In this blog Nadine El-Enany sets out the arguments she makes in her forthcoming book (B)ordering Britain: Law, Race and Empire.
My parents travelled from Egypt to Britain in 1977, moving from London to Exeter, a city in the South West of England, in 1978. My father tells me that when they arrived in Exeter they were struck by its natural beauty combined with the peace and quiet of this rural city.
For my parents, Exeter was a place they felt fortunate to have found, an idyll which could not be further from the noisy, crowded streets of Cairo. Immediately behind their house farmland stretches out as far as the eye can see. They made Exeter their home. Yet when my father retired a neighbour asked him when he would be going back to Egypt. My parents have lived in the same suburb for forty years. Even so, this neighbour has been quietly waiting for my parents to one day pack up and go back to where they came from. Still, my parents are the lucky ones. They have British passports. They came to Britain on an aeroplane, study visas in hand. They did not have to travel by boat, or in the back of a lorry, in secret, risking their lives.
Bordering Britain is not only the centuries long legal and political process my forthcoming book traces, it is also a mindset. Hanging over my parents will always be the assumption that their life in Britain is contingent and temporary. Immigration law in particular teaches white British citizens that Britain and everything within it is rightfully theirs. ‘Others’ are here as guests. I challenge law’s lesson that some people are entitled to space, resources and opportunities and others are not by showing how British immigration and nationality law is an extension of British colonialism. I argue that Britain’s borders, articulated and policed via immigration laws, maintain the global racial order established by colonialism, whereby colonised peoples are dispossessed of land and resources. They also maintain Britain as a racially and colonially configured space in which the racialised poor are subject to the operation of internal borders and are disproportionately vulnerable to street and state racial terror. Britain is thus not only bordered, but also racially and colonially ordered, through the operation of immigration control.
Britain would not be the wealthy, plentiful place that it is without its colonial history. Colonialism and slavery were key to its industrialisation and the growth of its capitalist economy. In 1833, Britain abolished slavery only to raise the equivalent of £17 billion in compensation to be paid to British slave-owners for the loss of their ‘property’. The compensation scheme was the largest state-sponsored pay-out in British history until it was superseded by the bank bailouts of 2008. The funds paid out built and infused Britain’s commercial, cultural, imperial and political institutions. Wealth derived from British slave-ownership has by no means been evenly distributed in Britain. It has helped to enrich and sustain elite institutions, individuals and families and has sewn inequality deep into the fabric of British society, helping to make it the most unequal place in Europe. Yet, Britain’s healthcare system, welfare state, transportation infrastructure, cultural and educational institutions, battered and unequally accessible as they are in the wake of privatisation and austerity policies, are colonially derived, along with the private wealth amassed over the course of the British Empire and retained after its defeat via systems of inheritance.
The 1960s, 70s and 80s are particularly important decades in the story of immigration law and the making of modern Britain. As colonial populations fought the British from their territories, British lawmakers fast abandoned the myth of imperial unity and equality and moved to introduce controls targeted at racialised colonial subjects and Commonwealth citizens. This legislation culminated in the 1981 British Nationality Act, which raised for the first time the spectre of a post-imperial, territorially defined and circumscribed Britain. It severed a notionally white, geographically distinct Britain from the remainder of its colonies and Commonwealth. Through the concept of patriality the 1971 Immigration Act had made whiteness intrinsic to British identity. Only patrials, those born in Britain or with a parent born in Britain, had a right of abode, and therefore a right of entry and stay in Britain. In 1971 a person born in Britain was most likely (98%) to be white. The 1981 Act continued this process of racial exclusion by constructing British citizenship on the foundation of the 1971 Act’s concept of patriality, tying citizenship to the right of entry and abode. The move was both materially and symbolically significant. A territorially distinct Britain and a concept of citizenship that made Britishness commensurate with whiteness made it clear that Britain, the landmass and everything within it, belongs to Britons, conceived intrinsically as white. The 1981 Act did not therefore signify an end to British colonialism but was itself a colonial manoeuvre. It was an act of appropriation, a final seizure of the wealth and infrastructure secured through centuries of colonial conquest.
