Submission to the Joint Committee on Human Rights

Black people, racism and human rights

September 2020

Amnesty International UK is a national section of a global movement. Collectively, our vision is of a world in which every person enjoys all of the human rights enshrined in the Universal Declaration of Human Rights and other international human rights instruments.  Our mission is to undertake research and action focused on preventing and ending grave abuses of these rights. We are independent of any government, political ideology, economic interest or religion.

For further information contact:

Steve Valdez-Symonds

Programme Director – Refugee and Migrant Rights

steve.valdez-symonds@amnesty.org.uk

              Introduction:

1. This submission’s focus is Home Office nationality and immigration functions.

2. In our February 2018 submission to the Committee’s Enforcing Human Rights inquiry, we summarised human rights consequences of a continuing and worsening neglect to respect:

1. many people rights to British citizenship; and

2. the eligibility of many other people to an immigration status permitting their stay here.[1]

3. Inequalities that are cause and consequence of this neglect significantly include racism. Barely two months later, the then Prime Minister and Home Secretary each offered apologies for what is now known as the Windrush scandal.[2]

4. Our consideration of nationality and immigration functions indicates that one reason progress is impeded remains a widespread unwillingness or incapacity to understand and recognise racism.

Windrush:

5. Deeper reflection upon racism at this scandal’s heart is needed.[3] In summary:

1. In the post-War decades, British people from across the colonies and Commonwealth came and settled in the UK. Successive administrations responded by introducing and promoting practices, policies and legislation expressly motivated to deter and constrain entry of black and Asian British people because of their colour.[4]

2. That response culminated in Acts of Parliament that still underpin the UK’s nationality and immigration systems: the British Nationality Act 1981 and Immigration Act 1971 respectively.

3. One effect of this legislation was to remove the unfettered right of many British people to enter and stay in the UK by, firstly, limiting the people who were to possess that right on the basis of ‘patriality’ (a concept introduced by the Immigration Act 1971) and, later, introducing a new British nationality (British citizenship) that entrenched this.[5] Many black and Asian British people already settled here thereby ceased to be recognised as this country’s citizens.

4. The application of ius soli in British nationality law was also ended with the introduction of British citizenship. Many people – disproportionately minority ethnic people – born in the UK since the commencement of the British Nationality Act 1981 have, therefore, been born without British citizenship.

5. Whereas racism underlay this legislation’s introduction, Parliament was alive and concerned to address some of the racist consequences it might otherwise have had.[6] Rights to British citizenship by registration were expressly included in the British Nationality Act 1981 to provide the security of this country’s citizenship to all people connected to it[7] and avoid racial disharmony.[8] Those registration rights importantly extended to members of the Windrush generation[9] and to children born and growing up in the UK.[10]

6. However, the Home Office intentionally discouraged members of the Windrush generation from exercising their time-limited right to register as British citizens.[11] People, therefore, lost that right.[12] Ministers had said time-limiting the right was necessary to encourage people to exercise it[13] – but the Home Office did the opposite.

7. Decades later – even after this scandal’s exposure – the Home Office continues to obstruct and discourage people from exercising their British citizenship rights. This is done in various ways, some underpinned by more recent legislation passed without care or understanding of the impact it would have.[14]

8. Minority ethnic people were and are disproportionately affected by all that is described here, the motivations for which are variously connected to racism. The original changes to nationality and immigration laws were expressly to restrict entry of people on grounds of colour. The inhibiting of citizenship rights in the 1980’s was clearly known to have particular impact upon black and Asian people. Continuing barriers to citizenship rights disproportionately affect minority ethnic people and are sustained by an attitude at the Home Office that regards many people as migrants or guests in the country of their birth, connection and to whose citizenship they are in law entitled.

Primary conclusions:

6. We invite the Committee to draw three conclusions from the above (upon which we briefly elaborate under discrete subheadings below):

1. Racism remains embedded in laws governing British citizenship and in their application.

2. Officials are licensed and encouraged to perceive many minority ethnic British people as not belonging to this country and exercise immigration powers against them – powers from which they would and should be exempt by British citizenship. This can only provide wider licence and encouragement to racist attitudes and prejudices, including attitudes and prejudices that may be neither overt nor recognised.

