50 years of family immigration: Changes in British legislation for partner and family immigration: 1955-2005:Part I: 1955–1973

The 1950s – encouraging immigration

In 1955, immigration law was relatively simple. Citizens of the United Kingdom and Colonies (‘CUKCs’) could come and go as they liked, as could Commonwealth citizens. Eire Citizens were not ‘aliens’ by section 32 of the British Nationality Act 1948, and so were on a par with British subjects and Commonwealth citizens. Everyone else was an alien and was subject to immigration control under the Aliens Order 1953. 1

The development of partner and family immigration has evolved with, but slightly behind, social attitudes and economic realities. In the 1950s, the expectation was that the man would be the breadwinner and the wife would be his follower. Article 4 of the Aliens Order 1953 required that an alien be ‘in a position to support himself and his dependants (if any) in the United Kingdom’. There was no definition of the word ‘dependant’. Children under 16 were exempt from the registration requirements which applied to adults.

After the losses of World War II, and with the maintenance of a large army and the continuance of conscription, there was a considerable shortage of labour. Although women had been required to work during the war, the unions had agreed to this as a ‘hostilities only’ situation which in many industries had to be ended after the war. Despite the admission of displaced persons, and the resettlement in the UK of Polish and Ukrainian former soldiers, who often faced death if they went home, Britain in the 1950s had difficulty finding people to do the unpleasant low-paid work.

‘In April 1956 London Transport began recruiting staff in Barbados, and within 12 years a total of 3,787 Barbadians had been taken on. They were lent their fares to Britain, and the loans were repaid gradually from their wages.’ 2

The scheme was also extended to Trinidad and Jamaica.

‘The British Hotels and Restaurants Association recruited skilled workers in Barbados. And a Tory health minister by the name of Enoch Powell welcomed West Indian nurses to Britain.’ 3

Immigration from the Indian subcontinent was also encouraged, particularly former soldiers of the Indian Army who could show good conduct discharges and often had some knowledge of the English language.

The 1950s and 1960s – backlash and government response

In the early 1960s, signs saying ‘No Blacks or Irish’ were common in many cities. Racial discrimination was widespread. 4 There were race riots (white people rioting against the presence of black people) in many parts of Britain. The Notting Hill race riots in 1958 were the most publicised, but there were others in different parts of Britain. 5 Tensions were building around race. Some MPs (of both parties) became vocal about the need to ‘stop immigration’. White immigration was not perceived as a problem, although there was (and still is) significant discrimination against Irish immigrants and their descendants. 6

The answer to race discrimination and race riots by whites was thought to be the restriction of non-white immigration. This had to be balanced against the continuing need of the economy for additional workers.

Commonwealth Immigrants Act 1962 – a ‘temporary’ measure

The Commonwealth Immigrants Act 1962 stopped the completely free immigration of Commonwealth citizens. The problem for those drafting the legislation was how to stop ‘coloured immigration’ from the Commonwealth without phrasing the legislation as an issue of race. This was not a new problem. In the 19th Century, Britain created the ‘Natal formula’ whereby immigration to Natal was open to all Empire citizens who (a) had £25 and (b) could read and write a European language to a level that satisfied an immigration officer. This was in theory not a race-based formula.

The formula used in 1962 was that all Commonwealth citizens and CUKCs were subject to immigration control except:

• persons born in the UK;
• persons holding CUKC passports issued by the UK Government or UK posts abroad; and
• dependents endorsed on the passports of those in the above two categories.

CUKCs were exempt from immigration control unless they lived in a Crown colony and had obtained their CUKC passport from the local colonial government.

The enforcement of immigration legislation against citizens of the white Commonwealth was administered with a light touch, in part because many people from the white Commonwealth were entitled to claim CUKC passports by descent, and in part because white Commonwealth immigrants were not perceived as ‘a problem’.

Commonwealth citizens of any colour could come to the UK if there was a job waiting for them for which the Ministry of Labour had issued a voucher permitting entry. They could also come as the dependents of people settled in the UK.

