Don Flynn is the co-ordinator of the Immigration Rights Project at the Joint Council for the Welfare of Immigrants
According to the United Nations, there are currently 175 million people residing in a country other than that in which they were born - a figure which has doubled since 1975. Most live in Europe (56 million), Asia (50 million) and North America (41 million). Sixty per cent live in developed countries, and 40 per cent in under-developed regions.
Of this number, some 20 million of this number were refugees, acknowledged by the UN Commission for Refugees on 1 January 2001. The largest numbers of refugees are in Asia (9 million), Europe (just under 5 million) and Africa (4.2 million).
Refugees enjoy a status which is recognised in international law - principally the 1951 Convention relating to the status of refugees, ratified by 141 countries, and the 1967 Protocol, ratified by 139, which extends the scope of the Convention.
Economic migrants, on the other hand, are sparsely provided for in international law. The 1990 International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families, has been ratified by only 19 countries and as such is not regarded as being in force by the UN (a minimum of ratification by 20 countries is required). The 2000 Protocol to suppress and punish trafficking has been ratified by 18 countries, and the 2000 Protocol against smuggling by 17.
Also, according to the UN, forty countries have adopted national policies which are designed to restrict migration - most in the developed, industrialised regions.
With this background it is possible to say, at the very least, that the situation of a growing number of people in the world economy is not satisfactorily provided in international law, and increasingly, less satisfactorily provided for in national law.
The United Kingdom has provided an important example of a country which, despite the rhetoric of being 'welcoming' to migrants and refugees, is currently proceeding in a deeply ambiguous direction. It is worth looking at this in some detail to get a sense of what is driving the immigration debate in one important developed country.:
UK immigration policy runs in a direction established 40 years ago by the first legislation directed against citizens of Commonwealth countries - the Commonwealth Immigrants Act 1962. Prior to the date of its enactment, the migration of workers from Commonwealth countries had been unrestricted by law. According to researchers, migration from the Caribbean to the UK in the absence of formal immigration controls had developed in response to labour market demand, and ebbed and flowed over the business cycle. The immigration debates which produced the 1962 Act, and its successor 1968 Commonwealth Immigrants Act, were largely rooted in a political response to 'coloured migration' than an assessment of the economic case.
As immigration control policies developed as a political project during the 1960s, a 'border police' approach to immigration emerged which assumed two things. Firstly, that the rights of migrants could be discounted against the perceptions of 'public good' adopted by politicians. Secondly, that it was within the power of politicians to determine who should and should not be admitted to the UK, and to enforce these decisions through a control regime.
This approach was continued in the 1971 Immigration Act- legislation which consolidated the policies set out in the two previous Acts. The Act was based on the view that:
The 1971 Act - which came into effect on 1 January 1973 - had in its favour the deep recession of the mid-1970s precipitated by the oil crisis of that period. This entailed large-scale restructuring of industry and lowered demands for workers. It was also a period of tightened public finances and a reduction of demand for workers in the public sector. In these conditions it is likely that even without the overt immigration restrictions introduced by the new legislation, migrant numbers would have reduced during that period as a consequence of lowered demand.
Ironically, the reduction of migrant numbers was not achieved by the Act. A major unintended consequence of the border police approach to immigration is that labour migration is detached from market demand. Migrant workers replaced rational assessment of opportunities for employment with a rush to get past the new gatekeepers. This was seen in the increase in Caribbean migration during the period of the enactment of the 1962 Act, which saw a tripling of the number of new entrants by the date of its full enforcement in 1964.
The effect of restrictive immigration controls on immigration decisions was recently discussed in a 'survey' article in The Economist (November 2nd, 2002). In considering the position of migrants residing in a country of preferred residence, they comment:
Migrants do not necessarily come to stay. They may want to work or study for a few months or years and then go home. But perversely, they are more likely to remain if they think it will be hard to get back once they have left.
