‘In the cruel shadow of Empire’: A case study on the illegalisation, migrantisation and sub-citizenship of the Windrush

‘In the cruel shadow of Empire’:

A case study on the illegalisation, migrantisation and sub-citizenship of the

Windrush

V’ahavta - Aurora Levins Morales

Say these words when you lie down and when you rise up, when you go out and when you return. In times of mourning

and in times of joy. Inscribe them on your doorposts, embroider them on your garments, tattoo them on your shoulders,

teach them to your children, your neighbors, your enemies, recite them in your sleep, here in the cruel shadow of empire:

Abstract

This thesis examines the so-called ‘Windrush scandal’: a systematic case of mistaken identity which erroneously misconstrued Britons of Carribean descent as being in the UK illegally. The Windrush were denied rights they were legally entitled to, were detained, threatened with deportation, and in some cases, deported. A range of mechanisms present in British

government and society which legitimised anti-immigration policies are identified and used to examine the experience of the Windrush and the violation of their rights. This thesis uses citizenship as a starting point for examining its relevance to human rights and concludes that the contemporary scaling back of protections surrounding citizenship have far-reaching consequences for citizens and non-citizens alike.

Word count: 12,196

1. Introduction 5

1.1 Terminology 5

1.2 Previous research 5

1.3 Research problem and aim 6

1.4 Research question 7

1.5 Relevance to human rights 7

1.6 Delimitations 8 2. Methodology 8 2.1 Material 8 2.2 Method 10 3. Theory 10 3.1 Illegalisation 11 3.2 Migrantisation 11 3.3 Sub-citizenship 12 4. Background 13

4.1 Post-World War II laws 14

4.2 Post-2012 and the ‘hostile environment’ 16

4.3 Media reports 18

4.4 Public opinion 19

5. Analysis 20

5.1 Migrantisation of the Windrush 21

5.1.1 The Commonwealth, multiculturalism and (non)belonging 22

5.2 Illegalisation and deportability of the Windrush 25

5.2.1 Extending borders 26

5.2.2 Attitudes towards ‘illegal’ immigration 27

5.2.3 The convergence of illegalisation and criminality 28

6. Conclusion 33

1. Introduction

In the wake of several years of harsher policies attempting to cut irregular migration termed the ‘hostile environment’, 2017-2018 saw Britain in the midst of an unfolding scandal that reached the heart of its politics and society. The Windrush generation, a group of

Caribbean Britons named after the SS Windrush which brought them to Britain 1948, found themselves suddenly getting detained and facing other human rights abuses after having lived in the country for years without any difficulty. The policies of the hostile environment were enacted from 2012 onwards by Theresa May as Home Secretary with the aim of “making life intolerable for undocumented migrants and refused asylum seekers so as to force them to leave” (Burnett, 2016, p.44). It operated by outsourcing governmental activities to individuals or companies such as landlords or employers giving them the authority to check people's right to reside in Britain, and accordingly deny them jobs or housing. Having never before been asked to prove their immigration status or citizenship and due to no records of their arrival being kept by the government, the Windrush and their descendants found themselves classified as ‘illegal’ immigrants and were thus denied an array of legal rights.

1.1 Terminology

A word on terminology, the word ‘Windrush’ will be used to denote all persons caught up in the scandal as it was not only the original Windrush generation who arrived in 1948, but also their children and grandchildren who have faced the consequences. I also will be using the word illegal in quotations when referring to a person because although people can commit illegal acts, I maintain that no one is intrinsically illegal. Due to the deaths of the Windrush either directly or indirectly linked to the events, I believe it would be remiss to refer to them as survivors rather than victims. I also wish to clarify the term citizenship which is used to refer to a legal status that is based on a relationship of rights and duties between the individual and the state, and which confirms a person’s belonging in a country.

1.2 Previous research

The vast majority of previous research encountered while researching for this thesis focuses on the Windrush generation in the 20th century and what their arrival in Britain meant for society in terms of multiculturalism, immigration and integration in terms of race

and nationality. Most of this literature looked at the identity of the Windrush generation using various content analyses drawing from an array of material including: media, literature, public discourse, and policies. Only three articles yielded in search results focused on the scandal itself (Quille, 2018); (de Noronha, 2019); (Taylor, 2020) and this research is grounded in fields such as Critical Discourse studies and Criminology, with the latter focusing on race in regards to law enforcement as well as the changing role of immigration law from being largely administrative to punitive. These have been useful to understand where my research can be placed in the body of existing work, but I wish for my thesis to divert from these subjects of study. From this previous research, de Noronha’s work comes closest to that of this thesis: taking the notion of illegalisation and the Windrush scandal as the starting point. But while this is to help him analyse other phenomena pertaining to it, I hope to partake in a deeper analysis of the scandal itself. The older research on the Windrush generation provides a secure grounding for me to incorporate commentary on important issues like multiculturalism and identity, and yet the scarcity of published academic work on the Windrush scandal, due to it only being three years old, provides a gap in knowledge that this thesis hopes to fill by exploring this unique case.

1.3 Research problem and aim

The research problem which I take as the starting point of this thesis is the scandal and more specifically, the social and legal categorisation of the Windrush that took place which allowed them to be subjected to human rights violations. The overarching themes that this thesis is concerned with are citizenship, migration, identity and belonging. In regards to citizenship, by providing a historical background of the intricacies of postcolonial citizenship over time, this thesis aims to explore how a group of people, who were for all intents and purposes British citizens, became ‘not British, ‘illegal’ and deportable. Central to my research will be the hostile environment, the series of ever more unwelcoming and anti-immigration policies in Britain which played a large role in the British state erroneously criminalising its own citizens by categorising them as ‘illegal’ migrants. My research is also steered towards looking at attitudes towards immigration, immigrants and multiculturalism and looking to see what part anti-immigration policies played in legitimising certain attitudes towards ‘illegal’ migrants. I am not attempting to conduct a causal research paper to find out

aims to facilitate a deeper understanding into how it happened by tracing different factors and mechanisms present in British society and government. It also aims to understand which of these processes needed to be in place for the scandal to be able to happen. As such, the research questions for this paper are as follows:

1.4 Research question

How can notions of illegalisation, migrantisation and sub-citizenship facilitate a better understanding of how the Windrush came to experience human rights violations? Sub question:

What do the Windrush events demonstrate in regards to the retention and safeguarding of citizenship?

1.5 Relevance to human rights

The provision and protection of human rights is generally dependent on citizenship, or the legal belonging to a nation state. Through this social contract, the state’s role is to provide protection for its citizens. By definition, citizenship is based on a form of exclusion; one group has benefits to the detriment of another. The redrawing of citizenship in European nations during the nineteenth century saw not only the rich being divided from poor, and along lines of race, but it also “marked out those whose claims to property rights, citizenship. and public relief were worthy of recognition and whose were not” (Stoler, 1995, p.8). Citizenship has become a more and more precarious luxury for immigrants and non-citizens which has wide reaching ramifications for all (Rung, 2019). The violations that were endured by the Windrush covered a broad range of social and economic rights including: housing, healthcare, pensions and employment which are all upheld by international human rights legislation, yet the crux of the scandal comes down to the arguably more fundamental issue of civil and political rights which serve as protection from practices such as detainment and forced deportation. The Windrush’s subjection to these rights violations was partly due to a lack of identification documents proving their citizenship. It was not due to any premeditated or active decision taken by the government to purposefully strip them of citizenship, but rather a lack of care which saw them fall from the all important category of citizen into a

‘grey zone’ for which there was no legal construction.

