When the UK government tried to thwart an investigation of racism in the border control system

Today The Guardian reported that the Home Office refused to release an internal report on the history of the UK border control system which concluded that between the 1950s and 1980s, the border control system was designed to keep non-white people out of the country. This was not a surprise for many historians who have traced the history of the UK’s border control system and the state racism of the Home Office in the post-war period. With this in mind, I thought I’d post this adapted excerpt from my older book with Marinella Marmo, Race, Gender and the Body in British Immigration Control, on a previous investigation into racism within the border control system and the Home Office’s attempts to hinder this investigation, while internally acknowledging that discrimination upon the basis of race and nationality was inherent within the system.

On 1 February 1979, The Guardian broke the story of the practice of ‘virginity testing’ that was conducted upon a number of South Asian women coming to the UK since the late 1960s. By mid-march 1979, it had been revealed that over 30 cases had occurred in India and our analysis of the archival records reveals that there were between 120-140 cases of bodily examinations for immigration control purposes across India, Pakistan and Bangladesh.[1] While the Labour government (in its final months) announced that the practice had ended, the Commission for Racial Equality, the peak anti-racism body in Britain, sought evidence that the government was truly taking action to end the practice. The CRE requested that the Home Secretary publish instructions to Immigration Officers to terminate the practice.[2] It also pushed for ‘an independent public inquiry into the application of the Immigration Act and Rules to individuals, especially members of the non-white ethnic minorities’.[3] This post is about the Home Office’s attempts to thwart and obfuscate this investigation.

The CRE assumed the role of watchdog regarding this matter and claimed that its duty was to conduct an investigation into immigration control procedures due to the potentially racially discriminatory nature of the practice of virginity testing.[4] Despite a bipartisan consensus formed by both the Conservatives and Labour that strict controls were necessary for ‘good race relations’, the Commission argued that ‘any discriminatory practices in the immigration procedures and services are not conductive but detrimental to good race relations’.[5] However, the CRE’s approach to this matter was not supported by the government. Indeed, the Home Office embraced a defensive strategy in relation to the immigration control procedures. It claimed that the immigration system was inherently discriminatory on the grounds of ‘nationality’ and that there was no valid alternative to it. Geoffrey de Deney, an Under-Secretary of State in the Home Office, wrote to Deputy Under-Secretary of State P. J. Woodfield in 1980 stating that the CRE was ‘doing race relations in this country no service’ by giving the impression that ‘immigration control is a race relations issue’.[6] Another internal communication from Home Office staffer D. H. J. Hillary to Woodfield in 1981 highlighted as ‘a well-known fact’ that immigration laws ‘discriminate on their face between nationalities’ and that ‘a greater proportion of citizens of some countries fall foul of the control’.[7]

This point was echoed in a letter from J. D. Semken in the Home Office to the department’s legal representative James Nursaw:

Migration is essentially a racial matter, and the only basis upon which the periodic migrations to which all peoples are subject can be regulated, is by numbers according to race. How else can one regulate a flood, whether of East African Asians or Vietnamese Chinese?[8]

The Home Office went to extreme measures to prevent the CRE from initiating an investigation, taking the case before the courts. Its strategy was to argue, as we see above, that discrimination was a necessary part of immigration control. The Home Office also argued that the laws against racial discrimination did not apply to government institutions, especially the immigration control system.

The Commission for Racial Equality held that under Sections 43 and 48 of the Race Relations Act 1976, it was able to hold an inquiry into immigration control procedures on the basis of seeking to promote good race relations in Britain. The wording of these sections in the 1976 Act became very important in enabling the government’s non-compliance with the Commission’s proposed investigation. Section 43 of the Act established the CRE and bestowed upon it the following duties:

(a) to work towards the elimination of discrimination;

(b) to promote equality of opportunity, and good relations, between persons of different racial groups generally;[9]

Alongside this, Section 48 stated that ‘the Commission may if they think fit … conduct a formal investigation for any purpose connected with the carrying out of those duties’ (emphasis added).[10] Thus, the CRE believed that it was duty bound to conduct an investigation into immigration control procedures because the possibility of discrimination occurring within the immigration control system hindered the promotion of good race relations. However, both the outgoing Labour government and the incoming Conservative government attempted to dissuade and obstruct the CRE from conducting an investigation for a number of differing, and possibly contradictory, reasons.

