Stephen Lawrence and institutional racism

When racists murdered black teenager Stephen Lawrence in London in 1993 his family had to fight hard for an enquiry into the way the police conducted their investigation of the murder. They and their supporters fought for five years until an enquiry was eventually set up in March 1998, chaired by Lord Macpherson. The enquiry report was published in February 1999 and found that the Metropolitan Police had, during its investigation of the murder, shown itself to be “institutionally racist”. This meant, according to Imran Khan (the Lawrence family’s solicitor) that

“we are dealing not with individual prejudice but with power. That power is derived from racist laws, constitutional conventions, judicial precedents, institutional practices – all of which have the sanction of the state and the blessing of our establishment.”[1]

In the wake of the report, the Labour government passed the Race Relations (Amendment) Act 2001, which finally applied race relations law to the police. There was a feeling that a real change had taken place in British race relations, that the Macpherson enquiry, in the words of Imran Khan, was “a kind of truth commission in which official acknowledgment was finally given to the evil of racism which had been perpetrated for years on the black communities of this country.”

Of course, we now know that the truth about the conduct of the case was not fully told at that time. The Macpherson enquiry was no real “truth commission”. Much remained hidden and unacknowledged, much remained covered up: we now know, for example, that the Metropolitan Police concealed suspicions about corruption among the investigating police officers from the Macpherson panel; that the victim’s family and friends were put under surveillance by the police, as if somehow they must be guilty of something; and it was to be 18 years before anyone was convicted of the murder, and even then only two perpetrators were arrested and prosecuted (at their trial the evidence was clear that Stephen was set upon by five or six youths). Nevertheless, in the immediate aftermath of Macpherson, many people felt that real change had taken place.

But it turned out quite quickly that it was not enough. First, in spite of anti-discrimination laws, watchdogs like the Commission for Racial Equality (CRE), numerous councils for community relations and a statutory duty for public authorities “to promote race equality”,[2] racism, discrimination and disadvantage had not been eliminated. According to the CRE in 2005, members of ethnic minorities were still more likely to be stopped, searched and arrested, more likely to be victims of crime (including racial offences), and were disproportionately represented in the prison population;[3] ethnic minorities were more likely to be in poor housing and live in deprived areas;[4] members of ethnic minorities showed higher levels of unemployment, had lower incomes and a worse position in the labour market than whites and this was due, in part, to “substantial levels of racial discrimination”.[5]

Secondly, even as the 2001 Act was being passed and celebrated, new asylum laws were being introduced to deal with a so-called “asylum crisis”. These laws told a different story to that suggested by the Act – a story of racism revived, and aimed at the new asylum seekers.

Asylum legislation and rules

Asylum seekers were not mentioned in the various immigration measures during the post-war period until the Immigration Rules 1980. Under these rules, asylum claims were to be assessed in accordance with the 1951 Refugee Convention. While we might be tempted to see this in a positive light, developments in the mid 1980s suggest the emergence of policymaking based once more on a major contradiction: the UK, while officially recognising its international obligations to refugees, undermined those same obligations by means of regulations, procedures and legislation. So visa restrictions were imposed on nationals of countries producing high numbers of refugees, and by 1996 there were 105 such countries. Moreover, in 1987 the Immigration (Carriers’ Liability) Act imposed fines of £2,000 on airlines and ferry operators for every passenger without valid travel documents. This impacted heavily on refugees, since the urgency of flight, and fear of the authorities in their countries of origin, meant that many refugees lacked such documentation.

The Asylum and Immigration Appeals Act 1993 and the Immigration Rules 1994 follow the same pattern. The Act incorporated the 1951 Refugee Convention into UK law and established certain rights of appeal. Yet this acknowledgement of Refugee Convention obligations and the apparent attempt to establish a fair process for meeting them ran alongside measures which undermined such commitments. First, the rights of appeal were themselves limited by the Act – indeed, the most important limitation was imposed simply on the basis of the home secretary’s opinion: “… if the Secretary of State has certified that, in his opinion, the person’s claim is without foundation” no appeal is available beyond the Special Adjudicator.[6] Special Adjudicators “do not have to be legally qualified”[7] but their judgment is final. They may refer a case back to the home secretary for reconsideration, but if he reaffirms his own opinion there is no further appeal.

