations, rights and participatory aspects (2006, 13). The uneven legal content of subjecthood and its substantive content (if any) could perhaps give some rights to people to move and to mobilise for better conditions, but such rights were at the pleasure of the ruler. Being a subject was about becoming one through resistance and framing one’s demands within the structural potentials and constraints of the system (Cederlöf 2017).

Whereas colonial rulers have used subjecthood pragmatically to enforce relationships of allegiance, colonial people have mobilised subjecthood as a category to agitate for rights as well. Both processes could take place simultaneously (for instance, see Newman 2011 and Merry 1991, who write about resisting using colonial ideology, procedures and systems). In order for subjecthood to attach to specific rights, it has to have been mobilised by movements or individuals who tested the limits of its egalitarian scope. Otherwise, it meant there were no real gains. In North America, revolutionaries seeking independence reframed subjects as citizens who could control their own taxation and representation but often presented this as subjects holding rights within a constitutional democracy. The post-revolutionary generation defined individual rights exclusively in terms of the ‘citizen’ (Breen 1998).

Banerjee’s work on post-colonial political claims of late Victorian Indian bourgeoisie explores their persistent deployment of the language of citizenship even when they remain legally dispossessed of its status (Banerjee 2010 as reviewed by Ho 2015). For example, politician Dadabhai Naoroji used subjecthood to challenge the exclusion of Indians from the commissioned ranks of the army in 1896. A decade later, judge and activist Syed Ameer Ali highlighted the empire’s pledge of equal rights for all races and creeds, decrying the detainment of Indians seeking to enter Canada, a British dominion (Ranasinha et al. 2013, 22–3). Similarly, a prominent suffragist, Sophia Duleep Singh, daughter of the last king of the Sikhs, Duleep Singh, was of mixed heritage (with a German Ethiopian mother) and she was influential in English society. She was a goddaughter of Queen Victoria as well as being a princess (Ranasinha et al. 2013, 30–31). Her views were taken more seriously because of her status and appearance as a light-skinned elite Indian.

Majumdar (2013) also writes about other Indians who managed to climb the colonial hierarchies, such as those who remained in South Africa after completing their indentured periods and then established themselves slowly. Ex-indentured Indians were parents to the colonial-born professional Indians who were joined by ‘free or passenger Indians’, such as merchants and small traders. Colonised Indians in South Africa were called the ‘coolie community’ in a derogatory manner but they used this term to negotiate a new identity for themselves. Many of them became middle managers of the empire working for the British, yet when faced with challenges they mobilised their British subjecthood to seek rights using the language of the rights of subjects. Petitions written by Indians to the Natal colonial officers refer to themselves as deserving subjects who are different from other minorities. They also made frequent appeals to the sense of fairness of colonial authorities. Gandhi and his followers later used strategies of civil disobedience.

The ‘loyal’ or ‘worthy’ subject framing comes up while seeking rights in recent times as well. Gurkha soldiers in the UK were ‘loyal’ subjects who had fought for the British army, but many did not gain British citizenship. The Gurkhas wanted the law to be changed so that all Gurkhas who fought for the UK would gain the right of abode in the UK. They took their case to the High Court, and had the support of a number of celebrities, including British actor Joanna Lumley whose father had served with Gurkhas. The campaign was about how much the Gurkhas had sacrificed for the country, and was eventually successful in 2008, when the High Court ruled in their favour. However, the government brought in rules which introduced new conditions rather than an automatic right to settle in the UK for all veterans. Veterans who had served for twenty years or more in the Gurkha brigade and had at least three years’ continuous residence in the UK during or after their service could gain the right of abode, but these conditions greatly reduced who could be eligible out of all the Gurkha veterans. After much more campaigning by the Gurkhas the government subsequently announced that all Gurkha veterans who had served four years or more in the British army before 1997 would be allowed to settle in Britain, yet it had clearly tried to exclude through the implementation of restrictive conditions many who had made tremendous contributions to the country.

The end of free movement and the Commonwealth

The Komagata Maru story was only the beginning of the end of free movement around the empire. Canada passed its own citizenship act in 1946 and issued Canadian passports to include its own French-Canadian citizens (Fransman 2011). Canada’s initiative in controlling its own immigration and naturalisation meant that each dominion could now determine criteria for entry and residence of its own citizens and regulate those from other parts of the empire. This challenged the common status of British subjecthood. The loyalty element of subjecthood acted as a rallying call for participation in the two World Wars across the empire. In the dying days of empire, subjecthood was challenged and discarded nationally in the former colonial spaces.