The human rights project was created in the wake of Jewish and other minority groups having had their citizenship stripped and their most fundamental rights systematically

violated, with the hope of “sav[ing] succeeding generations from the scourge of war” (United Nations, 1945). Citizenship is key to having one’s most fundamental rights upheld, and we see that those without it: refugees, stateless people and others, are exposed to a heightened vulnerability of maltreatment by the state. As the Universal Declaration of Human Rights states:

“Article 15.

(1) Everyone has the right to a nationality.

(2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

”

(

This thesis touches upon a phenomenon that has emerged recently and which has not been particularly well documented: a certain loss of citizenship that sees the emergence of an unprecedented ‘grey zone’ of existence for people which does not allow them to neatly fit into the traditional categories of citizen and non-citizen. The Windrush is my main subject of focus, and although other categories such as stateless people, refugees or other non-citizens could provide for a wider analysis, the Windrush is a very particular case which warrants further examination in its own right. It is worth noting that this research will not be delving into the intricacies and provision of detention but it should be mentioned that the United Kingdom is one of the only EU countries to allow indefinite detention (Hasselberg, 2016, p.78).

2. Methodology 2.1 Material

The material I have selected is used to build up a picture of the Windrush events and can be divided into two parts: primary and secondary sources. Primary material I have used

consists of UK governmental policy and legislation on immigration and citizenship from the 20th century until the present and was gathered online on UK government websites. This will be used to provide important, in-depth background information which is relevant to the evolution of Windrush’s status in the UK, the hostile environment and the subsequent happenings. I have chosen the decade of the 1940s as the starting point of this thesis, not because there was a lack of relevant material from before this time, but because this is when international migration to Britain started gaining momentum and additionally, this is also the start of the story for the Windrush generation and their interaction with British law and society. The secondary material of evidence of the Windrush events from different sources, primarily national newspaper articles retrieved online from 2017 onwards since evidence, although much less than three years ago, is still emerging. Before the scandal was uncovered, the cases of rights violations seemed like anomalies, so there may still be cases pertaining to the Windrush where people don’t realise they were even part of the scandal. There may have been other rights abused, but I can only use the evidence from the cases that have been documented. The newspaper articles used are primarily from The Guardian due to the fact that it independently broke, and largely covered the story. I am cognisant of the fact that the events are highly politicised in nature and that I have gathered information on them from a left-leaning newspaper whose alignment was heavily in support of the Windrush victims. The significance of news outlets in society becomes evident when conducting such a case study. The press plays a vital role in holding state institutions to account when they lack

transparency and upholds the truth claims of the public when they are at risk of not being believed by the state, or having their claims ignored. Amelia Gentleman, the journalist who broke the Windrush story noted that once she reported on a person’s case - and when people’s stories got covered on television - only then did the government, who were truly responsible, intervene and offer assistance. The Windrush events demonstrate the importance of

investigative journalism and free press as a safeguard for when the law fails in its duty to protect.

Additional secondary sources that will be used to help support the discussion include monographs and academic articles on immigration policy and the Windrush as well as opinion pieces. The latter are used, again due to the recent nature of the scandal and the lack of published academic works on the matter. Also employed is the government-commissioned independent report into the Windrush events published March 2020 which is the first broad study to be conducted on the issue. The material used to study notions of illegalisation,

migrantisation and sub-citizenship are gathered from academic journals and publications retrieved through the university library database.

2.2 Method

This thesis employs an analysis of primary sources incorporating both legal

commentary and a qualitative content analysis supported by secondary sources. A descriptive method was chosen in contrast to a causal method because of the sheer quantity of

intersecting factors which would make for a difficult conclusion. The legal commentary will mainly focus on the effects of nationality acts and immigration policies from the Second World War to 2010s. I hope to use this material to understand processes of migrantisation that occurred throughout the last century to ethnic minorities living in Britain and the commonwealth. The more recent laws of the hostile environment will be used to look at the wide-reaching effects of illegalisation and what that can mean for ‘illegal’ as well as ‘legal’ migrants and citizens. A range of secondary sources, especially newspaper articles which detail the events leading up to the scandal and its fall out, will be used for the qualitative content analysis. Again these will be used in conjunction with the theories I have chosen, which will be explained presently, to understand the effects of illegalisation and

migrantisation and how the Windrush experienced sub-citizenship.

3. Theory

The main theories used will be ‘illegalisation and deportability’ and ‘migrantisation’ put forward by de Genova (2002) and de Genova and Roy (2019) respectively. These will be accompanied by the newly conceptualised ‘sub-citizenship’ theory proposed by Rung (2019) which also builds upon the concept of illegalisation. I intend to operationalise these theories in the analysis section by applying them to the Windrush events, the historical immigration laws and policies put in place by the British government and the hostile environment which played a large factor in the illegalisation of migrants in general. I will explore the extent to which they are successful in helping to explain how the Windrush found themselves in the situation they did.

3.1 Illegalisation

Illegalisation, according to de Genova, is an effect of law making and the permeation of border policing practices into everyday life which demonise and illegalise migrants. Border regimes create different categories of humans “illegal” and “legal” with stigmatising effects (de Genova & Roy, 2019, p.358). Once a person is illegalised, they are at heightened risk of becoming “stateless, rightless, and utterly disposable” (de Genova & Roy, 2019, p.360). Illegalisation and deportability are two sides of the same coin, illegalisation referring to the criminalisation of (im)migration and immigrants, or rather signifying the “legal

production of migrant ‘illegality’” (de Genova, 2002, p.439) while deportability is a person’s “susceptibility to deportation” (de Genova & Roy, 2019, p.254). It is argued that

“deportability is inseparable from the disposability of migrant lives” (de Genova & Roy, 2019, p.355) and very explicitly said that neither of these phenomena are coincidental, but rather are the outcome of “classifying and policing” (de Genova & Roy, 2019, p.355) laws put in place which have a productive power. These theories talk about the permeating nature of initially legal concepts that find their way into everyday life so that law is not the only thing that regulates the life of migrants, it becomes inescapable in every sphere of life (Hasselberg, 2016). De Noronha builds upon the theory of illegalisation and argues that it is always experienced in relation to other social factors like gender, racial identity and class, and that in examining it, it cannot be dislocated from these things and must all be taken into account (de Noronha, 2018). I intend to operationalise this theory of social categorisation by applying it to the Windrush’s situation and to explain why they were treated in such a dehumanising way by the state and how they could be denied social and political rights.

