The fourth post in our symposium on Radhika Mongia’s Indian Migration and Empire: A Colonial Genealogy of the Modern State is by Nadine El-Enany, who is Reader in Law at Birkbeck School of Law and Co-Director of the Centre for Research on Race and Law. She is author of(B)ordering Britain: Law, Race and Empire (Manchester University Press, 2020), co-author of Empire’s Endgame: Racism and the British State (Pluto, 2021) and co-editor of After Grenfell: Violence, Resistance and Response (Pluto, 2019).

---

It is a pleasure to be part of this symposium, especially because Radhika’s work has been such an inspiration to me. Unfortunately for me, her book came out just as I was finishing my own book, (B)ordering Britain: Law, Race and Empire. Though I managed to include some engagement with her work, I wished I’d had her book when writing my own. I have learned so much from it and can see various exciting links and possibilities for conversations with my own. For that reason, I’m particularly glad to have a chance to be part of this symposium. 

Radhika’s book takes the apparent ‘unremarkability’ of the monopoly states exercise over the movement of people and shows how, in actual fact, there is much to be said about this status quo that might lead us to rethinking and rearticulating scholarly and, indeed, activist approaches towards migration in a context of violently protected national boundaries. For me, one of the most salient contributions of the book is the revelation of the relationship between the metropolitan or modern state and the colonial state – in particular, the way in which the former has been shaped by the latter. The contours of Anglo-European nation-states, which once had empires ranging in scope and size, are historically contingent, having been moulded in the course of the formation and implementation of colonial migration regulations. In tracing the transition ‘from a world dominated by empire-states into a world dominated by nation-states’ (p. 1), Radhika thus points to a ‘fundamental colonial genealogy of the modern (nation-)state, in both the metropoles and the colonies’ (p. 3).

Radhika and I share an interest in drawing out and subjecting to analysis ‘the formation of key techniques and technologies for regulating migration’ (p. 3). For Radhika, such a focus enables the illumination of the relation between ‘patterns of migration’ which would otherwise be ‘held distinct’ (p. 3). Crucially, this approach allows for the undoing of ‘methodological nationalism’, which, as Radhika writes, ‘sees the national as the privileged site and scale for investigating migration, and, thereby, misunderstands how definitions of the “national” are necessarily implicated in, and emerge from, non-national, cross-statal, transcolonial, and inter- and intra-imperial forces’ (p. 3).

To my mind, this is a crucial project – to begin to unsettle the methodological nationalism which pervades mainstream scholarship on migration. Those of us who teach migration law from a critical perspective, will be familiar with the wide-eyed looks from students who are asked to question the legitimacy of the supposedly sovereign states they have come to take for granted, both as having always existed, or always destined to somehow come into existence, and crucially, as the only way of organising human life politically and geographically. However, when we begin to chisel away at this seemingly unshakeable status quo, as Radhika’s book does so powerfully, the geographical and political remnants of empire begin to surface, and like re-found jigsaw puzzle pieces, create a much clearer picture of seemingly separate sovereign nation-states as, in fact, embedded in their colonial pasts, and I would argue, suffering from a crisis of legitimacy.

Radhika’s work thus nicely dovetails with my own. The starting point for my work is the seemingly unshakeable notion that Britain is a legitimately discrete and bordered nation-state. The reality is that Britain is a young nation-state, but an old imperial power. The 1960s, 70s and 80s are particularly significant decades in the story of immigration law and its importance in the making of modern Britain. Over the course of these decades, immigration law played a crucial role in Britain’s transition from an empire to a sovereign, bordered nation-state. As colonial populations fought to evict the British from their territories, winning their independence, British politicians were forced to come to terms with the defeat of the Empire. The myth of imperial unity and equality was fast abandoned by British lawmakers as they moved to introduce controls targeted at racialised subjects and Commonwealth citizens seeking to travel to the British mainland. This legislative enterprise 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. 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 consequence of the 1981 Act, along with changes to immigration legislation in the course of the 1960s and 70s, 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 had geographical or ancestral histories of British colonialism. The 1981 Act did not signify an end to British colonialism but was itself a significant colonial manoeuvre. It was an act of appropriation, a final seizure of the wealth and infrastructure secured through centuries of colonial conquest.

Radhika writes that, ‘It is now well-acknowledged that those conceived as migrants live – though in uneven ways – in the shadow of vulnerability and with the threat of illegitimacy, be they so-called international migrants or so-called internal migrants’ (p. 150). Indeed, burgeoning modes and manifestations of external and internal border violence, are, as Radhika writes, one of the ‘enduring legacies of colonial migrations’, and are ‘equally evident in the metropole as in the postcolony’ (p. 150).

In Britain, racialised people – to different degrees – remain the foremost target in what I describe as an ongoing imperial project, their lands and their bodies ongoing sites of colonial extraction and expulsion. Although we are more familiar with how such extractive processes occur in formally colonial regimes, like Radhika, I argue for the urgency of tracing the colony as it shapes the metropole over time. If, as Radhika suggests, we cannot understand the metropole today divorced from its historical colonial iteration, I would argue that Britain today remains colonially configured and thus cannot be understood as a properly discrete, bounded nation space. Since colonialism it has been a space shaped by its colonies. As such, it achieves its coherence as a nation by maintaining its inner space, the island(s) of Britain as one of order, privilege and entitlement, and its outer space, its former colonies, as one in which insecurity, poverty, illness and violence are the norm. At the same time, inside Britain’s borders, the racialised poor are differentially yet systematically vulnerable to being marginalised, controlled, policed, deported and killed. For instance, embedded in the amendments introduced in the 2014 Immigration Act, which rolled out the ‘hostile environment’ policy, is both the reification of secure status in the form of citizenship, and the precaritisation of racialised life whereby people who do not have a secure status live under the threat of expulsion – as the Windrush scandal made abundantly clear.

