MacDermott Lecture 2023: Confounding the rule of law: conflating immigration, nationality, and asylum in the UK

Abstract

In this MacDermott Annual Lecture, Professor Devyani Prabhat looks at current developments in immigration, nationality and asylum law and evaluates these in terms of the core ingredients of the rule of law. Specifically, the focus is on two aspects of the rule of law as elaborated on by Lord Bingham in his classic exposition on the rule of law (2011.) First, Bingham asserts that ‘Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion’ is a fundamental requirement of the rule of law; and, second, Bingham states that ‘the rule of law requires compliance by the state with its obligations in international law as in national law’. The examples Professor Prabhat analyses in the lecture are that of the East African Asians who could not enter the United Kingdom (UK) with their British passports in the 1960s and 1970s; the Windrush generation and the hostile environment of immigration control; immigration control of European Union nationals in the UK after Brexit; developments in cancellation of British Citizenship; and new legislation and proposals on asylum in the UK. Do these changes in the scope and application of the law comply with the rule of law in general and with the two specific principles on ‘law not discretion’ and ‘international law compliance’ in particular? While answering this question, Professor Prabhat explains how the different legal categories in immigration, nationality and asylum are distinct but are often conflated or confused with each other. Executive discretion should be narrow for nationality and asylum matters to conform with international law, whereas it can be wider for immigration so long as principles of fairness and non-discrimination are adhered to in each instance.