The mechanisms for creating UK immigration law and the nature of the laws themselves have changed immeasurably over the centuries. The changes have mostly reflected changes in British history, global development and public perceptions of immigration. Immigration control has been a power exercised by kings, queens, ministers and parliament. In recent times the progress towards a truly democratic immigration system has begun to stall. Too much focus has been placed on people’s perceptions of immigration and not enough on the principles of democracy and rights-based governance that Britain claims to champion.
A newly founded state would have few obligations under international law to non-nationals who wished to enter the state’s territory. In the sphere of immigration the UK’s international law obligations derive from treaties that they have signed and ratified. The most important of these are the EU/EEA treaties. These provide for the free movement of certain citizens within the European Economic Area. Legislation created under the treaties also regulates movement of non-EEA family members of EEA nationals ‘exercising their treaty rights’. The extent of the rights afforded to these family members is still being disputed.
Domestically, immigration control used to be under the power of the Crown. The power was wielded by monarchs, and then by ministers. Members of the government exercising this power were said to be exercising their ‘royal prerogative’. In 1971 the Immigration Act brought in a procedure for greater parliamentary scrutiny of the way immigration rules were created. Up until the Supreme Court decision of Alvi in 2012 it was thought that the act supplemented the Royal Prerogative, rather than supplanted it. In Alvi, Lord Hope noted the range of powers involved with the exercise of immigration control and declared that parliament would have to have a role in shaping all immigration rules, regardless of how they were labelled.
Any celebration about this slow shift towards parliamentary oversight is premature. The procedure for scrutinising immigration rules is far removed from the procedure for scrutinising bills that become primary legislation. The laying of immigration rules before parliament does not automatically trigger a debate or a vote. In 2012 more than 500 pages of changes to the immigration rules were laid before parliament and passed into law, without lengthy scrutiny or debate. The judiciary and certain members of parliament have both begun to express concern about the impact that this is having on our constitution and on people subject to and dependent on controlled migration. Lord Lester described how immigration judges were in a ‘quite terrible situation in trying to understand the Kafkaesque material that flows out of the Home Office’ and Lord Hope expressed disquiet in Alvi about the ease with which rules passed through parliament. No reform of the system is planned and, in light of recent comments by the Home Secretary, it is difficult to envisage a move towards a more democratic process under the coalition government.