Introduction

Moving through the scales of time and space, this chapter reaches the stage where empires have become less relevant than nation states as political entities for the purposes of bordering. Decolonisation of European colonies worldwide and the break-up of large conglomerates such as the Soviet Union in the twentieth century fundamentally altered how individuals related, and continue to relate, to different regions of the world. Past movements of people, and their journeys, together with the reshaping of legal instruments as well as techniques for border control continue to influence contemporary situations. For instance, today’s multicultural Britain is shaped by the migration from erstwhile colonies and dominions. Former colonised subjects and their families (who joined them in the 1960s and 1970s) and their descendants, constitute the diverse population of contemporary Britain. In the previous chapter, we have seen the role of law in legitimising borders, whether through mechanisms of direct enforcement or through more disguised racialised discrimination operating widely throughout the empire. Colonial hostilities were usually carried out far from the metropole in states of permanent exception overseas. Law and order were heightened necessities in times of emergencies, but local populations could turn hostile at any time and had to be repressed with swift action, thereby necessitating permanent states of exception.

From the early 2010s, the word ‘hostile’ has been closely associated with immigration control within the borders of the UK as part of ‘the hostile environment’ for immigration. It is this internal bordering which is the subject matter of this chapter. The descendants of former colonial subjects appear to once again face the wrath of the state machinery of law and order in a sort of reverse decolonisation where their continued presence in the metropole of erstwhile empire has become fraught with tensions of legitimacy of status.

What is this new situation of ‘hostile’ presence and how did it come into being? In 2018, press reports revealed that many Commonwealth citizens of Caribbean origin who had lived for decades in Britain were suddenly drawn into the nets of immigration control because of not having correct documentation for their immigration status (BBC News 2018). Having travelled to the UK from their countries of origin when the immigration laws did not require specific permission for Commonwealth nationals to travel to the UK, they were unable to present adequate documents when new document-checking requirements were introduced in the UK. Such law came into existence from 2014 onwards. Many predominantly Black British long-term residents lost their houses, jobs, employment and welfare benefits and could not access housing and healthcare. After the hostile environment legislation, some of the Windrush generation were detained and/or deported while others were refused re-entry to the UK when they tried to return from visits to family in the Caribbean. In the next chapter we shall see how there have been many more efforts to bring long-term European Economic Area (EEA) nationals living in the UK into the folds of British citizenship after Brexit than have ever been made for the mostly Black Caribbean population who had resided for decades in the UK. Many of the latter did not have any documentation to prove they were British. In some instances, their travel records had been destroyed by the Home Office or been lost because of the passage of time. Migration Observatory calculates that around 57,000 Commonwealth-born long-term residents have not formalised their status in the UK, of whom an estimated 15,000 are from Jamaica and 13,000 from India (Webber 2018). The effects of exclusion were generally unknown to the public. Awareness of the ‘hostile environment’ only became widespread when investigatory journalists found out that thousands of elderly British, mainly from the Caribbean, who came to the UK before 1973 as children with or to join parents, were finding themselves tracked and made irregular. This catastrophic situation for thousands of people was diminutively referred to as the ‘Windrush scandal’.

The immense gravity of the situation can be sensed by zooming into the life of one affected person. Drawing from the prizewinning work of leading investigatory journalist Amelia Gentleman, reporting on the Windrush generations (Gentleman 2019) we can read of a Windrush-generation woman named Jocelyn. Her experience is illustrative of the agonising ordeals many faced and continue to face. Gentleman reports that Joycelyn arrived in London in 1963 at the age of four, travelling with her mother on a Grenadian passport as a British subject. She had lived all her life in the UK, studying and working in London. It was in 2009 that she lost her Grenadian passport. She had other problems with her documents such as minor discrepancies and could not obtain a new passport. She made many attempts to get the right paperwork in place but eventually she became unable to prove her status and was classified as ‘illegally’ residing in Britain at the age of fifty-five in 2014. She had many other records of her lifelong stay in the UK: medical files, school documents, bank statements and other such records of a life in the UK, but none of this was deemed sufficient. Consequently, she lost her employment. She was unable to find accommodation and became homeless.

She was given notice of deportation and was sent back to Grenada. She found it a wholly unfamiliar country as it had changed unrecognisably over time. She had no means to start a new life there after a lifetime in the UK. Only after the extent of the mistakes made by the Home Office in relation to the Windrush generation had become known to the public was Joycelyn sent a plane ticket in 2018 by the Home Office to return to the UK from Grenada. By then there was absolutely nothing left of her possessions in the UK. She depended on the charity of friends just to get furniture for her social housing accommodation. Gentleman reports that Joycelyn has not received any compensation for the appalling treatment she received, despite there now being in place a special government compensation scheme for the Windrush generation who were wrongfully affected.

Joycelyn’s story is just one of the many life stories of those failed by the state. It exemplifies how subjecthood has cast a long shadow over citizenship rights in present-day Britain for racialised others (Tyler 2013). Isin (2015) writes that empires and nation states continue to co-exist in modern times. He states: ‘it is rather difficult to describe modern history as an age of nation-states displacing if not replacing an age of empires as, arguably, not only is there an overlap between these two ages but also a mutual dependence between empires and nation-states, and by extension, between imperialism and nationalism’ (Isin 2015, 254). The plight of the Windrush generation highlights this co-existence and how it renders the promise of equal citizenship illusory for many of Britain’s ethnic minority citizens. In this chapter, the focus is on how their status became suddenly precarious through the document-checking regime in the 2010s which ushered in internal bordering through law in Britain.

Chief legal architecture of hostile environment

The term ‘hostile environment’ was first used by former British Prime Minister Theresa May (when she was Home Secretary) in an interview with the Telegraph in May 2012 to describe a series of legislative and policy measures to make lives of irregular immigrants difficult. The idea was to motivate them to leave the UK of their own accord because of the adverse conditions (Kirkup and Winnett 2012). May identified the cause for overstaying by migrants as easy access to resources in the UK. She formulated a plan for restricting access as a means of reducing migration. This may have been an early approach but has now spawned internal bordering through a set of legal and policy measures which has expanded with time. It has now embraced a host of measures which can be implemented to monitor and restrict migration such as digital (biometric) borders, providing No Recourse to Public Funds (NRPF) for irregular migrants as well as for those with specific kinds of visas, regulation of the right to rent and employment checks which require proof of legal status, as well as plans to externalise asylum provision to locations outside of the UK. Indeed, the ‘hostile environment’ is now a catch-all term to include all measures that adversely affect migrants and extends beyond the initial focus on internal bordering (Worthing et al. 2021). It has been described as a ‘sprawling web of immigration controls now embedded at the heart of the UK’s public services and communities’ (Liberty 2019, 7).

In 2023 Theresa May expressed regret for using the term ‘hostile environment’ in her memoir The Abuse of Power (Gentleman 2023). Yet May had not just used this term verbally. She also acted on it and implemented it during her tenure as Home Secretary on behalf of the government. She oversaw the enactment of a series of pieces of legislation (most notably the 2014 and 2016 Immigration Acts) that converted people legally present in the UK from the Caribbean Islands into ‘illegally present’. As a central plank of the ‘hostile environment’, a variety of service providers were tasked with checking the immigration status of those accessing services (Liberty 2019). Private individuals and organisations were turned into deputised border guards, who were under a legal duty to refuse services and/or report any lack of immigration status to the Home Office (Walsh 2014). They would face potential sanctions, including imprisonment, if they did not participate. Data gathering and reporting duties of third parties now include employers, bank employees, marriage registrars, the Driver and Vehicle Licensing Agency (DVLA) and landlords.

The core idea of the hostile environment was to stop irregular migrants from being able to access essentials for living, hence the focus on denying basic resources. Control of migration by involving private individuals such as landlords, employers and medical professionals (an intersection of immigration law, employment law, housing and medical law) thereby introduced new bordering practices which are not just at borders. The Immigration Acts 2014 and 2016 sought to monitor and deter irregular immigration but these have spillover effects on long-term residents as is evident in the precarity of the long-term resident Windrush generation (Bawdon 2019) as well as that of many EU nationals living in the UK after Brexit. Together with these two Immigration Acts, regulations and secondary legislation have also brought others working in health, education, policing and homelessness services, local authorities and charities as well as various regulators into the ambit of immigration enforcement.

The funding and ability of these services to continue to perform is often linked to their willingness and success in execution of their immigration functions. These new immigration functions bring into the microcosm of everyday life the presence of borders which are no longer now only the physical and territorial boundaries. However, these bordering functions are propped up by a wider climate of punitive immigration measures such as indefinite detention and forced deportation. Specific measures such as national health service charges have created barriers to healthcare for migrants. Bureaucratic changes (for example, placing immigration officials at police stations and local authorities) and data-sharing agreements between government departments, (for example, memorandums of understanding between the Home Office and Department for Health), have led to many deportations.

Increased deportations have also hit asylum seekers and post-Brexit EU nationals living in the UK. The increase in arrivals of asylum seekers in small boats making perilous journeys across the English Channel, many perishing on the way, is connected with the decreased access to legal routes for seeking asylum. Legal routes for asylum seeking have been curtailed to make Britain less attractive to foreigners. This is a huge shift in policy from the days when Commonwealth nationals were permitted to move freely to the UK under the 1948 British Nationality Act.