3.2 Migrantisation

Migrantisation, or ‘the illegalisation of citizens’ is a particularly new theory which was conceived of in response to the controversial reform of Indian Citizenship in 2019 which saw ‘minoritised citizens’ rendered ‘illegal’ and deprived of citizenship (de Genova & Roy, 2019, p.355). The reform intended to clamp down on ‘illegal’ migrants, much like the British hostile environment, and anyone whose documents were questionable would not be allowed on the newly updated register of citizens. The phenomenon of migrantisation is less widely publicised in comparison to the “bordering extravagances of the Trump administration” (de

Genova & Roy, 2019, p.355) for example, but this makes it more insidious in many ways. The construction of illegality of Bangladeshi migrants, as was the case in the Indian example, converged with notions surrounding nationalism based on race. Whereas the Hindu

nationalist Indian government hardly tried to hide its prejudices against its minoritised citizens, the ever-narrowing citizenship and immigration policies of the 20th century put in place by the British government, as I will explore in the forthcoming section, were less explicit in their intention and happened over a longer period of time, but saw very similar outcomes.

Once a person is rendered ‘illegal’, they also become deportable and this possibility of citizens becoming deportable, or “practices of illegalisation, often rely on extraordinary laws” (de Genova & Roy, p.356). The phenomenon of migrantisation, which in turn allows for illegalisation, isn’t a recent development, but doesn’t always present itself in the same way. These types of ‘extraordinary laws’ have been observed before, being enacted in recent years on the grounds of antiterrorism, “denaturalising or de-nationalising minoritised ‘undesirable’ citizens, recasting them as ‘foreigners’, ‘illegal migrants’, or indeed ‘infiltrators’, and thereby stripping them of their citizenship” (de Genova and Roy, 2019, p.355). The important point however, is that these extensive powers under the law; “the entrenchment of antiterrorism against non-citizens predictably ensure[s] that it could quickly be deployed against citizens as well” (de Genova & Roy, 2019, p.356). This is evident in the heightened cyber security and deregulation of privacy laws of everyone in recent years, which have been justified on the ground of ‘keeping society safe’. With this theory, I intend to show how the Windrush experienced an almost unnoticeable dissipation of their citizenship over time, suddenly finding themselves either stateless or ‘illegal’ in the country they called home.

3.3 Sub-citizenship

Rung’s sub-citizenship theory was first conceptualised to examine the situation of illegalised children in the United States and Australia, and is used to analyse “the unequal relations and social boundaries that are created between groups based on statecrafting citizenship and immigration statuses” (Rung, 2019, p.8). It provides an approach for exploring how it is that certain people come to experience “different kinds of human rights abuses [and] dehumanisation” (Rung, 2019, p.7). Sub-citizenship, Rung argues (much like de Genova’s illegality) is produced by the laws of nation states. Her theory puts forward the idea

that there is a hierarchy of citizenships, and that “people with illegalised citizenship and migrant status” are at increased risk of expulsion which is “characterized by deportation and arbitrary, prolonged, and, in some instances, indefinite detainment” (Rung, 2019, p.8). These “hierarchical conditions of precarity and dehumanisation for different groups of people [are] based upon, but not wholly determined by, migration and citizenship status” (Rung, 2019, p.2), but she warns that it has the potential to affect not just those at its lower levels but also citizens who are “legally recognized as rights-bearing members” (Rung, 2019, p.8).

Additionally sub-citizenship is responsible for “coordinat[ing] the everyday worlds of people according to where they are hierarchically positioned and their access to resources” (Rung, 2019, p.8). This allows a type of ‘securitised citizenship’ to emerge where state services are progressively harder to access for people who do not fit the correct criteria, i.e. those who are not citizens (Rung, 2019, p.1). Rung argues that in order for the current nation state order to sustain itself, as response to neoliberal globalisation, a hierarchy of citizenship ranging from citizens, non-citizens to others is a necessary part of its operation; it simply being the consequence of a global economy which depends on disposable and thus deportable labour. Both Rung and de Genova speak of the “reengineering of citizenship” (Rung, 2019, p.4-5); (de Genova & Roy, 2019, p.357) which Rung describes as being a neoliberal tool that creates inherent hierarchies – insiders and outsiders – and that makes citizenship seem more like a luxury than a right. This reengineering “increase[s] the potential for people to become ‘non-citizens’ and be subjected to deportation and detention powers” (Rung, 2019, p.24), making migrants ultimately disposable. “Applying a sub-citizen lens helps to systematically unpack the material conditions that structure and shape people’s experiences accessing mobility, political representation, and other human rights that tend to be associated with citizenship protections” (Rung, 2019, p.8). This is my intention, that by interpreting the Windrush as sub-citizen, their conditions of existence can be better understood, and how it was that their position in this hierarchy allowed for the violations against them to occur.

4. Background

This section sets out the background and events of the Windrush scandal including its lead-up by using material including the coverage in the press of victims’ personal accounts as well as laws and their effects. To understand how the events of the Windrush could be allowed to happen, it is necessary to trace back the laws which set out the rules for citizenship

and immigration pertaining to the Commonwealth and their consequences for the Windrush. The SS Windrush set sail for Britain in 1948 bringing around 500 labourers from the Caribbean predominantly Jamaica. It was not the first, and certainly not the last ship to bring black Caribbeans to Britain (Mead, 2009, p.144). The Windrush came from countries which were at the time part of the British Commonwealth and thus had British citizenship. Because it was the right of British citizens to move to the ‘mother country’, no special documentation was required and the Windrush were never given any documentation to prove their right to residence as it was inherent at the time. Some children even came on their parents’ passports and didn’t need their own documents (Willians, 2020, p.29). The Windrush had never been obliged to update or prove their right to residence in the country until the more recent anti-immigration policies were introduced which saw their status at British citizens being called into question.

4.1 Post-World War II laws

In examining the pieces of citizenship and immigration legislation passed after the Second World War, it has become apparent that the result of these was an ever-narrowing definition of British citizenship which regulated a person’s right to residence. During the time of the British Empire, there was only one citizenship shared by its subjects whether they were residents of a dominion, colony or the ‘mother country’. It wasn’t until 1946 when Canada (followed swiftly by India, Pakistan and Bangladesh) seceded from the Commonwealth and implemented citizenship laws of their own. This prompted the constituent Commonwealth states to agree that each could regulate their own nationality laws (Spencer, 1997, p.54), bringing citizenship and nationality in line with one another and rights could be conferred henceforth.