After the 1993 Act the balance between meeting obligations and avoiding them shifted towards avoidance. Hayter notes that the Act “was followed by an unprecedented increase in rates of refusal, from 14 per cent in the six months before the Act to 72 per cent after it, while the granting of Exceptional Leave to Remain … fell from 76 per cent to 22 per cent of decisions.”[8] The restrictions and penalties increased under the Asylum and Immigration Act 1996, which extended the grounds for fast-tracking applications, abolished the right of appeal against removal to another EU country, introduced a list of “safe” countries, many of them of doubtful safety (including India, Pakistan, Romania and Nigeria – protests led to the removal of Nigeria). It removed the right to welfare benefits for those seeking asylum after entry and those pursuing an appeal, and it introduced sanctions on employers hiring anyone who did not have permission to work in Britain.

Although the Labour opposition had opposed the 1996 Act when it was introduced, once the party had won the 1997 election the government prepared even more restrictive legislation. Labour’s retreat from opposition to the 1996 Act mirrored its retreat from opposition to the 1962 Act, and happened for the same reason – the fear of losing votes. Hayter argues that the attitude of Labour politicians towards asylum seekers “parallels their attitude to criminals: Labour must demonstrate that it can be tougher towards them than the Tories were, and so remove one of the perceived electoral assets of the Tories.”[9] So the post-1997 legislation, regulations and other measures continued the restrictive trend begun by the Conservatives:

The Immigration and Asylum Act 1999   This Act set the tone for Labour’s asylum policy into the new millennium. It “gave extensive new powers to the home secretary and extended police powers to search, arrest and detain asylum seekers.”[10] It also introduced a duty on registrars to “report suspicious marriages” (s. 24) and a penalty of £2000 on lorry drivers for every passenger without documents (s. 32). The Act separated asylum seekers from mainstream welfare provision, setting their support levels below those of the mainstream and introducing the compulsory “dispersal” of asylum seekers to allocated areas across the country, with accommodation provided on a no-choice basis. This system was to be managed by a new government agency, the National Asylum Support Service (NASS), which took over the direct role previously occupied by local authorities. NASS then subcontracted work both to them and to private housing providers and voluntary agencies. We will see in a later blog how these changes were driven by the primary aims of deterrence and restriction.

The Nationality and Immigration Act 2002   This Act is best known for section 55, under which people who have not managed to apply for asylum within three days of arrival in the UK may be refused all financial support and accommodation and thus left destitute. Although the government claimed that this measure was only aimed at certain illegal categories, increasing numbers of asylum seekers fell foul of it and it is seen by many of them, and by many agencies, as a measure aimed at deterring applications.

The Act as a whole, writes Sales, set out “to segregate asylum seekers further from mainstream society and to promote their speedy removal.”[11] It provided for induction and accommodation centres where asylum applicants would be housed while their claims were being processed (s. 16), and where their children could be educated outside the mainstream education system. Sales noted that the establishment of accommodation centres was prevented by local campaigns against them (Sales 2007:149),[12] but the aim of detaining most asylum applicants remained.

The 2002 Act reflected the aims of the government, set out in its preceding White Paper, to speed up appeals, set target figures for the deportation of refused applicants and facilitate an increased rate of removals.[13] With these ends in mind, the government announced a 40% increase in removal centre capacity.[14] Indeed, detention – including detention of children – was to play a significant role in the UK asylum system in the following years. On 24 September 2005, according to Home Office figures, there were 1,695 asylum detainees in the UK; 75 of them were under 18. A 2005 report by the charity Save the Children estimated that “around 2,000 children are detained with their families every year for the purpose of immigration control”, the length of detention ranging from seven to 268 days.[15]

Asylum and Immigration (Treatment of Claimants) Act 2004   Section 8 of this Act made failure to produce a valid passport an offence. This arguably contravened Article 31 of the Refugee Convention, which lays down that states may not impose penalties on people “who … enter or are present in their territory without authorisation …”[16] Section 8 also raised doubts about the credibility of applicants who fail to claim asylum when passing through a “safe” country or who fail to answer certain questions to the satisfaction of Home Office caseworkers or other officials. Section 9 excluded families with children from benefit if, after their final refusal, they failed to make arrangements to leave or volunteer for the government’s voluntary returns programme. Families would then face destitution and their children could be taken into local authority care. Section 26 of the Act reduced asylum seekers’ rights of appeal and their access to the higher courts.