The rise of nationalism in the newly born free countries created an urge to monitor immigration from outsiders as an expression of state sovereignty. Countries like Australia and Canada perceived this reconfiguration as a liberation from British subjecthood. Discretion remained on racial qualifiers for admission as well as settlement, and rights did not automatically transfer from legal guarantees. This led to more barriers being set up against the entry and naturalisation of British subjects from elsewhere in the empire through racial qualifiers for entry and long-term residence. It was years before racial and ethnic qualifications for citizenship were eventually removed in these countries because of national, social and political movements to include minority and Indigenous persons into the fold of national citizenry (see for instance, Chesterman 2005).

Canada termed British subjects as Commonwealth citizens, so the British government introduced its own bill to include all Commonwealth citizens (people born throughout the Commonwealth) as British subjects. This was achieved through a legal sleight of hand: a shift in terminology from subject to citizen in the British Nationality Act 1948. To create equal status of subjects, the 1948 Act permitted former subjects of Commonwealth and colonies to freely enter and settle in the UK. The Act made it possible to naturalise as well as hold plural citizenships elsewhere without any limitation. It also recognised for the first time in statute law that people could become British by incorporation of territory (s.11) without being required to prove any allegiance as a basis for citizenship. Having to take an oath of allegiance to the monarch was part of the process of naturalisation (s.10(1)), however, so some people still had to demonstrate some sort of allegiance akin to subjecthood. Thus, the 1948 Act did not wholly abolish subjecthood and replace it with a uniform set of rights, but tried to create some broad-based citizenship.

At the point of breakdown of empire, and as more and more countries achieved independence, if those countries chose to join the Commonwealth their citizens remained British subjects. The 1948 British Nationality Act changed the focus from having allegiance to the king to just being a citizen of a country in the Commonwealth (Hansen 2000). Regarding the 1948 Act, Everson (2003, 77) writes: ‘the natural universalism of subjecthood had been territorially qualified’. The 1948 Act had ‘created a new geographical and territorial entity known as the UK and Colonies’. The British colonies would henceforth share a citizenship with the United Kingdom to be called Citizenship of the United Kingdom and Colonies. Under the British Nationality Act 1948, the concept of a British subject covered, in addition to citizens of the independent Commonwealth countries, ‘Citizens of the United Kingdom and Colonies’ and ‘British subjects without citizenship’. ‘British subjects without citizenship’ were persons who could potentially become citizens of an emerging independent Commonwealth country on the coming into force of that country’s citizenship law. If they did not acquire such citizenship they would, by default, then acquire Citizenship of the United Kingdom and Colonies (Dummett and Nicol 1990, 143). Later on, these re-categorisations would create much upheaval in the lives of people settled for many years in the UK, mostly Caribbean people, who were collectively referred to as ‘the Windrush generation’ after the Empire Windrush, the ship which brought them to the UK in 1948, and who were wrongfully affected by new legal statuses created by law. This gave rise to what is now known as the Windrush scandal (or the Windrush deportations). I shall return to these in Chapter 2 while examining internal and diffused bordering. But here in terms of the emergence of nation states and new borders, the story of end-of-empire re-bordering continues at its former outposts.

Re-bordering at the end of empire

Transition at the end of empire for newly independent countries to a commonwealth of nations was not automatic. They could opt whether to join or not. Some, like Myanmar (at that time named Burma), chose not to join the Commonwealth, so Burmese nationals did not retain British subjecthood. In contrast, those who joined the Commonwealth retained a right to enter, live and work in the United Kingdom, just as all subjects had done in the past. The 1948 Act retained this arrangement for Britain to maintain soft power over decolonised nations. The UK was ‘first amongst equals’ in the Commonwealth. Even in the dying days of empire the Labour government of 1945 to 1951 was determined to make the Commonwealth a dynamic new vehicle for British world influence (Darwin 2013, 355). This re-bordering of the British nation state which emerged at the end of empire helped maintain its global position in a changing world. Gorman writes that the Commonwealth for Britain was similar to the Roman model; it was to bind people together during times of peace (2006, 13).

This peace was however built on a foundation of bloodshed. Partitions of colonised countries like India were violent and led to forced migration as well as the loss of many lives. Independence in the case of British India occurred at relatively short notice in August 1947 but tying up the loose ends of empire stretched over years. When my grandmother, alone with her young children on a train, left Bangladesh, where people were being slaughtered, she had no certainty of her status or of a welcome in the newborn truncated India. All she knew was it was unsafe for her to remain in her natal village anymore because of the communal violence raging in her neighbourhood. Many people she knew had been killed and their houses burned down. She relied on the goodwill of new neighbours and old family connections in Kolkata (then Calcutta) who helped her find her feet. Her own education and cultural capital ensured her children did not grow up without education or slip into lifelong poverty. Yet she identified as a Bangladeshi Bengali all her life.

