The United Kingdom's exit from the European Union, and its well-used portmanteau: Brexit, has been an extremely complicated but interesting moment in Western Europe’s political history. The lead up and reasons behind the consequent majority vote in the referendum has touched on many themes, but arguably none were so central as immigration, and the “control of our borders”. The UK, as with most nation states, has a long-standing, multi-layered and complicated history of migration, being a historically colonial country. The country has a relatively large immigrant population, but also a lot of emigrants: In the last decade, about eight percent of British-born people have been living outside of the country. The article looks at post-war immigration narratives in the UK and their echoes in the debate about migration in the run-up of the Brexit referendum.
The Windrush generation
The now famous SS Empire Windrush arrived at the UK Port of Tilbury, near London, on the 22nd June 1948. The ship, originally seized from Germany as a prize of war, would have been one of many landings that day. An event that was quite unremarkable, and only bookmarked in history by the fact that those disembarking were Black migrants from the Caribbean arriving to make a new life in the ‘motherland’. Of course, they were far from being the first non-European migrants to arrive on British shores. What set that June day apart was that those particular migrants setting foot onto the island of Great Britain for the first time, were doing so with full domestic passports ascertained by birth in the British Empire, and they were to be the first of thousands, now dubbed as “the Windrush generation” – this is the name that is given to migrants from Colonies and Commonwealth countries, who arrived in Great Britain from 1948 until 1971.
The 492 migrants that were the ‘first’ to arrive, were travelling in anticipation of a new law being passed in the UK, one that reaffirmed the rights of all British subjects (and after passing, created the new term Citizens of the United Kingdom and Colonies). The right to immigrate to and take up residence in the United Kingdom had existed since the creation of the British Empire, and in theory equally applied to the millions of people the empire had ruled over. However, since the end of WWII the cost of travel had decreased – therefore allowing the less wealthy, and ergo those in the less affluent (and importantly in this context: less white) colonies to exercise their right of abode in the UK. It is important to note that both before and after this new 1948 law was passed, there was no such thing as a UK citizen. Once the act received Royal assent, whether born in England, Jamaica, or indeed anywhere in the remaining British Empire, a person was a Citizen of the United Kingdom and Colonies (CUKC), and entitled to the same rights and assurances in travel and abode with the passport they received.
A hostile environment
Migrants, in the shadow of WWII, were badly needed in the UK. The economy had been devastated by the war, many men fighting in the war and civilians had been killed, and those returning from war were not willing to return to entry-level jobs. However, despite the fact that Windrush migrants had full rights as CUKCs, life in the UK was not easy. Racism was rampant, finding accommodation or performing basic tasks as a Black person was usually hampered by prejudice and bad intentions. For example, eye witnesses through the 1950s and 1960s recall seeing “No Blacks, No Dogs, No Irish” signs across England. The Prime Minister Attlee in 1948 was considering refusing entry of the Empire Windrush to the UK, legally a difficult task, considering that the disembarkees were all domestic passport holders. Upon its successful arrival to the UK, one member of the cabinet is said to have reassured the Prime Minister by predicting that “they won’t last one winter in England”.
Thus sets the tone of UK immigration law for the following 70 years – caught between an identity of an open multicultural ‘new Britain’, widely touted to have been kicked off by the Windrush generation, and equally dogged down by the antiquated hierarchy of race and culture, enthusiastically embraced by the British Empire itself in order to justify its violent subjugation of ‘others’ in the name of Anglo-Saxon progress and modernity. This pushing and pulling between different identities and political philosophies affected the country. And in view of the debates about (uncontrolled) immigration surrounding Brexit, these historical antecedents are likely to have played a weighty role in the question of an 'independent' UK.
A nationalistic mentality was at the heart of MP Enoch Powell’s Speech of 1968 – just twenty years after the landing of the Empire Windrush, and arguably marking the beginning of the end of the relatively open immigration policy of the post war period. Dubbed the “Rivers of Blood”, Powell's speech is still considered a prominent point in British racial and immigration politics. Powell, giving the speech at the local conference of his political party, The Conservatives, in Birmingham, made the point for racial tension, containing absurdly racist slurs, calling Black people “offensive and noisy”, and explicitly saying that the existing population (i.e. the white populace) were ‘strangers in their own country’. Despite being now acknowledged as a ‘turning point’ in British policy, and indeed referred back to in the ensuing Brexit period, Powell was dismissed from his ministerial position and, in 1974, left the Conservative party in protest against a rapprochement with the European Economic Community (EEC). At the time of Powell’s speech, the UK had arguably started to become accustomed to the new identity associated with migration from the colonies, however the pushback against it continued. The equality of the CUKC nationality was suppressed with the Commonwealth Immigrants Act 1962 (and tightened again in 1968 – after Powell's speech). This act effectively created a two-tier citizenship, those who were born or had direct links (i.e. parents or grandparents) with the UK, and those who did not. Both ‘tiers’ were officially still Citizens of the United Kingdom and Colonies, however, the unrestricted right to enter and stay in the UK was stripped from the ‘second class’ tier.