How can we reconcile these developments and the current situation in immigration and asylum control in the UK with the open doors policy of the 1948 British Nationality Act and plans for the diverse but closely bonded Commonwealth of Nations which emerged from the ashes of empire? Clearly there was a move away from those post-war plans with borders migrating and changing contours in such a way as to render people, once welcomed, as foreign again. There are many threads that connect empire-age imperialist bordering to the present-day racialised bordering, and these can be followed to understand the links. In this chapter we will analyse the patterns of these developments linking empire, the legacy of empire and modern-day bordering.

From ‘civis Britannicus sum’ to ‘civis nullius sum’?

When British dominion Canada passed its own citizenship act in 1946 and issued Canadian passports to include its own French-Canadian citizens, it was a truly revolutionary move away from a common British subjecthood (Fransman 2011). For an empire, citizenship linked to nationality is anathema because an empire, by definition, is transnational in nature and encompasses different kinds of political entities and territories. Canada’s initiative in controlling its own immigration and naturalisation through national citizenship broke this mould and this had severe implications. Potentially it meant that every other British dominion could also break away from any common understanding of subjecthood. Each could determine criteria for entry and residence on its own terms and regulate subjects from other parts of the empire. This would fundamentally diminish the empire and challenge British supremacy at a time when Britain was weakened by the Second World War. To counter this threat, and firmly reestablish Britain’s global place, the 1948 British Nationality Act expressly welcomed all Commonwealth nationals and people from former colonies who wanted to work or settle in Britain. It created the new status of ‘citizen of the United Kingdom and Colonies’ (CUKC) for people born or naturalised in either the United Kingdom or one of its colonies. Provision was also made in certain circumstances for citizenship to be acquired by descent from a CUKC, or by registration. The law was declaratory in nature, in the sense that it did not require any further action by individuals to take effect; it simply came into immediate effect through the statute.

Dummett and Nicol (1990) point out that even though there is no historical consistency about ‘Britishness’, the term has a strong political meaning and the distinction between British identity and the identities of other nations is taken for granted. Yet, the transformation of Britain from an empire to a nation state was accompanied by a crisis of identity (Doty 1996). The Commonwealth ideal envisioned a multiracial community cooperating on equal terms in political, economic and cultural matters. This ideal coincided with the professed ideology of ‘civis Britannicus sum’ that had legitimated Britain’s imperial rule, the idea that being part of the British Empire would mean there was access to special advantages and guarantees. The Commonwealth had a grand vision of carrying on with that relationship through recognising preferential entry and residence for Commonwealth nationals. This gave post-war Britain a structural relative autonomy from other global powers including its own allies such as the US as well as the rest of Europe.

It was not just this avant garde political vision that led to the British Nationality Act (BNA) of 1948. The UK needed fresh blood to infuse in its drained economy and strong muscle to support and reinforce its depleted labour forces at that time. Posters were issued by the British government advertising for labour from across the Commonwealth to help rebuild Britain after the ravages of war (many such posters referred to Britain as the ‘mother country’). Many of the Windrush generation arrived in response. As mentioned before, the Windrush scandal and the Windrush generation are named after the Empire Windrush, a ship that brought many passengers from the Caribbean Islands. The Empire Windrush passenger ship docked at Tilbury from Jamaica on 22 June 1948, bringing a set of migrants looking for a new future. Unlike the passengers of the Komagata Maru, they were able to disembark at their destination because they had been sought for working in sectors such as textiles and farm labour (Bawdon 2019). They expected a warm welcome from the mother country but upon arrival, most people found that the response from people in Britain to Black and Asian migrants was unfriendly and even hostile. They found it difficult to find housing and employment and frequently were targeted by racist violence.

Racism and hostility directed towards these newer members of British society became heightened with time (Phillips and Phillips 1998). Instead of being reassured about their safety, they found that many political leaders encouraged the hate and fed into the frenzy. A famous example is the speech by Member of Parliament Enoch Powell where he said, ‘In this country in 15- or 20-years’ time the black man will have the whip hand over the white man.’ In what was often referred to as the ‘rivers of blood’ speech, Powell commented,

We must be mad, literally mad, as a nation to be permitting the annual inflow of some 50,000 dependents, who are for the most part the material of the future growth of the immigrant descended population. It is like watching a nation busily engaged in heaping up its own funeral pyre.¹

The speech illustrates the naked hatred of migrants which still has its echoes in modern migration discourse in Britain. Not surprisingly, an anti-migration rhetoric soon prevailed in Parliamentary debates and new restrictive changes were proposed in immigration law with increasing restrictions on the rights of Commonwealth nationals.² These changes incrementally chipped away at rights to enter and reside rather than being an immediate about-turn from the 1948 Act.

A quick march of the law

The Commonwealth Immigrants Act 1962 introduced restrictions to entry for those whose passports had not been issued within the UK but instead had been issued by British colonial authorities overseas. In doing so it created an explicitly two-tier, racialised system of citizenship whereby all citizens outside of the UK and the colonies technically had the same legal status, but those who resided outside the UK found it nearly impossible to travel using their British passport. Through legal limits placed on the rights of Commonwealth citizens, the United Kingdom was withdrawing from the Commonwealth free-movement area from 1962 onwards, thereby affecting its citizens who resided outside the United Kingdom and whose parentage lay outside of the United Kingdom. Citizens of the United Kingdom and Colonies formally possessed the same legal status, but few had real residence rights. Citizens who resided in the United Kingdom, or whose parentage lay within the United Kingdom, did usually have a continued right of residence in the United Kingdom; they were mostly White. Thus, people who lacked residence rights were disproportionately non-White CUKCs. Just as free movement of subjects during the days of empire was also racially determined by their regions of origin, British citizenship was now of less value to non-White British people from overseas.

There were several legislations brought into being to deal with the racism of the times. The Race Relations Acts of 1965, 1968 and 1976 are some examples of laws which highlighted racial discrimination in the realms of housing, education and employment (Brown 2018). The Race Relations Act 1965 was the first piece of legislation in the UK to address the prohibition of racial discrimination, but it was only limited to public places, where it made the promotion of hatred on the grounds of ‘colour, race, or ethnic or national origins’ an offence. The Race Relations Act banned discrimination in housing and employment. The Race Relations Act 1976 extended the definition of discrimination to include indirect discrimination. Individuals gained the ability to take discrimination complaints directly to civil courts or industrial tribunals. The Commission for Racial Equality was given responsibility to enforce legislation and conduct research to inform government policy on race relations. Scrutiny of the police investigation of the murder of Black British teenager Stephen Lawrence in 1993 led to the publication of the Macpherson Report (1999) which concluded that ‘institutional racism’ was identified as existing within the Metropolitan Police. Following this report there was a new Race Relations (Amendment) Act 2000 which set out that public bodies, including the police as well as schools, could be held accountable for acts of racial discrimination. Other Acts and policies such as the Equality Act 2010 and the NHS Equality Delivery System (National Health Services England) have also now included public bodies within their purview. These developments indicate that there was awareness of the need to address racial tensions through legal intervention but that societal developments did not match up to these legal changes.

The arrival of East African Asians

In the backdrop of heightened racial tensions in the 60s and 70s, many displaced East African Asians who were British passport holders arrived in the UK. At the time of independence of the East African countries in the 1960s, the nationality arrangements were such that most Asians became citizens of the newly independent country in which they were living, but there were still many who held valued British passports as British subjects. Although they were using their British passports, they were also fleeing persecution from the dictatorial regimes of East Africa, and the rise of African nationalism there which had led to the persecution of minorities such as Asian-origin Ugandans and Kenyans (Hansen 1999). Seeking personal safety, they found that they could not enter and settle in the UK. The British government refused them entry or detained and deported many of them at the point of entry, stating that their passports were not intended to be used as travel documents. This begs the question as to what those passports were supposed to be used for.

In 1968, the British government passed an immigration act, the Commonwealth Immigrants’ Act 1968, in just three days, to prevent the re-entry of people from countries such as Uganda and Kenya. The 1968 Act further restricted the right of entry of all Commonwealth citizens. A citizen could only live and work in the UK if they, or at least one of their parents or grandparents, had been born, adopted, registered or naturalised in the UK. This rule excluded almost all the East African Asians who were at that time seeking entry to the UK. It left some 200,000 Asians expelled from Kenya stateless after Britain refused them entry. In theory, they should have been able to claim the protection of the British state even as stateless individuals. However, rather than honour international obligations under the 1951 Convention or their duties to British citizens, the British government chose to withdraw the right of entry and settlement from that group.

