Report on United Kingdom
The trend towards increasing complexity has continued under the Coalition
government with the accretion of new layers of immigration rules piled on top of the
existing structure, resulting in a byzantine edifice in which the true legal position is
difficult even for experts to discover. This may not be entirely undesired. If the
government wishes to reduce net migration to the tens of thousands, one way is to
make the rules of entry inaccessible. While the process of naturalisation has largely
escaped this recent new complexity, the requirement of establishing lawful stay
through the qualifying period of residence, combined with exorbitant fees at every
stage of the process, can only increases barriers to naturalisation. Meanwhile, the
position of those who do become citizens is becoming more precarious particularly
for those who are naturalised citizens or who have maintained links through
citizenship to another country.
The problem of making functional legislation is proving more difficult, the
problem being exacerbated by the lack of any established and informed academic or
professional debate about immigration and citizenship law. Despite recent attempts to
raise the profile of the subject and make it more central to legal education, it is still
often considered to be mainly a political or sociological issue, rather than a legal one
where legal expertise might be central to explaining the current position or assessing
potential reforms. The current story of confining the British to within the boundaries
of the UK will also have to encompass treating Ireland as a properly foreign country.
Though currently this may appear already to be largely the case,70 in practice the
persistence of the Common Travel Area, by which the borders between the countries
are open, had blurred the point, and many people also hold both Irish and British
citizenships. There have been proposals, not adopted, to abolish the Common Travel
Area,71 overturning centuries of historical connection. Something on which no change
appears to be proposed is the power of Parliament to alter or withdraw what in most
countries would be basic constitutional rights: this power is most graphically
expressed in the fate of the Chagos Islanders, who many years after being expelled
from their homes by subterfuge were told by the House of Lords that it was properly
within Parliament’s power to remove their right of abode. Indeed, the trend under the
current government is away from strengthened protection for individuals under the
norms of international or European law.
The broad political trajectory of UK citizenship law is relatively easy to see;
historically-based anomalies are being removed and the system is being brought into
line with a more classic mixed system of partial ius solis and ius sanguinis.
Ambiguity as to status is being removed, with more migrants being either refused
entry or treated as temporary visitors or guest workers. It remains to be seen however
how easily the political impetus can be translated into legal provisions that work as
intended, and what the side-effects may be. It may not be easy to limit interim and
safety-net categories, or to limit human rights challenges to the deprivation of
residence and other rights, especially where these are enjoyed by longer-term
residents whose circumstances have changed unexpectedly. It may also be difficult to
ensure that checks on the status of apparent foreigners do not affect settled and
settling communities, to the detriment of British society as a whole.
It was always likely that the dismantling of an empire would lead to profound
changes in citizenship status and immigration laws. Many have argued however that
this was achieved through the use of overt and covert racial categorisations and that
immigration policy drove nationality law rather than the converse, which would seem
both more logical and more principled. Stark race discrimination is now unacceptable,
legally, socially and politically, and some of the worst excesses in nationality law
have been ameliorated. However, new distinctions have emerged which are still
70
There have been separate citizenships since the declaration of Eire as an independent republic and the
Ireland Act 1949 in the UK.
71
See Goldsmith 2008 and the original draft of the Borders, Citizenship and Immigration Bill.
RSCAS/EUDO-CIT-CR 2014/1 - © 2014 Authors
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