Not Just in Outer Space: ‘Aliens’ in Immigration and Nationality Law

We are a naturally hierarchical species. When I say these things in my novels, sure I make up the aliens and all of that, but I don’t make up the essential human character, the way we are.

—Octavia Butler, The New York Times (2000)

We are the Martians… We live in the future. We survive our own ruin.

—Ray Bradbury, The Martian Chronicles (1950)

1. Introduction

The origins and evolution of the concept of who is an alien in England and the subsequent transmission of this term across jurisdictions linked to the British Empire is an example of colonial era legal transplantation. The word has been morphed and transformed into new contours and shapes, so it is instructive to study the manner in which it has been transmitted and employed in local legal cultures. To this end, the origin, evolution, and transmission of the term alien in immigration and nationality law are analysed in English legal history and contemporary developments in this paper.

Legal historian Alan Watson coined the word ‘legal transplantation’ in the 1970s to indicate the moving of a rule or a system of law from one country to another.^[1] The notion of legal transplantation is based on the diffusion of ideas.^[2] According to this concept, changes in most legal systems occur as the result of borrowing. However, other scholars such as sociologist and legal scholar Gunther Teubner write that sometimes such change can be simply imposed on domestic law by a foreign rule and such imposition acts as a ‘legal irritant’.^[3] Teubner’s view is that ‘legal irritant’ as a concept explains legal change much better than transplantation, as a foreign rule triggers a whole series of new and unexpected events in new jurisdictions. Legal irritants unleash an evolutionary dynamic in which the external rule’s meaning is reconstructed anew, and the internal context undergoes seismic changes. Indeed, the argument of this paper is that there has been so much transformation in the manner alien is deployed as a legal category and concept and in its place of origin (in England) that does not appear to have any core function as a legal category in the UK anymore.

When the word alien travelled across various countries which became part of the British Empire and came to be settled by white Europeans, the original usage both continued and repurposed itself. It became a technology of control over entry and exit as well as the monitoring of the long-term presence of people. It regulated the becoming, or remaining, part of the citizenry in different nations. In wartime, aliens were often specifically identified as enemy aliens. Their presence was related to and invoked a sense of imminent national security threat. In the USA and in Australia, controlling aliens became a racially exclusionary practice. While the word originated in the English/British context, it did not develop in a similarly racialized manner in the UK. In the UK, racialized exclusions have also taken place, but these have been more about controlling who remains a British subject than about using the term alien in more recent times.

Significant changes have taken place in the context of alienage in recent times. In the intervening twentieth century, after the two world wars, there had been the development of international human rights frameworks in which foreigners are often protected at par with citizens. Human rights are universal and labelling someone as alien does not release states from a duty to protect their rights anymore. From the 1950s onwards, science fiction widely used the term ‘alien’ for extra-terrestrial beings and popularized it as a term for non-humans.^[4] Countries such as New Zealand and Canada which had borrowed and employed the word alien in legal instruments to regulate their populations have discontinued its use in the twenty-first century. Although others such as Australia and the USA have integrated the term in their legal architecture in a manner difficult to disentangle in current legal jurisprudence and usage, the UK should be able to drop the word from legal parlance, as it does not exist in much of UK’s current legislative framework. This article will establish this argument by evidencing the differences in usage of the word alien across the different jurisdictions after tracing its use in the UK in the sections that follow. It should be noted that changing terminology does not, on its own, lead to any systemic move away from structural racism. However, it is a necessary first step towards acknowledging historical wrongs and epistemic injustices.^[5]

2. Who Is an Alien? Etymology of the Word ‘Alien’

Any search online for the word alien results in hundreds of links to science fiction sources for books and films about aliens. This is because of the surge in the usage of the word alien to mean extra-terrestrials, ever since the early days of its use by the father of science fiction, HG Wells. Other prolific writers in the 1930s–50s such as Theodore Sturgeon also popularized the word. Sturgeon’s work led to many scripts for the Star Trek franchise in the 1960s.^[6] Subsequently, ET: the Extra-Terrestrial as a film in the 1980s, and a series of films titled Alien took the world by storm. The film Men in Black (1997) won an Academy award.^[7] It depicted outer space alien creatures who sought refuge on Earth and were cared for by secret agents here. The movie pokes fun at the double meaning of the word by placing a spotlight on Immigration and Naturalization Services officers who transport the human non-citizen aliens in one scene. There is dialogue about the large-scale presence of extra-terrestrial aliens in New York, whom a lead character (humorously) refers to as NYC cab drivers. Jokes aside, these developments in popular culture through science fiction have created a sociolinguistic shift in the meaning of the word alien to create a cognitive link between the word alien and non-humans. When it is then applied to foreign humans, it has a connotation of othering them which is ‘other’ worldly, rather than merely being from another country. Particularly, scholars point out when conjoined with ‘illegal’, the word alien can be simultaneously both dehumanizing and criminalizing in nature.^[8] It is as if this human being does not have a right to exist or belong as a human in any human society.

Science fiction use of the term alien is far more recent than in law. In law, alienage (the status of being an alien) has always been linked with the concept of belonging, even if not in this extreme sense of absolute non-belonging. In a standalone meaning of the term, alien is derived from the Latin word alienus.^[9] From its origins, it is connected to foreignness as ‘borne in a strange country, under the obedience of a strange prince’, and bears a ‘sense of foreignness…of belonging to another’.^[10] Here, the word ‘strange’ means unknown or foreign, rather than the more modern meaning of strange as weird. Key to an understanding of who is an alien is the idea of allegiance. If the allegiance is to a different ruler (‘prince’), then the person is an alien.^[11]

The eighteenth-century Blackstone’s Commentaries on the Laws of England refers to the connection between aliens and subjects by stating that it was the ‘first and most obvious division of the people’.^[12] Hence, alienage was constructed in opposition to subjecthood. English law defined the status of ‘alien’ in the negative as an outsider in opposition to the ‘subject’ who belongs. There was no concept of citizenship at this point and citizenship only became defined in nationality legislation in the UK in 1948.

3. Who Is a Subject? Subject by Birth

If alien was usually contrasted to subjecthood, it seems important to understand who a subject was and how they became one. British subject status was codified in statute law for the first time by the British Nationality and Status of Aliens Act 1914, which formalized the status as a common nationality among the UK, its colonies, and the self-governing Dominions.^[13] However, the status itself existed in common law and general usage for centuries before being defined in legislation.^[14]

It varied greatly over the centuries in common law usage, but in essence, peasants in England owed loyalty or allegiance to their landlords (feudal lords), who, in turn, owed allegiance to the monarch.^[15] This system of loyalty, indirectly owed to the monarch personally, developed into a general establishment of subjecthood to the Crown. At times, the peasants could invoke their relationship with the king directly to ask for better conditions from the barons and lords who were their landlords, so there was a direct relationship with the king derived through this concept of subjecthood. All those who owed allegiance to the Crown were the Crown’s subjects, and common law generally attributed subject status to those born within the Crown’s territories. Indeed, the most common way of becoming a subject was to simply acquire it by birth. However, until 1603, Scotland was a separate land from England. In 1603, James, King of Scots, inherited the throne of England, uniting both kingdoms under a single monarch. Thus, a legal question remained open about the status of those born in Scotland with respect to any connections they would have with the Crown and with land in England.^[16]

A key case which evaluated the idea of subjecthood of those born in Scotland was that of Robert Calvin, reported as Calvin’s Case (1608), Co Rep 1a, 77 ER 377. This English legal decision established that a child born in Scotland, after the Union of the Crowns under King James VI and I in 1603, was considered under the common law to be an English subject and entitled to the benefits of English law. The connection to the land was an essential part of the feudal system of allegiance and here the child held land in both countries. However, his allegiance could still be undivided as the Crown was unified.^[17]

Calvin’s Case strengthened the proposition that the usual way to become a subject was simply by birth and every man ‘either aliengena, an alien born, or subditus, a subject born’.^[18]

An alien is a subject that is born out of the ligeance of the King, and under the ligeance of another; and can have no real or personal action for or concerning land: but in every such action the tenant or defendant may plead that he was born in such a country which is not within ligeance of the King; and demand Judgment, if he shall be answered.

