The killing of George Floyd by Minneapolis police officers has shone a light on the ongoing difference in the treatment of black and white citizens in the United States. It is right and proper to think also about racism here in the United Kingdom. As an immigration lawyer, I see racism in action day in, day out. Sometimes it is obvious and blatant but often it is subtle and insidious. I stand in solidarity with the Black Lives Matters campaigns and this blog post is part of my attempt to show such solidarity.

More concretely, I would welcome pitches for articles about race and immigration from migrants, lawyers, civil servants, judges, academics or others connected to the immigration system in some way, particularly those from a BAME background. I cannot guarantee we’ll publish any given article but Free Movement is a platform and we can offer a voice to a wider range of people and viewpoints than we do at present. I will also put together a short course on the history of British immigration law, which is something even immigration lawyers often know surprisingly little about. Wendy Williams recommended that civil servants learn more about immigration history, just as Macpherson recommended a more diverse teaching of British history in 1999. Little or no progress seems to have been made on either front so far.

The elephant in the room

There is an old saying about people not mentioning the elephant in the room: something that is obvious and massive but which the people in the room do not want to discuss.

I know that my black clients and their families have very, very different experiences of the immigration system than my white ones. I have often felt instinctively that things were wrong without really being able properly to explain or articulate why. I am not alone in my failure: there were almost no successful appeals based on race discrimination even before that ground of appeal was abolished by Theresa May in 2014. Home Office lawyers argue that any differences in treatment are because of economic differences, not racial ones. Sometimes, if sailing rather too close to the wind, the lawyers might argue social or cultural differences also explain differential treatment. These counterarguments always but always succeed in immigration law.

My inability to articulate and challenge the racism at work here is partly sheer ignorance on my part — one has to actively seek out information about structural racism and its origins and many of us who benefit from white privilege do not — and it is partly the blinkering effect of my legal training. To put it neutrally, the British legal system is not well suited to rectifying structural injustices, and we lawyers tend to focus on the immediate task in hand of securing immigration status for our clients within a system we know is unfair but feel powerless to reform.

To try to rectify some of my own ignorance, I have been doing a lot of reading, listening and writing over the last year, linked to my own upcoming book. (B)ordering Britain by Nadine El-Anany, Hostile Environment by Maya Goodfellow and Rule Britannia by Danny Dorling and Sally Tomlinson are all very good on how Britain benefitted from empire and why that matters today. Why I’m No Longer Talking to White People About Race by Reni Eddo-Lodge is properly eye-opening on structural racism and white privilege (I listened to the audiobook). I’ve got The Good Immigrant by Nikesh Shukla and Natives by Akala queued on my bookshelf and Superior: The Fatal Return of Race Science by Angela Saini lined up next on Audible once I’ve finished Orientalism by Edward Said, which I had rather shamefully never actually read.

I have also been doing a lot of reading on the evolution of the British immigration system. Randall Hansen’s archive work in Citizenship and Immigration in Post-war Britain is fascinating, for example. I know a lot more than I did but, of course, there’s still lots I do not know, and by the nature of the thing I do not know what that is yet.

Where does racism come from?

The toppling of the statute of Edward Colston in Bristol, where I live, is long overdue. Colston was a slaver. As a member and eventually Deputy Director of the Royal African Company he made a fortune through the enslavement of Africans. It is estimated that 84,000 men, women and children were traded as slaves during his time with the company, of whom 19,000 died on the journey to the Caribbean.

Colston was not alone. The slave trade and the Royal African Company existed before and after Colston. It was set up by Charles II and his brother, later James II. Colston sold his shares to William of Orange, who succeeded James II in the Glorious Revolution. Investors included philosopher John Locke and diarist Samuel Pepys. The British elite and wider British economy benefited hugely from slavery, just as it later did from empire.

Staying with Edward Colston, he used some of his wealth to endow schools, almshouses, hospitals and churches which would otherwise not have been built. To put it simply, Britain became a wealthy country and built the foundations of its present day infrastructure on slavery and on empire. Some of this wealth was literally stolen — I have read estimates that as much as 10% of Indian GDP was expropriated and exported back to Britain annually — some was extracted through the Imperial Preference system and some was generated through trade which would otherwise have been impossible. Slaving was one leg of the Triangular Trade between Europe, West Africa and the Caribbean.