The idea of patriality

The Immigration Act of 1971 deepened the racialisation of immigration by creating an exclusionary aspect to British citizenship based on the concept of ‘patrials’ and ‘non-patrials’ (Goulbourne 1998). The Immigration Act 1971 created two categories: patrials, who have a special connection with the country, and non-patrials. Patriality depended on close connections (for instance, a grandparent or parent born in the UK). A patrial was generally (i) a CUKC who held that citizenship through birth, adoption, naturalisation or registration in the UK, or (ii) a CUKC who acquired citizenship outside the UK but who had lived in the UK for a continuous five-year period. These patrials held the right of abode in the UK; non-patrials did not. This meant millions of White Commonwealth citizens could, in theory, enter Britain under the patriality clause while almost all non-White Commonwealth citizens were excluded by ‘racially defined categories’ (Spencer 1997, 143). Commonwealth nationals whose parentage was also from outside the UK – mostly people of colour – had to acquire a work voucher to enter the UK or be admitted as a student or self-sufficient person (Yeo et al. 2019). They were still ‘British subjects’ under the BNA 1948, but that status was detached from any substantive rights. Even if they were ordinarily resident, or had been, they were subject to a new system enabling deportation of those who had committed criminal offences. The idea of patriality coincided with Britain’s entry to the EEA. It ended the right of most CUKCs racialised as ‘non-White’ to enter Britain by distinguishing between patrial and non-patrial citizens. While patrial citizens (who were born in the British Isles or descended from a parent or grandparent who was registered as a citizen in the British Isles) had a ‘right of abode’ in the UK, non-patrial citizens (who could not trace their ancestry to the British Isles) no longer had this right. The immigration status of patriality therefore ‘made whiteness the primary basis for belonging’ (Schaap 2024) in Britain by removing the right of CUKCs racialised as ‘non-White’ to enter Britain while enabling the mobility of CUKCs racialised as ‘White’ from settler colonies. Taken together, these changes permitted enormous administrative discretion in determining who can enter and who can stay in the UK.

The 1971 Act completed the dissociation from the Commonwealth in immigration and nationality. It ended the preferential system of labour vouchers and student entry for Commonwealth citizens. Meanwhile, the situation in East Africa worsened in 1972 when General Amin ordered all Asians out of Uganda. Some 28,600 out of the 50,000 British passport holders in Uganda came to Britain. They were denied entry or detained in the UK and neighbouring countries. The refusal of entry of several East African Asian British passport holders was challenged in the European Commission of Human Rights as reported in East African Asians v. United Kingdom [1973] 3 EHRR 76; 15 December 1973. From 1954 to the 1998 entry into force of Protocol 11 to the European Convention on Human Rights (hereafter ECHR) individuals did not have direct access to the European Court of Human Rights; they had to apply to the Commission in the first instance. It the Commission found the case to be well-founded it would launch a case in the court on the individual’s behalf. Protocol 11 which came into force in 1998 abolished the Commission, enlarged the court and allowed individuals to take cases directly to it. But at the time of the East African Asians case, the European Commission found that the UK had participated in the inhumane and degrading treatment of the East African Asians in the form of racism and discrimination. In response, the UK government started a voucher system for each head of household (defined as a male member of household) who wanted to resettle in the country. Although clearly unfairly gendered in its approach, it relocated several people to Britain.

In the East African Asians v United Kingdom case [1973] 3 EHRR 76 the court gave a decision about East African Asians and held that those who were British passport holders should not be deprived of their right of entry on racial grounds. Rather than assessing nationality rights, however, the court held that the UK had acted incompatibly with Article 3 (freedom from torture, inhuman and degrading treatment), Article 5 (right to liberty), Article 8 (the right to respect for private and family life) and Article 14 (prohibition on discrimination) of the ECHR.³ The case is considered a landmark pronouncement on inhumane and degrading treatment. However, it is also arguably a failure in pinpointing how and why citizenship rights matter. It leaves us with an unanswered question: how did the right to enter the country of nationality, which is a fundamental property of citizenship, become detached from citizenship holding? How is it now discretionary and deniable?

The BNA 1981 abolished the status of citizenship of the United Kingdom and Colonies. Together with the earlier Immigration Act 1971 the BNA 1981 brought preferential Commonwealth migration to a complete halt. The big question at this point was how Commonwealth citizens already present in the UK would be differentiated from those who would apply to enter in the future. Not only did Commonwealth nationals face legislative restrictions on their entry, but they also had to start applying for visas to enter the UK during the 1980s. The introduction of visas in the 1980s was a response to outbreaks of conflict. The visa regime affected both asylum seekers and people seeking family reunification (Morris 1998). In 1985, for example, visa requirements were introduced for Sri Lankan nationals when there was an increase in the numbers of asylum applicants from Sri Lanka, thereby making it difficult for them to seek protection.

The 1981 Act also abolished citizenship through place of birth (or jus soli) and replaced it with citizenship through descent or jus sanguinis. This had the effect of excluding children born in Britain to Commonwealth migrants from immediate entitlement to citizenship. It further created three categories of British citizenship, two of which (that is, British Overseas Citizenship and Citizenship of British Dependant Territories) were not entitled to the right of abode. From 1983 onwards there were no more special connections in law for the UK for Commonwealth citizens. To become British, Commonwealth nationals had to naturalise like anyone else. Blood and ethnicity gained supremacy, as jus soli (birth citizenship), which had not depended on bloodlines, was abolished by the BNA 1981. The Immigration Act of 1988 ended the right to automatic entry of dependants of Commonwealth citizens who settled before 1973, marking the end of preferred immigration from Commonwealth countries. When the 1981 BNA came into effect on 1 January 1983 many people who were eligible to register as British citizens (having settled before 1973) did not do so. Some mistakenly assumed it was unnecessary since they believed themselves already to be British citizens or were deterred by the new bureaucratic process and steep fee imposed on applicants.

The mission creep of these legislations was both cumulative and insidious in nature. The 1948 Act had adopted a declaratory system in legislation which implied that all existing lawful residents could simply continue to exist as lawful residents without taking any additional action. The efficiency of the system rested on this uninterrupted right to stay but as residents were not required to take any further steps, many did not obtain any proof of their secure legal status. Although it may be argued that the BNA 1948 did not play a major role in attracting the ‘Windrush generation’ from the colonies and Commonwealth into the United Kingdom as it merely maintained the status quo of free movement from earlier times, it did advertise the availability of free movement. The manner in which the status quo shifted in subsequent years meant that the progeny of the Windrush entrants became treated as irregular residents (Phillips and Phillips 1998).

With the passage of time, it became impossible to readily ascertain who had legal residence as a citizen and who was a newer arrival. The Home Office also lost records or simply did not maintain any for many who arrived from late 1940s onwards. However, this did not manifest as a pressing problem until the government introduced document checking from the early 2010s as part of Theresa May’s plans. From the early 2010s a series of new laws designed to check the eligibility of people to hold basic rights in the UK, such as the rights to work, housing and healthcare, were introduced. Thus, whereas there was once a ‘global vision’ of Commonwealth citizenship so to speak under empire, that was slowly eroded in a series of laws, perpetuating the same exclusionary/othering practices etc (Alibhai-Brown 2015, 71, 141).

In the context of the British Empire, we have seen that free movement was a myth for many (Herzog 2012, 796). The subsequent way the Commonwealth story unfolded is a particularly British story, but it has also played out in other global stages resulting in the exclusion of people who once belonged. The hostile environment was all about paperwork. Categories such as ‘undocumented citizen’, ‘denizen’, ‘stateless’ and ‘illegal migrant’ are categories dependent on the bordering practice of having the correct paperwork in many parts of the world. Haney-Lopez (1996), Volpp (2001) and Aleinikoff (1990) have demonstrated that the formal restrictions of citizenship law in the United States came into existence in the nineteenth century. Gendered and racialised de facto barriers to full membership followed in the twentieth century. Broad-based immigration exclusion created a heightened sense of national borders as well as the state surveillance of those borders, which helped produce people who are called ‘illegal aliens’ (Ngai 1998). Just as apologies followed belatedly for the Komagata Maru incident and a compensation scheme was set up for the Windrush generation, there have been corrective steps taken through schemes that provide some amount of documentary citizenship to those with strong connections to the nation. For example, young children who came to the US as irregular residents were provided documentation to have legal rights in the US through the DACA (Deferred Action for Childhood Arrivals) programme from 2012 which gave the children (popularly called ‘Dreamers’) the temporary right to legally live, study and work in America instead of fearing deportation. They became eligible to apply for a driving licence, college enrolment and work permit. When Trump tried to end DACA the US Supreme Court blocked his bid in Department of Homeland Security, et al. v. Regents of the University of California, et al., 591 U.S. 1 (2020). The battle over these rights is however far from over as new measures may come into existence in the future.

Document checking has rendered citizenship an exercise in ticking boxes and filling correct forms. Possessing the right paperwork has taken precedence over any other experiences of common values or long-term presence. This is reminiscent of ‘documentary citizenship’ as a concept in more recently born countries such as India where it has become a mainstay of citizenship.

During the founding moment of present-day India, the most important event was the partition of India into Pakistan in the West (which included a part called East Pakistan to the East of India as well) and a remaining part still named India in 1947. Pakistan was a Muslim state whereas India adopted secularism as a basic tenet of its Constitution. Article 14 of the Indian Constitution says: ‘The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.’ The religious distribution however made Muslims minorities in India and Hindus the majority population. Religious distribution differences forced the migration of millions of people across newly created borders, mostly Muslims moving to Pakistan and Hindus to India with much accompanying rioting and bloodshed. In 1975 new borders were created once again when Bangladesh which was East Pakistan became an independent nation. Despite its Muslim-majority population, it shares the same language (Bengali) with neighbouring West Bengal of India.

Those who crossed over from poorer Bangladesh to India through porous borders generally found a warm welcome in West Bengal, due in part to the shared linguistic Bengali identity. They could acquire new identity documents and start new lives in India. This was less true in another neighbouring Indian state, Assam, where ethnic Assamese people comprised a bare majority of the multi-ethnic state and the migrants, mainly Bengali Muslims, had crossed the border in past decades. The Indian government became keen to regulate migration into Assam. The first of many Indian government responses to Bengali Muslims in Assam took the form of the Immigrants (Expulsion from Assam) Act in 1950 (Dutta 2022). From the 1990s, Hindu nationalists intensified lobbying for the identification of Muslims in Assam as foreigners who had likely arrived illegally from Bangladesh (Hussain 2016) rather than having been historically present. In 2019, India listed 1.9 million people in Assam as illegal migrants from Bangladesh in a new National Register of Citizens (NRC) which aimed to identify and deport immigrants in India without valid papers by creating an official record of legal Indian citizens in a register (Ghoshal 2020). Therefore, holding the right paperwork has become even more critical as it is India’s version of the hostile environment.