NAM and the Immigration, Asylum and Nationality Act 2006   In 2005 the government announced a Five Year Strategy for Asylum and Immigration,[17] and this included the New Asylum Model (NAM). New procedures would speed up the asylum process, involving shorter timescales, early “segmentation” of applicants into categories before the details of their cases were fully known, and an even wider use of detention. The Refugee Council was concerned that these changes would have a negative impact on the ability of asylum seekers to recover from trauma and prepare their cases, on their chances of adequate legal representation[18] and on their access to appeal procedures,[19] and it criticised the potentially arbitrary nature of “segmentation”.[20] Moreover, refugee status would no longer be permanent but would now be “granted on a temporary basis to be reviewed after five years in relation to the safety of the country of origin”.[21] The Refugee Council was concerned that people would be placed “in limbo, unable to rebuild their lives for fear of having their refugee status withdrawn”.[22] Much of this did not require new legislation but was implemented by means of Home Office rules and other instruments. Where legislation was needed it was provided in the Immigration, Asylum and Nationality Act 2006.

The UK Borders Act 2007   The bill which was to become the UK Borders Act 2007 was announced to parliament before many of the provisions of the 2006 Act had come into force. It showed the Labour government’s continuing negative approach to immigration and asylum: the Queen’s speech of 15 November 2006 announced that “A bill will be introduced to provide the immigration service with further powers to police the country’s borders, tackle immigration crime, and to make it easier to deport those who break the law.”[23] The press release on the day of the bill’s presentation to the House of Commons explained that these powers would include powers of arrest and detention and, in the context of asylum, powers to “arrest those they believe to have fraudulently been acquiring asylum-support, and to exercise associated powers of entry, search and seizure.”[24] The UK Borders Act made no reference to the UK’s Refugee Convention obligations to give protection within its borders to those who needed it.

Sales concludes that, under both Conservative and Labour governments, asylum policy has continued

“to treat asylum seekers with suspicion, as a risk to society rather than as people themselves at risk. Policy has therefore aimed at excluding them from developing connections with mainstream society in order to remove them as easily and speedily as possible.”[25]

[1] Khan, I. (2003), “Labour’s hypocrisy on race”, The Guardian (22 April), London.

[2] The Race Equality Duty (2005), Commission for Racial Equality, London. (http://www.cre.gov.uk/duty/index)

[3] “Race Equality Impact Assessment – Statistics: Criminal Justice” (2005), in The Race Equality Duty, Commission for Racial Equality, London. (http://www.cre.gov.uk/duty/index)

[4] “Race Equality Impact Assessment – Statistics: Housing” (2005), in The Race Equality Duty, Commission for Racial Equality, London. (http://www.cre.gov.uk/duty/index)

[5]“Race Equality Impact Assessment – Statistics: Labour Market” (2005), in The Race Equality Duty, Commission for Racial Equality, London. (http://www.cre.gov.uk/duty/index)

[6] AIAA (1993), Asylum and Immigration Appeals Act 1993, Sch 2, para 5(1), HMSO, London.

[7] Burgess, H. (2001), Political Asylum from the Inside, WorldView Publishing, Oxford, p. 169.

[8] Hayter, T. (2000), Open Borders: the Case against Immigration Controls, Pluto Press, London, p.76.

[9] Ibid., p. 79.

[10] Sales, R. (2007), Understanding Immigration and Refugee Policy: Contradictions and Continuities, The Policy Press and the Social Policy Association, Bristol, p. 148.

[11] Sales, R. (2007), Understanding Immigration and Refugee Policy: Contradictions and Continuities, The Policy Press and the Social Policy Association, Bristol, p. 149.

[12] Ibid.

[13] Secure Borders, Safe Haven: Integration with Diversity in Modern Britain, HMSO, London, pp. 65-66.

[14] Ibid., p. 66.

[15] Crawley, H. & Lester, T. (2005), No Place for a Child, Save the Children, London, p. viii.

[16] Convention and Protocol Relating to the Status of Refugees, Article 31, UNHCR, Geneva.

[17] Controlling our Borders: Making Migration work for Britain, HMSO, London.

[18] Briefing NAM (2007), New Asylum Model (August 2007), Refugee Council, London, para. 4.2 (i).

[19] Ibid., para. 6.2.

[20] Ibid., para. 4.2 (iii).

[21] Sales, R. (2007), Understanding Immigration and Refugee Policy: Contradictions and Continuities, The Policy Press and the Social Policy Association, Bristol, p. 151.

[22] Briefing IAN (2006), Immigration, Asylum and Nationality Bill: Key Issues and Concerns, Refugee Council, London, p. 3.

[23] Sales, R. (2007), Understanding Immigration and Refugee Policy: Contradictions and Continuities, The Policy Press and the Social Policy Association, Bristol, p. 151.

[24] Home Office press release, 26 January 2007.

[25] Sales, R. (2007), Understanding Immigration and Refugee Policy: Contradictions and Continuities, The Policy Press and the Social Policy Association, Bristol, p. 152.