An example of this effect was seem in the 1970s and 80s, when family reunification became the major component of legal immigration. Workers who might have responded to economic downturn by returning to their families abroad decided instead to remain and to bring their spouses and children to join them. Though one of the consequences of the 1971 Act was that family reunification had become more difficult, a much larger proportion of migrant workers decided to try and use its more limited provisions to bring in their spouses and dependent children.
Many encountered severe difficulties. The groups worst effected were women settled in the UK who wanted to being joined by their husbands, and nationals of Bangladesh and Pakistan, whose claims to be related to the individuals they were sponsoring were often disputed by immigration officials in the UK's high commissions. During this period an organised opposition to strict immigration controls on families began to appear in the form of the 'divided family campaigns'. Their principle targets were so-called 'not related as claimed' decisions, and the notorious primary purpose rule.
This proved to be a long-drawn out campaign, mobilising large number of people in the communities directly effected. The 'not related as claimed' issue was largely resolved with the advent of the DNA fingerprinting test in the late 1980s, and the 'primary purpose rule' was modified in the early 1990s to ameliorate the position of couples with children. It was eventually abolished altogether in 1997 as one of the first actions of the newly elected Labour government.
The strongest long-term effect of immigration policy during this period has probably been the alienation of the Asian community in particular from the most basic of the aims and objectives of policy. The experience of two decades as the victims of the draconian effects of immigration legislation has disinclined this important group to support measures in the 1990s and beyond, which though directed at other target groups, were still seen as objectionable because of their discriminatory and restrictive consequences.
By the onset of the 1990s, the settlement of immigration controls on the basis of the approach set out in the 1971 Act, was being gradually unwound. The factors producing this declining effectiveness were:
Immigration policy lagged behind almost all these developments. National authorities continued with the view that the long-established systems based on tight border controls could be revived. The major problem in this respect was from asylum seekers, whose right to have an application for protection was guaranteed by the 1951 Convention. The peak phases of the Balkans Wars - Croatia/Serbia in the early 1990s, Bosnia in mid-decade, and Kosova in 1998, were responsible for asylum applications in the region of 350,000 and above in the EU member states, with the most recent peak of 415,000 in 1999.
Despite the evidence supporting the view that asylum seeking was driven in the main by new outbreaks of political instability and oppression, most national authorities in the European Union considered it was principally fuelled by economic considerations - the search for a better life in the prosperous West. With this in mind, they aimed for a reduction of 'pull' factors (a refugee reception system that guarantees minimum standards of accommodation and welfare, and eventual access to the labour market) as the best way to tackle so-called abuse of the system.
The reduction of refugee movements has been the objective of procedural changes to immigration policy since the mid 1980s - initially through the introduction of tough visa regimes. But this had not shown any conspicuous success as asylum seeker numbers continued to rise in the early 1990s. Fresh bouts of legislation in the 1990s, with the Asylum and Immigration (Appeals) Act 1993, the Asylum and Immigration Act 1996, and the Immigration and Asylum Act 1999. The basic position worked through all this legislation has been the reduction of reception conditions. It has meant that would-be refugees have been stripped of rights to receive support though mainstream welfare support schemes, made dependent on vouchers or food parcels, and subjected to compulsory dispersal away from towns and regions of preferred settlement. A growing proportion of asylum seekers have been detained whilst their applications have been under consideration, and special 'fast-track' procedures have been introduced for groups deemed to be unworthy of detailed consideration of their asylum claims.
However, it is important also to acknowledge the fact that this approach has gone hand-in-hand with greater consideration being given to the human rights dimension to asylum procedures. The legislation of the 1990s, whilst subjecting asylum seekers to less humane treatment on initial reception, was simultaneously responsible for extending appeal rights against adverse decisions, and in October 2000, formally incorporating the standard to the European Convention on Human Rights into asylum procedures.