The 1948 British Nationality Act which created the category ‘Citizen of the UK and

colonies’, was to apply to everyone in the Commonwealth as well as those living in Britain. “Citizens of newly independent Commonwealth countries, whether they held passports from their own country or not, remained British subjects” (Spencer, 1997, p.54). The act, which acknowledged British citizens’ pre-existing right to move to Britain, was intended to strengthen the ties between Britain and the ‘Old Commonwealth’: its majority white dominions; there always having been a special relationship between them, as opposed to Britian and its majority non-white colonies (Cohen, 1994, p.38). What the British government

never expected to see was people of colour from around the Commonwealth exercise this right to move to Britain (Spencer, 1997, p.55). The next significant law was the 1962 Commonwealth Immigrants Act which for the first time imposed legal restrictions to curtail immigration from the Commonwealth, largely in response to high numbers of non-white people who had come to live in Britain since the late 1940 which reached a rate of 30,000 a year by the 1950s (Spencer, 1997, p.78). The act put in place certain criteria that were

purposefully hard for people of colour to fulfil. Although reducing ‘coloured immigration’, as it was termed was the intention, the act was disguised by the government to seem as though it was solely about employment for fear of tarnishing their reputation of having an open and tolerant mother country (Spencer, 1997, p.153). Ironically, this piece of legislation proved to be counterproductive and created a huge spike in immigration due to people fearing that this would be their last chance to move to Britain (Spencer, 1997, p.130).

Next to come into law was the 1964 British Nationality Act which narrowed the definition of a British citizen to those who had either a father of grandfather born in the UK, essentially excluding anyone who wasn’t white, while allowing British people who had settled outside of the country to retain their rights and claim to citizenship (Spencer, 1997, p.141). The 1968 Commonwealth Immigrants Act, rushed through parliament in just three days with the hopes of stemming immigration, imposed controls onto everyone except those defined above (Spencer, 1997, p.141). This and the 1962 act were later found to have been discriminatory on the basis of race by the European Commission of Human Rights (East African Asians v. United Kingdom). It was the 1971 Immigration Act which really put the nail in the coffin that was the British Empire, doing away with the category of British subject once and for all. There was to be no more preferential treatment for anyone who had been part of the Empire; they were simply now ‘aliens’ to be treated in the same manner as any other foreign national (Spencer, 1997, p.143). Those who had arrived, or were to arrive in Britain before 1973 were afforded the right to live and work in the country, the act merely confirming “that the Windrush generation had, and have, the right of abode in the UK. But they were not given any documents to demonstrate this status. Nor were records kept” (Williams, 2020, p.7). But the point of contention was that if anyone’s right to British

citizenship was disputed, the burden of proof was placed upon the individual by the act. This in turn, would require those caught up in the Windrush scandal to provide fifty years’ worth of continuous documentation to prove their having lived in the country all that time (Olusoga, 2019). The 1981 Nationality Act once again limited the scope of Britishness, “bring[ing]

nationality and immigration legislation into line” (Spencer, 1997, p.148). As well as

essentially guaranteeing the right of abode for people who were white, although not saying it explicitly, the act regulated that people who were born in Britain would henceforth not be able to automatically become citizens unless their parents already were British citizens (British Nationality Act 1981).

4.2 Post-2012 and the ‘hostile environment’

The ‘hostile environment’ was a series of policies from 2012 onwards attempting to clamp down on irregular migration, introduced by then Home Secretary Theresa May. It saw an “inversion of accountability” (Burnett, 2016, p.49) away from the state onto ordinary people “effectively ma[de] any Brit—health professionals, teachers, employers, landlords—a border guard, authorized (and sometimes required) to check your immigration status; and it made every immigrant a suspect until they could prove they were legal” (Younge, 2018, p.10). By “co-opting high street banks, the National Health Service, charities, schools and landlords into the border force” (Bush, 2018, p.9), these policies made everyday life and business increasingly difficult to navigate and made state services so inaccessible which meant it was impossible for people without a legal right to be in Britain to make a life in the country. The hope was that these people would have no other choice other than to ‘self-deport’. The policies of the hostile environment relied heavily on deterrence tactics. For example, the price for employing an undocumented worker could result in a fine of £20,000 per employee and a criminal record, the 2016 Immigration Act having made hiring someone ‘illegal’ a criminal offence. To avoid this, employers were almost coerced into checking everyone’s immigration status. Landlords were also made to check potential tenants’

immigration status due to the extending of the Right to Rent scheme, or could face “penalties of up to £3,000 per tenant if they fail[ed] to comply” (Burnett, 2016, p.44). These types of checks, according to the Chartered Institute of Housing, would affect “the housing options of legal migrants and existing UK citizens who might be mistaken for migrants” (Williams, 2020, p.199; added emphasis). The hostile environment ushered in measures that “bypass[ed] the limited checks on power which systems of due process offer” (Burnett, 2016, p.49), allowing landlords to evict ‘illegal’ migrants “in some circumstances without a court order” (Home Office, 2016). The government was taken to court by The Joint Council for Welfare and Immigrants over the Right to Rent scheme, arguing that it encouraged discrimination by

landlords on the basis of race and was in fact ruled by the High Court to be in breach of Articles 8 [right to respect for private and family life] and 14 [prohibition of discrimination] of the European Convention on Human Rights (Joint Council for the Welfare of Immigrants v. Secretary of State for the Home Department, 2019).

An important protection that was not carried forward by the Immigration and Asylum Act 1999 to the Immigration Act 2014, which directly impacted the Windrush, was protection against deportation (Immigration Act 2014). “A notice to deport [...] authorises the detention of the migrant [...] Following the passing of the new Immigration Act 2014, the Home Office may require that any appeal against deportation be filed only from abroad” (Hasselberg, 2016, p.3). Before 2014, “deportation could be appealed in-country if there was a human rights claim under Article 3 [the right to life, liberty and security of person] and Article 8 [the right to an effective remedy] of European Rights Convention. While an appeal on human rights was ongoing, the migrant could not be removed from the country” (Hasselberg, 2016, p.3). Perhaps most crucially, included in the 2016 Immigration Act was the promise to ‘deport first, appeal later’, “which was extended from convicted criminals to all migrants” (Bush, 2018, p.9; emphasis added). Burnett explains how “all human rights appeals against removal, in which the Home Office deems that that there is no risk of ‘serious or irreversible harm’, will have to be exercised after leaving the UK and therefore after the removal has taken place. The new legislation reveals how the desire to rid the country, by any means necessary, of the ‘unentitled’ is removing the protections of due process from a whole section of people” (2016, pp.49-50; emphasis added).

Wendy Williams, the author of the government-commissioned independent report on the events of the Windrush concludes that “despite the scandal taking the Home Office by surprise my report sets out that what happened to those affected by the Windrush scandal was foreseeable and avoidable” (Williams, 2020, p.7). The report also declared there “was

insufficient care or concern to identify the consequences of policy options being developed for the 2014 and 2016 Immigration Acts [...] These did not expressly consider the potential impact on what turned out to be the hundreds of people directly (and possibly thousands or more indirectly) affected. As a result, the rights of so many who saw the UK as their home were not properly recognised or protected” (Williams, 2020, pp.84-85). The report found that there wasn’t sufficient evidence to support the Home Office having harboured a specific malice towards the Windrush generation in recent years since the recent legislation of the hostile environment, although the same can’t be said for past governments. Rather it was a

case of neglect and the Windrush generation and their contribution to the country being “institutionally forgotten” (Williams, 2020, p.49). “The findings suggest that, driven by strong political intent, key elements of immigration policy were developed without adequate consideration of their possible impacts (including on those from a racial group, such as the Windrush generation)” (Williams, 2020, p.49). What can be deduced from the earlier laws however, is that British citizenship for people of colour was made progressively more difficult to reach and retain. Ever more restrictive definitions of British citizenship over the years affected the Windrush, but without them ever knowing, because they were never asked to provide any evidence of their right to be in the country until the hostile environment when they were suddenly classified as ‘illegal’.

