Immigration Control and the Control of Immigrants: is there a difference?

With net migration to the UK at records levels, much of the public and many politicians agree that ‘something must be done’ to reduce it. More significantly, the large-scale movement of asylum-seekers to Europe has produced an unprecedented political crisis about border control. Policy-making in panic mode is however not always consistent with deeper values such as respect for the rule of law, human dignity and the inherent worth of individuals.

Whilst largely forsaking racial discrimination, governments have deployed a wide range of measures such as detention alongside bans on working, marriage and access to welfare or justice. The reality is that migrants, particularly those with children, rapidly put down roots in host countries. Expulsion is often costly and difficult and yet ‘regularisation’ is politically fraught. Migrants may remain in a legal limbo for long periods. The idea of universal human rights is thus in tension with modern policies to curb irregular migration. Faced with competing pressures, the law always has to find a fair balance between constitutional and human rights protection as against the need for immigration control. In the end, if the rule of law is to survive, migrants cannot be excluded from the constitution.

This lecture will consider the ways that the UK legal system has developed the ‘constitutional’ rights of migrants. It will also emphasize, given events in the Middle East, that the treatment of migrants wishing to enter and resettle in Europe (including the UK) may increasingly become a subject of constitutional concern for the courts and governments.