Refugees, Race and the
Legal Concept of Asylum in Britain
by Prakash A. Shah
Cavendish Publishing Ltd (2000), Sydney
ISBN 1 85941 601 2
Prakash A Shah's book brings valuable historical perspective to the field of refugee law. A detailed and interesting account of refugee movements from the 16th to the 20th century, the book's main contention is that race is the central factor determining the State's response to refugee movements. Shah argues that asylum law developed in response to European refugee movements and excludes non-European refugees. One of his main aims is to:
'examine the State's response to European refugee migrations in relation to its reaction to non-European migrations' (p.6).
Shah approaches the law as an aspect of State control and is able to see thereby how law is used as a tool for the exclusion of certain groups. He picks out the forerunners of current policies and which allow the reader to chart the development of exclusionary policies. Refugees, Race and the Legal Concept of Asylum in Britain provides a thorough and well-researched study that makes a timely contribution in the face of the upheavals that refugee and asylum law is currently being threatened with.
The account begins in the sixteenth century and the loosely comparative approach yields early results. The reception of the Huguenots, whose welcome into Britain following their expulsion from France, is contrasted with the hostility faced by the North Indian gypsies 'a distinct, non-European people' (p.13). The reception of the Huguenots is often regarded as the foundation of asylum in the UK. Their reception is generally seen as exemplary of the 'tradition of compassion' which Britain often claims as its heritage. The contrast to the 'hidden history' of the gypsy's reception effectively challenges and complicates such claims. Shah uses this contrast to argue that:
'the foundations of the tradition of asylum are built on British relations with European refugees and that this tradition of asylum has not been extended evenly among racial or ethnic groups. This trend continued to the nineteenth century and beyond' (p.16).
Shah makes a similarly illuminating contrast between the reception of European Volunteer Workers and immigration from the Commonwealth in the 1950's and 1960's in chapters 4 and 5. He discusses how the Eastern Europeans who came to work in the UK were considered 'potential Britons'. He writes:
'The combination of political opposition to the Eastern Bloc and the racial acceptability of European refugees in Britain combined to inform the reactions to further refugee movements, and the institution of a further Western led international agenda for refugees' (p.58).
By comparison the treatment of the East African Asians shows a distancing of Britain from these British nationals. Shah provides a thorough description and criticism of the legal and administrative measures used to keep the East African Asians out of the UK.
Shah usefully brings this aspect of Commonwealth migration to the attention of refugee studies. The East African Asians were essentially refugees whose claim to refugee status and protection was avoided by the fact that they were nationals of the very state that was excluding them. Thus Shah shows how international law was used to turn the question of their entry into the UK from a question of asylum into a question of the State's duty to its citizens (p.93). It is not just the reception of different refugee groups that varied according to race but also 'their subsequent acknowledgement in the legal literature' (p.201) Shah shows how certain refugee groups were effectively 'written out' of the legal discourse that characterised these groups as 'economic migrants' and not refugees. This convincingly illustrates the book's secondary and related argument that the law is used to maintain the exclusion of non-European refugees by constructing the category 'refugee' in such a way that non-European refugees are disqualified.
The role of law in disguising and legitimating the exclusion of non-European refugees is brought out at several points in the book. Against a positivist approach the introduction makes clear that:
'It will be assumed here that legal rationality does not provide a useful tool for understanding the racist dynamics of the legal frameworks that have been applicable to refugees' (p.8).
The law's use as an exclusionary mechanism is described at various points. For instance, the impact of international law was, it is argued, to erode a common law doctrine of asylum ultimately turning it into a right of states(p.28 and p.46) and the increasing legalisation of the asylum process in recent decades is held to marginalise refugees (chapter 8). A wealth of information is provided but I felt that this argument remained too implicit. Critiques of legal positivism and the ways in which law operates to exclude and also renders that exclusion 'invisible' needed more direct exploration, particularly in contrast with the current 'black letter' approach that dominates the legal literature on refugees and asylum seekers.
A great strength of the book is that it traces the various legal mechanisms for controlling immigration back to their historical roots. Forms of Carrier Liability emerged with the 1905 Aliens Act imposing responsibility and fines on carriers bringing 'unacceptable passengers (p.34-36). Visa requirements were introduced in the 1930's to control Jewish migration from Europe (p.47-49). This allows the reader to place the modern mechanisms that prevent refugees reaching British shores into the context of a much wider history of selective immigration and the use of law to control immigration. Shah frequently and valuably alerts us to these broad continuities before plunging back into detailed discussion of specific refugee migrations. The historical approach also lends an awareness of the progressive strengthening of State power in relation to immigration control.