The Commonwealth Immigrants Act 1962 was a panic measure in response to increased immigration and strong political pressure from MPs in the governing Conservative Party, echoed by some in the Labour Party and the trade unions. The preamble to the Act said that it was:

‘An Act to make temporary provision for controlling the Immigration into the United Kingdom of Commonwealth Citizens.’

The ‘temporary’ measure was extended each year until the passing of the Commonwealth Immigrants Act 1968.

The 1962 Act excluded from immigration control not only people born in the UK and many CUKCs, but also people endorsed upon their passports. In those times, it was quite common for a wife and children simply to be endorsed upon the husband’s passport, or for children to be endorsed upon the mother’s passport. 7

Under the Aliens Order 1953, the Immigration Officer seems to have had no strict published rules as to what constituted ‘a dependant’. The passing of the Commonwealth Immigrants Act 1962 required the Home Office to write ‘Instructions to Immigration Officers’ setting out which categories of dependants should and should not be admitted. The initial Instructions were reasonable for the times in which they were passed. British children could, and often did, legally leave school at 15, so extending deemed dependency to 16 and being willing to accept dependency up to the age of 21 was quite liberal (21 was the age of majority, rather than 18 as it is today). There was no interference with polygamous marriage. Britain was very conscious of the contribution made by Dominion and Empire servicemen during World War II.

The essence of government policy was that ‘new’ immigration (now usually called ‘primary immigration’) had to be stopped or reduced, but that families should not be kept apart.

What dependants were allowed?

Section 2(6) of the Commonwealth Immigrants Act 1962 provided some definitions:

‘In this section “child” includes a step-child and an adopted child and, in relation to the mother, an illegitimate child; 8 and for the purposes of this section a person shall be deemed “ordinarily resident” in the United Kingdom at any time when a condition restricting the period for which he may remain there is in force under this section, whether that period has expired or not.’

The accompanying Instructions to Immigration Officers (Cmnd 1716 (1962)) 9 said that a wife of a Commonwealth citizen was entitled to be admitted. Unlike in relation to aliens, there was no requirement for accommodation and maintenance: a Commonwealth citizen wife married to an alien had ‘no similar entitlement, but should be admitted’. 10 The number of such cases would probably be small. As the wife of an alien, ‘support’ should have been necessary, but the requirement was waived.

Another situation which could arise was the couple who were not married:

‘A woman who has been living in permanent association with a man, even if not married to him should be treated for this purpose as a wife. The Immigration Officer should bear in mind any local custom or tradition tending to establish the permanence of the association.’ 11

At this period of time, this author is unable to establish whether cohabitees were ‘dependants’ under the Aliens Order 1953. If, as is assumed, not, then Commonwealth citizens were being treated better than aliens.

Children under 16 were ‘entitled to admission’, 12 and children between 16 and 18 should be ‘admitted freely’ 13 if joining a parent or parents. A child under 16 joining relatives other than parents or, for an illegitimate child, his father ‘should also be admitted freely provided that the Immigration Officer is satisfied that proper arrangements have been made for him to be looked after’. 14 Children over 18 were expected to qualify for admission in their own right:

‘But exceptions may be made to this rule. For example it will be proper to admit unmarried daughters if they formed part of the family unit overseas and the whole family is coming to settle in the United Kingdom; and also in such cases unmarried sons under 21 who are still dependant.’ 15

With one exception (see below for the Special Voucher Scheme), this clause marks the high water mark for which children should be admitted since restrictions were brought in.

Given that Britain had by 1962 already signed the European Convention on Human Rights, there is an argument for practitioners today that these family members were recognised by the British Government as ‘family’ for the purposes of Article 8 of the Convention.

