Migrants and the Courts

A Century of Trial and Error?

Geoffrey Care

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317096542
• Edition: 1
• Topic: Law
• Subtopic: Immigration Law
• Index: Law

Written in a lively and engaging style from the perspective of a leading immigration judge, this book examines how states resolve disputes with migrants. The chapters reflect on changes in the laws and rules of migration on an international and regional basis and the impact on the parties, administration, public and judiciary. The book is a critical assessment of how the migration tribunal system has evolved over the last century, the lessons which have been learnt and those which have not. It includes additional comparative contributions by authors on international jurisdictions and is a valuable overview of the evolution and future of the immigration tribunal system which will be of interest to those involved in human rights, migration, transnational and international law.

Chapter 1
Laying the Foundations

The Government recognises that the judges are the great enemies of every government, because they are always supporting people who allege that they’re being downtrodden by government.

Lord Donaldson, MR – ‘The Guardian Interview’,
Channel 4, broadcast 10 February 1989

Early History

Hospitality toward the alien and those in need of protection dates back to biblical times1 and the early nation states,2 and is a tradition that is strongly embedded in Jewish and African cultures. In the second millennium BC, the Hittite king drew up treaties concerning refugees. Later, in the fourteenth century BC, Rameses II gave refuge to another Hittite king, Urhi-Teshup: even the Assyrian king, Ashurbanipal, in the seventh century was known to grant asylum. Let’s not forget about the flight of Joseph and Mary with Jesus to Egypt, or Mohammed’s hijra to Medina in AD622.3 Joseph’s story contains a message to today’s decision makers when they have to address the plausibility of a story that they are told. Joseph seems to have left a good job as a carpenter and settled far away in Egypt with his family when at the time nothing materially significant had happened – except that he said he had had a dream – a scenario which would never have got past the Entry Clearance Officer nor the Home Office, and was very unlikely to have been accepted by even the most gullible immigration judge.

Turning to later times in Europe, general compassion for the plight of refugees seems to have begun in the sixteenth century and led to modern ideas regarding asylum. The paragraphs that follow give a brief introduction for this.4

The Edict of Nantes in 1598 was aimed at protecting the Calvinist Protestants (or Huguenots) in France, and its revocation in 1685 reopened old wounds which followed the Thirty Years War (1618–48). The Edict of Potsdam (1685) provided for a territorial home for many Huguenots fleeing persecution in France, and helped to establish Potsdam as a centre of European immigration, as the city’s reputation for tolerance attracted migrants from France and beyond. The schism between Roman Catholics and Protestants following the Reformation made Britain an attractive country for Protestant elsewhere in Europe and undoubtedly had a significant impact on migration within Europe.

England itself had no comprehensive policy of restriction on immigrants until as late as 1905 (discussed below), although even then some measure of immigration control was not new. For example, the Alien Act of 1705, but this was aimed solely at the Scots following the Act of Settlement in 1701.

The attitude in England toward the foreigner has fluctuated between laying out the welcome mat (at least to some), and attempts at mass removal. For example, in 1793 Parliament passed the Regulators to Aliens Act, the Preamble to which makes informative reading:

Whereas a great and unusual number of persons, not being natural-born subjects of his Majesty … have lately resorted to this kingdom: and whereas, under the present circumstances, much danger may arise to the publick tranquillity from the resort and residence of aliens, unless due provisions be made in respect thereof.5

The 1793 Act immediately followed the French Revolution, and was a response to the earlier flows of Huguenots from France and Belgium. It was the panicked reaction of the eighteenth-century British government, equivalent to so many of those in the twentieth century. Intended to be of limited duration, the Act was extended, and amended in response to events in France in 1798.

The Revolutionary Period and the ensuing Napoleonic Wars (1803–15) were followed by relatively small incursions of Russian and French refugees. The response was, however, to curtail entry and it would seem that that was, at least in part, due to fears surrounding national security, especially following the French Revolution.6

Despite relatively peaceful times for England in the nineteenth century, there were sporadic pieces of legislation, such as William IV’s Registration of Aliens Act 1836. This required the registration of aliens along with their records, and the designation of specific ports for entry of immigrants; hefty fines (up to £10,000 in today’s money) were imposed on captains and owners of vessels who brought in aliens illegally, though it is doubtful if those captains ever thought of themselves as unpaid border guards.7

The descent into the bloody wars in Europe, beginning with the Franco-Prussian War of 1870, again created a sense of insecurity, from which it is arguable that we have never completely recovered.