This holding extended the principle of jus soli (citizenship by birth on territory) from England to Scotland and later also in other parts of the expanding British Empire.

Calvin’s Case is an example of early legal transplantation. It was adopted by courts in the USA to eventually feed into jus soli (birthright citizenship) in the USA, as set out in the 1898 case United States v Wong Kim Ark 169 US 649 (1898), where Calvin’s Case was cited as legal precedent in Wong Kim Ark.^[19] However, Calvin’s Case has a complex legacy as a legal irritant as well, because it is widely considered to have provided the justifications for colonization and restricting the legal rights of indigenous peoples.^[20] It also created a situation whereby subjects had involuntary and perpetual allegiance to the Crown, because once they acquired subjecthood by birth, they were unable to give it up at all. It was only in 1870 that it became possible to voluntarily renounce British subject status. By contrast, in subsequent years, subjecthood was replaced with citizenship as the empire disintegrated. Very few then had the choice to retain subjecthood should they wish to do so. Identifying and categorically eliminating people as foreign has been done by removing subjecthood from them rather than using any separate set of alienage laws in Britain. This did not take place in any well-designed linear manner but instead occurred through a series of events and legal instruments that are connected in the manner explained below.

Subjecthood was at first expansively defined by UK statute in the 1948 British Nationality Act in response to growing national consciousness within the Dominions.^[21] In 1946, the Dominion of Canada created a separate ‘Canadian citizenship’ apart from the status of British subject. As a result, in 1947, an Imperial (or Commonwealth) Conference was convened to resolve the growing confusion of the status of British subjecthood in the empire. A new scheme to reconcile the citizenships of the individual Commonwealth countries was agreed upon and formed the basis of the British Nationality Act 1948.^[22] This act, which came into force on 1 January 1949, introduced the status of citizen of the UK and Colonies (CUKC) whilst retaining the term British subject to cover every citizen of a Commonwealth country, including the UK and the colonies.^[23] The intention was that existing British subjects would become either a British subject or citizen of a Commonwealth country. Persons closely connected with the UK or existing British territories remained British subjects but acquired the additional status of CUKC. Yet, within a few years, the tide turned, and the law became far more restrictive.^[24]

A slew of laws diminished all the rights of British subjects reconceptualized as Commonwealth nationals in the next few decades. The Commonwealth Immigrants Act 1962 introduced restrictions to entry for those whose passports had not been issued in the UK but instead had been issued by colonial authorities. In 1968, the British government passed an immigration act, the Commonwealth Immigrants Act 1968, in just three days, to prevent the re-entry of Asian-origin people holding British passports from countries such as Uganda and Kenya who were facing persecution there. The 1968 act further restricted the right of entry of Commonwealth citizens. A citizen could only live and work in the UK if they, or at least one of their parents or grandparents, had been born, adopted, registered, or naturalized in the UK. This rule excluded almost all the East African Asians who were at that time seeking entry to the UK. The refusal of entry of several East African Asian British passport holders was challenged in the European Commission of Human Rights.^[25] The European Commission found that the UK had participated in the inhumane and degrading treatment of the East African Asians in the form of racism and discrimination.^[26] In response, the UK government started a voucher system for each head of household (defined as a male member of household) who wanted to resettle in the country. Although gendered in its approach, it managed to relocate several people in Britain.^[27] The Immigration Act of 1971 completed the dissociation from the Commonwealth in immigration and nationality. It ended the preferential system of labour vouchers and student entry for Commonwealth citizens and introduced the concept of ‘patriality’ and ‘right of abode’ for CUKCs. The Immigration Act 1971 created two categories: patrials, who have a special connection with the country, and ‘non-patrials’.^[28] Patriality depended on close connections (for instance, grandparent or parent born in the UK). A ‘patrial’ was generally (i) a CUKC who held that citizenship through birth, adoption, naturalization, or registration in the UK, or (ii) a CUKC who acquired citizenship outside the UK but who had lived in the UK for a continuous five-year period. These patrials held the right of abode in the UK; non-patrials did not. This meant millions of white Commonwealth citizens could enter Britain under the patriality clause, if they so desired, while almost all non-white Commonwealth citizens were excluded by ‘racially defined categories’.^[29] Commonwealth nationals whose parentage was also from outside the UK—mostly people of colour—had to acquire a work voucher to enter the UK or be admitted as a student or self-sufficient person.^[30] They were still ‘British subjects’ under the British Nationality Act 1948, but that status was detached from any substantive rights. Even if they were ordinarily resident, or had been, they were subject to a new system enabling deportation of those who had committed criminal offences. Taken together, these changes permitted enormous administrative discretion in determining who can enter and who can stay in the UK.^[31]

The British Nationality Act 1981, which abolished the status of CUKC, and the earlier Immigration Act 1971, together brought preferential Commonwealth migration to a complete halt. The big question at this point was how Commonwealth citizens already present in the UK would be differentiated from those who would apply to enter in the future. The 1981 act also abolished citizenship through place of birth (jus soli) and replaced it with citizenship through descent (jus sanguinis).^[32] This had the effect of excluding children born in Britain to Commonwealth migrants from immediate entitlement to citizenship.^[33]

Not only did Commonwealth nationals face legislative restrictions on their entry, but they also had to start applying for visas to enter the UK from the 1980s, thereby clearly being demarcated as outsiders. From 1983, there were no more special connections in law for the UK with Commonwealth citizens.^[34] To become British, Commonwealth nationals had to naturalize like anyone else. Blood and ethnicity gained supremacy as jus soli (birth citizenship), which had not depended on bloodlines, was abolished by the British Nationality Act 1981. When the act came into effect on 1 January 1983, many people who were eligible to register as British citizens (having settled before 1973) did not do so. Some mistakenly assumed it was unnecessary, since they believed themselves already to be British citizens, or were deterred by the new bureaucratic process and steep fee. Many of them, mostly black British nationals from the Caribbean islands or brown British from South Asia, were subsequently unable to prove their status. They became part of those swept up by new document-checking laws and treated as foreign (mostly as part of the ‘Windrush’ generation).^[35] Perhaps it is this racialization of subjecthood which served as a mechanism of exclusion in the UK (as demonstrated in the situation of the Windrush generation) that meant that alienage did not have to take on that same role in subsequent centuries as it did in Australia or the USA. Foreignness, whether through alienage or subjecthood, is complex. In Britain, it did not need to be linked specifically to the word alien in order to be operative in law.

4. Who Are Denizens? Between Aliens and Subjects

While the previous section demonstrates how subjecthood operated and eventually became withdrawn in a racialized manner, its connection to alienage requires greater scrutiny as it extends beyond terminology. Returning to the feudal and medieval times, we can see that subject and alien were not just binary categories at two ends of a spectrum in England (or Britain). It was possible to have held intermediate statuses such as those of ‘denizenship’. Further, aliens could become subjects through naturalization. The distinction between denization and naturalization can be traced to the early fifteenth century and was inextricably connected to the king’s finances and the taxation on foreign merchants.^[36]

The people who did not quite fit into the feudal system of allegiance were wealthy landowners who were foreign or foreign merchants who were regularly trading and could be quite wealthy. Traders and landowners were preferred by the king as good for the economy and the king could extend protection to them in exchange for loyalty. Denization (or endenization) was the legal process which allowed an alien to acquire such protection. The first denization was in 1295 of Elias Daubeny, born in Brettany and wealthy landowner, who was granted by King Edward I the right to be considered an Englishman.^[37] The Crown started issuing these regularly from the 1370s, because of demand from wealthier immigrants who wanted to acquire a reasonably full range of legal rights. They, and their descendants, became entitled to own land, property, and other possessions in England, and to have their legal cases heard in English courts after becoming denizens.^[38]

Denization was the forerunner of naturalization but also continued alongside it for many years. There were some disadvantages to denizenship as compared to naturalization. Letters of denization were granted by the Crown, whereas naturalization was generally the result of an act of Parliament. Hence, denization was considered more discretionary in nature and a personal gift from the monarch. It was an expensive gift, however, as for most people, the letters of denization cost massive amounts. Only wealthy merchants could afford such letters although records indicate that some people did not have to pay the fee later for humanitarian reasons (such as when Huguenots fled persecution in France).^[39] Also, denizens were still subject to twice the taxation of a natural subject even though they were required to renounce their former loyalties and take an oath of allegiance to the king of England. British subjects by denization could not pass on a secure status to their children. However, this did not matter to the vast majority of English people or foreigners living amongst them who did not have this status. The majority of resident aliens lived in England simply through neighbourliness and acceptance of local communities rather than because of gaining denizenship.