Understanding Britain as a contemporary colonial space serves to partially collapse the distinction between settler and non-settler colonial contexts. While it is now an accepted argument in critical scholarship that settler colonialism is ongoing and structural, the same critique has not been applied to non-settler forms of colonialism, which are considered to have ended. Yet, the border drawn around the spoils of British colonial conquest via immigration and nationality law amounts to an unredressed act of colonial theft. Due to mainstream understandings of property as being fixed and immovable in space and time, theft via the passing of immigration controls can be difficult to conceptualise. Along with the resources and labour stolen in the course of colonialism, the social and cultural networks and relationships that were annihilated or radically reformulated as a result of colonial conquest were also material losses. Colonial dispossession not only determined the contemporary distribution of material wealth, but also radically altered subjectivity in the sense of what people desire, consider themselves as entitled to and understand themselves to be. Theft of intangibles such as economic growth and prospects, opportunities, life chances, psyches and futures occur in all colonial contexts, settler or otherwise.
The effect of the 1981 Act along with changes to immigration law was to put the wealth of Britain, gained via colonial conquest, out of reach for the vast majority of people racialised through colonial processes, most of whom with geographical or ancestral histories of British colonialism. Immigration law not only serves as the means of obstruction of movement, it is also the means through which legal status is granted. While critiques of recognition are well established in settler colonial studies, the same critique has not been made in relation to Britain. Regimes of legal status recognition whereby British authorities determine entitlement to statuses such as citizenship, settlement or indefinite leave to remain or refugee status serve to legitimise the claim that colonial wealth as it manifests in Britain belongs behind its borders, only to be accessed with permission. Similar to the way in which indigenous people in Canada and Australia must submit to the rules and evidentiary standards of those colonial legal systems in order to be recognised as having enforceable rights to land, those with ancestral, geographical and personal histories of British colonialism who wish to access stolen colonial wealth and resources in Britain must submit to the rules and evidentiary standards of British immigration law. In this way a facade of racial inclusion has been built in the form of paths to legal status recognition which dole out immigration statuses to select racialised people who can fulfil certain criteria. Such recognition is always on the terms of the colonial state. Meanwhile, the vast majority of racialised people are prevented from accessing Britain and its wealth in part through the operation of internal and external borders, produced and enforced through law.
The bestowal or extension of British subjecthood, or citizenship in its current guise, can thus never be anything other than a colonial act. In the colonial era British subjecthood was held up as a superior category from which the civilising benefits of British rule flowed. Yet British colonialism was genocide, mass murder, slavery, dispossession of land, exploitation of labour, and theft of resources, all predicated on white British supremacy. Even so-called ‘free’ British subjects seeking to move to different parts of the British Empire were met with racist immigration laws in places such as Canada and Australia, which heavily influenced Britain’s first immigration law, passed in 1905. British subjecthood did not, therefore, protect racialised subjects from the violence of white British supremacy. Its very existence as a legal category was a manifestation of that violence. Whenever it has suited the British government, it has treated its subjects as aliens for legal purposes, evicting them from the scope of legal status and protection with devastating consequences. The effect of the hostile environment policy, for instance, was to deny many of the Windrush generation and their children access to healthcare, housing, employment and other vital services, and to detain and expel them.
The traditional acceptance of legal categories as defined in international and domestic law in and outside academia has the effect of concealing law’s role in producing racialised subjects and racial violence. It further impedes an understanding of law as racial violence. Take for example the category of the refugee, relatively valorised as compared with the irregularised migrant. Individuals falling outside the legal definition of a refugee are often described as ‘illegal’, ‘irregular’ or ‘economic migrants’, and are at risk of removal and denied access to healthcare, housing and work. A decision to deny legal status carries serious, sometimes fatal, consequences, and can be a politically expedient move on the part of a government seeking to apportion degrees of belonging, entitlement and exclusion among populations under its control. Addressing the historical contingency and artificiality of legal categories, the violence in their production and ongoing material effects allows us to understand how Britain remains colonially and racially configured. It also helps to mitigate against a liberal politics of recognition and opens the way for the development of emancipatory and reparative discourses and strategies for migrant solidarity and racial justice.
