Introduction

The past is a foreign country, where the gaze of a living person is merely that of a tourist piecing together bits of information which they cannot wholly comprehend. The stories of my courageous grandmother, Charu Sengupta, my inspiring aunt, Bela Sengupta, and my indomitable mother, Gouri Sen, inform my understanding of self and history. They were all women who undertook journeys of migration. Yet, I am no exception to the difficulties of knowing how my family history truly unfolded in the backdrop of empire, the turbulence of political uprisings, and the birth of new nations. The pieces of the jigsaw do not always fit neatly to present a full picture.

For me, and for others like me, born in decolonised worlds, the colonialism of empires past has become a fading memory. At most, it is black and white, speeded-up footage of Gandhi walking at breakneck speed. It is stories heard (or handed down) from grandparents of riots and of fleeing burning houses; stories told and heard, accompanied by shivers of horror but not quite viscerally experienced because of generational change. Yet it is also a live topic. It is conversations about the value and morality of the dominance of English-language education to the cost of local languages in the diverse Global South. It is the bringing-down of statues of imperialists (sometimes even drowned in rivers) in English cities looking to break free from the heritage of slavers and slavery. It is the return of city names around the world to pre-colonial names: the unfamiliar name of Kolkata for the familiar name of Calcutta. It is the realisation that Calcutta’s sister city Odessa from Soviet times was in Ukraine all along. It is many such things …

Decolonisation is a present-day buzzword too; decolonising the curriculum, the university, the media, and so the list goes on, with many conversations at cross-purposes. In the days of ubiquitous decolonisation, it is no longer simply about direct imperial state power, but also thinking critically about how power persists in societal structures. Race, class, gender and intersectionality make these links explicit. Continued discrimination and inequality which are persistent amongst citizens of minority ethnicities (in effect, second-class citizenship) are rampant. The effects of racism and poverty are evident in the empirical data of economic deprivation in the Global South. Such patterns are also replicated within the geographical borders of the Global North, where Black and Brown populations remain largely poorer than others, and inequities persist across generations. Politics plays out through the bodies and life experiences of ethnic minorities, who are technically not migrants but still not quite whole citizens. Such structural inequalities make the effective exercise of citizenship rights nearly impossible even for those who have the status, while others remain excluded from the entry point itself.

I introduce this book with these broad contexts as these inform and shape the work of this book and drive its queries. The book views borders and citizenship through the long lens of history, as history seems to cast long shadows as well as repeat itself (in a disturbingly clichéd manner). The book is titled Migrating Borders and Citizenship in Law: Scales, Locales, Themes and Practices because borders are not fixed and immutable, and the role of the law is critical in their creation and diffusion. Borders move beyond being just physical boundaries between states and exist as everyday measures and practices which impact the daily lives of people. While Ayelet Shachar (2020) has written about the shifting border and revealed some key changes in which borders have moved from territorial to legal or technological conceptions, Josue Cisneros (2013) has captured the emotive dynamism of borders as ‘the border crossed us’ while writing about Latina/o identity. He writes about the US–Mexico border and its changing contours during the Mexican–American War of 1846–8, and subsequent legal and social movements that have reconfigured Mexican identities and American citizenship for Latina/o communities throughout history. Cisneros’s book title, The Border Crossed Us, is derived from the popular activist chant, ‘We didn’t cross the border; the border crossed us!’. This context is true of other parts of the world where borders were often brutally or thoughtlessly redrawn by colonial powers or simply more powerful nations. As mentioned in the epigraph to the preface, the poet Alberto Ríos has written, ‘The border is a beautiful piece of paper folded carelessly in half’. It is the careless and reckless division of territories by colonial powers, often for their own gain, that has led to millions of people losing their families, homes and lives. Yet for individuals, borders remain deeply inflexible. Thus, Ríos’s words in the epigraph to this introduction also ring true: ‘The border is a rusted hinge that does not bend’.

Through bordering and borders this book focusses on those practices which have legal force and consequences for the lives of people who seek to live in a political system. Inconveniences, hurdles, hardships and barriers may seek to thwart many a human endeavour and may indeed be called ‘borders’, in the sense of delimiting access or hampering progress. But in this book, borders are sites of operation of power which can create legal hardship for people solely because they are, or are presumed to be, from elsewhere. The power is such that it can limit access to resources, keep agendas off the table, introduce new requirements, introduce new actors for carrying out state functions, and normalise or legitimise structural positions and hierarchies. While citizenship can be formal (legal status only) or substantive (legal status plus a panoply of ingredients of belonging, including political belonging), being a non-citizen can be a fragile and fraught experience. Bordering includes physical borders and the more insidious legal practices of creating foreigners as well as disentitling people from rights. The force of borders and bordering practices is in creating legal and material consequences, backed by governmental power of enforcement.