The paradoxical character of these developments is worthy of consideration in detail, and such factors as the growing importance of international law in the domestic jurisdiction will doubtless form a large part of the explanation. Limited time prevents a discussion of these important developments here. What should be noted, however, is the worrying evidence that human rights tide in relation immigration matters might well have reached its limits. The Nationality, Immigration and Asylum Act 2002, with its reigning in of effective appeal rights for potentially large groups of asylum seekers, seems to be marking out a strong reaction to much of the progress made in recent years.
As a result of these developments, the position of asylum seekers has typically become more precarious, in respect of their vulnerability vis-à-vis the wider community (welfare rights, dispersal, intrusive tracking and monitoring, etc). Though human rights progress might well have been stopped in its tracks in respect of arguments before the appeal tribunals and courts, it continues to run in the small, but well-organised refugee support organisations, and the body of sympathy amongst professional and occupational groups (health workers, social workers, teachers, trade unionists, etc) who have been brought into contact with the plight of the refugee communities.
Immediately after election in 1997, New Labour's immigration policy traded heavily on the 'modernisation' rhetoric, with its first White Paper in 1998 promising 'a modern approach to immigration and asylum'. The themes worked through in the opening chapter of that document were:
All this adds up a 'modern' policy hinging on the ideas of 'fairness' (for those with legitimate expectations for migration and travel), 'fastness' (for the same group), and 'firmness' (for ill-favoured groups whose alleged abuse of migration channels needed to be clamped down on).
The changes in policy which followed from this approach have been a degree of liberalisation in family reunification procedures, including the abolition of the 'primary purpose rule' and new procedures allowing the admission of same-sex partners; a sizeable expansion of the scope for skilled migration; and measures to assert stronger controls over asylum seekers.
The implementation of this strategic approach has proceeded across a number of levels. The liberalising aspects have been consciously de-politicised, with government ministers seeking to remove discussion about the admission of skilled workers from the realm of controversy by insisting on an 'evidence-based' approach to their measures, with a leading role for academic and independent researchers in the processes. This was best exemplified by Home Office sponsorship of a 'bridging the information gaps' conference of academics and NGO representatives in March 2001, at which the then immigration minister, Barbara Roche, argued that government was not in possession of good, objective information on which to base its immigration reforms, and would rely on people in the audience to make the arguments for them.
A cynical view of this strategy is that it intended to provide government with a get-out strategy in the event that its relaxation of immigration controls on skilled workers becomes subject to criticism in the tabloid media. It has expressed no such need for independent research before acting on the second leg of its policy - the doubling of restrictions on asylum seekers. Anti-refugee stories in the popular press have, in this area of policy at least, not been an impediment for 'fairer, faster, firmer' policies, but almost an essential precondition.
The refugee restrictions favoured by New Labour in its first item of legislation - the Asylum and Immigration Act 1999 - which involved abolition of cash benefits for asylum seekers and a strict policy of dispersal - required a public mood of deep antipathy towards this group of people to allow it to be carried through. The consequences of depriving people of the possibility of any degree of self-determination in respect of their life in the UK, and off pushing them even further out of the mainstream of ordinary life, could easily be predicted. It would result in human rights violations (particularly in relation to the right to family life), economic hardship because of grossly inadequate levels of support though the voucher scheme, and an increase in racist attacks against a group of people so widely proclaimed as being unworthy of better treatment.
The refugee support networks across the country soon came alive with accounts of how exactly these outcomes were coming about, right up to the point of serious acts of violence and even the murder of at least one asylum seeker. But no sooner was the evidence of these disastrous consequences accumulating, than a reaction to the reaction emerged amongst groups who developed sympathies with the asylum seekers. Faith groups lobbied ministers over the evidence of increasing financial hardship and the obvious suffering of refugee children. Teachers, and even police chiefs, went on record to complain against the deterioration of civil relations between ethnic groups in the school playground and the wider community. The British Medical Association expressed grave concern over the declining health of refugee communities, and the trades union movement, led by transport union leader Bill Morris, staged a revolt against the voucher scheme. Clearly, asylum seekers had their supporters and defenders, and these tended to be most vocal in the social groups which the Labour government counted upon as their key supporters.