Untie a knot, retie another
The reduction of free movement rights with Commonwealth countries happened in the context of the UK's attempts to strengthen ties with the European Economic Community (EEC). The UK applied for EEC membership for the first time in 1961, and finally joined the EEC in 1973. This overlap in agreements means that the UK has had some freedom of movement with a group of nations almost continuously since passports and visas became standard instruments of migration control up until the end of the Brexit transition period at the end of 2020.
Closer ties with its European neighbours and growing fears of the “uncontrolled” nature of incoming migration to the UK from the Commonwealth, colonies, and ex-colonies, led the UK government in the late 1970s to rethink its place within the waning empire and its immediate neighbours. This culminated in the 1981 British Nationality Act. This major shake-up in citizenship law effectively ended the Citizens of the United Kingdom and Colonies status, replacing it with a British Citizenship, and British Overseas Citizenship, and British Dependent Territories Citizenship – the latter two not giving any right of abode in the UK. Another major change in this act was the abolition of Jus Soli – that is, the right of citizenship by birth in the UK.
Migration and migration policy on the eve of the Brexit referendum
Migration figures themselves peaked in the year ending March 2015, according to The Migration Observatory of the University of Oxford, at 331,000 net gain. This figure is based on regular migration, and is only an estimation as exit checks were abolished in 1994 (and only started being reinstated in 2015), which effectively ceased any reliable information on net migration figures, as no leaving migrants, or emigrating UK citizens were counted. In 2016, the UK’s referendum to leave the EU coincided with the so-called "refugee crisis" in Europe which contributed to the fact that immigration was one of the key concerns of voters as polls on the eve of the referendum showed. The Vote Leave campaign presented immigration as out of control and blamed the UK's EU membership for it.
Much like when the UK was fully oriented towards the Commonwealth but ‘public opinion’ started shifting in order to limit migration from it, Brexit came at a time when rising immigration numbers were being reported as coming from the EU. Tabloid headlines and articles could be said to have stoked public fears over immigration. These headlines did not come out of nowhere, as negative images of migrants and migration had been around for decades and opposition to migration was widespread in British society and politics.
In the 20 years prior to the Brexit referendum, the UK had become increasingly reliant on EU labour – both skilled and unskilled – and free movement, especially in the health sector. In light of shifting public opinion about rising immigration, the UK government had started toughening immigration laws where they could – this almost solely affected those who had links to or were from outside of the EU. There were cases where the UK had tried to place restrictions on EU migration, but the UK government was overruled by the EU High Court for contravening the freedom of movement rules of the EU. The increased controls brought in were only allowed on non-EU migrants but included those from the Commonwealth countries. In 2013, the then Home Secretary, Theresa May, sought a new tactic in reducing irregular migration by creating a ‘hostile environment’ (a term she has since regretted) for those residing in the UK without explicit permission. This hostile environment policy was to be instated by legislating responsibility for ID checks and proof of immigration status on companies, landlords, and the National Health Service. With the threat of legal action against said entities, UK residents would now have to provide explicit proof of their legal immigration and citizenship status in day-to-day occurrences. Along with this new government policy, deportation rules were set to be overhauled, with a "deport first, appeal later" policy being the centre of the government’s direct part of the newly crafted hostile environment. Already threatening to infringe on basic human rights, this policy led to significant problems for those who had arrived as CUKC or had been born to them.
Due to the nature of CUKCs arriving in the UK without the need of any documents to prove their right of abode in the UK thousands of them were now accused of being in the country illegally because they lacked documentation to prove the opposite. This led to thousands of legally resident people entering hardship, including losing jobs, being evicted, being refused healthcare, and in some cases arrested, because they had never formally entered into a naturalisation process, as it was technically not obligatory to do so, due to their legal status upon entry into the UK. This so-called Windrush scandal surfacing in 2018 in what could be called the middle of the Brexit fiasco (post-referendum, but pre-exit), was tragically fitting for the period if not purely by coincidence. The UK government was having to deal with picking up the pieces of a previously torn-up freedom of movement and the outfall from that and subsequent human rights difficulties, yet it was also simultaneously ending another freedom of movement and negotiating the rights of millions of people in the UK and around Europe.