The book examines a variety of collective polities such as empire, nation state and free-movement regions to trace how law and borders intersect. It finds that the global and the local merge and clash, while the confluence of race, class and gender surface and resurface in waves of bordering and re-bordering. This book does not solely focus on the inclusion and exclusion binary, or other binaries such as the migrant alien and the citizen, the regular migrant versus the irregular, or the worker versus the welfare dependent. Rather, it deals with more diffuse concepts such as the generation or maintenance of foreignness; the everyday nature of migration and its control rather than the exceptionality of such control; and the complicated nature of migration control, which goes beyond nation-centredness. It seeks to explain better the mechanisms and practices of migration control.

In this book I trace the role of law as embodied in legal instruments and practices for identifying the underlying rationales for border control, such as security (war, national security, and law and order) and maintenance of the peace; regulating the labour market (both recruiting foreigners and preventing access to domestic labour markets for foreigners); protecting welfare provisions and resources (especially after domestic provisions for welfare have been institutionalised and consolidated); maintaining public health (especially in light of new or unfamiliar diseases); and above all, maintaining a distinctive sense of ‘us’ (who belong to a place and community) versus ‘them’ (who do not). The manner in which borders are reshaped through focal points of operation (what I call ‘migrating borders’) is linked to these underlying rationales and their reconfigurations. Historicising border control also reveals that borders and citizenship operate through practices and mechanisms formed through the confluence of empire, nation state, global and local authorities, work and long-term membership in society.

In Part 1 of the book, ‘Scales and locales of migrating borders’, the first three chapters on empire, national bordering in the United Kingdom, and bordering the European Union are the locational and temporal scalar chapters for assessing which frames of migration control resonate over history and which emerge at specific junctures. Sitting in a research Tardis (a time machine, for those who are not fans of Doctor Who), we jump through different locations, but strangely, for time travel, somewhat chronologically, through empire, nation-state bordering and continental bordering. In each of these scales work, family and emergencies (such as health or security) are the critical themes of migration control. So, in Part 2, on the ‘Themes and practices of migrating borders’, the three chapters take each theme in turn in analysing the role of law. Accessing different scales of analysis (the ordered and bordered workplace, the intimate yet publicly scrutinised family unit, and the emergencies that spread out in time and space, becoming mundane and everyday), enables examination of the role of law in each key theme of migration control and assessment of whether there are any patterns identifiable in how law is used, and why it is used in such a manner, in each scale and context.

Why the focus on the role of law? The central argument of the book is that law has multiple roles in bordering, including in the resistance of some border practices. Law has a critical role in bordering access to rights and membership at various locales and scales (from the macro to the micro, spatially, and across eras, temporally) through specific mechanisms. For example, law creates categories of people. Depending on the categories, some people have better access to resources through their legal status, while others do not. Law may remove the need for frontal violence through its internal logic of process and order, while it justifies a different kind of powerplay, one which can wholly integrate with democratic legislative and judicial institutions. Alternatively (or perhaps synergistically), law may be critical for dismantling unfairness and injustice that is carried out solely in the name of foreignness (real or fictitious). From the point of view of scholarship, by focussing on bordering and the role of law, the book attempts to encompass traditional territorial understandings of borders with the newer work on acts that create barriers to movement, residence, rights and belonging.

Law’s role against the key developments in migration control can be tested over time. In the British context, these co-relate to a continuum of changing geopolitical scenarios which reconfigure legal statuses. At various key stages in the evolution of the concept of citizenship, existing legal statuses have transformed. For example, in the context of the British Empire, the UK’s membership of the EU, and modern-day Britain we can identify: the transformation of subjecthood to citizenship (at a time of empire), the emergence of citizenship linked to the Commonwealth (after the end of empire), the national citizenship plus EU rights model of citizenship (after the emergence of the EU), and the conditional citizenship of present times (linked to modern national security). Each of these stages plays a significant role in influencing contemporary immigration and nationality laws. The British Empire and the UK present the opportunity to study the empire, nation-state and continental bordering but comparative data on other jurisdictions also assist with analysis of trends and developments over time.

The law facilitates bordering through creating justifications for preventing movement of people or for enforcing limits on their entry or stay. Apart from providing authority through status, the law provides specific mechanisms for the enforcement of bordering. Analysis of these mechanisms such as documentation, detention, deportation and deprivation (cancellation of citizenship), as well as denial of dignity, reveals that bordering does not simply target and categorise people – it has racialised performative aspects. The law supports these aspects through an exceptional legal framework which suspends rights, the privileging of immigration powers as nation-state and executive privileges, and its confining of discretion, with individuals holding power as well as the removal of scrutiny from decision-making by those in power. The chapters of the book will illustrate these aspects of the role of law while highlighting how commonplace, unexceptional and mundane these are at the service of power and the powerful.