The rule for parents was also generous:

‘Widowed mothers, widowers above sixty and married couples, one or both of whom is above sixty should be admitted if their children are settled in the United Kingdom and are able and willing to support them.’ 16

The position with ‘other relatives’ was reasonable, and better than the rules today:

‘A person qualified for admission may not bring with him relatives of working age (which is to be regarded as being below 60 in the case of a man and 55 in the case of a woman) unless they themselves are qualified for admission in their own right. In particular, relatives who want to work here must themselves obtain vouchers. Near relatives above working age (e.g. grandparents, brothers and sisters, aunts and uncles) may be admitted if relatives here are able and willing to support them, and if (a) they have long formed part of a family unit whose other members are in the United Kingdom, or (b) they are in need of care and attention and have no other relatives in their own countries to whom to turn. Near relatives below working age may similarly be admitted if in addition they satisfy the Immigration Officer that they do not propose to engage in any employment, and that they have a strong compassionate case for admission. More distant relatives (e.g. cousins) should not be admitted under this paragraph save in exceptional circumstances.’ 17

The long battle concerning husbands and fiancés began with Cmnd 1716 (1962). Husbands could call wives without a maintenance requirement (see above), but wives calling husbands were given a maintenance requirement:

‘The normal rule should be to treat a Commonwealth citizen as eligible for admission if the Immigration Officer is satisfied that he is coming to join his wife and the latter is ordinarily resident in the United Kingdom. A husband so eligible who proposes to take or look for work in the United Kingdom need not therefore be in possession of an employment voucher. The Immigration Officer should, however, consider refusing admission if the husband (were he seeking admission on other grounds) would be liable to be refused admission on medical grounds, or on grounds of criminal record or security. He should also consider refusing admission if there appears to be no reasonable prospect of maintenance for the man himself or his family without recourse to public funds, or if he has reason to suppose that the wife does not want her husband to rejoin her. In a doubtful case the Immigration Officer should take into account the strength of the wife’s connexions with the United Kingdom, including her length of residence here.’ 18

Thus there already were, in 1962, all the issues of whether the wife wanted her husband to join her, and whether it would be better for the wife to join her husband abroad.

The Instructions for fiancés and fiancées broadly followed those for husbands and wives, except that they were not allowed to work until the Home Office gave permission after the marriage, and they were given three months in which to get married.

One Instruction which is long gone, but which would be useful in some cases even today was paragraph 38:

‘When an Immigration Officer is dealing with a case falling within his discretion, he should resolve any doubt (unless there are compelling circumstances to the contrary) in favour of an applicant who can satisfy him that he served in the Armed Forces of the Crown at any time in war or, since the end of the Second World War, has served the Crown as a member of the home forces as defined in section 17(5) of the Act.’ 19

Although strictly this applies to applicants only, one suspects that the intention was to apply positive discretion in cases where sponsors had served.

Cmnd 1716 (1962) also stated that the wives and children under 16 of a Commonwealth citizen could not be excluded on medical grounds, 20 criminal record grounds, 21 or grounds of security. 22

Africans of British descent

The Commonwealth Immigrants Act 1962 alarmed many Africans of British descent, because many were now excluded from fleeing to the UK if their country or colony became unsafe. They were under pressure, or believed they would soon come under pressure, to adopt local citizenship, leaving them without an escape route to Britain if things became difficult. The British Nationality Act 1964 was drafted to make it possible for Africans of British descent to resume UK Citizenship (still then called CUKC) based upon their parents or grandparents having been born in the UK.

Labour takes power

In 1964, Labour won the General Election. A leading light, Patrick Gordon Walker, nevertheless lost his seat in Smethwick to a Conservative, Peter Griffiths, whose campaign slogan was: ‘If you want a nigger neighbour, vote Labour.’

Harold Wilson described Mr Griffiths as a ‘parliamentary leper’ 23 and brought in the Race Relations Act 1965, which made it illegal to discriminate on racial grounds in places of public resort, made it unlawful to restrict transfer of tenancies on racial grounds, and penalised incitement to racial hatred. Labour had a tiny majority, was facing another General Election soon, and should be given some credit for decency and moral courage. Of course, being politicians with a General Election coming up, they published a White Paper in 1965 which stated an intention to control the numbers of immigrants. Racial harmony would be achieved by reducing the numbers entering each year, but the UK would be nicer to its immigrants.

After the 1966 General Election, when Labour had a good majority, the Government immediately introduced further Instructions to Immigration Officers (Cmnd 3064 (1966)), 24 which were intended to control immigration better.

