Rhetoric of legality: aliens and “illegal” immigrants
“People are breaking into Britain,” Natalie Elphicke, the MP for Dover, declared, standing barefoot next to an empty rubber dinghy on one of her constituency’s beaches. Their clandestine journeys are “very bad and stupid and dangerous and criminal” added Boris Johnson, making his threat very clear through a smirk on national television: “we will send you back.”
The language our politicians and major news outlets use to describe and criminalise refugees and migrants and, most recently, those defending their human rights in court, matters - here’s why.
Criminalising asylum: Appeals to the law
Anti-immigration discourse often makes appeals to the law and legality. Migrants and asylum seekers are referred to as “criminals”, deported for being “illegal” and often associated with placing a fraudulent strain on our benefits and healthcare systems. These are not neutral terms, nor do they seek to express neutral concern about upholding British laws.
But under what legal pretence are the people arriving by dinghy to the coast of Dover actually being brandished as ‘illegal’?
The UK is the signatory of various international (non-EU) agreements that commit the nation to treaty obligations towards asylum seekers and refugees, in a similar way that other nations have committed to offering us protection should we suffer imminent persecution and threat. Notably, under international law, anyone has the right to apply for asylum in any country that has signed the 1951 UN Refugee Convention (including the UK and regardless of the Dublin Mechanism), and to remain there until the authorities have assessed their claim. It is recognised in the 1951 Convention that people fleeing persecution may have to use irregular means in order to escape and claim asylum in another country. To this day, there is no formal or legal way to travel to the UK for the specific purpose of seeking asylum.
The reality therefore remains that most attempting to enter the EU have legitimate asylum claims and rights to be upheld under international law, and when making the so-called “illegal” Channel crossings, migrants are simply navigating an institutionally flawed mechanism, making their ‘illegality’ product of the failure of insufficient and unjust systems, rather than an intrinsic malicious attempt to violate British (or international) laws.
Furthermore, despite the Home Office failing to produce a workable estimate of the amount of asylum seekers and people residing without documentation in the UK since 2005, more recent estimates point at undocumented migrants making up only 0.012% of the population. However, ‘hostile environment’ policies, the tragic case of Mercy Beguma, and the ongoing Windrush scandal are demonstrating the blurring of lines between ‘legal’ and ‘illegal’, and the default mistreatment of many residing in the UK under legal pretence with contempt, before considering their rights to protection as British citizens and under international law.
Returning to our focus on rhetoric, in appealing to language of ‘legality’, politicians and journalists make two important appeals that shape our understanding of migration and refuge, and frame our current policies and debates addressing it.
Firstly, this language marks an important step beyond politicisation toward the securitisation of the issue of immigration - with the treatment of such as an issue of national security. Framing Britain as being under threat or attack from the intrusion of crusading enemies arriving on small boats, fuels the narrative that those seeking refuge are unlawful criminals - dangerous, inferior and underserving of our sympathy or humanity (an array of racial stereotypes and unconscious biases also playing into this perception). The true implications of this language become apparent once Priti Patel’s desire to send the Navy to patrol the English Channel fails to appear violent, rather quite a reasonable approach taken in the name of national self-defence.
Furthermore, legality in this case is also used as a reference point alluding to an indisputable moral distinction between right and wrong. The law supposedly defends those who are abiding, deserving and good. Therefore shunning asylum seekers as to be in breach of the law reduces their struggle for refuge from violence to an immoral and violent act in itself.
Rhetorical appeals to the law fail to serve as proper legal distinction based on immigration status. It is not just about the those who remain in the UK without proper documentation, it’s about the presence of immigrants and asylum seekers at all. What is in question is not our concern with legal paperwork, it is our willingness to accept refugees and migrants at all.
‘Activist lawyers’ as a slur
In her recent shunning of ‘activist lawyers’, Priti Patel took this rhetoric further, going beyond appeals to our existing legality as a lens through which to frame issues of refuge and migration, to essentially petitioning that challenge via the law in a democratic society be wavered so as to not obstruct policy implementation. This further demonstrates how promises, quotas and targets to deport “illegal” immigrants were never about upholding the law.
Even following the removal and replacement of the highly criticised Home Office video from Twitter, reference to ‘legal challenges’ as frustrating of ‘legitimate policy’ were kept, complimentary to language such as ‘legal hurdles’ and ‘barriers’, used by Patel, Johnson and Chris Philp (Minister for Immigration Compliance).
Although this may seem to be contradictory language (do we care about upholding the law or not?), these comments are actually quite useful to observers, as they shed a light on what decision maker’s appeals to legality are really alluding to - this being an aspirational law, governing Britain in the ‘true’ interest of the ‘real’ British people. This “law” is an imaginary, populist construction which successfully ignores both international obligations and existing legal structures within the UK in place to protect migrants and asylum seekers’ statutory rights. “The justice system provides a vital check and balance and should not be attacked for the sake of political point-scoring by the Government”, Amanda Pinto QC, chair of the Bar Council rightfully commented.
The enemy within
Establishing a common ground in debates about migration isn’t actually that difficult. We can all agree that the only real difference separating ‘us’ and ‘them’ is the borders within which we were born. However, it is the supposed consequences of our origin where we begin to disagree.
Anti-immigration sentiment is fuelled by a desire to differentiate between ‘indigenous’ and ‘alien’, perpetuating a hierarchy of moral deservedness based on one’s heritage, rather than an appreciation of our common humanity. Appeals to legality are simply a further attempt to legitimise this hierarchy.
The concerns that many Brits link to the issue of migration, including growing unemployment, rampant poverty and deteriorating public services, are extremely real and should be treated as such by policy makers, especially in the post-Covid era. However, the continual scapegoating of migrants and asylum seekers as responsible for these issues, as unlawfully and undeservedly present among us, and as the ‘enemy within’ through a knowledgable exploitation of existing racial (and colonial) biases, must end.
Rhetoric matters. It matters in our headlines, it matters in the port of Dover, it matters behind closed doors at Number 10 and it matters when broadcasted on national television. The moment we start speaking about migrants, asylum seekers and those seeking refuge, undocumented or not, as people, is the moment we can start building progressive and logical policy that works for all.
“It’s incredibly disappointing to hear the prime minister using such inaccurate and inflammatory language to describe men, women and children who are desperate enough to make perilous journeys across the busiest shipping channel in the world.”
“Seeking asylum is not a crime, and it is legitimate that people have to cross borders to do so. Instead of scapegoating people in desperate circumstances, the prime minister and his government could address this by ensuring that people do not have to take these risks.”
Further reading and links:
Pearson, Matthew R. 2010. How “undocumented workers” and “illegal aliens” affect prejudice toward Mexican immigrants. Social Infulence 5: 118–32. [CrossRef]
https://www-ft-com.libezproxy.open.ac.uk/content/c5636123-db8c-4246-a663-eae6bb3468ea
https://www.refugeecouncil.org.uk/information/refugee-asylum-facts/the-truth-about-asylum/
Mukherjee, Sahana, Ludwin E. Molina, and Glenn Adams. "National identity and immigration policy: Concern for legality or ethnocentric exclusion?." Analyses of Social Issues and Public Policy 12, no. 1 (2012): 21-32.
Menjívar, C., & Kanstroom, D. (Eds.). (2013). Constructing Immigrant 'Illegality': Critiques, Experiences, and Responses. Cambridge: Cambridge University Press. doi:10.1017/CBO9781107300408
