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Law, race and empire
Author: Nadine El-Enany

(B)ordering Britain argues that Britain is the spoils of empire, its immigration law is colonial violence and irregular immigration is anti-colonial resistance. In announcing itself as post-colonial through immigration and nationality laws passed in the 1960s, 1970s and 1980s, Britain cut itself off symbolically and physically from its colonies and the Commonwealth, taking with it what it had plundered. This imperial vanishing act cast Britain’s colonial history into the shadows. The British Empire, about which Britons know little, can be remembered fondly as a moment of past glory, as a gift once given to the world. Meanwhile immigration laws are justified on the basis that they keep the undeserving hordes out. In fact, immigration laws are acts of colonial seizure and violence. They obstruct the vast majority of racialised people from accessing wealth amassed in the course of colonial conquest. Regardless of what the law, media and political discourse dictate, people with personal, ancestral or geographical links to colonialism, or those existing under the weight of its legacy of race and racism, have every right to come to Britain and take back what is theirs.

Nadine El-Enany

Chapter 1 sets out the racial infrastructure of Britain’s immigration law regime, explaining the relationship between colonialism, migration and law. British imperial administrations depended on the exploitation of hierarchies based on supposed differences between categories of people. The use of race as an ordering principle played an important part in enabling and justifying colonialism. I trace the line between the honing of processes of categorisation in the colonial era and immigration law as a practice of racial ordering in modern Britain. I argue that British immigration law is a continuation of colonial power as enacted in the former British Empire. The categorisation of people into those with and without rights of entry and stay sustains and reproduces colonial racial hierarchies. Contemporary immigration law thus maintains the global racial order established by colonialism, whereby racialised populations are disproportionately deprived of access to resources, healthcare, safety and opportunity and are systematically and disproportionately made vulnerable to harm and premature death. In this context recognition and refusal decisions in relation to claims for immigration status in Britain are the everyday work of the colonial state.

in (B)ordering Britain
Predictable arrivals
Nadine El-Enany

Chapter 4 examines the categories of refugee, migrant and asylum seeker in the context of the post-1981 newly conceptually and geographically configured Britain. People who were previously legally associated with the British polity with rights to enter Britain were now categorised as refugees, migrants and asylum seekers. The refugees and asylum seekers of today were the British subjects of yesterday, colonised, alienated and barred from access to wealth stolen from them. I show how courts function within a framework of state sovereignty in which they cannot challenge the legitimacy of Britain’s post-colonial articulation of its borders and their dispossessory effects for colonised populations.

in (B)ordering Britain
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Britain as the spoils of empire
Nadine El-Enany

The introduction introduces the core themes of the book. The categories that form the springboard for the analysis are aliens, subjects, citizens, migrants, asylum seekers, refugees, European Union citizens, and third country nationals. Although the book takes them in turn, the book is offered holistically. In order to meaningfully understand the content and effects of one category, each must be considered in terms of its relationship to the others.

in (B)ordering Britain
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Immigration law’s racial architecture
Nadine El-Enany

Chapter 2 provides an account of the emergence of the legal category of alien and questions the idea that there is a clear distinction between the categories of subject and alien in colonial contexts. The legal category of alien contributed to the institutionalisation of a hierarchy of people in a context of British colonial expansion. Immigration laws passed in the colonies which targeted racialised subjects were at times clumsily disguised through the use of apparently race-neutral provisions. Such concealment of racism was in the service of maintaining the lie of the unity of the British Empire. In the early 1900s, mirroring immigration legislation in the colonies, the 1905 Aliens Act was passed in Britain with the purpose of preventing the entry of poor Jewish people fleeing persecution in Russia and Eastern Europe. Although British subjects in the colonies were not its targets, it was a product of the British Empire and legislators did not forget its mechanisms when it came to the task of drafting future immigration legislation targeted at racialised colony and Commonwealth citizens.

in (B)ordering Britain
Europe’s colonial embrace
Nadine El-Enany

Chapter 5 explores Britain’s turn towards the European Economic Community, now the European Union, in the 1960s, which coincided with the introduction of immigration controls against racialised colony and Commonwealth citizens. In the face of the defeat of the British Empire, the British government began to look elsewhere for power and riches. Britain’s economic and political prospects were argued by some to lie in European cooperation. The transition from empire to European integration has allowed imperial nostalgia and amnesia to fester in Britain. Decades later, in the course of the 2016 referendum on Britain’s EU membership, the argument was made that leaving the EU would allow Britain to regain the global influence ostensibly diminished as a consequence of EU membership. Yet this was the very same rationale that drove Britain to apply to join the EU decades earlier.

in (B)ordering Britain
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‘Go home’ as an invitation to stay
Nadine El-Enany

The conclusion considers the way in which immigration law and its violent enforcement is both authorised and reinforced by street racial terror. State and street racism is in part propelled by the idea that Britain is a place divorced from its colonial history. Immigration law casts the British Empire into shadow, obscuring its role in making Britain and driving people to move in its direction. I offer a counter-pedagogy to that of law, one that rejects immigration law’s lesson of differentiation in human worth and instead understands ‘host states’ as colonial spaces and irregularised movement as anti-colonial resistance. This reframing troubles white supremacist structures, challenges mythological narratives about British colonial history, rejects a politics of recognition and paves the way for a more empowering and radical politics of racial justice and migrant solidarity.

in (B)ordering Britain
Cordoning off colonial spoils
Nadine El-Enany

Chapter 3 tracks the years between 1948 and 1981, during which the rights of British subjects expanded and retracted drastically. Over the course of these decades legal statuses associated with the British imperial polity proliferated, their content and meaning shifting according to fluctuating imperial ambitions. The effect of these statutory changes was to create Britain as a domestic space of colonialism in which colonial wealth is principally an entitlement of Britons, conjured up as white, and in which poor racialised people are disproportionately policed, marginalised, expelled and killed.

in (B)ordering Britain