Sometimes political repression could lead to forced denization, for example when Henry VIII ordered all French-born people living in England to leave the kingdom or to obtain letters of denization in the 1540s.^[40] This was a way of keeping control over the foreign population. But sometimes denization was a reward as well. For instance, the last person to acquire British nationality by denization was Sir Lawrence Alma-Tadema, a Dutch painter whose work was admired by Queen Victoria. As an alien, he could not become a member of the Royal Academy, and he did not qualify for naturalization, so the queen decided to grant him denizen status.^[41]

Through this examination of denizenship, and its varied deployment over time, it is possible to conclude that it was a way of ‘curing’ someone of foreignness. It was very much about identifying who did not bear allegiance and then, if the person was considered to be of value for the monarch, their allegiance could be incentivized or a lack of it could be overlooked. It seems clear that foreignness was not something that was permanent and could be discarded (at least to a considerable extent) through this process. In the next section, this idea of foreignness being malleable will be further reinforced by taking a closer look at naturalization as a way of becoming a subject.

5. Who Is a Subject? Subject by Naturalization

As mentioned earlier, another way of gaining subjecthood was by naturalization. Naturalization provided full rights unlike denizenship, and thus with time it became a better way for foreigners to lose their foreignness. Prior to 1708, foreigners could only be naturalized through acts of Parliament.^[42] The years 1870–1914 were a period of great expansion in the British Empire. Paradoxically, this period also greatly weakened Empire as the old settlements and colonies grew and came to rival the UK in power and effectiveness.^[43] The fact that nationality was still governed by Parliament in Westminster caused considerable dissatisfaction among the Dominions, and it was finally determined that the time had come to attempt a codification of British nationality law which would recognize the position and status of the Dominions and provide an easy method for foreign merchants, and others settled in the UK, to acquire British subject status. The 1844 act thus introduced naturalization by administrative grant at the Home Office. All naturalized subjects were treated as being British subjects by birth from the date of their naturalization.^[44] Naturalization in the UK conferred British subject status valid throughout the empire (imperial naturalization), while naturalization in a colony conferred British subject status in that colony only (local naturalization).^[45]

These details about naturalization are important as they demonstrate that foreignness could be removed with locational limitations, even if allegiance was demanded over the entire space of the empire. Differentiated naturalization existed and was inconsistent to claims about equal subjecthood which were often proffered across the Empire by its colonial administrators. Later, when subjects started travelling from colonies to Dominions the evidence was clear that not all subjects were equal as they were often barred from travelling from colonies and Dominions despite holding British subjecthood. So, there was still stratification amongst those who ‘belonged’.

6. Who Are ‘Undesirable’ Aliens?

Just as subjecthood was spread unevenly across the British Empire, aliens could not also naturalize uniformly but were instead differentiated depending on their ‘desirability’. Some aliens were wanted by the nation state, but there were also aliens who were considered as undesirable as they were too poor, or were likely to spread diseases, or had mental illness or criminal backgrounds. For the first time in 1905 a legislation barred undesirable aliens from the UK.^[46] This was the Aliens Act 1905 which originated in the context of mass migration of Jews from Eastern Europe and Russia. At this time Jewish communities were being persecuted in these regions and were displaced in large numbers to the UK with many of them settling in the East End of London where they had contacts and relations. Those who ‘appeared unable to support themselves’ or were ‘likely to become a charge’ were declared ‘undesirable’ by the act. These were the official reasons proffered, but unofficially the act was a code for monitoring the Jewish arrivals and deciding who was worthy of acceptance.

The 1905 act also is the first time there was an attempt to systematize border control with immigration officials and appeal systems set up, and a home secretary at the helm for matters of immigration and nationality. The act exempted asylum seekers officially from immigration control but did not actually contain an asylum process.^[47] In London, there was much antisemitic sentiment owing to far-right groups which led protests and violent agitations against Jews and Jewish migrants as well as from ordinary people who thought jobs were being lost to new arrivals.^[48] Retaining the ‘alien’ at its core, the act became part of the Aliens Restriction Act 1914 with even greater restrictive provisions.^[49] While much of it is now just history, some of its legacy remains to this day in various policies of looking at economic self-sufficiency of applicants (even for family reunion), excluding people on the basis of bad conduct or national security concerns, health screening (such as for tuberculosis) or, during the COVID-19 pandemic, limiting entry to those vaccinated. Most immigration acts to this day continue to operate in racialized manners while furthering these more formally neutral objectives of maintaining security, public health or economic welfare, as first articulated in the 1905 legislation.

7. Who Are ‘Enemy Aliens’?

Another turn in the exclusionary usage of the word ‘alien’ in British law was in its use in designating some people as enemy aliens during wartime. An enemy alien is not just an undesirable entrant but is someone who is from a country which is at war with their host country. The enemy alien bears allegiance to a foreign king of a land at war and is therefore presumptively considered dangerous without any personalized assessment of their induvial threat level. It was men of military age who were ordinarily considered enemy aliens. Many were arrested and interned during the First World War.^[50] Aliens were registered by the Home Office who then took enemy aliens into custody.^[51] Similar internments were also done in other parts of the empire: Canada, Australia, New Zealand, and the USA all interned enemy aliens, mostly Germans, Italians and Japanese-origin men.^[52] Travel restrictions were also placed on their movements.

Women were not normally interned during the First World War, but many were designated enemy aliens as well.^[53] These included women born in the UK and British subjects at birth because, as per the British Nationality and Status of Aliens Act 1914, British-born women who had married foreign nationals (who had not naturalized) acquired their husband’s nationality.^[54] Many British-born women therefore found themselves to be enemy aliens during the war.

With the coming of peace, restrictions on aliens were not removed, but continued and extended by the Aliens Restriction (Amendment) Act 1919.^[55] For example, registration with the local police remained in force. Post-war restrictions on aliens remained and the pre-1914 era of freedom of movement without passports was lost forever.^[56] During the Second World War, ‘enemy aliens’, including Germans and many members of the Italian community, were interned.^[57] Some were sent by ship to Canada. However, after a German submarine sank one of the ships, the SS Arandora Star, in 1940, most were freed.^[58] This demonstrates the limits on risks placed on human life in times of war even when such human beings were labelled enemy aliens. However, in most instances, enemy aliens were just presumptively enemies and they had no way of coming out of this status.

As already mentioned, women could become aliens simply through marriage. One case quite typical of the cases of this time is Fasbender v The Attorney-General [1922] 2 Ch 850. In this case, a British-born woman of British parentage went to Germany and there married a German subject between the date of the signing of the peace treaty between England and Germany and the date of its coming into force. She was the registered holder of shares in an English limited company, but her marriage meant she had become an alien under section 10 of the British Nationality and Status of Aliens Act 1914 so that her shares were subject to the charge imposed on German nationals and their property. Mrs Fasbender challenged this charge but lost her challenge on account of her changed nationality.

These examples illustrate that the ‘alien’ is a remarkably interesting character in the history of Britain who often faced precarity in legal status. The subject, on the other hand, had some entitlements to protection and ability to travel and work, even if these rights were sometimes not respected in practice. It is the loss of subjecthood that created foreigners within Britain rather than laws about aliens.

On the books, however, the British Nationality Act 1981 (the present law on citizenship), retains a section (section 50), which states that ‘alien’ means a person who is neither a Commonwealth citizen nor a British protected person nor a citizen of the Republic of Ireland, but it might apply to everyone else. This section has been through many of the legislations intact with these three categories mentioned and copied in other countries as well.^[59] All of these categories of who is excluded are applied just to certain nationals who are non-citizens and could be so listed without being categorized as aliens. Meanwhile, a British subject is a dying category today as one can neither acquire it by descent nor pass it on to anyone else. It is strange then that alien still persists as a category even though the phrasing in the 1981 act indicates there is no special legal meaning left of the word.