If you want to know why Britain and other European countries that benefited from slavery and empire are richer than the countries from which slaves were abducted and then on which empires were imposed, the question rather answers itself. Britain and Europe gave themselves a huge and durable leg up while simultaneously crippling other countries.

No-one likes to think they are the bad guy. To imagine yourself the good guy while pursuing the slave trade and then conquering an empire, all done at huge benefit to oneself, required herculean feats of intellectual dishonesty. Slaves were imagined as animals and the conquered people of the empire as inferior races who would benefit from governance by the white man. And this is where present day racism began. It was not just some sort of spontaneous popular sentiment. It was invented by the learned men of the day and presented as scientific fact.

I have an example of this race “science” on my shelves at home in a beautifully illustrated collection of the Edinburgh Journal of Natural History, edited by renowned naturalist William MacGillivray. A sort of special edition published in 1839 is included in the volume I have, which describes “varieties of the human species” in excruciating imagined detail. I’m not going to quote from it but it is full of highly offensive anecdotal conjecture and plainly wrong observations paraded as if they were empirical science. To modern eyes it is an astonishing and properly horrifying read.

This race science was considered truth at the time. Its influence continues today. There are still some who consider other racial groups to be inherently different and inferior. More common, though, is a failure to appreciate that centuries of exploitation and deeply ingrained modes of thought mark the descendants of both the exploited and the exploiter. Those of us who benefited from this exploitation need to be aware of the advantages it gives us even today.

Race and immigration law

It is not, I think, inherently racist to have immigration laws; all modern countries have such laws and a set of laws that defines and regulates who is and is not a member is arguably integral to the idea of a nation state. But racial difference played a foundational role in the evolution of British immigration laws and it continues to play a role today.

The difference between Britain and other countries lies in the extent of the empire and the legal fictions that underpinned it.

The legal status of inhabitants of the British empire was that of the British subject. All inhabitants born within the empire had this status and so all were notionally equal. British subject status persisted under the new legal regime established by the British Nationality Act 1948, which also created and allowed for new subdivisions of citizenships within what was now the Commonwealth. One of these was Citizenship of the United Kingdom and Colonies.

The United Kingdom had put itself in an unusual position. The historical fact and size of the empire combined with the single legal status meant that a very substantial number of people around the world now had the right to move to the United Kingdom, just as residents of the United Kingdom had once moved freely to other countries.

When substantial numbers of black and Asian citizens started to make use of this right, policy-makers faced a choice. There remained considerable elite support for the right of white Commonwealth and Irish citizens to move to the United Kingdom. Government archives show that the “problem” was very much considered to be black and Asian citizens. Policy-makers could leave things as they were, which ran increasingly contrary to public opinion at the time. They could abolish the single legal status. Or they could devise a way of discriminating against black and Asian people.

They chose the latter. An explicit colour bar was considered unacceptable so instead rather tortuous legal devices were invented.

The Commonwealth Immigrants Act 1962 abolished the right of British subjects to live in the United Kingdom. This at a stroke meant that citizens of independent Commonwealth countries, including Australia, Canada, India, Pakistan and Ghana (and any countries that later became independent, of which there were soon to be many) no longer had the right to live in the United Kingdom. In 1962 the winds of change had only recently started to blow; the residents of not-yet-independent countries including Tanzania, Kenya, Uganda and the Caribbean islands were Citizens of the United Kingdom and Colonies; the title of their citizenship literally included the words “United Kingdom.” They were also to be excluded, it was decided. But how?

The 1962 legislation limited the right of residence in the United Kingdom to Citizens of the United Kingdom and Colonies whose passport had been issued by the United Kingdom government itself. This means that otherwise identical passports issued by colonial governments no longer enabled the holder to live in the United Kingdom. Some citizens were to be treated very differently to others. A substantial skilled work permit scheme was introduced at the same time, which policy-makers assumed would enable white Commonwealth migrants to continue to move to the UK if they wished.