4.3 Media reports

Guardian journalist Amelia Gentleman published a series of articles documenting human rights abuses faced by several Caribbean Britons, some for the past several years which, after gaining widespread attention, came to reveal what is now known as the Windrush Scandal. After the publication of one woman’s account, a case of seemingly wrongful detainment (Gentleman, 2017), more and more people and organisations contacted Gentleman, with stories of rights abuses that had too much in common to be mere

coincidence. The articles detailing the scandal mostly took the form of interviews where people recounted the rights violations they had faced which included losing their homes, pensions and jobs as well as being denied medical treatment. Some were also held in

detention with threats of deportation to countries in the Caribbean that the British government claimed they were citizens of. But as was the case for many of the descendants of the

Windrush, Britain was the only home they had known, having lived there for decades and never having visited the countries of their forebears (Mohamed, 2018). Many deportations still went ahead despite strong condemnation, and reports later revealed that many of these people had subsequently died (Rawlinson, 2018). There have also been cases of people born in the UK having to declare themselves stateless because of a lack of documentation, a status which renders people essentially powerless (Bulman & Hoddinott, 2018). It has been

estimated that up to “57,000 people were potentially vulnerable because although they arrived from Commonwealth countries before 1971, [...] they had never applied for a British

passport or been naturalised” (Gentleman, 2018b).

When the cases gained larger public attention, the government decided to overturn some of their decisions, presumably thinking these were anomalies, but as more and more stories came to light, an amnesty was demanded by the Church of England and the British government even initially refused to have a meeting with the High Commissioners of several Caribbean nations to resolve the issue (Gentleman, 2018b). After it was revealed that the Home Office did in fact have a target of over 12,000 deportations for the year 2017-18, despite the Home Secretary Amber Rudd declaring no such targets existed, she eventually heeded calls to resign (Hopkins & Stewart, 2018). Before her resignation, The Home Secretary had set up a taskforce intended to help those having trouble proving right to residence in Britain, and although at the time of writing more than 12,000 people have been granted citizenship who were before classified as ‘illegal’ immigrants, the taskforce is now seeing a backlog of over 3700 cases (Gentleman, 2020). Although “gaps in Home Office data and the department’s difficulties in contacting some of those affected mean the exact size of the group is still unknown” (Williams, 2020, p.25), the evidence recorded shows that in total the scandal saw over 150 known cases of people being wrongly detained or deported

(Gentleman & Campbell, 2020).

4.4 Public opinion

The Windrush scandal has been termed “the biggest immigration scandal in the UK in decades” (Younge, 2018, p.10) and “one of the most shameful episodes in recent British political history” (New Statesman, 2018, p.3). It prompted a public conversation about what it meant for the country with many publications and commentators asking profound questions such as whether white Britain had ever been comfortable with the idea of itself as a

multicultural country. The idea that the hostile environment was a new phenomenon began to be disputed, and by tracing it back, it could be seen that an accumulation of anti-immigrant sentiment, especially anti-Black and Asian, had been built up over the best part of 70 years (Mohamed, 2018). There was a recognition of how throughout the 20th _{century, people of}

colour faced widespread and systemic discrimination and “xenophobic immigration laws” (Younge, 2018, p.10). The Windrush scandal, despite being referred to as an anomaly before the whole extent of the scandal was uncovered, “was not a glitch in the system; it was the system” (Younge, 2018, p.10). There had been promises by a string of British governments to

decrease migration numbers with the Conservative Party’s 2010 General Election manifesto pledging to take the numbers down from the hundreds of thousands to the tens of thousands (The Conservative Party, 2010). The incessant “fixation with reducing net migration” (New Statesman, 2018, p.3) paved the way for a more hostile environment that wanted to see ‘illegal’ immigrants deported, and which led to the Windrush scandal happening.

British politics saw widespread, cross-party condemnation of the scandal with Labour MP David Lammy castigating the government for “ignor[ing] warnings in 2014 about the impact of [May’s] immigration policy” (Press association, 2018). However, as pointed out by Younge, there was a stark difference between how the Windrush were talked about and reported on by the press and in government compared to other immigrants, the message essentially being: “the hostility wasn’t meant for you—it was meant for someone else” (Younge, 2018, p.11). Since their mistreatment, the Windrush have been praised for their contribution to British society, and the help they gave to rebuild post-war Britain in a way that elevated them above ‘other immigrants’ (Taylor, 2020). The Windrush hadn’t always been thought of with such warmth; in the years after their arrival in 1948, they were treated like a burden, potential criminals, and made quite unwelcome (Nwonka, 2019). During the emergence of the scandal, “quite quickly, a broad consensus emerged: the Windrush

generation were [...] members of the national “we” (de Noronha, 2019, p.2413), and were “culturally familiar (unlike those of Muslim heritage), [and were] perceived to have “earned” their citizenship, and clearly [did] not present a danger to anyone” (Mohamed, 2018).

“Importantly, the Windrush scandal allowed politicians and tabloid journalists to demonstrate that controls on immigration were not about race” (de Noronha, 2019, p.2414). This change in rhetoric paints certain parts of the British press as hypocritical, as they have been complicit for many years in stirring up anti-immigrant sentiment which has meant “people at the heart of these tragedies are portrayed as either a threat to society or completely disposable to it” (Okolosie, 2018).

5. Analysis

This section of the thesis will look at how well the treatment of the Windrush conforms to the previously mentioned theories following the processes of migrantisation, illegalisation and sub-citizenship. It looks at the consequences of laws and policies and what effects they produced in regards to the retention of citizenship and treatment by the state. It

was after a series of gradual transitions to form a more restrictive citizenship beginning in the 1940s and the more recent hostile environment policies, that the Windrush were ‘caught out’ and on paper seemed to be ‘illegal migrants’, one of the most vulnerable and demonised categories of people in society. The policies of the hostile environment inteded for undocumented people subjected the Windrush to illegalisation and without proof of their identity and thus right to be in the country, they were treated as ‘illegal’ and were at the mercy of the state’s cruel practices of expulsion.