8. Being an Alien: Wartime Internment and Racial Exclusion in the USA

A comparative view is useful for contrasting with the British use of the word alien and clarifying its limits elsewhere as well as in Britain. As already mentioned, other countries also used powers over aliens, and most of these detained or interned enemies during the wars. In the USA, the Alien Enemies Act of 1798 was an act that allowed the American president to detain or deport the natives and citizens of an enemy nation during a war.^[60] Ironically, although alienage as a concept reached the USA from England through common law, in the USA, the first people designated aliens were British subjects.^[61] This was in the context of the war of independence. A circular dated 11 July 1812 and signed by US Secretary of State James Monroe declared that ‘all subjects of His Britannic Majesty, residing within the United States, have become alien enemies’.^[62] As such, British subjects were compelled by law to provide data such as their demographic information, addresses, and duration of time they had been in the USA to the authorities.

More than a century later, the Immigration and Nationality Act was enacted in 1952.^[63] The act collected many provisions and reorganized the structure of immigration law in the USA. The act has been amended many times over the years and contains many of the most important provisions of immigration law. It is contained in the US Code, a collection of all the laws of the USA. Title 8 of the US Code covers ‘Aliens and Nationality’. But in recent times, the word alien has made a resurgence in US deportation powers through the use of older law of 1798. During his presidential campaign in 2024, Donald Trump declared, ‘I will invoke the Alien Enemies Act of 1798 to target and dismantle every migrant criminal network operating on American soil’.^[64] Since coming into office, he has been deporting undocumented migrants using this eighteenth-century act. The Alien Enemies Act of 1798 is an unlikely source of such powers in peacetime as it was a wartime authority. The law permits the president to target these immigrants without a hearing and based only on their country of birth or citizenship, because it existed in the context of acts of war or espionage. In March 2025, Trump invoked the act to deport Venezuelan migrants suspected of being members of the Tren de Aragua gang, but later in the same month a federal judge issued a temporary restraining order blocking the deportation.^[65] At the time of writing, the Trump administration approached the US Supreme Court to lift the lower court orders but also sent more Venezuelan men (more than 200) to El Salvador to be imprisoned but the US Supreme Court has refused to permit the deportations and placed a temporary block on the removal of the men (on 19th April 2025).^[66]

Prior to this point of its use by Trump, the Alien Enemies Act has been invoked three times, each time during a major conflict: the war of 1812, the First World War and the Second World War. In the First and Second World War, the act was used for the detentions, expulsions, and restrictions targeting German, Austro-Hungarian, Japanese, and Italian immigrants based solely on their ancestry. It was also the main law which was used for Japanese internment and included both Japanese foreign nationals as well as Japanese Americans. More than 100,000 people of Japanese descent were sent to internment camps, for which the federal government apologized in 1988.^[67] Here, we can see this law is not just about aliens but is actually deployed against citizens such as Japanese Americans who were interned for no reason other than their heritage and descent as a reaction to the Japanese bombing of Pearl Harbor in 1941. In this manner, the word ‘alien’ and its use in America took on an exclusionary turn quite distinct from its use in the UK. It was used in a directly exclusionary manner to negate citizenship rights.^[68]

9. Ordinary Times of Racial Exclusion

While Trump’s use of the law is in peacetime, the Supreme Court in 1948 already examined its operation at the end of wartime in the case of Ludecke v Watkins 335 US 160 (1948), a case involving a German national who was ordered to be removed in 1946 under the Alien Enemies Act, despite the end of fighting in the Second World War. In a 5–4 decision, the high court dismissed the German national’s challenge, arguing ‘a state of war’ remained, and it was a matter of ‘political judgment’ to determine if an individual could be removed under the Alien Enemies Act, which precludes judicial review. After both wars were over, both presidents (President Woodrow Wilson during World War I and President Franklin D Roosevelt during World War II) had continued to intern people under the act, thereby indicating the overbroad authority an American president can hold under the exceptions made during wars and emergencies. The wartime usage, and its continued use in peacetime, exemplified how the US immigration policies targeted specific groups as ‘undesirable’ or ‘threatening’. Indeed, this became routine and normalized in other legislation such as the Chinese Exclusion Act (1882) which was the first US law that explicitly banned immigration based on nationality.^[69] This act banned all immigration of Chinese labourers for ten years. The Geary Act of 1892, passed as a part of Chinese exclusion, was the only law to authorize deportations based on ethnic identity.^[70]

In 1898, the Supreme Court ruled in United States v Wong Kim Ark 169 US 649 (1898) (the case that drew on Calvin’s Case) that the law did not prevent the children of Chinese immigrants born in the USA from acquiring birthright citizenship, thereby firmly establishing birthright citizenship. But the climate changed for newer arrivals as immigration quotas came into existence especially with the 1924 Immigration Act which classified Chinese immigrants as aliens ineligible for US citizenship.^[71] Even Chinese people born in the USA faced legal challenges proving their citizenship. Naturalization also became difficult. These exclusionary acts were racialized as it was widely considered that US institutions would not have the same assimilatory effects over Chinese people as they could have over white Europeans migrating to the USA.^[72]

This kind of racialized control of immigration became possible as the federal government became the central authority with full control over immigration, even though such a power is not enumerated in the US constitution. Such control was on the basis of the plenary power doctrine for immigration control which can be traced to the Supreme Court’s decision in Chae Chan Ping v United States 130 US 581 (1889). This case dealt with an 1888 law against Chinese migrants in California. Chae Chan Ping had lawfully resided in the USA for 15 years, journeying back to visit family in China only after carefully obtaining the official certificate provided by law as the means for his readmission. He was already at sea on his return voyage when Congress changed the law with immediate effect, nullifying the use of those certificates to gain re-entry. When Chae Chan Ping challenged his exclusion, the court decided that Congress has plenary power to regulate migration. Four years later, Fong Yue Ting v United States 149 US 698 (1893) extended the court’s deferential stance beyond exclusion at the border to give Congress wide authority in setting and changing substantive standards governing immigration and thereby consolidating the idea of plenary power in immigration control.^[73]

Although formal apologies have been made by the US government for Chinese exclusion,^[74] the legacy of these acts and the consolidation of the plenary power, all in the face of restricting Chinese migration, set a precedent for later immigration restrictions against more Asian groups including Indian, Japanese, and Middle Eastern people. The Immigration Act of 1924 introduced national origin quotas for most of these people and barred the immigration of ‘aliens ineligible for citizenship’.^[75] In the next section, we will see how this went hand in hand with denaturalization of many Asian people who were already US citizens.

Owing to this racialized period of American history, the concept of an ‘illegal alien’ became more prominent in US immigration law, shaping policies for decades. To date (as of April 2025), Chapter 7 of Title 8 (Aliens and Nationality) of the US Code is still headed ‘Exclusion of Chinese’ although all its constituent sections have long been repealed. It is unclear why it remains in the books.

10. Being an Alien After Being a Citizen: Denaturalization for Racial Exclusion

As already set out, it became clear that the Chinese Exclusion Act prevented naturalization and also paved the path for other Asians to be similarly targeted. Matters of racial exclusion became further aggravated when denaturalization of naturalized Asian people started taking place in the 1920s. A number of people affected by such denaturalization orders challenged these in the US courts.

The framing of racial differences and how certain races were considered too different from white Americans to ever be integrated into American society is a major theme of these cases as well. For instance, in 1922, the court ruled in Takao Ozawa v United States 260 US 178 (1922), that ethnic Japanese were not Caucasian, and therefore did not meet the ‘free white persons’ requirement to naturalize according to the Naturalization Act of 1790.^[76] Another prominent example is that of United States v Bhagat Singh Thind 261 US 204 (1923) which was about an Indian-origin person. Mr Thind had come to the USA in 1913 with strong educational credentials and then took part in military service for the USA. He was honourably discharged after serving in World War I. Yet Thind had an uphill struggle to gain US citizenship. He first tried in Washington and then Oregon to gain and retain his US citizenship. He failed in Washington to preserve his US citizenship but tried to block the cancellation of his Oregon-based citizenship. Since Ozawa v United States (1922) had decided that the meaning of white people for the purposes of the court was people who were members of the Caucasian race, Thind argued that he was a member of the Caucasian race. He attempted to be classified as a ‘free white person’ within the meaning of the Naturalization Act based on the fact that Indians and Europeans share common descent and similar languages. He tried to establish his ‘Aryan’ heritage through his high-caste birth. His lawyers also argued that Thind had a revulsion to marrying an Indian woman of the ‘lower races’ when they said, ‘The high-caste Hindu regards the aboriginal Indian Mongoloid in the same manner as the American regards the Negro, speaking from a matrimonial standpoint’.^[77] All of this was an endeavour to demonstrate that Thind appreciated and concurred with American racism of the day and that he was a Caucasian. Ironically, the court concluded that this was not sufficient to prove race.