Introduction of entry certificates and other changes made in 1966

Cmnd 3064 (1966) introduced a facility for entry certificates, whereby a Commonwealth citizen could, if he wished, obtain an entry certificate from the British authority in his own country confirming that he had been examined by the issuing officer and appeared to comply with the immigration rules, ‘and the Immigration Officer should assume him to be so qualified unless he finds evidence to the contrary’. 25

Children under 16 joining relatives other than their parents, or joining a putative father, were no longer ‘admitted freely’:

‘A child under 16 has no statutory right of admission as a dependant to join relatives other than parents, or to join a putative father, but the Secretary of State may authorize admission if satisfied that the child’s exclusion would cause hardship … In exercising his discretion the Secretary of State will have regard to the age of the child, the arrangements to be made for his care, and any compassionate features of the particular case.’ 26

There was a minor tweaking of the rules for children aged 16 to 18:

‘Children aged sixteen and under eighteen should be freely admitted if they are coming to join both parents (or the only surviving parent) in the United Kingdom. (The mother of an illegitimate child may be treated as his only surviving parent if she has had sole responsibility for his upbringing.) If, in any other case, the Immigration Officer finds compassionate circumstances that might justify the admission of a son or daughter in this age group to join a parent, he should refer to higher authority. Those who do not intend to join their parents do not qualify for admission as children, but may do so as students or under some other part of these instructions.’ 27

Children over 18 who could be admitted were now confined to unmarried and fully dependant sons or daughters under 21, and widowed daughters of any age, together with their dependants. 28 The ‘winners’ were widowed daughters and the ‘losers’ unmarried daughters over 21.

For the purposes of supporting parents and distressed relatives, ‘support’ was deemed to include adequate accommodation. 29

Labour did try to tackle the social problems which had already arisen. Section 11 of the Local Government Act 1968 30 provided financial assistance to local authorities who had significant numbers of Commonwealth immigrants. The Race Relations Act 1968 built on the Race Relations Act 1965 and made race discrimination unlawful in many areas of economic and social activity. 1968 was also the year of Enoch Powell’s ‘River of Blood’ speech.

Commonwealth Immigrants Act 1968

The dreadful difficulties faced by Asians in East Africa in 1968 led to another panic. Considerable numbers of East African Asians had retained CUKC status, 31 had passports issued by a UK post abroad and, under the Commonwealth Immigrants Act 1962, were able to come to the UK. Their families were able to apply to come with them either as endorsed upon the CUKC passports or under the immigration rules as they stood at that time. The Commonwealth Immigrants Act 1968 was rushed legislation aimed at removing the right of these CUKCs to come to the UK. Given the urgency of the political situation and the political fears of many Labour MPs, the Labour Government passed the 1968 Act.

A factor which played upon the MPs was the way in which, under the 1962 Act, a Commonwealth citizen who evaded detection for 24 hours was not subject to immigration control 32 unless he had previously been refused admission. Eye witnesses who had seen groups of Asian men walking furtively through the streets at 3am were readily believed, and the stories grew in the telling. Everyone knew someone who knew someone who knew someone who had seen this with their own eyes. Newly landed Commonwealth citizens were caught on or near lonely beaches. There were real fears that illegal coloured Commonwealth immigration was rampant. The 1968 Act increased the 24-hour period to 28 days and it was now made a criminal offence to enter the UK without submitting to an examination by an Immigration Officer. It was also made possible to deport a Commonwealth citizen lawfully in the UK if he committed a criminal offence and was recommended for deportation.

The Commonwealth Immigrants Act 1968 could not be expressed in terms of race, of course. The distinction between Commonwealth citizens with a UK father or paternal grandfather and Commonwealth citizens without such a UK ancestor, created by the British Nationality Act 1964, became the template for the 1968 Act. CUKCs with a UK parent or grandparent were still free from immigration control. CUKCs without such British ancestry were now made subject to control.