The fact seems to be that New Labour had poorly prepared its core constituencies for the draconian measures it wanted to laud as the keystone features of its overall approach. The critics of asylum restrictions were, by and large, poorly briefed on the liberalising elements of the new policies. This had been intended by the government precisely because it feared a more extensive backlash if discussion on the admission of scores of thousands of workers on the work permit scheme displaced 'cheating asylum seeker' stories in the right wing tabloids. A new Home Secretary, David Blunkett, who had replaced the previous incumbent Jack Straw in a cabinet reshuffle in 2001, took the opportunity of the Labour party conference in October of that year to announce yet another fundamental rethink of basic strategy.
During this next stage of New Labour's approach, a shift towards a more pugnacious style of engagement with public opinion could be noted. A second White Paper emerged in February 2002, this time emphasising a theme of 'security' in both its title ('Secure Borders, Safe Haven') - a highly topical approach given obvious concerns arising from the September 11 attacks in the United States. But the big innovation in this White Paper was to throw an unexpected spotlight, not on the would-be immigrants beyond the UK's borders, but those who had completed their migration decades previously and who thought of themselves as securely settled in the UK. The issue of the 'naturalisation' of long-settled immigrant communities came onto centre stage as Home Secretary Blunkett sought to open up a new debate about the extent to which these groups had assimilated the distinctive values of UK society.
The background to this issue was provided by the summer riots in several northern English towns in 2001. Experts commenting on these developments opened up discussion about the absence of 'social cohesion' revealed by these developments. The principle complaint of one of the most influential of these commentators - Lord Herman Ousley - was that poverty and lack of resources had prevented civic and other public authorities from addressing the grave problem of racial division, which was a prominent feature of these northern cities. In the White Paper, concerns of this nature were not so subtly transformed into criticism of immigrant communities themselves, for failing to take robust action to ensure their integration into mainstream society.
Blunkett was also prepared to do more than had been done during Straw's tutelage at the Home Office to force public discussion of economic migration. A whole chapter of the White Paper discussed the issue of 'working in the UK'. The mood here was that government policy was allowing British employers to 'lead the world' in vigorous competition for the brightest and the best amongst the global workforce. The reforms to the work permit scheme of the previous 18 months were set out in detail, and the substantial increase in the volume of people entering in these categories became the badge of success. In the competition to ensure that British business had all the resources it needed to come out on top, the Labour government would not accept second place.
The White Paper thus framed the whole question of economic migration as being essentially a matter of business strategy, rather than anything to do with the rights of workers in increasingly globalised labour markets. Indeed, the White Paper wandered into the terrain of considering the clear demand for less skilled workers, and concluded that this would be dealt with by opening up channels for temporary, seasonal migration schemes, which have in practice been associated with the often ruthless exploitation of young foreign students. It is clear from the approach set out in the White Paper that those workers admitted to met local shortages in the informally-skilled sectors of tourism and hospitality industries, construction and agriculture, will not acquire such rights as family reunification, equality of treatment, or long-term settlement in the UK.
New Labour craves stability in its immigration control policies. A continued inability to stay ahead of public moods and opinions, poor administration of the basic procedures, and the management of demand for migration across the whole range of skill levels - all the hallmark of recent years - will not reflect well on its self-styled modernising strategies. The two White Papers set out hopes for 'end-to-end' credibility in the managed migration plan which New Labour aspires towards. But the scope for disruption of procedures across this end-to-end chain remains high, as asylum seekers continue to buck government expectations for reduced numbers in responsive to less humane reception conditions, enforcement action against irregular migrants remains fitful and inconsistent, and the demand for migration, which extends across wide sections of the economy continues to be unmet in crucial areas.