The court reiterated its holding in Ozawa v United States, explaining that the words ‘free white person’ in the naturalization act were ‘synonymous with the word “Caucasian” only as that word is popularly understood’. The court held that the exclusion of non-whites was based on the idea of racial difference rather than the idea that one race is superior or inferior to another race. The court argued that the racial difference between Indians and whites was so great that the ‘great body of our people’ would reject assimilation with Indians.

As a result of the US Supreme Court decision finding that no person of Indian origin could become a naturalized American, not only were new applicants from India denied the privilege of naturalization, but also the new racial classification permitted the retroactive revocation of US citizenship granted to Asian Indian Americans. Amongst those affected was the very first person from the Indian subcontinent to have become an American citizen, AK Mozumdar.^[78] Citizenship for naturalized minorities became as precarious as any status connected to alienhood. Creation of foreignness was not just at the border or by holding in detention. People could be rendered foreign based merely on racial xenophobia with no pretention of any other formal neutral reason. To this day, the plenary power doctrine in immigration law has made it difficult to challenge immigration decisions, although limited statute-based challenges to executive action remain available, as do procedural due process challenges, at least to deportation proceedings.

It is important to note that the direction of travel for the law has not always been unidirectional. At times, there have been attempts to be inclusive. The Biden administration, for instance, attempted in 2021 to replace the word ‘alien’ in US immigration laws. The Democrats proposed that the Immigration and Nationality Act be amended to say that ‘[t]he term “noncitizen” means any person not a citizen or national of the United States’. As we have seen, this initiative has now been long superseded with Trump’s efforts to deport foreign nationals using powers from the eighteenth-century Aliens Act. A pertinent question is why the Trump Administration continues to draw on an act passed in 1798 when the USA now has an entire range of immigration, criminal, and intelligence laws, including modern surveillance tools for dealing with criminals, spies, and other enemies of the state. This usage of an old law simply serves to underline how outdated the ‘alien’ approach is in dealing with foreigners who are considered security threats.

11. Excluding Racialized British Subjects: Legal Transplantation and Change in Australia

Another part of the globe where alienage as a legal transplant from Britain thrived was Australia, which was a Dominion settled by mainly white British settlers. A number of people from British colonies were settled there long-term by the turn of the twentieth century.^[79] These people had moved across the British Empire as British subjects, although there had been many attempts to exclude them through prohibitive measures such as strict educational examinations required for entrance into Australia.^[80] When Australia was drafting its constitution, the primary concern was about excluding the people who were already present within its borders but were not considered desirable by the new nation state with its focus on racial characteristics. Many of these were the aforementioned British subjects from Asia or Africa. A specific section on excluding aliens was drafted into the Australian constitution section 51(xix). It is referred to as the ‘aliens power’ and enables the federal government of Australia (the commonwealth) to make someone alien and deport them.

From the very conception of the independent nation of Australia then, who is an alien was an exclusionary and racialized idea. Issues of integration and who is unlikely to become truly ‘Australian’ within a vision of ‘white Australia’ were identified early on in the process of nation building in Australia. Just as in America, there was no sense of optimism that Australian institutions would have any assimilatory effect on these people who were simply considered too different.

Australian legal scholars Joe McIntyre and Sue Milne write that the constitutional convention debates say little about the aliens power.^[81] Edmund Barton (who served as the first prime minister of Australia) spoke to the significance of the power at the Melbourne convention, saying that he was of the ‘strong opinion that the moment the Commonwealth obtains any legislative power at all it should have the power to regulate the affairs of the people of coloured or inferior races who are in the Commonwealth’.^[82] There is nothing about how people will become citizens in the debates, so the aliens power provides a racialized vision of the nation as one that is not available to others from the British Empire of different ethnicity.^[83] As McIntyre and Milne argue about the aliens power, it appeared to constitute Australia in terms of exclusion rather than anything else which constituted Australian citizenship through inclusion.^[84]

12. Aboriginal Australians: Indigenous Aliens?

The racialized exclusion achieved through the aliens power in Australia reached its zenith when it was employed to potentially recategorize some Aboriginal Australians as aliens in the twenty-first century. In Love v Commonwealth of Australia; Thoms v Commonwealth of Australia [2020] HCA 3, the issue was about the applicability of aliens under section 51(xix) of the Australian constitution (1901) to indigenous Australians. A case in 2020 considered whether Aboriginal Australians can become aliens and whether they can be declared aliens under the migration act because of the aliens power in the constitution. There is an established legal principle set out in Mabo v Queensland (No 2) [1992] HCA 23 that an Aboriginal Australian person has to be recognized as such by one of the recognized communities of Australia, and by their leader, and they also have to self-identify as indigenous. When all these tests are met, then they are recognized as Aboriginal. This is because there is a special and extraordinarily strong spiritual and cultural link between indigenous people and their country which is established over a long period of history.

Thoms, a descendant and elder of the Gunggari people, was born in New Zealand. Love, a descendant of the Kamilaroi tribe and recognized by a Kamilaroi elder, was born in Papua New Guinea. Both the Gunggari and Kamilaroi peoples are indigenous peoples of Australia and Thoms and Love identify as belonging to these communities, respectively. Both communities recognized Thoms and Love as belonging to their communities. In this manner, their belonging as Aboriginal was satisfied by prior established laws.

Both Thoms and Love lived in Australia under non-permanent visas, and both were sentenced for criminal offences. Their visas were consequently cancelled and the commonwealth sought to deport them. The question for the court was whether non-citizen Aboriginal Australians could be deported as aliens under the constitution.

The majority (4:3) determined that Aboriginal Australians (or Aboriginal and Torres Strait Islander peoples) could not be considered aliens, and that the commonwealth lacks constitutional power to deport Aboriginal persons under the Migration Act 1958. The high court reaffirmed the continued unique cultural, historical, and spiritual connection that indigenous peoples have to country or ‘the territory of Australia’ regardless of whether or not they were born there or hold citizenship. The Victorian government intervened to support the plaintiffs, arguing that Aboriginality is equivalent to citizenship. They concurred that the unique relationship between members of Aboriginal societies and the land and waters of Australia meant that Aboriginal Australians are not captured by section 51(xix). However, the commonwealth argued that the Australian Citizenship Act 2007 validly defines an alien as any persons born overseas and this included both Love and Thoms.

The majority Bell, Nettle, Gordon, and Edelman found that the parliament did not have the power to treat an Aboriginal person as an alien. Gordon and Bell reaffirmed the sui generis position of Aboriginal Australians in this Australia.^[85] Nettle suggested that the conclusion that a person was an alien if they were born abroad or were a foreign citizen was ‘at odds with the growing recognition of Aboriginal peoples as “the original inhabitants of Australia” and the ubiquity of Australian dual citizens’. Chief Justice Kiefel, Gageler, and Keane disagreed with the majority in separate judgments. The dissenting judges concluded that Aboriginal Australians can be aliens. As the plaintiffs were not citizens under valid legislation enacted under section 51(xix), they were aliens and could be deported.

While this time the majority opinion (by 4 to 3) may have been favourable to indigenous people, there could be other scenarios in the future where this issue may come up again for consideration and the minority view may gain traction.^[86] Instead of looking at how indigeneity may be at odds with modern Australian citizenship, courts should consider how issues of alienhood arise at all for the descendants of original inhabitants of Australia when they live in Australia. Australia’s attempts to define who is its citizen by ring-fencing who is not through aliens power ensures that the language of alienhood is very much present in its current legal discourse.