‘The intention was to keep out East African Asians and it was not difficult to see that the mechanism for doing this was the section defining the necessary ancestral connection. The immediate precedent was to be found in the British Nationality Act 1964 whose main aim was to preserve the right to resume UK citizenship to white settlers in Africa who were under pressure to assume the citizenship of newly-independent African countries. It is a formula which enables politicians and officials to cross their hearts three times over and proclaim that there is nothing racist about such laws.’ 33

The East African Asian CUKCs 34 now had nowhere to go. A Special Voucher Scheme was set up to assist CUKCs who could not claim a British ancestor. This provided a safety valve in respect of the situation in each of the East African countries, and allowed immigration of this category of CUKC to be staggered. The hope was that the situations in their countries would settle down, and that they would not really wish to leave.

The Commonwealth Immigrants Act 1968 is expressed as an amending Act to the ‘temporary’ 1962 Act. Most of the important aspects of the 1968 Act are mentioned above. There was one change of definition. The statement in section 2(6) of the 1962 Act that ‘[i]n this section “child” includes a step-child and an adopted child and, in relation to the mother, an illegitimate child’ was replaced by:

‘… “parent” includes a stepfather or stepmother and a parent by adoption and in relation to a person of illegitimate birth, includes a natural or putative parent of that person, and any reference to both parents, in relation to a person who has only one surviving parent, shall be construed as a reference to that parent.’

Fathers of illegitimate children were now recognised as ‘parents’.

The accompanying Instructions to Immigration Officers (Cmnd 3566 (1968)) 35 continued a process of toughening up. Children under 18 could not join a parent in the UK unless the other parent came too, or was deceased. 36 Provision was made where the parents were divorced and for an illegitimate child where the UK parent had had ‘sole responsibility’. 37 There was also provision for the Secretary of State to authorise a child under 18 joining a parent or other relative:

‘… if he is satisfied that family or other special considerations make exclusion undesirable – for example where the other parent is physically or mentally incapable of looking after the child.’ 38

The tightening up on marriage continued. Women in the UK in a temporary capacity who married someone resident here could stay, but men were normally refused stay:

‘… unless refusal would be undesirable because of the degree of hardship which, in the particular circumstances of the case, would be caused if the woman had to live outside the United Kingdom in order to be with her husband after marriage.’ 39

The Special Voucher Scheme seems not to have been documented.

Grant and Martin 40 say that ‘it is Home Office practice to admit children who are unmarried and unemployed up to the age of 25’. 41 They also quote a letter sent by the then Immigration Minister, Timothy Raison to the Joint Council for the Welfare of Immigrants on 28 May 1980:

‘“Sympathetic consideration” is given where it is clear that the child concerned has only taken occasional work or where an over-age child who forms part of the family unit is still dependent on his parents and would be isolated or suffer other hardship if left behind when the rest of the family comes to the UK.’

Appeal rights

The Immigration Appeals Act 1969 brought in rights of appeal, adjudicators and the Immigration Appeal Tribunal for all immigrants. Previously, there had been no form of appeal other than by judicial review. By the Instructions to Immigration Officers (Cmnd 4051 (1969)) 42 pending the coming into operation of the 1969 Act, an extra statutory appeals system was set up for Commonwealth citizens seeking to appeal the refusal of an entry certificate, which had been introduced as a voluntary procedure only by Cmnd 3064 (1966).

Aliens

The Commonwealth Immigrants Act 1968 and Cmnd 3566 (1968) only applied to Commonwealth citizens. Aliens were still governed by the Aliens Order 1953, which was silent on many issues that were now important. More detailed Instructions for aliens were needed. The new conditions imposed by Cmnd 3830 (1968) 43 were broadly similar to the rules for Commonwealth immigration.

Aliens now had to be in a position to ‘support and accommodate’ their dependants, 44 as opposed to ‘support’ in 1953. 45 Up until 1968, an alien could bring his (undefined) ‘dependants’ to the UK, 46 but his dependants now had to fall within the Instructions. There was no provision for cohabitees or for illegitimate children. Unmarried and fully dependent children under 21 and ‘an older daughter whose father is a widower and has need of her services as a housekeeper companion’ 47 could come to the UK. Children under 18 could join ‘uncles, aunts, brothers, sisters or grandparents if there is no other relative to look after them abroad’. 48

The words ‘distressed relatives’ appeared for the first time:

‘Subject to the prior conditions mentioned in paragraph 37, relatives aged 18 and over who do not otherwise qualify for admission may be admitted if they qualify as “distressed relatives”. This category is normally limited to parents (not qualifying under paragraph 45) grandparents, brothers, sisters, uncles, aunts, nephews and nieces. It should not be extended to more distant relatives, save in the most exceptional compassionate circumstances. To qualify as a “distressed relative” the person must be isolated (that is, living alone with no relatives in his own country to turn to) and in distress (that is, having a standard of living substantially below that of his own country).’ 49

This is considerably wider than the present rules, where nephews and nieces and more distant relatives are not included.