The present echoing the past?
Although almost completely politically paralysed by the Brexit process, the UK government finally ratified the EU withdrawal agreement on 22nd January 2020. The UK formally left the EU on 31st January 2020, and entered into a transition period which lasted until 31st December 2020. This transition period was “business as usual”, and practically meant that all systems continued as if the UK was still part of the EU (including citizens’ rights), even if the UK was no longer an EU member. The idea being, that there would be time to negotiate new treaties between the UK and the EU institutions.
After this transition period came to an end on 31st December 2020, dubbed as “liberation day” by those supporting the divorce, a new trade and cooperation agreement between the EU and the UK came into force, but it only roughly regulated the post-Brexit relationship between the UK and the EU. This not only affected trade, but also cross-border migration between the UK and EU member states as free movement also ended on 31st December 2020. As citizens from non-EU countries, EU citizens coming to live and work in the UK now need to apply for a visa and are subject to a newly established points-based immigration system. They have fewer rights than EU migrants had under the free movement scheme. For example, for EU citizens who want to study in the UK this has become much more expensive since they now need to pay international tuition fees, visa fees and a healthcare surcharge, whereas EU students had previously been subject to the same rules as UK students. Due to the restrictions imposed on immigration from EU member states, according to migration researchers, it is likely that the post-Brexit system will "change the nature of migration, including both how many people migrate and with what motivations and individual characteristics". However, the Covid-19 pandemic somewhat disrupted data collection as well as global migration dynamics, making it difficult to monitor the changing dynamics of EU migration to the UK since the end of 2020. Still, statistics of the Office for National Statistics (ONS) show that net migration from the EU declined after the Brexit referendum in June 2016 until 2018. After a short period of stabilisation, net migration of EU nationals started falling again when the Covid-19-pandemic emerged in early 2020 and turned into a negative net migration – meaning more EU-citizens left the UK than migrated to it. At the same time, non-EU net migration has been increasing. However, the long-term effects of Brexit on immigration remain to be seen.
The end of free movement also affects EU citizens already living in the UK. A major difference with the UK’s previous withdrawal from the Commonwealth freedom of movement in the 1960’s and 70’s was, however, that the government could not act unilaterally. In Article 13.4 of the EU-UK Withdrawal Agreement it was clearly stated that “The host State may not impose any limitations or conditions for obtaining, retaining or losing residence rights (...) other than those provided for in this Title”. Each EU member state set up its own system in dealing with the change of status – in the UK, EU citizens (excluding Irish, who have a unilateral freedom of movement agreement “the Common Travel Area”) were required to register in the EU Settlement Scheme in order to secure their rights, and had until the 30th June 2021 to do so. More than six million applications were made up to that deadline. Additionally, 822,630 further applications (late applications, repeat applications and joining family members) were received from 1st July 2021 to 30th September 2022, resulting in a total number of applications of 6,686,530 The scheme, however, has been controversial and there have been reports of reportedly eligible residents being refused a so-called “settled status” and have instead been granted “pre-settled status” which confers lesser rights, and the need to reapply for settled status after five years. By the end of June 2023, 3,586,620 had been granted settled status, and 2,768,840 had been granted pre-settled status. Originally, the 2.7 million people with pre-settled status would have lost their legal residency if they had failed to apply for settled status before the expiry of their pre-settled status. In December 2022, this automatic loss of rights was found to be unlawful by the High Court of Justice, after being challenged in judicial review proceedings by the Independent Monitoring Authority for Citizens’ Rights Agreements (IMA), a statutory body working to protect the rights of EU and EFTA citizens in the UK. Without this intervention by a third party, many would have lost, by default, the right to work, access to housing, education, to be able to claim benefits and have made them liable to removal.
As the status is digital only, millions of people in the UK can now only demonstrate their rights digitally, possibly causing difficulties for those lacking digital skills or being in a vulnerable situation. The EU Settlement Scheme is only the first example of the digitalisation of the UK’s border and immigration system and with that the digitalisation of the ‘hostile environment’ status checks. However, being the first group of migrants in the UK with no physical proof of status, EU-citizens may be at greater risk of discrimination and denial of access to services. Those registered should not automatically lose their rights, however there is a risk that some may fall into the ‘hostile environment’, echoing the plight of those caught up in the Windrush scandal, that included some of those remaining in the UK today who, in 1948, disembarked a then unknown ship at the Port of Tilbury.