The production of ‘illegality’ and precarious citizenship, as seen in many other contexts, is entangled with complex legal enactments and arbitrary, anomalous and contradictory bureaucratic state practices (Tuckett 2015, 115). In other empires too this story of categorical exclusion of ethnic minority nationals has played out in former outposts. By 1975 France, like Britain, had also instituted a tightly regulated, racially discriminatory immigration system that involved making distinctions about the desirability of particular nationality and racial groups as immigrants. Like the Commonwealth ideal which drew upon ideas of universality, French colonial philosophy was marked by the universalism of Enlightenment thinking. France and its colonies were meant to form an indissoluble unity. With the onset of immigration from its former colonies (especially Algeria), France also experienced outbreaks of racist, anti-immigrant violence (Doty 1996).

In both Britain and France, the immigration of non-White, non-European workers and their families, mostly uncontrolled in the beginning, eventually became severely restricted, repudiating the lofty ideals of the Commonwealth and universalism. Currently France, like Britain, continues to experience racial turmoil which is linked to the issue of immigration. France is engaged in re-writing its rules about acquisition of citizenship specifically in a way to cut ties of migration from former colonial or colony-linked territories. A recent example is the decision of France to curtail citizenship by birth from its overseas territory of Mayotte. Mayotte is an archipelago between Madagascar and the African mainland which is a French overseas territory that draws many migrants from neighbouring territories such as the Comoro islands. However, residence permits issued to foreigners in Mayotte are only valid for the islands and cannot be used to travel to mainland France so there is no immediate access to mainland France from Mayotte. Curbing jus soli is about forward planning: the idea is to prevent future access for generations born in Mayotte without blood-links to French nationals (Schofield 2024; Basilien-Gainche 2024). This is the reason that Trump has been seeking to end jus soli in the United States as well (Khan and Pinto 2025).

There appears then to be several common trends in countries which have empire-linked associations. Most notably, as citizenship regimes become more complex and exclusionary, the importance of evidencing a citizenship link grows. Perhaps this is the reason documentation has become important, and a lack of documentation has increased the precarity of many around the globe. In the next section we can see how new barriers can be created through paperwork (including digital documentation).

Document checking and precarity

Hostile environment legislation introduced the duty to check documents for individuals who had never before been through immigration control. The function of law in making bordering an everyday presence in the lives of long-term residents becomes clear when the precise mechanisms of hostile environment migration-control legislation are examined. The hostile environment legislation achieves the control of irregular migration by involving private individuals such as landlords, employers and medical professionals and other such personnel who control access to resources, by placing a duty on them to verify immigration documentation for employees, tenants and patients. Through documentation checking and a duty to report, there is individualisation of migration control. Walsh (2014) explains this as deputisation of immigration duties which are placed on private individuals who control access to basic resources essential for everyday life. When people are unable to access basic resources, they are unlikely to exist in a society for long as irregular residents. They may be reported to immigration officials by their employers, landlords or healthcare professionals or they may choose to self-deport to avoid being forced into a difficult existence.

This inclusion of private parties is not just a recent hostile environment innovation. The state function of border control has involved other actors such as carriers (ships and later airlines) since the nineteenth century. The 1820 US Act Regulating Passenger Lists (s.4) required all captains of US-bound vessels to keep lists of their passengers. Similar duties have been in place in the UK on ships and on airlines with heavy penalties imposed for dereliction of duties (failure to check for appropriate documentation) by the Carriers Liability Act 1987. More recently, since 2004 the UK has involved carriers in collecting Advance Passenger Information (API) for both inbound and outbound air passengers. The Immigration Act 2014 obligates carriers and port operators to carry out embarkation checks. Such private carriers were directly involved in moving people across borders, whereas the new parties now brought in to enforce immigration rules have nothing to do with crossing borders or performing any function related to immigration. Modern measures are far more pervasive.

The government employs private actors now for visa and nationality services, providing security at border check posts, detention and deportation services. Indirect delegation also takes place when, say, private parties such as landlords further subcontract their functions (such as hiring agents to do document checking of tenants). In terms of private actors who are operating directly in the border-crossing space, there is even greater involvement of private actors and the creation of a secondary market of private immigration control after the hostile environment.

The Immigration Act 2014 introduced a new concept: the ‘right to rent’, which is actually about people who have a general lack of a right to rent. It made landlords responsible for checking the immigration status of tenants. Checks at the workplace (explored at greater length in Chapter 4) were introduced in a rudimentary form from 1996 but were reformed further in 2006. The Home Office could now fine employers who were found to have employed a person without permission to work where the employer had not checked and kept a copy of documentary proof of immigration status. Employers became more cooperative in immigration enforcement for fear of the legal consequences of non-compliance. Chapter 4 will analyse more deeply the relationship between employers, workers and the state. Here I focus on landlords who also come under a legislative framework of document checking to understand how these mechanisms operate. They face civil penalties of up to £3,000 for each tenant whose immigration status does not allow them to rent.

Thus, the 2014 Immigration Act created a system of sanctions and penalties for landlords should they rent out to irregular migrants. The Immigration Act 2016 went further, criminalising landlords and housing agents for renting to someone when knowing, or having reasonable cause to believe, that they do not have the right to rent. Under the 2016 Act, ‘renting property to a person knowing or having reasonable cause to believe that the person is disqualified’ became a criminal offence for landlords and agents, and a system of accelerated eviction operates to remove tenants who do not have legal status. The scheme requires private landlords to check the immigration status of tenants and potential tenants. It makes knowingly leasing a property to a disqualified person a criminal offence, punishable by up to five years’ imprisonment, an unlimited fine, or both.

The legal duty placed on landlords is onerous, and despite being provided guidebooks and simplified instructions (UK Visas and Immigration 2020), there are complex issues of law, interpretation and documentation that landlords must engage with in renting out property. These complexities undermine their ability to rent out fairly as they receive no training for performing their duties under the Act. Prospective tenants can present many different legal documents. While they were permitted to check scanned material during the Covid-19 pandemic, from 21 June 2021 landlords must either check the applicant’s original documents or check their right to rent using an online portal.⁴ Thus, although targeting irregular migrants, the arduous duty placed on landlords dis-incentivises their renting out to anyone whom they suspect to be ‘non-British’ and who are therefore less likely to have the required documentation legally mandated by the Act. The Joint Council for the Welfare of Immigrants (JCWI) has found that landlords avoid renting out to anyone who looks or sounds different or has a ‘foreign’ name to decrease any risk to themselves. According to their study, 42 per cent of landlords said that the right to rent requirements had made them less likely to consider someone who does not have a British passport, and 27 per cent said they were reluctant to engage with those with foreign accents or names (JCWI 2017).

Prior to the pandemic, JCWI brought a case to the High Court to challenge the discrimination fostered by the ‘right to rent’ scheme. JCWI was supported by interventions from Liberty, the Equality and Human Rights Commission and the Residential Landlords Association (now part of the National Residential Landlords Association). The High Court judge, Martin Spencer J, decided the case in favour of JCWI, recording the ‘disproportionately discriminatory effect’ of the ‘right to rent’ on the grounds that the scheme was incompatible with Articles 8 (right to respect for private and family life) and Article 14 (prohibition of discrimination) of the ECHR (‘the declaration of incompatibility’). He also declared that to roll out the scheme in devolved territories, without further evaluation of its efficacy and discriminatory impact, would be irrational and would constitute a breach of s. 149 Equality Act 2010 (‘the declaration of irrationality’).

The Secretary of State appealed the decision on six grounds but the most significant of these was that the legislation does not result in discrimination and the government was not responsible for any discrimination by landlords. If there were any discriminatory effects these were justified as a proportionate means of achieving a legitimate aim (of migration control). In the Court of Appeal, the judges looked closely at these grounds and the question of proportionality. The Court of Appeal reversed the decision of the High Court and found that there was an ‘objective and reasonable justification’ for the statutory provisions. The Court of Appeal set a very high bar in terms of what kind of adverse effects of the scheme (and what extent) would be required to find a statutory scheme discriminatory.

The judges drew on the standard set out in Bank Mellat v HM Treasury (No 2) [2013] UK SC 39. In the Bank Mellat case the court balanced the severity of the challenged measure in terms of its objectives and in that manner evaluated proportionality. According to the Court of Appeal in the JCWI case, the importance of supporting a coherent immigration system outweighed the adverse effects of the ‘right to rent’ scheme. In para 66 Hickinbottom LJ appeared to agree with the High Court that on the evidence,

those who had a right to rent, but did not have British passports (or, particularly, had neither such passports nor ethnically-British attributes), were the subject of discrimination on the basis of their actual or perceived nationality; and that that discrimination was caused by the Scheme in the sense that, but for the Scheme, that level of such discrimination would not have occurred.