The government argued, unsuccessfully, that the Race Relations Act was not applicable to its own institutions, including the immigration control system. The Home Office claimed that the CRE could not investigate the activities of the state as this would be outside the scope of its duties as defined under the Act. It also claimed that the duties bestowed upon the CRE in Section 43 of the Act were limited to the fields of employment; housing; the provision of goods, facilities and services to the public; and clubs, which are covered by earlier parts of the Act, and that the functions of the government fell outside these designated categories, stating, ‘[i]t is important to note that the Act is in no way concerned with Crown functions (i.e. the functions of Government)’.[11] This argument formed the basis of the Home Office’s legal challenge to the CRE’s investigation launched in late 1979 under the Conservatives. The All England Law Reports cited that the CRE had ‘believed that the Immigration Act 1971 was being applied more harshly to coloured immigrants than to white immigrants’ and ‘wished to examine Home Office documents, to interview immigration officers and to conduct sample surveys of refusals of entry into the United Kingdom or refusals to vary leave to enter or remain’.[12] The Home Office sought a court order to establish whether it was actually in the Commission’s power under the Race Relations Act ‘to investigate the manner of discharging government functions’.[13] Justice Woolf, who presided over the case, found that an investigation into the control of immigration was within the parameters of the CRE’s duty under the 1976 Act, and declared, ‘I cannot accept that Parliament must be assumed to have intended, as the Home Office contends, that the field of immigration should be a no-go area for the Commission’.[14] The CRE was thus allowed to proceed with the investigation, but the Home Office was not obliged to cooperate with the investigation.

Alongside this challenge to the legality of applying the Race Relations Act 1976 to the functions of the state, the Home Office ran other arguments concurrently with the aim of hindering the CRE’s investigation. One argument cited the apparent bias of the Commission, which some claimed would not allow an objective inquiry to take place, and was first raised by Labour and later reiterated by the Conservatives. In March 1979, Brynmor John criticised the CRE’s call for an independent inquiry as ‘symptomatic of an increasing tendency on the part of the CRE to become diverted from its essential tasks’.[15] Throughout 1980, the Home Office reported the CRE’s widespread ‘credibility problem’ amongst immigration control staff.[16] The Immigration Service Branch of the Society of Civil and Public Servants (SCPS) was cited by Home Office officials as expressing that ‘the CRE would be incapable of conducting an impartial inquiry’.[17] This suspicion of the CRE was, as Woodfield explained to Stephen Boys-Smith in an internal Home Office document, directed at the Commission’s rank-and-file staff, who shared the same union, the SCPS, with immigration staff and who had used the union to criticise immigration officials over the virginity testing incident at Heathrow.[18] This hostility had a serious impact upon the progress of the investigation. By 1982, the Immigration and Nationality Department had reported that ‘[t]he main obstacle to the Commission’s enquiries remain their inability to visit ports and interview staff because of union problems’.[19]

Despite all of the arguments put forward by the government, the CRE was permitted to proceed with its investigation. However, this did not mean that the government was willing to cooperate, and there was a slight element of obstruction in the actions of the Home Office in relation to the investigation. Internal Home Office documents reveal that the government feared the ‘potential embarrassment’ that might result from having to hand over documents and files to Parliament, such as ‘the General Instructions to the Immigration Service’, and believed that it could not provide ‘files containing officials’ advice to Ministers’.[20] The Home Office expressed to the CRE that it hoped that ‘the Commission will confine its requests to the Home Office to the minimum’, stating that there was a ‘particular problem with regard to material that is classified in the security sense’, which the Home Office was reluctant to release.[21] The Home Office informed its employees that ‘for presentational reasons’ they had to ‘be seen to co-operate as fully as possible with the CRE’, but demanded that the CRE agree to restrictions upon the dissemination of any information it obtained from the Home Office.[22] This investigation took place between 1981 and 1982 and the results were eventually published in 1985.

In its report, the CRE offered the view that a harsh immigration control system would bring about inequality of treatment and unfairness of outcome, leaving out genuine applicants because of Immigration Officers’ underlying assumptions about the characteristics of desirable and undesirable migrants:

The most crucial question which arose in this respect was whether the procedures operated fairly to distinguish bogus applicants from the genuine, or whether they resulted in substantial numbers of genuine applicants being refused.[23]

The CRE stated there was a challenge for immigration officials in balancing the task ‘between the objectives of detecting and preventing evasion and abuse on the one hand, and ensuring that genuine applicants and passengers meet the minimum delay and difficulty on the other’, but highlighted that ‘the balance struck has been wrong’.[25] It proposed that the act of detecting bogus migrants had been ‘excessive’ and ‘allowed in many circumstances to override the rights of the genuine’.[26] For the Commission, ‘the emphasis on the detection of the fraudulent [had] gone much further than [was] justified by evidence of evasion’.[27]