5.1 Migrantisation of the Windrush

As mentioned above, 2019 saw mass protests in India when its government passed a controversial citizenship amendment intended to crack down on ‘illegal’ migration. The act denied Muslim refugees eligiblity for Indian citizenship, rendering nearly two million people effectively stateless, thus “migrantised and subject to deportation” (de Genova & Roy, 2019, p.356). Despite this being one of the most recent cases, perhaps the most well known case during the Third Reich when Jewish people and other minoritised groups were barred from obtaining German citizenship. The revoking of citizenship in contemporary times is often only done in extreme circumstances, usually in relation to crimes pertaining to terrorism. However this practice has “served as the pretext to revise, yet again, the terms and conditions of illegality and deportability for all migrants” (de Genova & Roy, 2019, p.356). Someone deprived of citizenship not only experiences a loss of rights and a loss of place, but an inability to participate in society and due to this, a loss of the particularly human capacity to govern oneself. Human rights, Arendt points out, have a certain contradiction: protection from dehumanisation and access to supposedly universal rights is dependent on being a citizen of a nation state (Arendt, 1973, p.230). Although the Windrush were never

purposefully stripped of their citizenship, their state of existence was one akin to statelessness until it was acknowledged that they had permanent right to residence. The Indian case concerned people who were non-citizens before the law changed and were subsequently obstructed from obtaining citizenship. In contrast, the Windrush’s migrantisation was unintentional; they began as full citizens but because they had no proof of their citizenship when their migrantisation became apparent, their status defaulted to non-citizen, making this a unique case. This migrantisation on paper was however, a crucial first step to the

could take place.

The similarity between the Indian and British case, besides the common feature of putting the burden of proof onto individuals and subjecting victims to detention centres, is that both rely on a myth of what their countries and their citizens are or should be: the current Indian government being strong proponents of hardline Hindu nationalism, and Britain believing itself to be a homogenous white society (de Genova & Roy, 2019, p.356). The Windrush scandal struck right to the heart of something very profound, what it meant to be British and who gets to belong. As Williams states in her report, “some lost their jobs, their homes, and in many cases their sense of identity and wellbeing.” (Williams, 2020, p.8; emphasis added). An instance like the Windrush scandal in which a state made its own citizens migrants, many of whom have never known any other country, would make any group of people feel unwelcome. Indeed some of the victims believed, when asked why the scandal happened, they were specifically targeted as part of a conspiracy to get rid of them (Williams, 2020, p.49). What made the scandal particularly distressing was that the Windrush already belonged to a discriminated against ethnic minority group in a white majority

country.

5.1.1 The Commonwealth, multiculturalism and (non)belonging

In many ways, it is difficult to define the ‘other’ in opposition to British identity, since it has taken on many different forms throughout British migration history The boundary between native British and ‘supranational identities’,those of the empire, is more of a ‘fuzzy frontier’ than a hard line (Cohen, 1994, p.7). However, what is obvious is the perceived dissonance between race and national belonging that had been reflected and cultivated in the continuous changes in ever-more restrictive laws of the 20th century. This notion gave preference and the right to permanent residence, to those who were white and were from countries that had fostered a close connection to Britain based on shared whiteness (Cohen, 1997, p.38). Importantly these laws that came to define Britishness were predicated on the notion that to be British meant to be white, and began a process of migrantisation by cutting off pathways for people of colour to become citizens; keeping them as migrants. Cohen comments: “the attempt to cling to a linked British homeland diasporic identity defined primarily by descent and racial phenotype” (Cohen, 1994, p.17) was nothing more than a myth and could be immediately challenged by the fact that the “wider commonwealth

comprised a brown and black Empire who were legally as British as any other subject” (Cohen, 1994, p.17). And this was acknowledged by governments of the time: that despite restrictive, preconceived notions of Britishness, it was becoming “more difficult for white Britons to territorialise their identity to the exclusion of ‘the other’. Nationality and citizenship, despite various cunning bureaucratic and political contrivances, had to be conceded on a non-racial basis” (Cohen, 1994, p.35).

While it was accepted that a large part of British subjects were not white, yet were British, this created an almost irreconcilable and paradoxical situation for the British government when it came to immigration controls. The Windrush and others, as British subjects, had been taught that they were as British as any white Englishman, and expected to be treated as such when they arrived. But as Olusoga comments, “even before the Windrush set sail from Kingston, British politicians had concluded that [permanent] ‘coloured

migration’ automatically represented a ‘colour problem’ and was thus to be discouraged and curtailed [...] The other deeper and more fundamental and unquestioned belief that runs through those thousands of archival pages is that black and brown people could never really be British” (Olusoga, 2019). Rhetoric at the time “focussed on the English nation as an island under siege, [...] casting the rising numbers of Black and Asian “immigrants” as foreign interlopers expelled the Empire” (Jackson, 2016, p.210). Due to the shared rights of all Commonwealth subjects - the purported idea of the Commonwealth being that it was a collaboration between equals, “irrespective of colour or religion” (Spencer, 1997, p.23) - there was no way to favour or discriminate against any one group of people without it affecting everyone else. “Legislation that overtly targeted the black and brown people would damage Britain’s standing in the world and undermine the creation of the Commonwealth – the rebranded, reimagined version of the empire that included newly independent states, as well as the old dominions” (Olusoga, 2019), and countries who knew they were thought less of would no longer want to be a part of this organisation. So in order to retain the

Commonwealth and its “status as a ‘world power’” (Olusoga, 2019), Britain decided it had to sacrifice the rights of its non-white subjects. In the end Britain’s hypocrisy “was exposed because the principle of free movement within the empire, long a hallowed tenet of the imperial project, had in reality only ever been intended to apply to white people” (Olusoga, 2019). In many ways, what made the Windrush scandal so humiliating for its victims was that while some newly independent countries were suspicious that the Commonwealth, “only the anglophone Caribbean countries were ideologically committed members of a greater

commonwealth” (Cohen, 1994, p.24).

According to Foucault, “the modern State can scarcely function without becoming involved with racism at some point” (Foucault, 2003, p.254). He maintains that the state is inherently racist because in order for it to keep one part of society safe, another part must be sacrificed; to ‘let live’ simultaneously means to ‘make die’. The question is, who gets to be included in society and kept safe, and who is excluded? This would of course be citizens, but most pertinently we must ask: who is allowed to be a citizen? As shown by 20th century British immigration laws, this category of citizen, non-citizen, ‘insider’, ‘outsider’ starts to be drawn against lines of race creating an “exclusive citizenship regime” (de Noronha, 2019, p.2427). The incessant legal and social categorisation of people into binary categories: ‘good’ and ‘bad’, ‘legal’ and ‘illegal’ importantly “establishes a positive relation between the right to kill and the assurance of life” (Stoler, 1995, p.84). Today, it is the ‘illegal’ immigrant, it can be argued, who is to be sacrificed or ‘made to die’. What what problematises this is the image of the ‘illegal’ immigrant which is very much tied up with racialisation. Especially in the North American context with Mexicans being conceptualised “as the iconic ‘illegal aliens’” (de Genova & Roy, 2019, p.353). These two factors: immigration status and racialisation both can, and do, feed off each other in situations of policing and bordering. As de Noronha states, phrases such as ‘go home’ or ‘go back to your country’ are indicative of the

