Deportation, Crime, and the Changing Character of Membership in the United Kingdom

Matthew J. Gibney


Of those subject to the expulsion power of contemporary liberal states, noncitizens convicted of criminal and terrorist offences seem to gain the least public sympathy. While local and national newspapers often feature stories about antideportation campaigns, typically centred around churches or schools, attempting to stop the expulsion of unsuccessful asylum seekers or visa overstayers, the deportation of criminals seems to proceed relatively unhindered, breaking into the news only when individuals escape deportation because of ‘incompetent’ public officials or ‘liberal judges’ using putatively absurd human rights laws (see Kaufman, Chapter 9 in this volume). Indeed, in the United Kingdom the tabloid press, reflecting the restrictive tastes of their audiences, routinely use such failures to call for deportation policies of unprecedented strictness (see, for example, Sun 2011).

It is tempting to attribute this enthusiasm for deporting criminals to a legitimate desire of sections of the public to protect themselves from those who would violate their personal and collective security: deported thieves, rapists, and murderers cannot rob, rape, or kill again in this country. Yet amongst the deported are many who have committed relatively minor crimes which cannot be said to threaten public security under circumstances that suggest that they are unlikely to break the law again. Deportation often seems like an unduly harsh response, not least because it typically follows a prison sentence (cf Kanstroom 2007).

However, something deeper is at work in public enthusiasm for deportation. Hostility to criminal migrants seems rooted in a widespread view that non-citizens convicted of crimes are particularly undeserving of sympathy because they have betrayed the hospitality of the society that let them enter and live in the state. The deportation of criminals may also draw its popularity from its role as a lightning rod for public hostility towards immigration in general, though relatively little research has been conducted on public attitudes to deportation. Irrespective of its drivers, support for the deportation of convicted non-citizens appears a salient feature of modern immigration politics. The UK Prime Minister Tony Blair felt sure enough of the support of the British public to make the extraordinary statement that ‘it is now time that anybody who is convicted of an imprisonable offence and who is a foreign national is deported’ in Parliament in 2006 (Daily Mail 2007; emphasis added).

Whether or not one accepts as legitimate the state’s right to deport criminals, there is no denying the hardships deportation exacts from the foreign nationals concerned. Scholars have recently shed a great deal of light on the human costs of living life under the shadow of deportation (Sigona 2012), the role of detention and imprisonment by state authorities in facilitating deportation (Bosworth 2012), the limited procedural rights of deportees (Kanstroom 2007), the use of (sometimes fatal) coercion in the enforcement of deportation orders (Cohen 1994), and the appalling conditions that may await those deported in the countries to which they are sent (Brotherton and Barrios, Chapter 11 in this volume). But in this chapter I will look at deportation from a different angle: my focus will be on the implications of the deportation of criminals not for the non-citizen but for the citizen (see also Zedner, Chapter 2 in this volume).

The dominant and most intuitively plausible account of the relationship between deportation and citizenship sees deportation as facilitating the construction of the established boundaries of membership in contemporary states (Walters 2002; De Genova and Putz 2010; Anderson, Gibney, and Paoletti 2011). Deportation reinforces the normative unity of membership and the practical significance of citizenship. In terms of the former—citizenship’s normative significance—deportation acts to reaffirm the values of the citizen community by effectively punishing, through expulsion, those residents who trangress its fundamental norms. Contemporary states do not portrary themselves simply as random collections of people thrown together by birth on the same territory, but as communities of value, people who share some common principles and beliefs (cf Honig 2003). Deportation reinforces these values— albeit negatively—by serving as a public statement of what kinds of behaviour are unacceptable and therefore at odds with this normative, idealized conception of the community. Hence, deportation tracks those whose practices and values are seen as antithetical to the community of value. While communists, Nazis, and prostitutes were commonly deported in 1930s America, Islamist extremists preaching jihad and sex offenders are a major target today. Arguably, this kind of affirmation of the citizen community is particularly important at times of large- scale immigration (Kanstroom 2007). Deportation serves both to reassert the value of social unity and reassure the public that immigration will be managed in a way beneficial to members.

Just as significantly, deportation serves as a practical reminder of the worth of citizenship (Anderson, Gibney, and Paoletti 2011). It does so because citizens are free from the state’s deportation power. Unlike the non-citizen, whose presence in the state is conditional, the residence of the citizen is (in principle) unconditional. This unconditional right of residence is particularly salient in a context where migration is a contentious issue, where states trumpet their deportation power, and where the difference in rights and entitlements possessed by long-term legal residents and formal citizens are quite small in practice.

The deportation of criminal non-citizens, then, is a way in which citizenship may be affirmed and reaffirmed as a normatively meaningful and practially valuable status. Yet, in this chapter, I wish to point to some other, less intentional effects of the use of deportation. I will show that recent efforts to deport criminals also serve to underline citizenship’s fragility and its contested nature. Drawing upon the example of the United Kingdom, I show how, at key moments, governments have effectively redrawn the boundaries of membership to bring some groups of people previously accepted as members into the reach of deportation power, generating controversy and contention.

My mechanism for highlighting the changing historical contours of deportation is examination of the parliamentary discussions surrounding four pieces of UK legislation that relate to the British state’s deportation power. The first is the Commonwealth Immigrants Act 1962, which made it possible for the first time to deport Commonwealth citizens. The second and third are the Nationality, Immigration and Asylum Act 2002 and the Immigration, Asylum and Nationality Act 2006, which together extended the state’s power to strip citizenship from birthright UK citizens (with a second nationality), thus making them vulnerable to deportation. Finally, I consider the UK Borders Act 2007 which made deportation orders mandatory for non-citizens (from outside the European Union) who were imprisoned for a year or more or were imprisoned for committing certain categories of serious offences. This Act in effect curtailed the discretion of the courts and the Home Secretary to recognize the membership claims of individuals who, due to their length of residence in the state and other hallmarks of integration, are recognized as having a strong moral claim to be considered nationals.

The discussion in this chapter will proceed as follows. In the next section, I briefly discuss the history and significance of the norm that states should not deport their own citizens. I then move to discuss a set of relatively recent legislative encroachments into the insulation from deportation that members of the United Kingdom have traditionally enjoyed. I begin with legislation relating to Commonwealth citizens and move on then to discuss birthright dual nationals and conclude with long-term permanent residents or ‘virtual nationals’ (Berry 2009). It is important to note two things at the outset. First, the pieces of legislation I discuss here represent relatively recent (post-1960) examples of the changing reach of deportation power in the United Kingdom. They could have been supplemented with other, less contemporary examples, such as debates over the deportation of Irish nationals in the 1940s or debates over the denaturalization of Germans by descent in 1918 legislation. However, the examples I give provide a cross section of how pressures to deport affect a range of different categories of membership, for example Commonweath citizens, dual nationals, and virtual nationals. Moreover, the fact that my examples are relatively recent increases the likelihood that they have something relevant to say about contemporary UK citizenship.

Second, as is already obvious, I move in this chapter (potentially imprudently) between using the terms ‘citizen’ and ‘member’, and thus between legal, moral, and historical conceptions of belonging. My imprecision is largely intentional. One of my aims in this chapter is to show that just who is entitled to protection from deportation is a matter of debate and dispute because membership is not merely a legal category and is not simply confined to formal citizenship. It needs also to be understood as a normative and historical category if we are to understand its social meaning and political importance.

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