India and Pakistan both had to set out in statute who now belonged within their new borders. Britain likewise was forced to recalibrate its ideas about nationality and think afresh about the rights of its subjects in view of the new sets of relationships that now linked colonies, old dominions and the ‘mother country’ within the Commonwealth. The reality was that many people of South Asian origin would qualify for UK Commonwealth citizenship (UKC), but the question was whether they would also come under Indian or Pakistani citizenship, as in that case they would not be eligible for UKC. There was anxiety about taking on Indians or Pakistanis in too large numbers within the UK and ideas of racial anxiety often were present in debates about the British Nationality Act itself, ‘if we are not to be swamped by a flood of potential Indian citizens [should] they fail to register as Indians’. London’s representatives in both Karachi and Delhi thus agreed on the need to ‘exclude from citizenship of the United Kingdom and Colonies, persons of obvious connections with India and Pakistan by race and habitation, who do not automatically acquire citizenship of those countries on the date their respective Acts come into force’.³ However, new bordering issues continue to plague these states with internal re-bordering a constant reality in these countries, for example, making undocumented people foreign in India in the 2020s (Ansari 2013, 296).

Race continues to play a critical role in global borders and bordering. For example, a law that has undermined Indian secularism is the Citizenship Amendment Act (CAA) which came into force in 2024 despite being passed by Parliament in 2019. Before the CAA, any foreign national seeking Indian citizenship through naturalisation needed to have spent eleven years in India to become eligible. India’s citizenship law did not make religion a determinant of a person’s eligibility for an Indian passport. All those seeking naturalisation had to show that they were in India legally and needed to wait for the same period – eleven years – to become eligible for citizenship. The CAA now offers a fast-track citizenship in five years to people belonging to persecuted minority religious groups (Hindus, Parsis, Sikhs, Buddhists, Jains and Christians who escaped to India from religious persecution) in Muslim-majority countries neighbouring India but not to any Muslims who might be persecuted as well. Muslim victims of religious persecution in Pakistan (like the Ahmadiyya), Afghanistan (the Hazara) or other neighbouring nations (such as the Rohingya in Myanmar), cannot benefit from this law. They will still need to wait for eleven years before they become eligible for Indian citizenship, and unlike Hindus, Parsis, Sikhs, Buddhists, Jains and Christians, Muslims seeking citizenship need valid documentation to justify their presence in India. Thus, the religious bordering seen at the time of empire continues to the present day in India. However, not everything has remained unchanged since the time of empire and indeed there is much change in migration control and enforcement. Shachar (2020) have noted that borders are shifting. States have changed bordering practices both in location, outside of traditional state-geographical borders (for example through off-shoring asylum processing or treating those who physically arrive on their territory as ‘not having arrived’, as they have entered but not been legally admitted), and in time (by preventing their travel in the first place by checking documents at point of departure, or even before, rather than on arrival).

Some bordering practices are dispersed through technology as well as the de-centring of state functions and delegation to private parties and individuals who control access to resources necessary for human survival (employment, housing and healthcare, for instance). However, territorial physical borders still loom large in migration control, and present-day territorial borders are largely found between nation states. Free movement is possible within a nation state or across states, by agreement in regional zones such as the European Union (EU) but is often restricted to specific national origins such as those from member states of the EU. Nation states generally seek to host those who may be able to contribute and are ‘deserving’ of their place in society but reject others who may be a drain on resources or become ‘threats’ to host societies.

In this book, I argue that while the practices and mechanisms of bordering have shifted, dispersed and multiplied, as identified by Shachar and other scholars, the core justifications of migration control reverberate down the ages and are closely linked to ethnicity and the racial politics of colonial relations. Regulating foreigners and determining who is foreign (and should be treated as an outsider), has been the chief pre-occupation of borders but this objective has altered with time, location and changing histories, geographies and political formations. Bordering aims are not neatly conceived or ordered over time but emerge as recurrent patterns in bordering practices and the legal architecture of border control. As seen in this chapter, shifting borders are not just modern phenomena. To some extent borders have never been fixed points. Indeed, as we have seen during the expansion of empire there has been fluidity of movement as well as different kinds of restrictions, so shifting borders have old origins. The role of law has been to facilitate this expansion in a manner that gives it a veneer of legitimacy and to generate a belief that the rules and values of colonisers are somehow superior to those of the colonised people and essential for their long-term development. Only when law could be mobilised to expose its own double standards did decolonisation gain traction.

Conclusion

Nobel Prize-winning author Rabindranath Tagore’s Bengali song ‘Amra Sobai Raja’ (‘We are all Kings’) proclaimed that all are kings in the kingdom of a King who gives respect to people and commands respect in return. That is the only reason people support the King. Written prior to India’s independence from British rule, the song (translated from Bengali by Sumana Roy)⁴ captures the desire of a nation to take charge of its own destiny and underlines the importance of democratic consent for governance:

We are all kings in this kingdom of our King –

Otherwise how else would we will to be with him?

We do what we please

our joy mingles in His

We are no slaves to a despot’s tyranny.