Further, the Commission noted that profiling at the border was far too influenced by a focus on particular national or ethnic groups:

The groups most under suspicion of being likely to evade controls … included those from which there were already minority groups established in the United Kingdom.… They were very likely also to be black groups.[28]

The CRE argued that the Home Office could not distance itself from these allegations of discrimination by asserting that such decisions were only taken at the lower level. For example, the Commission stated that it did ‘not believe that immigration officials simply assess individuals on the basis of the group they belong to or on the grounds of their colour’ based solely on individual prejudices. Rather, it claimed that the classification of countries under the label ‘pressure to emigrate’ and the listing of the most common countries of origin of applicants who had made previous attempts at evasion contributed to the formation of the opinion that personnel were working under instructions:

so much of the official thinking about the procedures and the instructions and guidance to staff … [had] tended to distort the operation of the controls to the disadvantage of some racial groups.[29]

Therefore, the Commission formulated an informed opinion that the immigration officials were acting in such a manner because the Home Office had suggested ‘closer attention [should be] paid to some groups than to others’.[30] This instruction had resulted in ‘closer scrutiny of their motivation and incentives, while others intending to evade the controls [were] shielded by the protective colouring of their group’.[31]

A press release put out by the Commission in regards to the report stated that this ‘pressure to emigrate’ argument was ‘used by the immigration authorities to justify the closer checks on black people’, as well as ‘the longer delays in granting leave to enter and the higher rejection rate’. But the CRE ‘found that [the ‘pressure to emigrate’ argument] could not be substantiated’ and that the evidence available on immigration control evasion ‘did not justify the “pressure to emigrate” philosophy that underlined the way in which the control procedures were operated’.[32] The Commission took the view that financial and human resources were being devoted not towards a healthy maintenance of the immigration system but towards the detection of fraudulent applicants, arguing that there is ‘too great an emphasis … on the operation of the procedures on the detection of bogus applicants’.[33] This in turn had produced ‘an unacceptable cost to genuine families and to race relations generally’.[34]

In its report, the CRE also considered possible solutions for the future, embracing the idea of ‘continuous, objective review of immigration control procedures and practices to ensure that they are, and remain, fair in all aspects’.[35] Such recommendations, however, did not find a receptive ear with the Conservative government, who believed that the CRE report was unnecessary and biased. In Parliament, Home Affairs Minister David Waddington claimed that the government found ‘some of its central conclusions very odd – some might say perverse’.[36] Waddington argued that most of the report’s findings were borne of the ‘fallacy’ that ‘there must be something wrong with the control because more black people are stopped than white’.[37] With regard to the scrutiny and burden of proof placed upon South Asian migrants, Waddington claimed:

It would be absurd if one were to re-write the rules to state that anyone who made an application was presumed to have an entitlement even if he could not show it. It would be doubly absurd if we were to do that in the context of the history of applications in the subcontinent, where there has been, regrettably, much deceit and attempts to evade the control. Every Hon. Member knows that.[38]

In a government document responding to the CRE report, this argument was developed further:

The fact is that people from poorer countries more often attempt evasion than those from wealthy countries. This is true of parts of the Indian Sub-continent from which there has been substantial settlement in Britain since the war… [T]hese appear high on any list of countries with a higher than average proportion of refusals at the port of entry. This is not evidence of bias; it simply confirms the reality of the situation, namely that more people from these countries have an incentive to gain admission to the United Kingdom whether or not they are eligible to work or settle here.[39]

Overall, the response of the Thatcher government was that the CRE report did not recognise the importance of a strict immigration control system. In the government’s response, it was argued that ‘[w]ithout that firm control the Government would be playing into the hands of those who simply do not want good community relations and are out to make trouble. That would not be in the best interests either of the country as a whole or of the ethnic minority communities’.[40] The government did not plan to implement many (if any) of the recommendations made by the CRE,[41] and the Home Office felt that a restrictive immigration and border control system was in the best interests of the British nation-state, and therefore did not accept the criticisms put by these bodies. Further amendments were made to the Immigration Act 1971 in 1986 and 1988, which placed additional restrictions on those seeking to enter the country, thereby helping to establish Britain as what Zig Layton-Henry called in 1994 the ‘would-be zero-immigration country’.[42]

[1] Hansard, 21 March, 1979, col. 672w; Evan Smith & Marinella Marmo, Race, Gender and the Body in British Immigration Control (Houndmills: Palgrave Macmillan, 2014) p. 106.

