Evolution of immigration

As politicians urge ever tighter immigration controls, it is strange to recall that at the beginning of the 1960s there were none at all for citizens of the British Commonwealth. This changed when the Commonwealth Immigrants Act 1962 (CIA 1962) removed the right of entry from citizens of the larger dominions, but there was still no restriction on the millions from the smaller dependencies who held passports declaring them to be “citizens of the United Kingdom and Colonies”.

CIA 1962 provided no mechanism for adjudicating on disputed cases. It was left to the discretion of immigration officers at ports of entry to decide questions of eligibility. There was no formal appeal and it was not clear that an immigration officer’s decision could be challenged in the courts.
CIA 1962 allowed admission of dependant spouses of Commonwealth citizens already settled in the UK and their children under 16. Proving the age of a child to a sceptical official could be a major hurdle. Birth certificates were not readily available and those that existed were often of doubtful authenticity. The conventional wisdom of the Home Office was that the under 16 exemption was being abused to bring in older youths to work, so refusals were routine.

Typically the parents waiting anxiously at the airport would see their child turned away at the barrier. The youngster would be led away by an immigration officer, to be sent back on the next plane. The distraught parents would desperately seek help and sometimes I would receive a call asking if I could do anything to get the decision reversed.

arbitrary decisions

The first step was to speak to the immigration officer to find out the reasons for refusal and request a delay to investigate them. It was helpful to get an MP to reinforce this request with a call to the duty official at the Home Office—usually this had to be done outside office hours. In rare cases evidence could hurriedly be found that would bring about a change in the decision, but this was often arbitrary. There was no independent adjudication.

I discovered that some child dependants were refused entry by reference to a study of bone development carried out by a British doctor in an Indian district in the 1920s. An applicant who did not match the specified measurements was deemed over 16. When I described this supposed expert guidance to a leading specialist in growth at the Institute of Child Health he was horrified. The test lacked all credibility. With his support we went to the High Court on behalf of a Pakistani boy and his family. The immigration officer’s failure to accept that the boy was under 16 on the basis of a bogus test was manifestly unfair. The case hit the headlines. The lord chief justice heard it in the Divisional Court.

Our counsel came from the same chambers as the solicitor general, Sir Dingle Foot QC. One of them, Learie Constantine, the famous cricketer, was a member of the Race Relations Board (RRB), and I was its legal adviser, so we were both on the part-time payroll of our opponents, the Home Office. The Guardian commented on this in a leader but we were in no way inhibited from fighting wholeheartedly for our client.

We won. The court held that an immigration officer had a legal duty to act fairly—not a surprising proposition in the light of modern jurisprudence, but one which the Home Office had hotly contested. The bogus bone tests were consigned to oblivion.

A distressing consequence of challenging refusals of admission was that the would-be entrant was cast into limbo while the struggle to reverse the refusal was taking place. Overnight accommodation at ports of entry was inadequate. Home Office practice was to move the immigrant to a prison to await the decision. When my late friend Vishnu Sharma, general secretary of the Indian Workers Association, complained that innocent people whose entry qualifications were in doubt were being treated like criminals, a Home Office spokesman described this as “rubbish”.

I was incensed. I wrote to The Guardian describing two of my cases. In the first, two girls had come from India to join their uncle. When I met them in November 1968, they had been in Holloway Prison for 12 days. Apart from short association periods they were kept in separate cells all day with no one to talk to. They were given no warm clothing to supplement the tropical clothing in which they had arrived. They were hungry because they could not eat the unfamiliar food. They remained in Holloway another month before they were returned to India.

The second case was of an old man who had arrived from India to visit his daughter. He was kept in Brixton Prison for nearly two months before being released to join them on Christmas Eve. These cases contrasted with that of a white Rhodesian cricketer, Colin Bland, who was allowed to stay at the Waldorf Hotel in London while his application for admission was under consideration. Racism was endemic in the system.

ENDEMIC RACISM

In 1968, those of Asian origin who had lived for generations in East Africa were threatened with expulsion by a newly emerging African nationalism. East African Asians relied on their UK passports to claim refuge in Britain. The government rushed through legislation to exclude citizens of the UK and colonies other than those who could establish an ancestral connection with the territory of the UK. This was the discredited concept of “patriality”.

I was one of many members of the Labour party who resigned in protest at this racist measure. The government was embarrassed. It tried obliquely to sugar the pill by strengthening the Race Relations Act and by accepting the recommendations of a committee chaired by Sir Roy Wilson QC (later chairman of the RRB) to introduce a network of independent adjudicators to hear immigration appeals, with an Immigration Appeals Tribunal to exercise a supervisory jurisdiction over the adjudicators.

The unseemly scramble to negotiate the reversal of immigration decisions ad hoc with Home Office officials was replaced by a formal appeals process and the development of a coherent body of immigration law began. Mistreatment of immigrants and asylum seekers did not end. It still goes on. But that is another story.