There is no real sign that the bonds of sympathy and solidarity which have been forged by influential groups and immigrants is likely to dissipate in the near future. The support offered by these elements has the effect of raising the cost of enforcement, as local and national groups throw their support behind the 'deserving' cases which come to their attention.
Meanwhile, the debate on the whole shape and direction of policy moves on to new terrain - winning unexpected allies as it proceeds. The free market Economist advises that the effect of raising the immigrant component of national workforces to 3% would improve world welfare by $150 billion dollars a year - greater by far that the gains anticipated from "any imaginable liberalisation of trade in goods." (November 2nd, 2002) On the basis of this assessment, it is not surprising that the influential world development lobby is showing an increasing interest in the potential benefits of migration, and are prepared to pitch in with arguments in support of greater rights for migrants and refugees.
The government seeks support for its strategy from the authorities in other countries, in the hope that an immigration control strategy co-ordinated across a whole region will be more effectively managed than in a single national state. Attempts to move in this direction have been speeded up since September 11, and now include the marking out of a common US-EU immigration zone. The US state department now has representatives sitting as fully participating observers in all internal meetings of EU policy making forum on immigration.
But efforts to forge common EU policies have not produced conspicuous successes to date. Strategic differences between the Member States have tended to disrupt, if not completely derail efforts to make progress in this direction. The current move to replace the 1990 Dublin Convention are a good example. Restrictive policies at the EU level have a high 'gesture' content, and limited practical value.
It is hard to find anything really 'new' in New Labour's policy. The forces of globalisation and modernity which have worked to erode restrictive immigration controls over the past two decades remain in place and are ready to begin the attack on the latest Nationality, Immigration and Asylum Act. Europe as a whole will continue to attract sizeable numbers of migrants - either as workers or refugees - and their situation will be increasingly ill-provided for by political parties who wish they weren't there, but have no idea about how to cure the addiction of their own economic and social systems to the benefits which migration brings. The ensuing viscous circle degrades not only the position of the poor, super-exploited workers, but also wider society with is increasing indifference to their plight. Liberal sections of the host country's population will offer what support they can; and what they can't provide will have to come from the snakehead gangs of people smugglers who are well-placed to fill the vacuum.
Has the left got anything to offer as a way out of this grim dystopia? Is there a basis for arguing for a progressive immigration policy, with its own version of facilitating channels, and appropriate checks and balances? Possibly, though before we try to spell out the detail we should try and establish a strong sense of the direction in which we want to move the argument.
For immigration policies to be effective in the modern world we should think of them as having to meet a test of reasonable expectations which might exist for the all the stakeholders who have an interest in a well-managed system. The most obvious of these reasonable expectations are:
A progressive left approach would start from the premise that immigration must be made to work for the poorest people in the world, and not, as it does at the moment, just for the richest. This means rights for migrant workers. It means that people who are considering leaving their own countries to live and work abroad should do so in the knowledge that a framework of international law is in place which can make the consequences of their migration more easy to predict, and which is not likely to change at short notice because of politician-induced panics in the countries they intend to travel to.
The beginnings of such an approach are to be found in the International Convention on the Rights of Migrants and their families, referred to above, even if this instrument currently languishes in the UN's 'pending' tray with the support of only 19 countries. A global campaign for ratification of the Convention has been launched, and it is worthy of the support of all those concerned with the fight against poverty and injustice across the world. In the UK, the supporters of the United Nations Association have identified the rights of migrant workers as an issue they want to see in the public arena for more discussion and debate, and they have called an important conference to take place at the beginning of December to do just that.
It seems difficult to avoid the conclusion that New Labour's current bout of immigration legislation will not - deservedly - go the way of the last. In an article in the Observer in June this year, columnist Andrew Rawnsley wittily summed up the current state of the debate on immigration policy as being, 'the huddled masses versus the muddled asses'. The left should have the confidence to say that taking sides with the huddled masses on this issue will provide the best basis for truly modern immigration policies and stand the best chance of benefiting the greatest number.
By Don Flynn