The Instruction for husbands was tightened further:

‘An alien married to a British subject may be admitted to join his wife in the United Kingdom if:

1. she was born in the United Kingdom and has since lived here, or
2. she has, at least, substantial connections with this country and is well established here,

provided also that he is acceptable under Part VIII and that the Immigration Officer is satisfied that the marriage is not one of convenience entered into in order to obtain a lodgement here.’ 50

Thus there were two tests. One turned on the wife being born in the UK or long-term settled here. The other was the issue of whether it was a ‘marriage of convenience’.

An alien woman in the UK could not call her husband unless she was ‘condition free’. Even if she were condition free ‘the question of allowing him to come and settle here will depend on whether hardship would be likely to result if she and her husband were obliged to live abroad’. 51

The first Immigration Rules

In March 1969, the Labour Government brought in Cmnd 3951 (1969), 52 expressed to be linked to Cmnd 3064 (1966), relating to Commonwealth citizens, and Cmnd 3952 (1969), 53 expressed to be linked to Cmnd 3830 (1968). Instructions to Immigration Officers gave way to Immigration Rules. The Immigration Rules were made simultaneously for both alien citizens and Commonwealth citizens and large parts of the Rules had identical wording for both.

There was a rule 54 relating to an alien work permit holder applying for an extension of stay and his wife and children having their leave similarly extended. Most Commonwealth citizens had come under the Special Voucher Scheme and so had settlement, but there was provision 55 for Commonwealth men with limited leave, where the wife and children were dealt with ‘similarly’.

An alien who came as a fiancée would have indefinite leave granted after marriage. For Commonwealth citizens, a fiancée was treated identically to an alien fiancée. However, there was a huge difference for husband cases. An alien fiancé would be given leave for one year after marriage, and then would have indefinite leave, 56 but a Commonwealth fiancé could only stay if ‘refusal would be undesirable because of the degree of hardship which, in the particular circumstances of the case, would be caused if the woman had to live outside the United Kingdom in order to be with her husband after marriage.’ 57

‘Marriage of convenience’ does not appear in either set of Rules. However, given that that these were Rules for control after entry, and Commonwealth husbands were not going to be allowed to stay after marriage except where there would be hardship, it may not have been thought necessary.

Entry certificates become compulsory

Cmnd 4051 (1969) 58 made entry certificates compulsory for all Commonwealth wives, children, parents and other relatives. This was presented as a humanitarian gesture. When flights arrived from Pakistan, India or Bangladesh, the passengers (other than CUKCs born, adopted, naturalised or registered as CUKCs in the UK) all had to be interviewed to establish whether they fell within the Immigration Rules. As there were not enough Immigration Officers and interpreters to interview all the passengers simultaneously, delays whilst waiting to be interviewed of six or more hours were common. People who had already travelled for many hours were physically and emotionally distressed by the wait, and their UK sponsors waiting at Heathrow were frantic. If people had to be sent back, the family involved was put to great expense. It was said to be much more convenient for everyone to make the entry certificate procedure compulsory.

1970 Immigration Rules

In February 1970, a new series of Command Papers were produced. They were: Cmnd 4298 (1970), 59 dealing with Commonwealth citizens; Cmnd 4295 (1970), 60 dealing with Commonwealth citizens after entry; Cmnd 4296 (1970), 61 dealing with aliens; and Cmnd 4297 (1970) 62 dealing with aliens after entry.