13. ‘Alien’ in Judicial Language About Immigration

As we have seen, the word alien can be located in judicial decisions. Often, judges use the word not just to refer to the statutes that use it, but in a freestanding manner to present a range of metaphorical images about who belongs. Professor of Advocacy and Ethics, Keith Cunningham-Parmeter has conducted an analysis of US Supreme Court judgments and the use of the word alien or other metaphors of immigration in these decisions.^[87] He finds it is commonplace for the judges to use metaphors such as ‘immigrants are aliens’, ‘immigration is a flood’, and ‘immigration is an invasion’, and even use pejorative racialized terms for specific ethnic groups. Drawing from cognitive linguistics, Cunningham-Parmeter analyses the metaphors to show how these can enlighten as well as mislead because these can highlight negative attributes and paint distorted pictures. He explains:

The metaphor immigrants are illegal aliens, for example, highlights the criminal characteristics of some immigrants (the target domain), while ignoring the fact that most immigrants reside legally in the United States. Metaphors are most likely to deceive listeners when they conflate two domains entirely. If the target domain becomes the source domain in the listener’s mind, then the mapping process changes from metaphoric to literal.

The Supreme Court’s use of such language has a powerful effect on the audience of the decisions. Cunningham-Parmeter explains: ‘Immigration opinions often literalize these personal metaphors: through metaphor, the immigrant becomes the alien, the alien becomes the illegal, and the illegal becomes the Mexican’.

In UK case law too, the word aliens can be found, although it does not have as much presence in the legislations as it does in the USA. Recent legislation in the UK uses alien to mean other species, for example the Invasive Alien Species (Enforcement and Permitting) Order 2019 which is about animal and plant species which can affect natural ecosystems and biodiversity. How does it come up in case law, then, in the context of foreign human beings? It mainly does so in the context of national security, for example, in the Belmarsh 9 case, A and others v Secretary of State for the Home Department [2004] UKHL 56. This is a case about criminal proceedings against terrorism suspects where nine foreign (non-UK) nationals living in the UK were detained without trial in the Belmarsh prison. There was no criminal charge but they were being detained indefinitely and so they challenged the lawfulness of their detention as violation of Article 5(1)(f) of the European Convention on Human Rights (ECHR).

The House of Lords opined that the possibility of indefinite detention of foreign nationals indeed breached Article 5(1)(f) ECHR. It agreed with the government that it is possible to derogate from Article 5 if there was a lawful requirement such as a national emergency (as per Article 15 ECHR), but they did not think that there was such a requirement for derogation in the instance case. However, in the current case, the measures were disproportionate by nature and discriminatory in their effect (national terrorist suspects were not affected, while foreign suspects could be detained indefinitely—unless they would voluntarily leave the country, in which case they were free to go). Therefore, the House of Lords decided that section 23 of the Anti-terrorism, Crime and Security Act 2001, which allowed for indefinite detention of foreign suspects who could not leave the UK (for example because they would be tortured in their own country) was declared incompatible with the UK’s international human rights obligations enshrined in the ECHR.

While the outcome of this case has often been lauded as pro-human rights of foreigners, it uses the word alien throughout. Yet this case is about part 4 of the Anti-terrorism, Crime and Security Act 2001 which does not include the word alien. The case exemplifies a wider trend; most often the use of alien is in case law on national security. It could be that such a link exists because the concept of allegiance is at stake in national security cases. Allegiance is often linked to protection from the sovereign, and on the other hand lack of allegiance leads to loss of protection from the state. This has been made quite clear in a number of UK cases on cancellation of citizenship where the lack of allegiance has been linked to the subsequent withdrawal of protection. For example, in the case Pham v Secretary of State for the Home Department, in the Court of Appeal [2018] EWCA Civ 2064, Lady Arden said:

While in deportation while there may be other issues which arise which are not applicable to citizenship deprivation, the CJEU clearly indicated in that passage that in terms of the public good, serious past conduct alone may be enough to create a sufficient risk. That may be because the risk may come from the consequences of what the malefactor has done, and that risk might be reduced by deprivation of his citizenship. Or it may be because he has breached his duty of loyalty so fundamentally that it cannot be reasonable to expect the state to continue to provide him with the protection which flows from citizenship…

This allegiance-protection model and the rendering of citizens foreign via this has created a link between alien, alienage, and national security even if as a byproduct rather than as intended judicial creation. Now the word alien creeps in through backdoors when not placed in legislation. It need not always be like this. There are other countries which also used the word alien a great deal in remarkably similar contexts in the past. Some have successfully managed to drop the word alien. Two of these are Canada and New Zealand. Canada ceased using the term alien in its immigration laws with the enactment of the Immigration and Refugee Protection Act in 2002.^[88] This act replaced the earlier Immigration Act of 1976, which did include the term alien. The Immigration and Refugee Protection Act modernized the Canadian immigration framework and adopted more inclusive language, referring to an individual from another country as a foreign national instead of alien. New Zealand too had a Citizenship Act 1977, which defined an alien as a person who is not a New Zealand citizen, a Commonwealth citizen (British subject), a British protected person or an Irish citizen. However, the term alien is not present in the more recent Immigration Act 2009, indicating that its usage has been discontinued.^[89] Could it be that New Zealand and Canada can act as models for modern day UK, as well as for other interested nations who do not wish to carry on with the alienage legacy? It is entirely plausible that legal transplantation can work in a multi-directional manner so these jurisdictions could lead the way for the future march of the law in the UK.

14. Conclusion

The word ‘alien’ should be replaced with ‘non-citizen’ or ‘foreign national’ in UK case law and legislation. Such substitution is a necessary first step to dissociate from the racialized and dehumanizing connotations of the word alien. There is little that stands in the way of removing the antiquated concept of alienage from present-day laws in the UK. Tracing the origins and evolution as well as transmission of the term alien in law establishes that the term has created immeasurable inequality and injustice. As a legal irritant in the process of transplantation, it mostly prompts the racialization of minorities who are treated as foreign. The term can be retired from British immigration and nationality laws without any palpable loss in legal categorization or meaning.

Colonial legal transplantation of the term to other countries such as Australia and the USA, which were part of the British Empire and are largely populated by European settlers, resulted in departures from its original usage. It enabled widespread use of the power to control foreign populations as well as those already present long-term within these countries (including indigenous populations) in a deeply racialized manner. In the UK, exclusion of former colonized subjects from the British Isles has been attempted in a different manner by the removal of subjecthood status and associated legal barriers to their entry and residence. While in present-day UK, statutory instruments do not usually use the term alien very often, in Australia it is a specific constitutional power. In the USA it is part of many statutes including those wholly unrelated to immigration or nationality. The word alien is thus far less entrenched in current UK law than it is in Australia or the USA, and the UK may be able to adopt changes similar to New Zealand and Canada.

In the interim period from the use of the law in medieval England to the present day, the word has gained new traction in science fiction to mean extra-terrestrial aliens. The quotes from legendary science fiction writers Octavia Butler and Ray Bradbury set out at the beginning of this paper underline the sophisticated approach science fiction has adopted towards using aliens as mirrors that show us our own human failings rather than othering them as ‘others’. Science fiction has started to humanize the imaginary creatures who inhabit outer space and do not belong to Earth. It is strange then that human ‘aliens’ continue to be dehumanized as illegal and not belonging anywhere in the world. They are unable to live with the dignity human beings deserve.

There is considerable gain in terms of aligning the usage of the word in law too with modern sociolinguistic use of the word and dissociating with its racialized use in ‘othering’. Given the inclusion of non-citizens in many universal human rights instruments from the mid-twentieth century onwards, there is a strong case to stop using this term in the UK. Achieving this would require a reflective approach to its continued usage in UK case law (especially in those linked to national security where it occasionally comes up in modern times) and in academic commentaries on a variety of immigration or migration linked topics (for example on Brexit where it appears to refer to third country nationals with increasing frequency). While this may appear to only be about using terminology more mindfully, rather than addressing any of the underlying causes of structural racism, it does direct us towards acknowledging historical and epistemic injustices and is a necessary first step towards reform.