Yet, Hickinbottom LJ did not view the nature and level of discrimination as unacceptable. In terms of severity of the effects of the ‘right to rent’ scheme the court held that a minority of discriminating landlords, no matter how sizeable, could not satisfy the test of proportionality set out in Bank Mellat which has to be satisfied for a legislative provision to be declared as incompatible with human rights.

The Court of Appeal’s decision exemplifies the highly deferential approach judges adopt to the executive and legislature on immigration as a matter of policy. It also shows how difficult it is to secure individual rights for ethnic minority citizens in a majoritarian Parliamentary democracy. By involving private individuals who control access to housing in the panoply of border control, the Home Office has become omnipresent in society and the discriminatory effects of pitting individuals against each other has become normalised as ‘acceptable’. The limits of a liberal rights framework are exposed in this case as in past eras, when other means of bordering were tested, such as when British subjects from colonies were prevented from entering dominions based on race and ethnicity. It seems extraordinary that despite the centuries that have passed since then a certain amount of racism is considered acceptable in contemporary multicultural Britain.

The success of the scheme for employers and now for landlords has led to other private parties who control resources, such as access to healthcare, being brought under similar enforcement roles. Previously the NHS could only disclose patient information to third parties in connection with criminal investigations, but around the time of hostile environment policies, the Home Office also established data-sharing agreements with NHS Digital and the Department of Health and Social Care, allowing it to obtain confidential non-clinical personal information, such as addresses, relating to patients suspected of not having immigration status in the UK (Hiam, Steele and McKee 2018).

Sir Nick Partridge’s report in June 2014, ‘Review of Data Releases by the NHS Information Centre’ (Partridge 2014)⁵ found 7,766 responses to immigration tracing requests made between 1 April 2008 and 31 March 2013. Hence this is not a new hostile environment policy but one that has been ongoing for a long time. But the data requests increased by leaps and bounds in the hostile environment. In just three years from 2013 to 2016, looking only at the tracing requests approved, there were 12,672 responses (Travis 2017).⁶

In 2016 the processes became concrete policy.⁷ This was through a formalised process that allows the NHS to pass individual demographic data, including a person’s last known address, to the Home Office Immigration Enforcement Team (made public in January 2017 but active before then). In 2017 NHS Digital and the Home Office signed a memorandum of understanding (MoU) to share information about patients for the purposes of immigration enforcement. Under this MoU, the Home Office made 8,127 requests for data in the first 11 months of 2016 alone, leading to 5,854 people being tracked by immigration teams.

Such uses of law and legal process to block access to legal rights are examples of the negative use of power, or what Lukes terms the first dimension of power (Lukes 2021). It is not a passive maintenance of the status quo. The first dimension of power is observable (such as the statistics on data requests) and it makes people act. Here, through forcing action on the NHS, the Home Office is able to proactively curtail the rights of people and create conditions of rightlessness.

Health bordering through documentation

Hostile environment instruments work within borders, as the unwanted people are already there, therefore the force of the law is felt at the points of checking documents and subsequently in any deportation proceedings, as well as in the daily lives of people. Although tenants can be vulnerable and employees too, several strong health policy reasons exist over and above vulnerability for delinking data sharing with the Home Office in the context of health provision. The GMC (General Medical Council) and NHS guidance on confidentiality makes it clear that patient information, including non-clinical information, should be disclosed to law enforcement authorities only in relation to serious crimes. When information about an immigration offence is required by authorities, a confidential health service is perceived as going against the public interest in immigration control.⁸

National AIDS Trust and Doctors of the World note that the GMC’s own guidance on confidentiality explicitly highlights the potential deterrent effect of breaching confidentiality: ‘Patients may avoid seeking medical help, or may under-report symptoms, if they think their personal information will be disclosed’ (Whelan 2019). The data-sharing provisions did not pass the considerable public interest test required to breach the doctor–patient relationship and violated the patient’s right to privacy under the Human Rights Act. A state’s duties under the right to health therefore extends beyond its citizens to everyone within its territory, irrespective of migration status, and beyond policies and practices within the sphere of health to those that affect health (Muñiz 2019).

The application of immigration rules in health provision is likely to discriminate against non-British patients.⁹ Migrants in an irregular situation may also fear being detained for deportation, particularly in countries where public officials have a duty to report on irregular migrants. In addition to ensuring access to healthcare without discrimination, strict walls should exist between healthcare personnel and law enforcement authorities. Those fundamental rights include the right to health.¹⁰

In the EU, the EU General Data Protection Regulation (GDPR) came into force on 25 May 2018 and set out clear rules on the processing of personal data that increase the rights of individual data subjects, with the aim of fostering greater transparency and accountability in the use of personal data. This law covers the requirement to safeguard immigration data and places data protection obligations on public service providers, certain authorities and private actors as well. The GDPR recognised prior violations of human rights in the context of the World Wars and sought to protect human beings based on rights already well recognised in human rights of the EU such as the EU Charter of Fundamental Rights (Articles 7 and 8) and the ECHR (Article 8) which are linked to privacy rights. While an exceptional need for data sharing can be demonstrated by governments, such exceptions are very narrowly drawn and must be specified in EU or national legislation (rather than administrative convenience). Even the exceptions must respect the fundamental rights and freedoms of individuals who would be affected by the exception, while being driven by the need to safeguard a specific and pressing social need (such as national security, the prevention, investigation, detection or prosecution of criminal offences or other important objectives of public interest). The exceptional need must be sufficiently clear and precise to be foreseeable for affected individuals, and necessary and proportionate in a democratic society. Immigration enforcement that does not prioritise access to essential services, such as healthcare, would be difficult to justify under these exceptional provisions (Vavoula 2020). Article 23 of the GDPR creates scope for ‘restrictions’ on those rights, that is, exemptions. Article 23(1) says what the grounds can be (national security, public interest grounds and so on); it also contains the test for what a valid (GDPR-compliant) exemption under national law looks like: a valid restriction is one that ‘respects the essence of the fundamental rights and freedoms and is a necessary and proportionate measure in a democratic society’. Article 23(2) supplements that broad test with prescriptions about what the exemption created by domestic law needs to include, such as why data processing is required and what kind of data is being processed as well as what is being done to safeguard against unlawful access or abuse of such data, amongst other considerations. Member states then go and implement those exemptions in national legislation.

The GDPR framework however does not apply wholly to the UK after Brexit as the UK introduced a specific exception for immigration control. The UK Data Protection Act (DPA) 2018 S. 4 A (Schedule 2) is about providing an exemption from some of people’s data protection rights, if those rights were likely to prejudice the maintenance of effective immigration control, or the investigation or detection of activities which would undermine the maintenance of effective immigration control. This exemption is broad and could potentially include a variety of applications by the Secretary of State, but it is not available to others who share information with the Home Office on immigration matters, such as those with deputised immigration functions (employers, universities, doctors or even the police) (Crépeau and Hastie 2015).

The extent to which the Home Office can rely on this was evaluated in R (Open Rights Group and the 3 million) v Secretary of State for the Home Department and Others [2021] EWCA Civ 800. The Court of Appeal concluded that the ‘immigration exemption’ in Schedule 2 to the DPA 2018 is not compliant with the GDPR. In allowing the appeal, Warby LJ summarised the rationale for Article 23 as follows (para 50):

… broad legal provisions, such as those that require a measure to be necessary and proportionate in pursuit of a legitimate aim, are insufficient to protect the individual against the risk of unlawful abrogation of fundamental rights. The legal framework will not provide the citizen with sufficient guarantees that any derogation will be strictly necessary and proportionate to the aim in view, unless the legislature has taken the time to direct its attention to the specific impacts which the derogation would have, to consider whether any tailored provisions are required and, if so, to lay them down with precision. This approach will tend to make the scope and operation of a derogation more transparent, improve the quality of decision-making, and facilitate review of its proportionality.

The question for the Court of Appeal was whether those tests for a GDPR-compliant domestic law exemption were met for the immigration exemption in paragraph 4 of Schedule 2 DPA 2018. It did not agree that there was compliance. It concluded (para 53):

On my reading of Article 23 as a whole, it seems clear that the Immigration Exception is non-compliant. The Exemption itself contains nothing, specific or otherwise, about any of the matters listed in Article 23(2). Even assuming, without deciding, that it is permissible for the ‘specific provisions’ required by Article 23(2) to be contained in some separate legislative measure, there is no such measure.

The exemption was amended on 8 March 2024 in response to this decision. The amendments introduced the following safeguards to the exemption:

1. For the exemption to apply, the Home Secretary must apply the exemption on a case-by-case basis and make a separate decision about each right or each occasion on which they restrict a right.
2. They have to consider all the circumstances of the case, including any potential vulnerability of the person, and the impact it will have on their rights and freedoms and then carry out the balancing test – they must ensure that the risk to immigration control is substantial and outweighs the risk to the person’s interests.
3. The use of the exemption has to be necessary and proportionate.
4. The Home Secretary has to record their decision to use the exemption and their reasons for using it, and inform the person of the decision, unless doing so would prejudice immigration matters.

This amendment has, as set out above, somewhat restricted the scope of application of the immigration exemption but nevertheless the UK is one of the few European countries to have such an exemption. In most European countries, with the exception of a few, such as Germany, there is no broad, statutory duty to inform the immigration authorities about service users. Even in Germany, where the duty to inform exists, education is exempted from this and there is also a ‘don’t ask, don’t tell’ policy in place for most other service providers (Schmitz-Berndt and Schiffner 2021). This means that the UK is very much an outlier in the data-sharing scenario.