'An elaborate system of immigration control was erected from 1914 onwards' (p.44).
Until the early twentieth century many immigration control measures and powers were considered too authoritarian and were only enacted as temporary measures in times of national emergency. Its is only after the First World War that such exceptional and temporary measures became permanent and, gradually, commonplace.
Discussing asylum as a concept Shah notes its emergence in opposition to the perceived despotism of Continental Europe and Arab States during the time of the French revolution, the Napoleonic Wars and the Victorian period in chapter 2. Asylum emerged as Britain defined itself as a haven of liberty against these other states. The principle of asylum became a facet of British nationalism and in the face of foreign interference 'appeared to underpin a concept of 'Britishness' which could be opposed to continental despotism' (p.19). Consequently the principle of asylum was perceived as:
''a great principle of our constitution', which could not, in any circumstances, be infringed' (p.26).
Yet again this enthusiasm for asylum was curtailed in relation to other ethnic groups. Shah elucidates the shifts in the common law doctrine that emerge in response to increased non-white migration. Again, very interesting is the manner in which international law is used to balance and so restrain the right of asylum against concept of state sovereignty revealing the collaboration of the law in legitimating the exclusion of non-Europeans from Britain. It appears that asylum is popular only when it coincides with a notion of 'Britishness' and this notion is inevitably challenged by the immigration of non-white people.
The final chapters argue that the institution of an international regime for the protection of refugees has done little to change the bias of asylum against non-European refugee groups. Shah's detailed analysis of the emergence and implementation of this regime in the UK (chapters 6, 7 and 8) shows how those groups remain marginalised even after the removal of the temporal and geographical restrictions on the 1951 Convention by the 1967 Protocol. For instance, focusing on the problems faced by the Tamils in the 1980's Shah discusses how the extension of the law on illegal entry to asylum seekers was used as a strategy to disqualify Tamil asylum claims (chapter 7).
For Shah race is the ultimate criterion determining exclusion. While other work in the field has remarked on the racially uneven way in which asylum law discriminates between different groups this is a much more comprehensive exposition of this racial dynamic. To support his thesis Shah excavates a number of 'hidden histories' and by doing so reincorporates these into the field making this study an excellent resource. Yet as he himself admits race cannot entirely account for the dynamics of the State's desire to control refugee movements (p.5). Shah is left with a few loose ends, it remains unclear in the terms of this study 'why Western governments were keen to support the  Protocol' which internationalised the Convention (p.101). Nor can the initial sympathy for the Vietnamese be accounted for (p.133). In furtherance of his thesis Shah perhaps understates the problems Jews experienced reaching Britain in the 1930's. He focuses more heavily on the co-operation between Anglo-Jewish leaders and the government than on the barriers to entry that the British government imposed in order to both control and discourage Jewish immigration into Britain (chapter 4).
Perhaps these problems could have been surmounted by a more complex perspective on race and the process of 'othering' that could deal with the ways some European groups were and are currently cast as 'other' in ways that problematised their claims to asylum. However, Shah's introductory chapter rejects such approaches based on an idea of 'otherness' as tending to avoid questions of race. He argues that such an approach:
'misses the chance to investigate the continuities behind the older, explicitly racial classifications and the newly constructed 'culturalist' ones' (p.5).
Contrary to Shah, I think that exactly such a more nuanced approach could have brought more coherence and impact to the book enabling him to draw these instances where Europeans were 'othered' into his analysis and would actually allow further investigation of such 'continuities'. However, such criticisms are not intended to distract from the very valuable and impressive accomplishment of this book. It offers a thorough, engaged and comprehensive legal history of Britain's response to various refugee migrations and reveals the laws complicity in both excluding and in legitimating the exclusion of non-European refugee groups.
This is a Book Review published on 21 June 2001.
Citation: Kyambi S, 'Refugees, Race and the Legal Concept of Asylum in Britain, by Prakash A Shah', Book Review, 2001 (1) Law, Social Justice & Global Development Journal (LGD). <http://elj.warwick.ac.uk/global/issue/2001-1/kyambi.html>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/lgd/2001_1/kyambi/>