[2] ‘Text of resolution passed by the Commission for Racial Equality on 7 March 1979’, 8 March, 1979, HO 418/30, National Archives, London.

[3] ‘Text of Resolution Passed by the Commission for Racial Equality on 7 March 1979’, 8 March, 1979, HO 418/30, NA.

[4] ‘Text of Resolution Passed by the Commission for Racial Equality on 7 March 1979’.

[5] Letter from David Lane to Merlyn Rees, 12 February, 1979, HO 418/29, NA.

[6] Letter from G. I. de Deney to P. J. Woodfield, 4 June, 1980, HO 418/30  NA.

[7] Letter from Mr Hillary to Mr Woodfield, 9 March, 1981, HO 418/40, NA.

[8] Letter from Mr Semken to Mr Nursaw, 18 June, 1979, HO 418/30, NA.

[9] Race Relations Act 1976, Part VII, Section 43. – (1)

[10] Race Relations Act 1976, Part VII, Section 48. – (I)

[11] CRE, ‘Formal Investigation: Immigration Control Procedures’, 29 August, 1979, HO 418/30, NA; ‘Extent of the Power of the Commission for Racial Equality to Undertake Formal Investigations’, n.d., p. 1, HO 418/30, NA.

[12] Home Office v Commission for Racial Equality, 1981, All England Law Reports, p. 1042; See: Ann Dummett & Andrew Nicol, Subjects, Citizens, Aliens and Others: Nationality and Immigration Control (Weidenfeld & Nicolson, London, 1990) p. 252.

[13] Home Office v Commission for Racial Equality, p. 1042.

[14] Home Office v Commission for Racial Equality, p. 1050.

[15] Letter from Mr Flesher to Mr Chilcot, 8 March, 1979, Ho 418/29, NA.

[16] N. A. Nagler, ‘CRE Investigation of Immigration Control’, 3 December, 1980, HO 418/40, NA.

[17] ‘Meeting with the Commission for Racial Equality’, n.d., HO 418/29, NA.

[18] Letter from Mr Woodfield to Mr Boys-Smith, 19 December, 1980, HO 418/40, NA.

[19] Immigration and Nationality Department, ‘CRE Investigation into Immigration Control: Progress Report’, September 1982, HO 418/40, NA.

[20] Letter from Mr Woodfield to Mr Halliday, 14 April, 1981, HO 418/40, NA.

[21] ‘Draft Letter for Mr Woodfield to send to Mr David Lane’, n.d., HO 418/40, NA.

[22] Note from Elizabeth Moody to Neville Nagler, 6 April, 1981, HO 418/40, NA.

[23] CRE, Immigration Control Procedures, p. 6.

[24] CRE, Immigration Control Procedures, p. 9.

[25] CRE, Immigration Control Procedures, p. 10.

[26] CRE, Immigration Control Procedures, p. 10.

[27] CRE, Immigration Control Procedures, p. 11.

[28] CRE, Immigration Control Procedures, p. 11.

[29] CRE, Immigration Control Procedures, p. 131.

[30] CRE, Immigration Control Procedures, p. 131.

[31] CRE, Immigration Control Procedures, p. 131.

[32] CRE press release, ‘CRE Calls for Changes in Immigration Control Procedures’, 12 February 1985, pp. 3-4, RC/RF/1/01/B, Runnymede Trust archives, Black Cultural Archives, London.

[33] CRE, Immigration Control Procedures, p. 128.

[34] CRE, Immigration Control Procedures, p. 128.

[35] CRE, Immigration Control Procedures, pp. 132-133.

[36] Hansard, 13 May, 1985, col. 1166.

[37] Hansard, 13 May, 1985, col. 1166.

[38] Hansard, 13 May, 1985, col. 1167.

[39] Home Office, ‘Commission for Racial Equality (CRE) Report into Immigration Control Procedures: Government Comments’, December 1985, p. 3.

[40] Home Office, ‘Commission for Racial Equality (CRE) Report into Immigration Control Procedures’, p. 4.

[41] A list of the government’s response to every recommendation in the report can be found in a document held in the Runnymede Trust archive at the Black Cultural Archives. See: ‘General Points: Introduction to Home Office Response’, December 1985, RC/RF/1/01/B, Runnymede Trust archives, BCA.

[42] Zig Layton-Henry, ‘Britain: The Would-Be Zero-Immigration Country’, in Wayne A. Cornelius, Philip L. Martin & James F. Hollifield, Controlling Immigration: A Global Perspective (Stanford, CA: Stanford University Press, 1994) pp. 283-296.


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