Again, the wording was very similar as between aliens and Commonwealth citizens. Aliens were not required to obtain entry clearances, 63 although people from many countries were required to obtain visas. There was still no provision for an alien’s cohabitee. An alien’s illegitimate child could be considered on compassionate grounds. 64 Aliens had to ‘support and accommodate’ all dependants 65 except wives who were Commonwealth citizens, 66 but Commonwealth citizens only had to support widowed daughters, dependants, 67 parents 68 and other relatives. 69

The rules on husbands were toughened for aliens. An alien who married a British subject could come only if the British subject was born in the UK or ‘has, at least, substantial connections with this country and is well-established here’. 70 If the alien married an alien woman, then if she were in the UK on a temporary basis, he could not join her. If she were ‘condition free’, the test was the same as for Commonwealth husbands:

‘… special considerations, whether of a family nature or otherwise, which render exclusion undesirable; for example, because of the degree of hardship which, in the particular circumstances of the case, would be caused if the wife had to live outside the United Kingdom in order to be with her husband.’ 71

‘Marriage of convenience’ was not mentioned, possibly because the condition in place was sufficient.

For the first time, there was a rule for Commonwealth fiancés who would come, marry and leave, but there was no equivalent rule for alien fiancés.

For parents and grandparents the age requirements differed. For aliens, widowers or one of a couple had to be 60, 72 but Commonwealth citizens had to be 65 for fathers or mothers or one of a couple. 73 For Commonwealth citizens there was provision for a parent who had remarried and their dependants, but not for aliens. Widowed mothers had no age requirement, whether aliens or Commonwealth citizens.

The rules for ‘other relatives’ differed also. Alien children under 18 could join uncles, aunts, grandparents, brothers or sisters (but not more distant relatives or friends) if there was no other relative to look after them abroad. 74 For Commonwealth children, the Secretary of State had to be satisfied that family or other considerations made exclusion undesirable and that suitable arrangements for the child’s care would be made in the UK. If the child passed this hurdle, he could join a parent or a relative other than a parent. 75 ‘Distressed relatives’ for aliens included nephews and nieces, but not for Commonwealth citizens. More distant relatives for Commonwealth citizens could be considered in ‘exceptional circumstances’, but for aliens the requirement was ‘the most exceptional compassionate circumstances’. 76

One other item of interest in these Rules, in light of later developments, is the phrase ‘primary purpose’ in the following statement:

‘Attendance at the course must be the student’s primary purpose in coming to the United Kingdom.’ 77

The rules for control after entry were fairly similar, except the rules concerning fiancées. An alien woman coming to marry a British subject would be allowed settlement after marriage, 78 as would a Commonwealth woman coming to marry a man resident in the UK. 79 An alien man coming to marry a British subject had a twelve-month extension after marriage and was then allowed to settle. 80 A Commonwealth man marrying a woman resident in the UK was still subject to the ‘hardship’ clause.

The Labour Government lost the General Election in 1970.

Immigration Act 1971

The Conservative Government brought in the Immigration Act 1971. This was a major and considered Act, intended to deal with the immigration ‘problem’. We are still recognisably working to the 1971 Act. There was not another Immigration Act until 1988, 81 and even that was by comparison minor. It was the increase in political asylum seekers that led to legislation in 1993, 82 1996, 83 1997, 84 1999, 85 2002 86 and 2004, 87 and legislation that will probably obtain approval in 2006. 88 The immigration regime has largely not been changed by statute (although, of course, it has been frequently changed by Immigration Rules) since 1988.

The Immigration Act 1971 almost entirely removed the advantage that Commonwealth citizens enjoyed over aliens. 89 The position of Commonwealth citizens settled in the UK on 31 December 1972 was recognized by section 1(5) of the Act. Unlike other Commonwealth citizens and aliens, they were exempt from the new rules requiring them to provide accommodation and maintenance for their wives and children.

The 1971 Act built on the Commonwealth Immigrants Act 1968 concentration on UK ancestry. It introduced the concept of ‘right of abode’, which was based upon birth in Britain, British ancestry, having become a British Citizen (then called CUKC) in Britain (ie not in a colony, dependency or Commonwealth country), and ordinary residence in Britain prior to the Act coming into force. Dependents and wives of those who had ‘right of abode’ were entitled to right of abode. The definition of ‘right of abode’ was later used in the British Nationality Act 1981 to re-classify those CUKCs who had that right as full British Citizens, while the others were given the lesser status of British Overseas Citizens. The 1981 Act also further modified the right of abode in some respects. A CUKC whose father or paternal grandfather was born or adopted or became a citizen in the UK was exempt from immigration control under the 1971 Act. He was described as having ‘right of abode’.