And this is why British immigration law and debate about immigration was and continues to be tainted by racism. Immigration laws did not divide the world into citizens who had a right to live in the country and non-citizens who did not. Instead, citizenship was massively and widely defined and then immigration laws were introduced to limit which citizens were to be allowed into the United Kingdom. These laws were devised specifically in order to prevent black and Asian citizens from doing so.

Subsequent legislation perpetuated the problem. The Commonwealth Immigrants Act 1968 was introduced to exclude from entry a relatively small number of Kenyans and Ugandans who had retained their Citizenship of the United Kingdom and Colonies after the independence of their countries of residence and whose passports had been issued directly from London. The Immigration Act 1971 formalised the differential treatment of citizens by creating a new “right of abode” for some citizens but not for others. And when the British Nationality Act 1981 finally scrapped the old UK and Colonies citizenship as well as British subject status, it did so in way that conferred the new status of “British citizen” automatically on whites but often only conditionally on black and Asian residents, who had to register. Some did not.

The Immigration Act 1971 and British Nationality Act 1981 both discriminated between one type of citizen over another based on their race. They continue to form the bedrock of modern immigration and nationality law.

Things are not always getting better, either. For me, the two most grievous faults of the hostile environment system set up by Theresa May are the impact on unauthorised migrants, who become a tolerated group in an intolerable situation, and the impact on BAME British citizens, who are far more likely to be challenged to prove their right to live in the country and consequently be denied services than white British citizens. It was these laws that led to the Windrush scandal.

For decades the broad mainstream political consensus was to limit immigration but enforce anti-discrimination laws. The last decade has seen the abandonment of even the second part of that controversial equation.

Race and the immigration system

Blatant, direct race discrimination is, I think, unusual now, although many of our clients will have experienced direct racism first hand from immigration officials and the private contractors sometimes used in their stead. Many barristers and advocates will have witnessed outright racist comments by judges and others. I can think of two immigration judges who have taken early retirement following “incidents” in the last few years; that they were permitted quietly to resign does not reflect well on the judiciary as a whole in my own view.

Indirect discrimination is woven into the fabric of the system, though. I really cannot list all the ways but here are a few:

• Assumptions are routinely made about groups of migrants based on their race. It is not assumed that any given young Australian will overstay; it is assumed that any given Nigerian will overstay. To claim that race plays no part in such group assumptions simply lacks credibility.
• Some immigration rules remain almost explicitly racially biased, with visa categories still in existence today almost exclusively for white Commonwealth citizens (the UK Ancestry visa) and disproportionately for young white Commonwealth citizens (the Youth Mobility visa).
• Racial bias in the criminal justice system (more likely to be stopped by police, more likely to be prosecuted, certain crimes more harshly punished, disproportionate sentencing) are carried through to the immigration system via the harsh and inflexible rules on deportation. This affects not just individuals but families, children and communities.
• Racial discrimination in the economy leads to a disproportionate immigration status impact on families, with BAME families more likely to be affected by the spouse minimum earnings threshold and immigration and citizenship fees, for example.
• The hostile environment system of citizen-on-citizen immigration checks disproportionately affects BAME British citizens.
• Predominantly white lawyers, civil servants and judges pronounce on the lives of black and minority ethnic people and their families. Take a fresh look in almost any immigration hearing room and you’ll see racial imbalance in action right there.
• Unconscious bias by all of the above. White judges are more likely to be sympathetic and empathic towards white lawyers and white migrants.
• Black lawyers disproportionately face sanction from regulators and the judiciary, face routine discrimination from court staff, judges and other lawyers and are underrepresented in the legal directories and in appointments to Queens Counsel and the higher judiciary.

There is a lot of work still to be done to, in the words of the Immigration Law Practitioners’ Association constitution, “secure a non-racist, non-sexist, just and equitable system of immigration, asylum and nationality law practice”. The laws are still racist and so, at times, are the people who interpret, apply and judge those laws. Improvements must be fought for; progress is not inevitable and in my view we have witnessed tangible increases in race discrimination in the immigration system in the last decade.