3. The causes and consequences of this are integrated with racism in other areas of law, policy and practice.

British citizenship:

7. British citizenship rights remain profoundly and widely neglected with especial impact upon minority ethnic people born and grown up in this country.

8. The root of profound barriers to people exercising statutory rights to British citizenship lies in persistent Home Office error in treating these rights as if akin or no different to its discretionary powers to naturalise adults who have moved to this country from other places where they have connection (and usually nationality).[15]

9. Those barriers include that to register citizenship, many British children and young people are required to prove themselves to be ‘good’,[16] pay fees of over £1,000[17] or satisfy unreasonable and prohibitive evidential demands (including where the Home Office already holds confirmation of the relevant fact it demands someone must provide evidence to prove).[18] In its ‘justifications’ for this, the Home Office wrongly treats the children and young people affected as migrants applying to naturalise.[19] It also wrongly does so in guidance it applies in deciding applications to register as British citizens by children brought to this country at a young age and growing up here.[20]

10. The disproportionate effect upon minority ethnic people clearly suggests the same deeply ingrained culture that unjustly robbed many black and Asian British people of their citizenship rights decades previously remains in place.

The immigration system:

11. Statements made and attributed to its ministerial masters have long attested to systemic problems of the immigration system. For example, Lord Reid was widely reported as declaring it ‘not fit for purpose’.[21] Theresa May made trenchant criticisms including that it was ‘closed, secretive, defensive’.[22] Amber Rudd identified its tendency to indifference to (‘losing sight of’) the lives and experiences of people subjected to it.[23] Most recently, Priti Patel has emphasised ‘institutional ignorance’ and its (and others’) failure to ‘walk in the shoes’ of people over whom it exercises power.[24]

12. In this short submission, we cannot outline every way by which these and other persistent deficiencies relate to racism. However, if racism in policy and practice is tolerated even in connection with the department’s statutory function of formally recognising British people’s citizenship rights, it is hardly surprising that it may affect the department’s treatment of people who are not British.

13. In this connection, we observe that at its root racism concerns treating people as of less worth than others. It may thereby licence, encourage and facilitate policy and practice that does or aims to deprive people of their most basic needs and interests in respect of both tangible things (such as to access accommodation, work or healthcare, to be with family and at liberty) and intangible things (such as to be secure, feel belonging and express pain, fear, exclusion and loss).[25]

Wider connection to racism:

14. Recent years have seen several inquiries and reviews into racism in the UK.[26] These have looked at public institutions and policy areas (e.g. the criminal justice, health, care and education systems).[27] A striking and harmful omission is that nationality and immigration policy and practice have not been considered – neither in themselves nor in connection with these and other policy areas.

15. For example, racism has been consistently observed in many aspects of the criminal justice system.[28] Yet, attention is not given to the implications for people whose experience of the criminal justice system is treated by the Home Office as grounds for refusing to recognise citizenship rights and/or exercising immigration powers.[29]

Final remarks on how progress is impeded:

16. Amnesty provided a detailed submission to the Windrush lessons learned review,[30] including analysis of the significance of racism in the harms that had been done and continue.[31] The review’s report was published in March this year.[32]

17. The review fell short of finding institutional racism.[33] The Committee may wish to reflect on why that was and whether the reasons for it give example of how progress is impeded or throw light on the systemic change that is required to equality and human rights monitoring. The review was (as our submission explained) potentially hampered by its terms of reference.[34] Whereas an independent advisor was commissioned, and ultimately the report emanates from her, the review as originally established was supported by a team mostly drawn from the Home Office and headed by a Home Office director.[35] There may be alternative reasons why the review has not adequately addressed, for example, matters concerning citizenship and deportation to which we drew attention.[36]

18. It is also urgently necessary to review the impact of wide exemptions from basic safeguards,[37] including equalities duties relating to racism,[38] granted to the Home Office in connection with its nationality and immigration functions.