The associated Immigration Rules required accommodation and maintenance for all dependants, although that requirement did not apply to those Commonwealth citizens settled in the UK before 1 January 1973 who were protected by section 1(5) of the Immigration Act 1971. They could call their wives and children without showing accommodation and maintenance.

European migration

Another important development was the European Communities Act 1972 which came into force on 1 January 1973. This allowed freedom of movement for all EC nationals who were ‘workers’, and their dependents. These aliens now had more freedom of movement than Commonwealth citizens. They did not need visas to enter or remain in the UK.

Entry certificates give way to entry clearance

The Immigration Act 1971 required new Immigration Rules. These were: HC 79 ‘Commonwealth Control on Entry’; 90 HC 80 ‘Commonwealth Control after Entry’; 91 HC 81 ‘EEC and Other Non-Commonwealth Control on Entry’; 92 and HC 82 ‘EEC and Other Non-Commonwealth Control after Entry’. 93

Entry certificates were now ‘entry clearances’, and were now required for all dependants, whether they were aliens or Commonwealth citizens. The phrase ‘settled’ was used instead of ‘resident’. Aliens could now bring their cohabitees to the UK. 94

The rules concerning children were harmonised, including the bringing of a child to join a relative ‘because family or other considerations make exclusion undesirable’. 95

In the same paragraph is:

‘… an adoptive parent, but only where there has been a genuine transfer of parental responsibility on the ground of the original parents’ inability to care for the child, and the adoption is not one of convenience arranged to facilitate the child’s admission.’ 96

Unmarried and fully dependent sons and unmarried daughters could come if the rest of the family was in the UK or was on the same occasion being admitted for settlement. 97

The rules concerning parents and grandparents were harmonised at 65, and aliens could also bring parents who had remarried, together with the dependants of that marriage. 98 The provisions as to ‘distressed relatives’ were harmonised, but limited to brothers, sisters and aunts and uncles over 65, save ‘in the most exceptional compassionate circumstances’ when they could apply to parents and grandparents and more distant relatives. 99

With husbands, there was some discrepancy. All husbands were subject to the ‘hardship’ test, but Commonwealth citizen husbands and fiancés with a grandparent born in the UK and Islands were exempt. 100

Women who came as fiancées or in a temporary capacity and married men settled in the UK were given leave to remain after marriage. If the man had time-limited leave, then her leave was altered to be in line with her husband’s leave.

For EEC citizens, 101 the family was defined as ‘the person’s wife, their children under 21, their other dependent children, and their dependent parents and grandparents.’ 102 This was considerably more generous than was allowed for a Commonwealth citizen or non-EEC alien, who was limited to his wife and children under 18.

Although the Immigration Rules frequently mentioned political refugee applicants and refugees, there was total silence on the admission of their dependents.

Conclusion

Writing in 2006, it is interesting to see the emergence of many of the phrases and clauses which are still in use today. ‘Primary purpose’ in the marriage sense has yet to come forward; other than that almost all the concerns of the Home Office today were apparent during the 1960s. The battle for equality between men and women is now won. Attempts to prevent marriages seemingly based on facilitating entry to the UK, and the protection of vulnerable young women, are still Home Office concerns. There was already concern about adoption to facilitate immigration. AIDS was growing unseen, DNA testing had not been invented, the homosexual issue had not become important, and transgender issues were virtually unheard of. Political asylum was not a big issue.

Part II of this article, which will appear in the next issue of Immigration, Asylum and Nationality Law, will deal with further issues, including victims of domestic violence, adoption, the current restrictions on young married people, civil partnerships and discrimination against those in polygamous marriages and their issue.

Charles James, Solicitor

Lecturer, Immigration and Public Law, Bradford School of Law