1. Alan Watson, Legal Transplants: An Approach to Comparative Law (Edinburgh 1974). ↑

2. Michele Graziadei, ‘Legal Transplants and the Frontiers of Legal Knowledge’ (2009) 2 TIL 723. ↑

3. Gunther Teubner, ‘Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up in New Differences’ (1998) 61 MLR 11. ↑

4. Aaron John Gulyas, Extraterrestrials and the American Zeitgeist: Alien Contact Tales Since the 1950s (McFarland 2013). ↑

5. Sabelo J Ndlovu-Gatsheni, ‘Epistemic Injustice’, in Francisco Javier Carrillo and Günter Koch (eds), Knowledge for the Anthropocene (Elgar 2021). See also Shamila Ahmed, Institutional Racism: Colonialism, Epistemic Injustice and Cumulative Trauma (Taylor & Francis 2024). ↑

6. Interview with Theodore Sturgeon, NBC Radio Anthology (28 February 1954) accessed via Past Daily <https://pastdaily.com/2017/03/19/theodore-sturgeon-1954-past-daily/>. ↑

7. Jessica Learish, ‘The Greatest Alien Encounter Movies Ever, Ranked’ (CNET, 12 January 2020) <https://www.cnet.com/pictures/greatest-alien-encounter-movies-ranked/>. ↑

8. Ashley R Shapiro ‘The Criminalization of the Immigration System: The Dehumanizing Impact of Calling a Person “Illegal”’ (2018) 21 RPILR 117. ↑

9. Co Litt 129a. ↑

10. Ann Dummett and Andrew Nicol, Subjects, Citizens, Aliens and Others (Weidenfeld & Nicolson 1990) 24. ↑

11. Paul Brand, ‘The Origins of “Alien Status” in the English Common Law’ (2018) 39 JLH 18–28. ↑

12. Blackstone’s Commentaries on the Laws of England, Book I, Chapter X: Of People, Whether Aliens, Denizens or Natives <https://avalon.law.yale.edu/18th_century/blackstone_bk1ch10.asp>. ↑

13. The terms ‘dominions’ and ‘Dominions’ have different meanings as dominions refers to territory under rule in general, whereas British Dominions were the forerunners of present-day independent Commonwealth countries. ↑

14. FB Edwards, ‘Natural-Born British Subjects at Common Law’ (1914) 14 JSCL 314. ↑

15. Matthew Ward and Matthew Hefferan (eds), Loyalty to the Monarchy in Late Medieval and Early Modern Britain, C. 1400-1688 (Palgrave Macmillan 2020). ↑

16. Keechang Kim, ‘Calvin’s Case (1608) and the Law of Alien Status’ (1996) 17 JLH 155. ↑

17. Polly J Price, ‘Natural Law and Birthright Citizenship in Calvin’s Case (1608)’ (1997) 9 Yale JLH 73. ↑

18. Calvin’s Case (1608) 7 Co Rep 1a, 77 ER 377; Polly J Price, ‘Natural Law and Birthright Citizenship in Calvin’s Case (1608)’ (1997) 9 Yale JLH 73, 77. ↑

19. Marshall B Woodworth, ‘Who are Citizens of the United States-Wong Kim Ark Case-Interpretation of Citizenship Clause of Fourteenth Amendment’ (1898) 32 ALR 554. ↑

20. Gavin Loughton, ‘Calvin’s Case and the Origins of the Rule Governing “Conquest” in English Law’ (2004) 8 AJLH 143. ↑

21. Richard T Ashcroft and Mark Bevir. ‘British Multiculturalism after Empire’, in Richard T Ashcroft and Mark Bevir (eds), Multiculturalism in the British Commonwealth (California University Press 2019). ↑

22. Daniel Gorman, ‘Wider and Wider Still? Racial Politics, Intra-imperial Immigration and the Absence of an Imperial Citizenship in the British Empire’ (2002) 3 JCCH. ↑

23. Jatinder Mann, ‘The Evolution of Commonwealth Citizenship, 1945–1948 in Canada, Britain and Australia’ (2012) 50 CCP 293. ↑

24. Randall Hansen, ‘The Politics of Citizenship in 1940s Britain: The British Nationality Act’ (1999) 10 TCBH 67. ↑

25. East African Asians v UK (1973) 3 EHRR 76. The Commission was the forum for individuals to approach between 1954 and 1988 before they could access the European Court of Human Rights. ↑

26. East African Asians v UK (1973) 3 EHRR 76. ↑

27. Andrew Schaap ‘The After Rights of the Citizen of the UK and its Colonies: Who is the Subject of the Rights of the Citizen in Britain’s Hostile Environment?’ (2024) 28 IJHR 1437. ↑

28. Harry Goulbourne, ‘Exodus? Some Social and Policy Implications of Return Migration from the UK to the Commonwealth Caribbean in the 1990s’ (1999) 20 PS 157. ↑

29. Ian RG Spencer, British Immigration Policy Since 1939: The Making of Multi-racial Britain (Routledge 1997). ↑

30. Helena Wray, ‘The “Windrush Generation” and Citizenship’ (2018) Global Citizenship Observator, Robert Schuman Centre <https://globalcit.eu/the-windrush-generation-and-citizenship/>. ↑

31. Chris Waters, ‘“Dark Strangers” in Our Midst: Discourses of Race and Nation in Britain, 1947–1963’ (1997) 36 JBS 207. ↑

32. Charles Blake, ‘Citizenship, Law and the State: The British Nationality Act 1981’ (1982) 45 MLR 179. ↑

33. Dummett and Nicol (n 10). ↑

34. Mike Slaven, ‘The Windrush Scandal and the Individualization of Postcolonial Immigration Control in Britain’ (2022) 45 ERS 49. ↑

35. Amelia Gentleman, The Windrush Betrayal: Exposing the Hostile Environment (Faber & Faber 2019); see also Fiona Bawdon, ‘Remember When Windrush Was Still Just the Name of a Ship?’ in Devyani Prabhat (ed), Citizenship in Times of Turmoil? (Elgar 2019). ↑

36. Bart Lambert and W Mark Ormrod, ‘Friendly Foreigners: International Warfare, Resident Aliens and the Early History of Denization in England, c. 1250–c. 1400’ (2015) 130 EHR 1. ↑

37. William A Shaw (ed), ‘Letters of Denization & Acts of Naturalization for Aliens in England & Ireland, 1603-1700’ (1911). Huguenot Society of London: contains letters of denization and acts of naturalization republished in 457 pages, over 100 of which are on Irish denizations and naturalization. ↑

38. Ibid. ↑

39. Daniel Statt, ‘The Birthright of an Englishman: The Practice of Naturalization and Denization of Immigrants Under the Later Stuarts and early Hanoverians’ (1989) 25 Huguenot Soc Jl 61. ↑

40. W Mark Ormrod, ‘Enmity or Amity? The Status of French Immigrants to England during an Age of War, c. 1290–c. 1540’ (2020) 105 History 28. ↑

41. Elizabeth Francesca Prettejohn and Peter Trippi, ‘Laboratories of Creativity: The Alma-Tademas’ Studio-Houses and Beyond’ [2018] British Art Studies 9. ↑

42. However, the last private naturalization measure was the James Hugh Maxwell (Naturalisation) Act 1975. ↑

43. UK Visas and Immigration. ‘Historical Background Information on Nationality’ (Gov.uk, 22 May 2023) <https:// www.gov.uk/government/publications/historical-background-information-on- nationality/historical-background-information-on-nationality-accessible>. ↑

44. Mark Pearsall, ‘British Nationality: Subject or Citizen?’ (The National Archives, 14 April 2014) <https://media.nationalarchives.gov.uk/index.php/british-nationality-subject-citizen/>. ↑

45. Bronwen Manby, Citizenship in Africa: The Law of Belonging (Bloomsbury 2018). ↑

46. Alison Bashford and Catie Gilchrist, ‘The Colonial History of the 1905 Aliens Act’ (2012) 40 JICH 409. ↑

47. Alison Bashford and Jane McAdam, ‘The Right to Asylum: Britain’s 1905 Aliens Act and the Evolution of Refugee Law’ (2014) 32 LaHR 309. ↑