Legal status does not alter the way in which racialised people are cast in white spaces as undeserving guests, outsiders or intruders, as here today, but always potentially gone tomorrow. Immigration law is, after all, the prop used to teach white British citizens that what Britain plundered from its colonies is theirs and theirs alone. Immigration law is not therefore the seemingly harsh but fair mode through which the deserving are separated from the undeserving. Instead, it is a crucial mechanism for ensuring that colonial wealth remains out of the hands of those from whom it was stolen. Understanding that immigration law is an extension of colonialism enables us to question Britain’s claim to being a legitimately bordered, sovereign nation-state. If we, as critical scholars and activists, can imbibe a counter-pedagogy to that of immigration law and bordering, one which rejects the violence of legal categorisation and paves the way for a more empowering, redistributive and radical politics of racial justice, we can begin to work our way towards new strategies for organising collectively in the service of anti-racism and migrant solidarity. We should not wait for the law to rule on our entitlement to colonial spoils. A Britain understood as the spoils of empire already belongs to us.
Nadine El-Enany is Senior Lecturer in Law at Birkbeck School of Law and Co-Director of the Centre for Research on Race and Law. Nadine has written for numerous publications including the Guardian, Media Diversified, Left Foot Forward and Critical Legal Thinking. (B)ordering Britain: Law, Race and Empire will publish in early 2020 and available to pre-order now.
 See Eric Williams, Capitalism and Slavery (Chapel Hill, University of North Carolina Press, 1944); Joseph E. Inikori, Africans and the Industrial Revolution in England: A Study in International Trade and Economic Development (Cambridge University Press, Cambridge, 2002); Nicholas Draper, ‘The City of London and Slavery: Evidence from the First Doc Companies 1795-1800’ Economic History Review 61 (2) May 2008 432-66.
 See Legacies of British Slave-ownership (Centre for the Study of the Legacies of British Slave-ownership) Available at https://www.ucl.ac.uk/lbs/
 See Danny Dorling and Sally Tomlinson, Rule Britannia: Brexit and the end of Empire (Biteback Publishing, 2019).
 Section 2(6) Immigration Act 1971
 The racialised population in Britain in 1971 is estimated to have been 1.3 million of a total population of 55 million. See David Owen, ‘Ethnic minorities in Great Britain: Patterns of population change, 1981-91’ (Centre for Research in Ethnic Relations, National Ethnic Minatory Data Archive, 1991 Census Statistical Paper No. 10. December 1995).
 Rieko Karatani, Defining British Citizenship, 185.
 See for example Glen Coulthard, Red Skin, White Masks: Rejecting the Colonial Politics of Recognition (Minneapolis, MN: University of Minnesota Press, 2014).
 See Sarah Keenan, Subversive Property: Law and the Production of Spaces of Belonging (Abingdon: Routledge, 2014); see also Davina Cooper, Everyday Utopias: The Conceptual Life of Promising Spaces (Durham, NC: Duke University Press, 2013).
 Frantz Fanon, Black Skin, White Masks (London: Pluto Press, 2008).
 See Elizabeth A. Povinelli, The Cunning of Recognition: Indigenous Alterities and the Making of Australian Multiculturalism (Duke University Press, 2002); Glen Coulthard, ‘Subjects of Empire: Indigenous Peopls and the ‘Politics of Recognition’ in Canada’ Contemporary Political Theory Vol. 6(4) 2007, 437-460; Glen Coulthard, Red Skin, White Masks: Rejecting the Colonial Politics of Recognition (Minneapolis, MN: University of Minnesota Press, 2014).
 See Mabo v Queensland (No 2) (“Mabo case”)  HCA 23; (1992) 175 CLR 1 (3 June 1992).
 See Radhika Mongia, Indian Migration and Empire: A Colonial Genealogy of the Modern State (Durham, Duke University Press, 2018).
 See Nadine El-Enany, ‘Asylum in the Context of Immigration Control: Exclusion by Default or Design?’ in Maria O’Sullivan and Dallal Stevens (eds.) States, the Law and Access to Refugee Protection.