interconnectedness of racism and immigration in Britain (2019, p.2415). Indeed race and immigration were treated as the same thing for many years, and in many ways the mentality of this still holds, with the obvious ‘solution’ to race ‘problems’ being deportation. Rung comments, “to manufacture the appearance of a homogenous set of citizens, nation-states coordinate various forms of social, political, juridical, and territorial expulsion among people who are construed as ‘illegal migrants’” (Rung, 2019, p.8). Crucially, British

denationalization laws, “enable governments to strip citizenship only from naturalized citizens, and not from the native born. The singling out of the naturalized has historically been linked to (often racist) anxiety about the loyalty of citizens born outside the state.” (Gibney, 2013, p.652). A main issue is the fact that non-white people haven’t been, until relatively recently, able to be conceptualised as British by wider society (Gilroy, 2004). De Noronha argues that “crucially, immigration controls make race meaningful, and this is true for young people growing up without status – and their friends and families – but also for British citizens who are interpellated as ‘natives’” (de Noronha, 2019, p.2428). As made devastatingly clear in the Windrush scandal, people who were merely read as non-natives or

non-citizens, even if they weren’t, were put at risk. The Windrush scandal saw citizens being ‘made to die’ as an effect of the hostile environment targeting of ‘illegal’ migrants which was done to ‘keep society safe’.

5.2 Illegalisation and deportability of the Windrush

Although a crucial process, migrantisation does not fully explain how the Windrush came to experience the human rights violations they did. With this in mind, I will proceed to further analyse the scandal by applying the theory of illegalisation. De Genova and Roy in their 2019 paper, expand their analysis of illegality from purely undocumented migration to “encompass state practices that strip racially minoritised categories of citizens of legal personhood and thereby render them stateless and subject to expulsion or other abuses by re-figuring them as de facto ‘illegal’ (and hence deportable) migrants” (de Genova & Roy, 2019, p.353). The scandal saw at least one instance of a victim being rendered stateless (Bulman, May & Hoddinott, Helen, 2018) while others were told they “didn’t exist” (Williams, 2020, p.29), or only held citizenship from a Caribbean country and not Britain and thus were in the country ‘illegally’ leaving them at risk of deportation. This was possible due to the policies of the hostile environment which, because of their lack of documentation, construed the

Windrush as not just non-citizens but also as ‘illegal’, heightening their susceptibility to detention and deportation.

It was certainly not the intention of the hostile environment for the Windrush to become illegalised, they were merely collateral damage of policies intended for other people such as refused asylum seekers, visa-overstayers, and “‘bogus refugees’ identified as exploiting the system” (Williams, 2020, p.61). Despite their not being the intended target, they were still impacted and affected by practices of illegalisation. Until their status as rightful citizens was confirmed, they were for all intents and purposes ‘illegal’ so I will use this as the starting point of my analysis in this chapter. To understand how British citizens managed to be barred from a number of human rights, it is necessary to further explore what being illegalised in Britain actually means and how the hostile environment played its part in exacerbating this.

5.2.1 Extending borders

Due to a “rescaling of immigration policy from national to local level” (Hasselberg, 2016, p.9), borders have become ingrained in all spheres of everyday life, leaving it widely inaccessible to those classified as ‘illegal’. Borders are no longer only national frontiers, but an ever-present, inescapable part of everyday life. The hostile environment, and the border regime it created by the powers afforded to employers and landlords, perfectly exemplifies this. An additional problem that extending borders to large swathes of society presents is that it allows for people’s prejudices to come into play (Quille, 2018, p.9).

More than simply being legal categories, illegality and deportability are “conditions ensuing from the social and political processes that legally produce them” (Hasselberg, 2016, p.28). De Noronha urges that “studies of racism and multiculture in urban Britain should be examining questions of belonging in legal as much as cultural terms” (De Noronha, 2019, p.2418). Illegality and other such “juridical categories produce multifaceted exclusions” (de Noronha, 2019, p.2417) which manifest themselves in everyday situations serve to designate the ‘deserving’ and ‘undeserving’ in terms of access to services and protection from the state, whether that be protection from state violence, or being afforded protection by the state. “The increased overlap between the criminal law and immigration law” (Quille, 2018, p.29) or ‘crimmigration’ has exacerbated this. The security which the state provides via citizenship such as access to social and welfare rights is drawn further away from those without papers who, when trying to access them, are met with “intensifying forms of punishment” (de Noronha, 2019, p.2421). These punitive laws prey on people’s immigration status (or lack of) to the point that they become vulnerable to deportation and degrading treatment, not just the denial of a certain state provision. The Windrush found themselves at the receiving end of this as a result of trying to access various forms of social rights that they were seemingly entitled to.When a person is illegalised, with no right to housing, employment or any other “rights of citizenship” (de Noronha, 2019, p.2426) afforded by the state, they become in effect, ‘state-less’.

The anti-immigrant sentiment of recent years in Europe has demonised non-citizens with states continuing to follow what Gibney terms ‘the deportation turn’ (Gibney, 2008) as a means of dealing with unwanted immigration. For non-citizens both ‘legal’ and ‘illegal’, there is a constant uncertainty and instability of existence that has become starker over the years (Hasselberg, 2016). Illegalised non-citizens have historically been at a greater risk of expulsion than ‘legal’ non-citizens (e.g. temporary migrants) but recent years have seen a

convergence in the way both are treated by the state: living under a constant threat of deportation. As previously noted, punitive immigration laws and policies that illegalise migrants have started to erode due process for non-citizens and citizens alike. As de Genova and Roy warn, safeguards for citizens against being subjected to illegalisation and

deportation are getting fewer (De Genova & Roy, 2019, pp.365-7). And although “modern nation-states’ legal authority to deport and detain without trial only applies to people with ‘non-citizen’ status” (Rung, 2019, p.6), the hostile environment, which was based upon deportability and the demonisation of migrants, saw anyone who couldn’t prove their right to residence suddenly becoming liable to deportation, even if they were a citizen. The scandal has shown not only how little it takes for a citizen to be categorized as a non-citizen and thus liable to deportation, but also the need for better protections for retaining people’s

citizenship.

5.2.2 Attitudes towards ‘illegal’ immigration

Legal terminology, created by border regimes has, according to De Noronha, productive power in relation to race and racism: “immigration controls and citizenship restrictions themselves are productive of racial meanings” (de Noronha, 2019, p.2419) Race-making, he argues is the effect of immigration laws which “structure various forms of racist expression and exclusion, providing both meaning and license to acts of nativist exclusion [...] Bordering practices and immigration regimes actively produce race” (de Noronha, 2019, p.2427). Arbitrary categories which serve to exclude are reinforced by disparaging

“discourses on immigration at the national level permeate society, and get mobilized in local interactions” (De Noronha, 2019, p.2419). “Border-making tactics are classificatory schemes marking certain categories of people as illegal or even criminal” (de Genova & Roy, 2019, p.358) which serve to designate who belongs and who doesn’t and cultivating the perception of people as ‘other’ and fundamentally different. Discourses on immigration, documented or otherwise, are very often tinged with notions of fear, illegality, threat and hostility. “The figure of the immigrant is part of the very intellectual mechanism that keeps us hostage” (Gilroy, 2004, p.165), serving to divide and promote fear. The hostile environment

introduced precisely these types of laws and discourse, demonising people without a legal immigration status, making them seem unwanted and unworthy with the stigmatising

the more justified due to a constant conflation with social problems and being associated with crime and disorder.