For the racialised poor living in the heart of the imperial metropole, insecurity and a disproportionate vulnerability to premature death (to draw on Ruth Wilson Gilmore’s understanding of racism) is a long-standing and everyday experience. The 2017 Grenfell Tower fire and the Windrush Scandal are illustrative of Britain as a domestic space of colonialism in which the racialised poor find themselves segregated and controlled, vulnerable to deprivation, exile and death. The abstraction of day-to-day life in Britain from its colonial history means that immigration law and policy, whether in the form of the ‘hostile environment’, visa requirements and other external border controls, are not seen as ongoing expressions of empire.

Radhika’s book helps inordinately in this respect – it locates and illuminates the modern-day metropole in its colonial trajectory. In doing so, Radhika writes, the state emerges as ‘an unstable, historically changing entity, rather than as an entity that adheres to principles and fulfils static, definitional criteria’ (p. 7). Perhaps this is where the possibility for transformation lies. If the nation-state construct is unstable and capable of shifting, perhaps, if we can be tempted by Radhika to move away from a position of ‘methodological nationalism that would suggest that migration has always been controlled in national terms and that state sovereignty embodies an inviolable right to exercise such control’ (p. 7–8), our combined efforts might yield emancipatory results.

For me, the first step away from methodological nationalism in the context of legal scholarship on migration is to challenge the mainstream acceptance of legal categories such as the ‘migrant’, often pitted against the categories of the ‘refugee’ or the ‘citizen’. As Radhika points out, ‘the chief characteristic of colonial rule is a set of legal differentiations, which entail differential entitlements and differential treatment for different subjects’ (p. 150). In this way, she writes ‘all states embody a historically produced colonial dimension, with the citizen/migrant distinction as a, perhaps the primary axis of such differentiation’ (p. 150, emphasis in original). In my work, I have tried to show how the acceptance of legal categories as defined in international and domestic law 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 irregularlised migrant. Elsewhere, I have shown how 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.

Further, and crucially, understanding how legal categorisation is central to processes of colonisation and racialisation also helps to mitigate against the appeal of demands for state recognition and opens the way for the development of emancipatory and reparative discourses and strategies for migrant solidarity and racial justice. Speaking of No One is Illegal, a migrant advocacy group in Canada, Radhika notes that their demands and radical critique are ‘blunted in being forced to negotiate with the very entity whose authority is challenged: namely, the nation-state. In a peculiar way, then, this negotiation thus shores up, precisely, the authority of the national state as the central locus not only for the control and management of migration, but also for any transformation’ (p. 149–50).

Law’s violence in the context of immigration is thus dual. It not only serves as the means of obstruction of the vast majority of racialised people who might seek to move, but it is also the primary means of recognition for those seeking a legal status. Regimes of legal status recognition, whereby state authorities determine entitlement to statuses such as citizenship, settlement, indefinite leave to remain or refugee status serve to legitimise the claim to sovereignty of the colonial state. The result is that people with histories of colonial dispossession have found themselves trapped in regimes of recognition. Invited to petition for inclusion, whether by applying for citizenship, refugee or another legal status, they find themselves legally rebuffed again and again even as their efforts enable the racial state to characterise itself as post-colonial. 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 long-settled former colonial subjects and their descendants access to healthcare, housing, employment and other vital services, and to detain and expel them.

The bestowal or extension of British subjecthood, or citizenship in its current guise, can 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, as Radhika shows with reference to Indian migration, were met with racist immigration laws in places such as Canada and Australia. The recognition trap thus obscures and legitimises the colonial structures underlying British immigration, asylum and citizenship law. It also hinders the articulation of more radical, empowering, redistributive claims to stolen colonial wealth and resources.

Radhika’s mapping of what she calls ‘the unique exigencies that propel certain modes of state control over migration, which come to be congealed in certain, significantly enduring, technologies’ (p. 3) brings to my mind the importance of unsettling both the method and pedagogical force of contemporary immigration law regimes. Immigration law is the prop used to teach white British citizens that what Britain plundered from its colonies is legitimately theirs. Immigration law’s lesson is therefore one of differentiation in human worth and its effect is to crystallise racial hierarchies through legal categorisation. For the colonial British state to function, it has always depended on Britons, 87% of whom are white, to imbibe a sense of entitlement and superiority over racialised people. Racial place-making projects like that of bordering Britain, and before it the expansion of the British Empire, thus rely on the institution of what Sherene Razack calls ‘racial terror’.

As Radhika writes, parallel to the ‘deployment of an ever-increasing “army” of patrol agents (who police the border … ) and the construction of insurmountable walls, thorny fences, and ever-larger detention centers’, are ‘non-state measures of intimidation undertaken by citizens, those held to legitimately belong to a state-space, ranging from the articulation of virulent anti-immigrant sentiments to eruptions of more immediate physical violence, which duplicates the state logic of exclusion and inclusion’ (p. 149). This is why, for me, Radhika’s book carries significant political promise. A postcolonial critique of immigration law such as hers, which allows for immigration law to be understood as ongoing colonial violence, disrupts law’s pedagogical role, forcing an analysis of contemporary movement that accounts for colonial histories and legacies.

In a context in which Britain has seen reported hate crimes more than double since 2013, no doubt in part catalysed by the EU referendum and its Leave result, we are in dire need of an unsettling of methodological nationalism. The long-term mainstreaming of nationalist ideas in popular and official discourse has caused a frightening global surge in right-wing populism and authoritarian government. If we, as critical scholars, can formulate a counter-pedagogy to that of immigration law and bordering, we can begin to think and work our way out of the violence and ensnarement of the nation-state and its dangerous ideological counterpart of nationalism.