Otherwise how else would we will to be with him?

The King honors all

receiving the same in return …

The song is a patriotic subversion of empire, yet the British Empire for a long time generated a sense of consent for empire within India which led to its durability. The role of law in colonial relations and bordering during empire is complex and subtle, with English legal education and training proving essential for maintaining colonial hegemony as well as inspiring and framing post-colonial arrangements.

Tethered to the legal promise of subjecthood was the idea of subjects being able to travel and settle throughout empire without hindrance, thereby signifying their equal status in the eyes of the King. Subjecthood had the function of extending territorial jurisdiction and creating legal domination over diverse people through these hegemonic characteristics. Yet, it unravelled precisely because it was not about equality but masking some of the most egregious exploitations of colonialism. Law did not just extend boundaries through legitimising brute force or even through the sleight of hand of subjecthood. It played an institutional role in imperial domination.

While subjecthood was carried around the world by British rulers through documents, laws and courts, it was never tested in a uniform or universal manner. Thus, experiences of being a subject varied widely. Hardly any mass travel had taken place for most of human history until the past century, so few British subjects chose to make use of their hypothetical rights by travelling to England. The few who did were at the extremes of social strata: either very poor or very wealthy. Poorer British subjects such as sailors and servants from India who travelled to England were usually left impoverished by the India Office in England which was charged with their welfare (Saini 2018).

Historical data on subjecthood and citizenship reveal that law determines who is and who is not from a newly independent country, who remains a British subject and who does not. The backdrop of the World Wars and the resulting focus on loyalty and allegiance while incentivising cooperation from colonies and dominions in war efforts is of great significance. Cases such as the Elias case and the Komagata Maru case raise issues about the context of territory and jurisdiction of subjecthood and colonial power. As the British Empire grew during the eighteenth and nineteenth centuries there was an increase in the inflow of migrants from across the empire to England. Focussing on the British Empire, it appears it was in theory an area of free movement, but it also facilitated slavery and indentured labour in direct contrast to ‘free’ movement. This paradoxical situation was facilitated by racialised borders between colonies and dominions and its operation became clear during the breaking away from empire and rise of nationalism associated with decolonisation. Borders not only demarcated nations and territories but also transformed people into migrants. In general, borders were internally porous, but law extended jurisdiction for colonial powers and ensured a supply of labour at the core of empire.

Newly independent states had to reimagine their national character. For Canada, whiteness was part of a newly emerging national identity. Immigration control became a proxy for ethnicity control, as is evident from the efforts to curb the immigration from Brown and White areas of the globe to Canada. The Canadian context of settler colonialism is largely absent in the UK but both countries are linked by the history of empire and modern-day replication of the relations of empire. Maintaining majoritarian whiteness in ethnicity has been important in both contexts. Similarities in the negative tropes of immigration control such as public health (hookworms for Komagata Maru passengers and Covid-19 today), public order (Gadr party and violence for Komagata Maru passengers and terrorism now) and other such proxies of ‘being a misfit’ (regarding climate or culture, for instance) generate a lack of belonging to both nations in different ages. The politics of belonging is about the lack of ethnic fit in migrant populations in both countries. Whiteness of dominant populations was constructed and maintained by liberal legalism and was not overturned by the growth and proliferation of liberal rights in either country. Eventually migration control provides an ideal environment for the matching of different kinds of overt and structural discrimination.

From this chapter we can identify the major justifications for immigration control, such as labour needs and protection in an economy, public order, national security, public health and control over the long-term ethnic makeup of countries. A variety of modern effects of colonisation persist in recent controversies, such as the controversy over the removal of statues of slave traders (for example, Colston in Bristol) or that of citizenship for Chagos islanders or descendants of people born in overseas territories (Dorling and Tomlinson 2019, 53). As we have seen, subjects were often blocked from exercising rights and indeed the internalised unequal relations of ethnicity persist beyond decolonisation. With time, decolonisation is far from complete and, indeed, the wrongful deportation of ethnic minority citizens (seen in the next chapter) takes decolonisation into reverse mode. It indicates a complete dissociation from those who came into contact with Britain through colonial links and were even sought out for economic reasons of the state, but with time came to be viewed as ‘liabilities’ for the majoritarian state.

Notes

1. 1.  Reported in ‘Komagata Maru 100th anniversary: descendants surprised by stories’. https://www.cbc.ca/lite/story/1.2651437. Accessed 22 October 2025.

2. 2.  Speech to Colonial Conference of 1897, quoted in Rose et al. (1933, 41).

3. 3.  Ansari (2013), note 67: UKHC (Pakistan) to UKHC (India), 17 August 1951, FO 327/7089, UKNA.

4. 4.  The song lyrics are available in full at https://free219467.wordpress.com/2016/12/27/amra-shobai-raja-we-are-all-kings/. Accessed 22 October 2025.