The Windrush experienced exactly these kinds of attitudes held against them when they arrived in the UK in 1948 (Spencer, 1997, p.109). They were part of a series of migrations “which the British government did not welcome at any stage, but which it was both unwilling and then unable to prevent” (Spencer, 1997, p.xiv). However, following the breaking of the scandal, and once it was established that they were citizens, the Windrush were very much seen in public opinion as being worthy; the ‘good’ and ‘deserving’ immigrants. There was an effort in Parliamentary debates to distinguish them from ‘bad’, ‘illegal’ immigrants who are ‘undeserving’ (Taylor, 2020, pp.7-9). ‘Illegal’ immigration conjures up ideas of (un)fairness; those who have a right to come to Britain are losing out to those who do not, which again perpetuates the ‘deserving’ and ‘undeserving’ narrative (Taylor, 2020, p.4). Those in opposition to large migration numbers are careful to frame their argument in terms of ‘fairness’, never race. The Conservative Party in 2005 had billboards around the country which declared: “It’s not racist to impose limits on immigration” (Shabi, 2019). This is not unlike the immigration laws of the latter half of the 20th century which saw the British government attempting to disguise their dislike of ‘coloured migration’ under the guise of employment regulations. De Noronha disputes “the claim that the UK’s immigration regime is somehow non-racist, by demonstrating the centrality of immigration controls to the production and mobilization of racial meanings” (de Noronha, 2019, p.2414). It can be argued that the fact hasn’t changed, that still below the surface the anti-immigration ideology can be read as anti-ethnic minorities. Additionally, he argues that by disassociating race from the study of migration serves to pander to right wing ideologies which deny that race isn’t an important factor (de Noronha, 2019, p.2415). Far from immigration controls being the effect of racism in Britain, it is the controls themselves that perpetuate racism: “the immigration regime shapes and produces racial meanings and racist practices in the present” (de Norona, 2019, p.2414).

5.2.3 The convergence of illegalisation and criminality

February 2019 saw a deportation flight of so-called ‘foreign-national offenders’ set to take more than fifty people who had committed crimes ‘back to’ Jamaica, despite the fact that many of them had lived in Britain for decades (Freeman-Powell, 2019). The decision to go

ahead with such a deportation was criticised because the Windrush scandal was still in the process of being resolved and the Home Secretary, Sajid Javid was going ahead with the flight regardless to whether any of the people scheduled to be deported had claims to British citizenship, as it turned out at least one man did. It had also been revealed by the Home Secretary that since 2002 over 60 people belonging to the Windrush were thought to have been wrongly deported owing to their seemingly ambiguous immigration status and

subsequent categorisation as ‘foreign offenders’ (BBC, 2018). Mass-deportations such as this see ‘undesirable’ British citizens conveniently being told they don’t have citizenship; their legal status and their criminal record being inextricably tied together in a “co-construction of illegality and criminality” (de Noronha, 2019, p.2426). Hasselberg reiterates the injustice in this, “for one thing, long-term migrants may perceive their country of residence as their home” (Hasselberg, 2016, p.24) She goes to to explain that typically, “deportability tends to be grounded on lack of legal immigration status or the undesirable actions of the individual – such as moral behaviour, political ideology, criminal conviction” (Hasselberg, 2016, p.24). Illegalised persons, unlike citizens, do not have the privilege of merely serving their sentence if they have committed a crime, but are additionally threatened by deportation. This idea of ‘double punishment’ can be seen to “violate[] human rights norms of non-discrimination and presumptions of equality of treatment before the law” (Bhabha 1998, p.615). The

illegalisation of these people is very clear because despite these people having already served their time in prison or paid fines, they were still sentenced to deportation, something that wouldn’t be a possibility for someone who was a ‘full citizen’.

In theory a government cannot deport its own citizens, but due to policy changes especially those post-2012 which scaled back appeal rights for ‘foreign offenders’ (de Noronha, 2019, p.2419), anyone, including rightful citizens categorised as such had little recourse against expulsion. De Noronha argues that there is an urgency to look at how illegalisation often occurs in conjunction with race, class and other societal factors and how these can’t be separated when conducting analysis. He highlights a phenomenon known as ‘deportation gap’ (Gibney, 2008) which sees racialised groups of people being subjected to illegalisation and deportability at a much higher rate than white people. This gap can be seen for example in the inconsistency between the treatment white visa overstayers, who are for all intents and purposes ‘illegal’ non-citizens according to the law, compared to people of

colour, refugees, failed asylum seekers and so on (de Noronha, 2019, p.2425). It becomes

maintain citizenship and other lesser statuses” (Rung, 2019, p.7) based on race. For example, the people on the deportation charter flight had three forces acting on them: their foreignness (or more accurately, presumed foreignness due to their racialisation), their illegalisation, and their criminality. The independent report on the scandal echoes this, the Windrush having found themselves at the intersection of several issues “given the close links between

nationality, race and immigration policy” (Williams, 2020, p.142). As de Noronha explains, there exists an underlying assumption that pervades society and bordering regimes: that race is a marker of immigration status. The state legitimises these assumptions in the way that people of colour are targeted by immigration controls, as shown by the deportation gap. Thus policing of people and the designation of someone being a non-citizen becomes all the more arbitrary as seen in the hostile environment policies. There was little discernment against who is or is not ‘illegal’, it merely on surface assumptions that the judgement is based. As in the Windrush case, on paper (or the lack of it), they appeared to have no right to be in the country and were treated accordingly.

5.3 The Windrush as sub-citizen

To use Rung’s own words: “sub-citizenship is largely produced through the categorization, or the potential categorization, of less secure citizen and migrant statuses, such as ‘non-citizen,’ ‘temporary migrant,’ and ‘unlawful non-citizen’ [...] Sub-citizenship occurs through the autonomy of the neoliberal state, where increasingly even the most basic services, safety nets, and human rights can only be accessed by those who are considered ‘deserving’ based on their ability to work and/or have access to capital” (Rung, 2019, p.2). Rung argues that states’ desire to continually pursue capital growth means that people, who are typically but not exclusively migrants, end up becoming disposable. The hostile

environment was built upon this ideology, making access to the welfare state increasingly difficult for ‘illegal’ migrants and attempting to get rid of those deemed ‘unproductive’, treating them as disposable labour. Placing a lack of value on ‘illegal’ migrants affirms the justification for their expulsion, and this was a process which the Windrush fell prey to. The British government’s attitude to migrants and the hostile environment policies reflect this perfectly, with the Windrush events being the logical and inevitable consequence of these laws that were intended to get rid of people with irregularities in their documents.