Some aspects of health provision are specifically fragile where vulnerable populations are concerned. For example, reproductive and maternity care are areas of heightened vulnerability. Health inequalities in the reproductive space can deepen if provision of health services is linked to citizenship or migration status. While emergency care may still be accessible, maternity healthcare and other serious care needs may be missed. Apart from the other reasons, data sharing in maternity services is particularly problematic as the bodies of female migrants are often treated as sites for state control of reproduction and demographic control. This is a primary reason why many jurisdictions in the more economically prosperous countries have moved away from automatic citizenship being granted by birth (jus soli) to systems of gaining citizenship through blood-links with existing citizens (jus sanguinis) to restrict migrant access to nationality by birth (Bhabha 2009). Terms like ‘anchor baby’ and ‘drop and leave’ babies are used to insinuate that migrants such as Latinas in the US breed babies to form the basis of a better life in the US. Racism is rife in reproductive services provided to migrant women (Chen 2011; Huang 2008). Indeed, the term ‘anchor baby’ has entered into common usage because of right-wing activists and is dispersed by mass media news outlets, mainly Newsmax and Fox News. It has then increased in prominence due to ‘new media’, such as medium-sized news outlets, also contributing to use of the term (Ignatow and Williams 2011).

The anti-terrorism rhetoric has also become linked to controlling the reproduction of migrant women. The confluence of race, gender and sexuality and how these are used to further anti-immigration rhetoric post-9/11 has reduced non-White female bodies to terrorist breeders. Immigration offences such as illegal entry are now comparable to terrorism offences. Even citizenship is targeted as a terrorist site of contention. The discourse of ‘immigrants as terrorists’ has been feminised in recent years and female bodies have become the targets of conservative/popular rhetoric. The term ‘terror baby’ has also been born (although is much less popular than ‘anchor baby’), claiming that these babies are born in the US so that they can move in and out of the country freely while being trained as terrorists abroad. It is important to delink reproductive and maternity services for migrant women from dependence on immigration and nationality status to break free from such racialised deployment of law and legal discourse and to prevent its right-wing politicisation.

Resistance from civil society

Given the many strong public and human rights grounds for opposing data sharing in the health sector and specifically for migrant women in the reproductive care space, several challenges have been launched in this space, and more are likely should such measures continue to operate. Leading organisations such as Liberty and Migrants’ Rights Network challenged the MoU on such grounds between NHS trusts and the Home Office, also involving the Department for Health and Social Care and NHS Digital, and were granted permission to argue their case in the High Court. Apart from the litigation there was targeted campaigning by Doctors of the World (‘Free to Care’ petition), National AIDS Trust and others. The Safe Surgeries Toolkit, Docs not Cops, and the ‘Patients Not Passports’ campaign, and Liberty’s campaign for a firewall between Home Office and the NHS (‘Care Don’t Share’, Bradley 2018), all focussed on stopping data sharing between the NHS and the Home Office. The conjoined effect of the threat of a successful challenge in court as well as the strong campaigning by civil society actors led to some victories in preventing data sharing in the health sector. NHS Digital withdrew from the arrangement with the Home Office and the government agreed to limit data sharing to serious crime (Liberty 2018).

Medical professionals have opposed such migration-control duties being placed on them through campaigns (‘Patients not Passports’, for instance) and legal challenges. In the early days of the hostile environment policies, there was a data-sharing arrangement trialled at St George’s hospital, Tooting, London. The NHS and the Home Office signed a MoU. The hospital was required to share data on the immigration status of patients in a controversial pilot project in the pre-natal department. Data sharing in the hospital led to deportations (Miles 2017). It was later challenged and withdrawn but it highlights the concerns of how such measures affect people who are vulnerable and need care.

Despite the victories mentioned above, the risk of health data falling into hands of immigration enforcement remains a real possibility. As digital databases expand and migrant communities become part of such databases or are unable to secure documents, it is important that their immigration status is not secretly shared with various agencies, including basic service providers, the police and the immigration services (Saunders 2023). Because irregular entry and stay are often criminalised, people who are without necessary documents face the risk that the use of services will expose them to immigration enforcement (including detention and deportation).

To ensure this does not happen, a data ‘firewall’ should always exist between service providers of all kinds. In the health sector, a ‘firewall’ would specifically delink the delivery of healthcare from the enforcement of immigration rules. While states may wish to pursue immigration objectives, they have a basic legal obligation to also protect human rights (Jolly and Lind 2021). Without such protection migrants with uncertain status will not call emergency services (for instance for a fire or traffic accident, or even report a crime committed against them). During the Covid-19 pandemic, many avoided even accessing health services for fear of being reported to immigration services, thereby indicating there needs to be active reassurance that delivery of basic services like healthcare is wholly delinked from immigration control. Some migrants worry about losing their informal sector jobs or the education services being accessed by their children should their lack of status become known to the authorities. In Chapter 5 I will return to healthcare access in terms of NHS charging.

Other requirements for checking documents and reporting also exist, such as in counter-terrorism schemes. Schemes such as Prevent, a British statutory legal instrument which emerged in 2002 in the aftermath of 9/11, have brought universities within the bordering space. Prevent is pre-emptive in nature and targets activities, beliefs, behaviours, bodily movements, ideological positions and even emotions, which may not be criminal but may be indicative of intent. Prevent is another manifestation of border control. University personnel are drawn in to work with the police to control and monitor their students. In 2015 the Counter-Terrorism and Security Act imposed a legal duty on public bodies and their staff to carry out surveillance on the public. In 2024 the definition of extremism terrorism was widened to include ‘promotion or advancement of ideology based on hatred, intolerance or violence or undermining or overturning the rights or freedoms of others, or of undermining democracy itself’ (Mureithi 2024). These escalations meant the ‘prevent’ duty is ever expanding in scope and is now pervasive in the education space.

Individuals are not the only ones who become the eyes and ears of immigration enforcement because of their access to resources. There is a secondary level of immigration enforcement where these individuals hire agents to verify documents and meet their legal obligations. Privatisation is also more directly related to immigration control when private companies (such as G4S and Serco) are contracted-out immigration functions. The migration industrial complex has very dark overtones and reveals a lack of accountability. Private companies run detention centres for profit. They operate border services including deportation for profit. And they provide security services at physical borders.

Asylum privatisation and provision of resources

Private companies such as G4S and Serco which run prisons now lead on asylum provision. Apart from violence towards migrants (including rapes, death and injuries) which have taken place in spaces run by them, there is the use and exploitation of detained migrant labour to maximise profits. These companies hire detained migrants for nominal amounts to work in detention centres. They also provide temporary accommodation to asylum seekers which can be substandard.

A case concerning asylum accommodation provided by Serco came to the court and was decided in 2019. In this case, Ali (Iraq) v Serco Ltd [2019] CSIH 54, the court looked at whether it was unlawful for Serco to evict asylum seekers without first obtaining a court order, in terms of the Rent (Scotland) Act 1984. Serco provided temporary accommodation to asylum seekers in Glasgow. They provided this accommodation under the terms of section 95 of the Immigration and Asylum Act 1999 (‘the 1999 Act’). Mrs Ali was living in such accommodation, but her asylum claim was rejected. The Home Secretary served a written notice to quit and soon after, Serco served an eviction notice on her and her husband. Thereafter, in July 2018, Serco began to implement the ‘move on protocol’ – a new policy of changing locks and evicting asylum seekers without any court process. This applied to asylum seekers, such as Ms Ali, whom Serco considered to have no continuing entitlement to be provided with accommodation. When Ms Ali challenged this, the court had to examine whether the eviction without a court order was unlawful in terms of the Rent (Scotland) Act 1984 because, among other things, it breached Article 3 and Article 8 rights under the ECHR. But first the court had to see if Serco could be classified as a ‘public authority’ under the Human Rights Act (HRA) 1998.

A ‘public authority’ is defined in section 6(3) of the HRA 1998 as ‘any person certain of whose functions are functions of a public nature’. Here the decision was that Serco was essentially ‘taking the place of central government in carrying out what in essence [was] a humanitarian function’. Serco was therefore ‘exercising a function of a public nature’ and should be classified as a ‘public authority’ under the HRA 1998 [para 32] (Casalicchio 2020). It is important to keep private companies within this public authority definition so that they cannot engage in exploiting vulnerable people. While the role of law in migration control is often one of categorisation and selective application of rights (for example, paying below minimum wage for work done by detainees) as well as the obfuscation of liability (when it is unclear who is acting in public authority), it can also sometimes ask for accountability and provide a framework for determining who is accountable. With the introduction of biometric borders and digital databases as well as decision-making algorithms, legal provisions will need to be even more carefully drafted to identify and attribute liability for wrongdoings (Lyon 2009). Who is accountable if mistakes are made? Would it be the digital coder, the policy maker or the enforcement team? These are the new questions that emerge out of technological advancement.

The legality of asylum seeking

While privatisation and use of technology bring unique challenges in asylum provision, in the UK there is an even greater challenge, in that the right to seek asylum itself is in jeopardy. There is no legal route for someone to claim asylum in the UK unless they are physically present in the UK, and there is no asylum visa to allow someone to enter in a regular manner to access asylum. This curtailment of the right to seek asylum (which had been safeguarded in the post-war era by the 1951 UN Refugee Convention and the 1967 Protocol) is mainly prompted by channel crossings from France to England in small boats. The vessels on which crossings are made are not well-structured boats but are usually inflatable boats, dinghies or kayaks which are frail and unsuitable for a journey across the sea.