The book draws on primary and secondary material regarding several key events in law which have changed the migration legal landscape in recent times. It assesses statutory instruments, international conventions and case law, as well as accounts from the press on key events of migration control. It presents the connections between immigration and nationality as well as asylum through the lens of work and access to work (or benefits); family and blood-links; conduct; and race, class and gender. Greater economic productivity generally links up to longer-term secure status (including citizenship) whereas low-end work results only in short-term precarious status or becoming undocumented labour. Family connections and blood-links matter, but operate through the privileging of certain race, class and gender attributes. Conduct, as exemplified in national security laws, has become a means of stratification even between citizens. Immigration control has extended to citizenship through national security laws, but instead of being exceptional, such control is normalised and consistent with past practices. Immigration control has become all-pervasive by involving the entire resident population, through legal duties to check and report on status at access points to resources such as housing, education and health. It is this normalisation that makes large-scale precarity for migrants, and even citizens, possible.

To develop the focus on migrating borders and the role of law, in the first chapter of this book the focus is on empire, as the transfer of wealth from colonies to the centre continues to influence current migration patterns. Who migrated during times of empire could reveal a lot about the framing of migration control at the time and whether such frames recur over time. The role of the law in extending jurisdiction of colonising nations, and justifying as well as maintaining their presence in colonised ones, is also intimately connected with migration and will form a part of this chapter. In Chapter 2 we move from colonial hostilities to the hostile environment for migration in the UK which is built on succeeding build-ups of restrictions on migration from erstwhile colonies, a sort of reverse decolonisation in the metropole of erstwhile empire. Perhaps the days of subjecthood are not just black and white but are still here in the lived moment of technicolour, multisensory, contemporary citizenship. Having covered empire and nation-state bordering, in Chapter 3 I turn to continental bordering with my gaze on the EU and the UK. This is an area fraught with tensions of human rights, citizenship rights and labour rights.

The first three chapters constitute Part 1, and because of their scalar approach to migration control these reveal the key frames of migration control and the practices which bring them to life. In Part 2 on ‘Themes and practices’, Chapter 4 on the workplace is on the first key frame of labour control in migration. Controlling who is actually in the workplace and who is sent out from it or kept invisible from it is a form of locational or microspatial bordering, so it reveals both long-term and emerging forms of bordering practices. Chapter 5 on the family is on the second key theme of controlling demographic characteristics. Controlling family migration and associated reproduction determines the future citizenry so it includes key practices of migration control. Chapter 6 focusses on the third key frame of migration control which is on emergency bordering (health and security). The recent Covid-19 global pandemic and post-9/11 security-themed bordering is an amalgamation of global and local bordering. The rich pickings of new practices (and those which persist from the past) in this chapter offer an opportunity to test how the most vulnerable are affected in times of crisis.

The broad sweep of the book necessarily means it picks and chooses, mindfully and strategically, which spatial and temporal scales to focus on. But no matter where it lands, it is a journey of following the displaced and the dispossessed. Why, and how, do they not gain entry to places where they can access safety or opportunities to better their lives, and if sometimes they do, how is that achieved? Why, and how, can people obtain both political and geographical belonging? And why, or how, does it remain so remarkably ethnicised globally? While it is not the place of an introduction to reveal the findings of the book, it will not be revealing much at this stage to say that the book finds that the rules of the game often change to prevent redistribution of global wealth in a manner commensurate with human movement and endeavours. Those displaced are the most adversely affected.

Migration is an epic story about the agency of human beings and their struggles against entrapment in structural inequalities. The narrative of ‘floods’ of people seeking to take over richer nations has a dissonant tone which distorts this story. Yet, demonising migration and migrants is now one of the most popular political ploys to garner votes in democratic nations. Understanding how this dehumanising narrative about migrants emerges and how it is politicised is critical for building a fairer and more just world. Assessing the role of the law in this is a project that is essential for challenging its misuse and releasing its potential for all of humanity rather than the powerful few.

As scholars, we ordinarily produce reasoned legal commentaries to each new development of powerplay against displaced individuals. We hide the emotions that are natural when seeing human beings fleeing war or persecution or struggling to save their children from drowning. Yet these emotions are of human connection. We can all understand how survival as an end goal can dehumanise people. So, even as we comment as legal scholars on the complicated provisions of law allowing detention, deportation or simply barring entry or penalising those who seek to save people from drowning in the oceans, we need to express sorrow, rage, empathy and understanding as well as hope. We should not just react but also seek to understand why and how we stand at the abyss that we do today. For if we stood in this very spot at the bottom in the past and emerged out of the darkness, perhaps we can rise once again as one human race with law and justice by our side. Although much remains to be done, community activism and legal challenges have prevented many unfair detentions and deportations. Law need not always be in the hands of the mighty. It is with this aspiration that the chapters unpack how bordering operates over time and space.