European Convention in the interest of ‘racial harmony’

This constituted 'degrading treatment' on the basis of race, in violation of Article 3 of the European Convention. Interestingly, the Commission took the Home Secretary's submission that the Act was in the interest of 'racial harmony' as one piece of evidence of the Act's racial motivation. This was certainly a positive and not a negative motive, but one that indeed was at odds with the claim that geography, not race, was driving the cuts.

Even if it maintained a neutral facade and only belatedly introduced what other countries (including all Commonwealth countries) had long had: restrictions on entry, British immigration policy was still tainted by its empirical origins, the fear of racial disharmony. In the end, it cannot be denied that the exclusion of East African Asians had entailed the creation of 'second-class' citizenship on the grounds of race, as charged by the Commission. The lesson had to be that without a safe basis of citizenship the curse of racism could not be shed.

This lesson went unheeded in the Immigration Act of 1971, until today the main legal basis of British immigration policy. The Act followed upon the Tories' election pledge to halt 'large-scale permanent immigration' to Britain. The reluctance of previous governments to follow illiberal opinion had by now been replaced by the routine disposition to treat immigration policy as 'secondary' to 'that basic problem [of community relations]', as Tory Home Secretary Reginald Maudling put it.

Following the logic of the European Commission verdict on the 1968 Act, this fixation alone would qualify as racially discriminatory. The 1971 Act was the first immigration act to deal jointly with aliens and Commonwealth citizens, and it thus completed the development of assimilating Commonwealth citizens to aliens, already the rationale of previous legislation. This included the replacement of employment vouchers by the more rigid work-permit requirement already in place for aliens, greater deportation powers of the state, and a rockier transition path from temporary to permanent settlement.

Skirting the problem of citizenship, the Immigration Act introduced the notion of patriality to determine who had the 'right of abode' and thus was exempt from immigration control. Building on the concept of substantive connection in the 1968 Act, patrials were all citizens of the United Kingdom and colonies born in or with an ancestral connection to the UK, citizens who had settled for at least five years, and—this was a novelty—any Commonwealth citizen with a parent or grandparent in the UK.

The last clause finally realized the second objective of British immigration policy, first intimated in the grandfather clause of 1968, to prioritize the re-migration of British settlers. As Reginald Maudling defended it, this was not a racial concept but in recognition of the 'family connection' with the British diaspora abroad. To realign citizenship and immigration law was the purpose of the British Nationality Act of 1981. While passed by a Tory government, the Act's rationale and architecture were first laid out in a Labour government Green Paper of 1977.

In the postimperial era, the all-embracing citizenship stipulated by the British Nationality Act of 1948 no longer made sense. As the Green Paper put it, 'our present citizenship of the United Kingdom and Colonies . . . does not identify those who belong to this country and have the right to enter and live here freely; in consequence it prevents the United Kingdom from basing its immigration policies on citizenship'(Amnesty International 1991).

Its denial of entry and settlement rights to formal co-nationals had made Britain vulnerable to the charge of human-rights and international-law violations, as in the European Commission's East African Asians case. Thatcher's Secretary of State in the Home Office put it in simpler terms: 'We have got finally to dispose of the lingering notion that Britain is somehow a haven for all those countries we once ruled'(Blake, Charles 1982).