Many asylum seekers came from war-torn parts of the world to Europe from 2015 onwards. More than a million arrived by sea, as there were no safe routes over land (International Organization for Migration 2021). There are very few safe alternative routes for refugees to travel to the UK. A few resettlement routes do exist, such as the UK Resettlement Scheme, the Community Sponsorship and the Mandate Scheme which are available to people recognised as refugees by the United Nations High Commissioner for Refugees, but these are extremely restricted by nationality and number. Refugee family reunion visas and limited labour mobility schemes as well as nationality-based pathways (for instance, for Ukraine) exist but these are specific and do not meet the needs of most refugees (Gower and Sturge 2024). While tragic stories of people drowning in these dangerous crossings have been reported by the press, there are many calls for action in the media and in right-wing political rhetoric of stopping the ‘invasions’ of migrants. Yet it is overlooked by most that the war-torn areas from where the refugees have come were previously colonised lands; several were part of the British Empire. A report by the Refugee Council finds that three out of four people crossing the English Channel in small boats in 2023 are refugees who would be granted asylum if their claims were actually processed. Yet they fail to be considered genuine refugees when they are displaced due to ongoing conflicts which are playing out in the long shadows of history. Instead of offering shelter the UK and European countries have started closing asylum routes and are looking to offshore asylum seekers to less developed parts of the world in exchange for money. For instance, the EU has outsourced its migration problem to Turkey through the EU–Turkey deal of 2016. Germany and Italy have also been considering finding new safe third countries to accept asylum seekers as well. As these European countries seek to outsource/offshore to the Global South, the border has been shifted back from the point of entry of migrants in the Global North to their point of departure from the Global South.

Another wealthy nation, Australia, has attempted creative schemes of externalisation of asylum. It transfers asylum seekers to third countries that are deemed safe by Australia, mostly to offshore islands, such as Christmas Island, to detain and hold migrants. Australia uses a creative ‘deeming power’ called the ‘power of excision’ that deems parts of Australian sovereign territory to be no longer included in Australia for migration purposes, thus making asylum seekers ‘illegal’ as they are deemed not to have arrived in Australia to seek asylum even when they have done so. This is a unique instance of migrating borders where the borders are truly themselves reconfigured through legal fiction (Mountz 2011).

The UK made a concerted effort to outsource migration in April 2022. Through a contract with Rwanda, the UK planned to deport some people seeking asylum in Britain to Rwanda without considering the merit of their claims at all in the UK. The UK did not make any provision for their return if they were later found to have a genuine case for asylum. In the meanwhile, the UK passed a new act to restrict access to asylum. This was the Nationality and Borders Act 2022 which aimed to prevent small boat crossings. This Act effectively made it an offence to arrive to seek asylum. The United Nations High Commissioner for Refugees (UNHCR) has said that some of its provisions are in breach of the Refugee Convention because it seeks to prevent people applying for asylum, shift responsibilities for refugee protection to other states and criminalise new arrivals (UNHCR 2021b). The Illegal Migration Act 2023 also states that all asylum seekers arriving irregularly (for example, in small boats) must be removed to a safe third country. At the heart of this Act is the idea that Rwanda is a safe third country, but it has been hard to convince the courts or human rights organisations and activists that it is indeed a safe third country.

The European Court of Human Rights stopped deportations to Rwanda in June 2022 (Dzehtsiarou 2022) and said that British courts needed to consider all human rights issues before starting deportations. A UK high court then decided in December 2022 that the Rwanda plan was lawful, but ten asylum seekers from Syria, Iraq, Iran, Vietnam, Sudan and Albania challenged the high court ruling, with the support of the charity Asylum Aid, in AAA and Others v The Secretary of State for the Home Department [2022] EWHC 3230 (Admin). Their claim was about whether Rwanda meets the legal threshold for being a safe country for asylum seekers. The Court of Appeal found that Rwanda was not safe and that asylum seekers risked being sent back to their home countries (where they could face persecution). The government appealed this decision and then the UK Supreme Court unanimously ruled that the government’s plan to send asylum seekers to Rwanda was unlawful.

The Supreme Court found that asylum seekers sent to Rwanda may be at risk of refoulement – being sent back to a country where they may be persecuted, tortured or killed.¹¹ The courts cited extensive evidence from the UN refugee agency (UNHCR) that Rwanda does not respect the principle of non-refoulement. The UNHCR’s evidence questioned the ability of Rwandan authorities to fairly assess asylum claims. It also raised concerns about human rights violations by Rwandan authorities, including not respecting non-refoulement with other asylum seekers.

Lord Reed of the Supreme Court emphasised that there are obligations towards asylum seekers that go beyond the ECHR. The duty of non-refoulement is part of many other international conventions, and domestic law as well. In other words, exiting the ECHR (as has been proposed by some politicians) would not automatically make the Rwanda plan lawful or easier to implement.

Although the Labour Government (as of 2025) has abandoned the Rwanda plan, the Supreme Court’s decision is not a barrier for the political viability of the Rwanda plan; indeed the Conservative government, which was the previous government, passed the Illegal Migration Act and the Safety of Rwanda (Asylum and Immigration) Act 2024 to designate Rwanda as safe so that asylum seekers could be sent there in future. While no-one has as yet been removed under the Rwanda deal other countries that are designated safe third countries could in future receive asylum seekers on behalf of the UK. Recent news reports state that the UK government is seeking to return failed asylum seekers to other countries, such as the Balkans.¹²

Another trend is to convert this core human right into discretionary political decisions which allow for governments to choose by creating special schemes for selected groups of asylum seekers. The UK has done this in earlier decades: accommodating the Chileans in the 1970s, the Vietnamese in the early 1980s and the Bosnians in the early 1990s (Sales 2002) without providing a generally applicable asylum right for all. In more recent times Ukrainian families who come to the UK must apply for visas in advance, which is the immigration concept of seeking permission in advance of entry and not based on a universal international right to seek asylum. The Ukraine Sponsorship Scheme allows Ukrainian nationals and their family members to come to the UK, but they first need to arrange for a sponsor who can provide accommodation for a minimum of six months (UK Visas and Immigration 2022). In this manner, what was essentially a matter of right has become conditional and dependent. Families and individuals are left at the mercy of sponsors. There are reports of predatory exploitation and people being rendered homeless at the end of the six-month period (Crawford and Smith 2022). At the time of writing, more family members are not permitted to join their displaced family in the UK as the Ukraine Family Scheme closed in February 2024. Those who were already granted permission under the Ukrainian Family Scheme can live, work and study in the UK and access public funds for up to three years. However, those who intend to join a settled family member in the UK who can accommodate them may be eligible to apply under the Homes for Ukraine Sponsorship Scheme which is also available for Ukrainians to be hosted by non-family members. These different schemes are also confusing as they fluctuate with time with abundant unreliable information online about the schemes.

The Ukrainian visa system is paradoxically presented as a shining example of how the UK can accommodate and welcome asylum seekers promptly and without delay as they would not have to seek asylum on arrival (Cassidy 2023). Despite its flaws, arguably, Ukrainian asylum seekers, even if repackaged as visa holders, are better situated than other asylum seekers who cannot avail themselves of any special schemes. Similarly, following the beginning of the war in Syria, the UK government worked with UNHCR to resettle people as part of the Syrian Vulnerable Persons Resettlement Scheme (VPRS). The scheme offered safety to 20,000 refugees fleeing the Syrian crisis and ended in 2021. In 2015, the Home Office announced the scheme’s breadth (or rather, limits): 20,000 Syrians by 2020. In 2017, the UK announced it was dropping the nationality requirement from the scheme to open it up to other refugees from the Middle East – mainly Libya. With ‘Syrian’ dropped from the title, the scheme has since been known as the VPRS. Refugees under the VPRS are granted five-year residence visas. These were initially humanitarian protection visas, but this was later changed to full refugee status. This latest scheme extends from a history of temporary, quota-based schemes adopted by the UK government. Following the crisis in Afghanistan in August 2021, the UK government formally opened the Afghan Citizens Resettlement Scheme (ACRS) in January 2022. The government has said that it will resettle more than 5,000 people in the first year and up to 20,000 over the coming years, but there is a large gap between promises and their implementation. All these schemes share the common features that these are nationality based, and time bound. It has been argued that temporary schemes for specific groups allowed successive governments to select those who are deserving of assistance rather than being universal and based on humanitarian and/or legal standards. This trend now appears to be a dominant one in asylum provision.

Such an approach negates the universal commitments of the Refugee Convention and is more in line with the approach of countries that did not sign up to the Refugee Convention at all, such as Asian countries like India. To unpack the Indian scenario is useful, especially as a test case of where the lack of Convention rights can lead in terms of asylum protection. The Foreigners Act of 1946 in India did not define who should be given refugee status so refugee status in India is predominantly politically determined. Yet India was formed out of forced migration (Ananthachari 2001). The largest single mass migration in South Asia took place in 1947 when the partition of the Indian sub-continent took place, and in 1971 when Bangladesh became independent. Nearly seven million Bengali Hindus had crossed the border into West Bengal, Tripura and Assam to refugee camps built and sustained by the Indian government (Weiner 1993). At present certain refugee communities like Sri Lankan Tamils, Chakma and Tibetan refugees have received sufficient protection by the Indian state (Rajesh Babu and Pandiaraj 2022). On the other hand, refugee communities like Bangladeshi Muslims, Afghans, Burmese and many others who follow Islam have not received similar treatment.