The legislative reaction in England to the Franco-Prussian War was the Extradition Act 1870, an ‘Act to authorize the Removal of Aliens from the Realm’. There was no thought given to appeals from removal or exclusion, because at that time asylum and, indeed, immigration was considered the sole prerogative of the Crown. This notwithstanding, the Act recognized the need to protect political and religious refugees by exempting them from extradition, section 4(1) providing that there should be no extradition for political offences. The form of the Act was continued 100 years later, in the Fugitive Offenders Act 1967.8

This period covering the late sixteenth to the early twentieth centuries focuses attention on some eternal issues of immigration: the fear of ‘floods’ of refugees, threats to employment, political dissidents disturbing relations with ‘friendly’ nations, and, once again, security of our boundaries.9

From the time of the Huguenots to the twentieth century, no foreigner was allowed entry to the UK at least to stay or as a refugee without permission from the responsible minister, whose decision was final, because, as remarked in the Preface, it was considered to be solely within the Royal Prerogative.

The Twentieth Century

The right to question a decision by the executive (whether monarch or minister) only appeared in any recognizable form in 1905, and even then was very limited: the right of appeal did not last long. Before coming to 1905, a reminder10 of what was happening at the time may put the present into a little more realistic perspective; when history does repeat itself, the form in which it does so comes as less of a surprise.

With regard to refugees, the events and the reactions of the public and in some of the methods of control in the eighteenth and nineteenth centuries have changed little in the twentieth or the present centuries. Public outcries, predominantly against Jews, became increasingly vicious from the latter part of the nineteenth century, both in Parliament and in the press.11 After several false starts, this xenophobia led to the Aliens Act 1905.

By the beginning of the twentieth century, public reaction, encouraged by the press had again begun to ‘sink its teeth into Refugees’ on numerous occasions, lamenting that ‘German Jews are pouring into the country’, ‘we’re being swamped … ’ and ‘[the] Refugee tide [is] rising.’12

The Daily Mail for 3 January 1900 berated the ‘ill behaved so-called refugee German Jews, who had been funded by the Lord Mayor’s fund and were so abusing this generosity!’13

The rhetoric down the ages seems to portray not only a fear for national security and the integrity of one’s national boundaries, but an inbuilt hostility by the indigenous population toward the alien. This hostility seems to arise more often than not out of ignorance, which is frequently fed by distorted facts. The result has always been increased restrictions upon the rights of appeal. This sort of reaction may be due to some unspoken and undefined fear, but is often revealed as some general expression of dislike of ‘foreigners’14. This probably explains Winder’s title for his book Bloody Foreigners;15 one fact which he reveals is that the Anglo-Saxons had a word for people (or things) from elsewhere: ‘wealh’ (foreigner), which explains the etymology of some common names or words, such as ‘walnut’, which came from France. The same xenophobic attitudes remain, though the nature of the fears may change. They can arise out of social conditions, religion, employment and the economy, strangeness and racial purity, as well as sovereignty – indeed, the very conditions which contribute to the movement of peoples on the world stage.16

Rarely is mention made of the other side of the coin – that is, the benefits of immigration to this country and emigration from this country for business, settlement or simply a better life.

Attempts at a concerted policy toward immigration in the UK seem to have only started when the numbers of people arriving in Europe and the UK and claiming asylum escalated in the later years of the 1980s. If one were to attempt to put a definite date to it, perhaps the 1991 Immigration Bill is the most precise;17 as extensive preparations for training and hearings were put in train in 1991 and in confidence since 1991 by the IAA.

The Aliens Act 190518

The Aliens Act 1905 was the first immigration legislation in twentieth-century Britain; it defined some groups of migrants as ‘undesirable’, making their entry into the country discretionary, rather than automatic. It was passed, so it was claimed, due to fears of degenerating health and housing conditions in the East End of London. It is said that at the time this was seen to have been caused by the large number of Russian and Polish Jews fleeing persecution. However, there was considerable anti-Semitism at the time and in the view of some it was anti-Semitism primarily rather than anti-alienism which prompted the Act in 1905.19

The Act ensured that leave to land could be withheld if the immigrant was judged to be ‘undesirable’ by falling into one of four categories: ‘a) if he cannot show that he has in his possession … the means of decently supporting himself and his dependents … ’; ‘b) if he is a lunatic or an idiot or owing to any disease of infirmity liable to become a charge upon the public rates … ’; ‘c) if he has been sentenced in a foreign country for a crime, not being an offence of a political character … ’, or ‘d) if ...