In the recent past the Rohingya have consisted mainly of Burmese Muslims, bilingual Bengali- and Burmese-speaking people who are persecuted by the Burmese military (Sullivan and Sur 2023). They are effectively a stateless group who have fled Myanmar to continue to seek safety in India and Bangladesh. In India, they have not been offered asylum and have been treated as foreigners for deportation when they were detected through document checking or when they sought asylum. They have been arrested for violation of the Foreigners Act 1946 and the Passports (Entry into India) Act 1920 along with other legislation. Meanwhile, the Citizenship (Amendment) Act (CAA) 2019, in India, updates the existing Citizenship Act 1955, to provide Indian citizenship to minority communities fleeing persecution from neighbouring countries (Amnesty International 2024). It seeks to offer citizenship to Hindus, Parsis, Buddhists, Sikhs, Jains and Christians from Bangladesh, Afghanistan and Pakistan. The clear intention behind it is to grant citizenship to Hindus fleeing persecution in Muslim-majority countries neighbouring India but it has serious implications for both the Muslim immigrants as well as Muslims residing in India itself.

There is a cautionary tale for asylum rights and asylum seeking here from India which demonstrates how leaving asylum to political choices may have discriminatory and politicised effects. For asylum provision to address humanitarian needs, the countries who are signatories to the Refugee Conventions should avoid a similar route of political expediency. While there are many who fall through the cracks of the Refugee Convention, prior to the Convention there was no structured system for considering asylum claims (Kuipers 2021). For instance, when the Soviet Union denaturalised many of its emigrees, the League of Nations set up a committee under the famous polar explorer Fridtjof Nansen to deal with the situation of many who became stateless. Nansen designed a document for them to verify their identity and enable their travel through countries that recognised it. The document came to be known as the ‘Nansen passport’ (Gatrell 2017). Nansen had to convince each country to make this possible and achieved the extraordinary feat of some fifty-one countries recognising this passport by the end of the 1920s. Some 450,000 Nansen passports were issued in the 1920s. Nansen did not have the Refugee Convention to help him, and it took extraordinary negotiation and diplomacy to generate the political will for stateless and displaced people. It is important to remember that the intervening years have generated a ready framework of many human rights (both to prevent statelessness and confer refugee status) which nation states have agreed to. Preserving these conventions, at least as baselines for what protection displaced people should receive, is essential.

Blocking citizenship for refugees

Instead of providing enduring protection, the UK is moving towards increasing precarity. It has not just removed asylum pathways but also made it difficult for refugees to gain British citizenship. It used to be usual for those who had secured refugee status to naturalise as citizens over time. When refugees apply to become a British citizen, adults and children over the age of ten must meet a ‘good character’ requirement, which is set out in guidance. Generally, factors such as past criminal history, financial stability and breaches of immigration law have an impact on what the Home Office sees as ‘good character’. Most issues (except serious criminal convictions) are disregarded after ten years, a rule that has been part of the guidance for some time. However, in February 2025, the government made changes to the ‘good character’ guidance for naturalisation (UK Government n.d., good character caseworker guidance). The changes say that people who entered the UK ‘illegally’ and/or arrived through dangerous routes will ‘normally’ be refused British citizenship. The Home Office defines ‘illegal entry’ as entering through any route in breach of immigration laws, for example in breach of a deportation order or through deception. A ‘dangerous journey’ includes, but is not limited to, travelling by small boat or being hidden in a lorry. It does not include arriving as a passenger on a commercial flight. This means, from 10 February 2025 (the date of the guidance), anyone who applies for citizenship who arrived in one of the above ways will normally be refused, no matter how long ago they arrived. This will have an impact on many refugees who gained status through an asylum claim in the UK, and people who are in the asylum system now. This change will make it harder for anyone who arrived in the UK through an irregular route to successfully apply for British citizenship.¹³ It is hard to see how this barrier to belonging as a permanent member of British society will prevent those who are fleeing war for reasons of safety from undertaking dangerous journeys. All it seems to achieve is a meanspirited exclusion of those who have successfully gained refugee status and remained for a long time in the UK to secure indefinite leave. It de-recognises their long-term links with this country and renders them vulnerable.¹⁴

Conclusion

The legacy of empire has not just left a trail of violence overseas. Continued British involvement in the post-war period in former colonies and dominions, especially throughout the Commonwealth, also created controversial internal bordering. The living progeny of former colonised people are ethnic minority citizens in modern United Kingdom. Whereas in the time of empire subjecthood was a legal fiction of equality, after the dissolution of empire, it was possible to refocus on the ethnic links very quickly to make citizenship illusory for ethnic minorities. Racialisation of citizenship has shaped the environment and the situation of the Windrush generation. In the past subjecthood was racialised based on ancestry: only those with grandparents/parents born in the British Isles could claim to have a special connection with the country, especially as the legal concepts of partiality and right of abode became prevalent in nationality and immigration legislation. There have been special visa pathways such as ancestry visas and youth mobility schemes for the old Commonwealth (former dominions) which are not available to the new Commonwealth. There are in the present not just these series of legislative changes eroding the rights of Commonwealth nations but many other ramifications which persist. Here law functions both for demographic reasons, through ethnicisation of nationality laws, and for symbolic reasons, for communicating the preferred values of a particular nation state. A primary shift is for blood-links to matter more in such scenarios with a likelihood of increasing inversely in relevance with the lessening importance of jus soli.

Tracing how citizenship becomes linked to ethnicity uncovers the role of the former colonial subject who becomes a Commonwealth national and then morphs into a long-term resident. It demonstrates the uncertain legal territory between subjecthood and citizenship. The East African Asians case shows how the re-bordering around Commonwealth nationals in Britain brought about by the changing status of Commonwealth nationals through different immigration and nationality legislation took place. Eventually, being rendered wholly foreign, Commonwealth residents with long-term residence suddenly found themselves trapped in new documentation requirements imposed by hostile environment legislation and suddenly became categorically excluded. The role of law in this transformation is about making borders real and tangible, even within the nation-state boundaries, and often in continuation of empire-age practices of exploitation. The very construction of an idea of Britishness and proximity to Britishness is set out by law so that people continue to remain foreign within borders through the operation of law. The latest example of such exclusion is that of refugees in Britain who may be long-term residents and even hold permanent status with indefinite leave to remain, but still cannot become citizens.

Notes

1. 1.  ‘50 Years On: Rivers of Blood’. https://www.bbc.co.uk/programmes/b09z08w3. Accessed 20 October 2025.

2. 2.  For example, University of Warwick, Library Records Centre, ‘The 1958 Riots’. https://warwick.ac.uk/services/library/mrc/studying/docs/racism/riots/. Accessed 8 October 2025.

3. 3.  The Immigration Act 1971 and the British Nationality Act 1981: The cross-linking of right of abode with being free of immigration control means citizenship is now a racialised notion (linked with ancestry and bloodlines). From 1983 no more special protection for Commonwealth citizens (they must naturalise like anyone else) and no more birth citizenship (BNA 1981).

4. 4.  The Home Office published guidance for private landlords on conducting right-to-rent checks during the Covid pandemic.

5. 5.  Prior to 2014, the NHS Information Centre (NHSIC), predecessor to NHS Digital, was already engaged in immigration tracing services (National AIDS Trust and Doctors of the World 2018).

6. 6.  MOU0002. https://committees.parliament.uk/writtenevidence/85587/html/. Accessed 20 October 2025.

7. 7.  MOU0002. https://committees.parliament.uk/writtenevidence/85587/html/. Accessed 20 October 2025.

8. 8.  ‘NHS chiefs urged to stop giving patient data to immigration officials’, The Guardian, 31 January 2018. https://www.theguardian.com/society/2018/jan/31/nhs-chiefs-stop-patient-data-immigration-officials. Accessed 8 October 2025.

9. 9.  Council of Europe, European Commission against Racism and Intolerance (ECRI), General Policy Recommendation No. 16.

10. 10.  UN Committee on Economic, Social and Cultural Rights, Duties of States towards refugees and migrants under the International Covenant on Economic, Social and Cultural Rights (13 March 2017).

11. 11.  R (on the application of AAA and others) (Respondents/Cross Appellants) v Secretary of State for the Home Department (Appellant/Cross Respondent), UKSC/2023/0093.

12. 12.  ‘Government considering sending failed asylum seekers to Balkans’, Billy Kenber, BBC, 22 March 2025. https://www.bbc.co.uk/news/articles/cddyj8ge08po. Accessed 8 October 2025.

13. 13.  In 2025 November the latest proposal from the Home Secretary is to require some migrants who may be in Britain under legal routes but relied on benefits for a certain period to have to wait twenty years before they can naturalise. https://www.bbc.co.uk/news/articles/c3w9wlney23o. Accessed 20 November 2025

14. 14.  In November 2025 the UK government announced plans for ‘earned settlement’ which further lengthens the time period to twenty years for those who may have entered illegally or overstayed their visas. Oral statement to Parliament: ‘A fairer pathway to settlement: The Home Secretary’s statement setting out significant reforms to the UK’s legal migration model’. Home Office and The Rt Hon Shabana Mahmood MP, 20 November 2025, https://www.gov.uk/government/speeches/a-fairer-pathway-to-settlement. Accessed 15 January 2026.