48. Oliver Brown, British Right-Wing Anti-semitism, 1918–1930 (PhD diss., University of Gloucestershire 2021). ↑

49. Edward Stanley Roscoe, ‘Aliens in Great Britain’ (1930) 16 Transactions Grotius Soc’y 65. ↑

50. The first Aliens Restriction Order was also issued on 5 August 1914 (1914/1161), and this was quickly followed by two other orders-in-council on 10 and 12 August (1914/1170 and 1229) and a fourth on 20 August (1914/1258). These were brought together as the Aliens Restriction (Consolidation) Order 1914/1374 on 9 September. ↑

51. Mark Pearsall, ‘Enemy Aliens in Great Britain 1914–1919’ (The National Archives Blog, 24 March 2017) <https://blog.nationalarchives.gov.uk/enemy-aliens-great-britain-1914-1919/>. ↑

52. The National Archives has a sample of Metropolitan Police Aliens Registration Office: Sample Record Cards in MEPO 35. ↑

53. JC Bird, Control of Enemy Alien Civilians in Great Britain, 1914-1918 (first published 1986, Routledge 2015). ↑

54. Helen Irving, Citizenship, Alienage, and the Modern Constitutional State: A Gendered History (Cambridge University Press 2016). ↑

55. Two of the official lists of German subjects, military and civilians interned in 1915–16 survive in The National Archives, in WO 900/45 and WO 900/46. ↑

56. Gerhard Fischer, ‘Enemy Aliens’ (2021) 30 ANGLICA 107; Cate Elkner, Enemy Aliens (Connor Court Publishing Pty Ltd 2005). ↑

57. Panikos Panayi, Prisoners of Britain: German Civilian and Combatant Internees During the First World War (Manchester University Press 2012). ↑

58. The National Archives has papers relating to the policy of internment, individual internees, and the camps in which they were interned. ↑

59. For New Zealand, see Paul Spoonley, ‘Aliens and citizens in New Zealand’ in Atsushi Kondo (ed) Citizenship in a Global World: Comparing Citizenship Rights for Aliens (Palgrave Macmillan 2001); for Australia, see Catriona Elder, ‘Invaders, Illegals and Aliens: Imagining Exclusion in a White Australia’ (2003) 7 LTC 221; for Canada, see Ivan L Head, ‘The Stranger in Our Midst: A Sketch of the Legal Status of the Alien in Canada’ (1964) 2 Can Year Intl Law 107 and for the USA, see Kevin R Johnson, ‘Aliens and the US Immigration Laws: The Social and Legal Construction of Nonpersons’ (1996) 28 U Miami ILR 263. ↑

60. Terri Diane Halperin, The Alien and Sedition Acts of 1798: Testing the Constitution (JHU Press 2016). ↑

61. Paul Spickard, Francisco Beltrán and Laura Hooton, Almost All Aliens: Immigration, Race, and Colonialism in American History and Identity (Routledge 2022). ↑

62. Maximilian Koessler, ‘“Subject,” “Citizen,” “National,” and “Permanent Allegiance”’ (1946) 56 YLJ 58. ↑

63. US Department of State, ‘The Immigration and Nationality Act of 1952 (The MacCarran-Walter Act)’ Office of the Historian, Milestones in the History of US Foreign Relations <https://history.state.gov/milestones/1945-1952/immigration-act>. ↑

64. Rachel Treisman, ‘Trump is Promising Deportations under the Alien Enemies Act of 1798. What is it?’ (NPR, 19 October 2024) <https://www.npr.org/2024/10/19/nx-s1-5156027/alien-enemies-act-1798-trump-immigration>. ↑

65. Madeline Halpert, ‘Judge Argues US Treated Nazis Better Than Venezuelan Migrants Who Were Deported’ (BBC News, 24 March 2025) <https://www.bbc.co.uk/news/articles/cp3y03l1gvko>. ↑

66. Mallory Moench, ‘US Supreme Court Halts Deportation of Detained Venezuelans’ (BBC News, 19 April 2025) <US Supreme Court halts deportation of Venezuelans under wartime law – BBC News>. ↑

67. Civil Liberties Act of 1987 (100th Congress, HR 442). ↑

68. Douglas Epps and Rich Furman, ‘The “Alien Other”: A Culture of Dehumanizing Immigrants in the United States’ (2016) 14 SW&S. ↑

69. The Chinese were portrayed as invaders and job stealers. For example, a 27 August 1873 headline in the San Francisco Chronicle read ‘THE CHINESE INVASION! They Are Coming, 900,000 Strong’. ↑

70. US Senate, Resolution 201, ‘A resolution expressing the regret of the Senate for the passage of discriminatory laws against the Chinese in America, including the Chinese Exclusion Act’ (2011). ↑

71. Mae M Ngai, Illegal Aliens and Alien Citizens: United States Immigration Policy and Racial Formation, 1924-1945 (Columbia University 1998). ↑

72. Bill Ong Hing, ‘Beyond the Rhetoric of Assimilation and Cultural Pluralism: Addressing the Tension of Separatism and Conflict in an Immigration-Driven Multiracial Society’ (1993) 81 Calif L Rev 863. ↑

73. See generally, Hiroshi Motomura, ‘Immigration Law After a Century of Plenary Power: Phantom Constitutional Norms and Statutory Interpretation’ (1990) 100 YALE LJ 545, 550–54 and Natsu Taylor Saito, ‘The Enduring Effect of the Chinese Exclusion Cases: The “Plenary Power” Justification for On-Going Abuses of Human Rights’ (2003) 10 ASIAN LJ 13, 13. ↑

74. On 18 June 2012, the US House of Representatives passed H. Res. 683, which formally expresses the regret of the House of Representatives for the Chinese Exclusion Act. S. Res. 201, a similar resolution, had been approved by the US Senate in October 2011. In 2014, the California legislature took formal action to pass measures to recognize the accomplishments of Chinese Americans in California and to call upon Congress to formally apologize for the 1882 adoption of the Chinese Exclusion Act. ↑

75. A Warner Parker, ‘The Quota Provisions of the Immigration Act of 1924’ (1924) 18 Am Jour Intl Law 737. ↑

76. Steven C Teel, ‘Lessons on Judicial Interpretation: How Immigrants Takao Ozawa and Yick Wo Searched the Courts for a Place in America’ (1996) 13 OAH Magazine of History 41. ↑

77. An interesting analysis of the arguments in this case: Arjun Shankar, ‘On Brown Blood: Race, Caste, and the Bhagat Singh Thind Case’ (2023) 46 Ethnic Studies Review 135. ↑

78. Karen McBeth Chopra, ‘A Forgotten Minority – An American Perspective: Historical and Current Discrimination Against Asians from the Indian Subcontinent’ [1995] Det CL Rev 1269. ↑

79. Jatinder Mann, ‘The Redefinition of Citizenship in Australia, 1950s–1970s’ in Citizenship in Transnational Perspective: Australia, Canada, and Aotearoa New Zealand (Palgrave Macmillan, Cham 2023). ↑

80. Kama Maclean, ‘Examinations, Access, and Inequity Within the Empire: Britain, Australia and India, 1890–1910’ (2015) 18 Postcolonial Studies 115. ↑

81. Joe McIntyre and Sue Milne, ‘The Alien and the Constitution: The Legal History of the “Alien” Power of the Australian Commonwealth’ (2020). Available at SSRN 3663533. ↑

82. Official record of the Australasian Federal Convention of 1897/8, Melbourne (25 January 1898, 228–29) <https://www.aph.gov.au/About_Parliament/Senate/Publications_and_resources/Other_resources/Constitutional_Conventions>. ↑

83. Catherine Zhou, ‘The Racialisation of Constitutional Alienage’ (2024) 16 MelbU Law Rev 723. ↑

84. McIntyre and Milne (n 79). ↑

85. This decision was based on Mabo (No 2), a decision which highlighted that Indigenous Australians are the first peoples, and the connection to Australia has never been severed. ↑

86. Shireen Morris, ‘Love in the High Court: Implications for Indigenous Constitutional Recognition’ (2021) 49 Fed Law Rev 410. ↑

87. Keith Cunningham-Parmeter, ‘Alien Language, Immigration Metaphors and the Jurisprudence of Otherness’ (2011) 79 Fordham Law Rev 1545. ↑

88. Bruno Gélinas-Faucher and Delphine Nakache, ‘Canadian Immigration and Refugee Policies since 1945’, in Mahmoud Masaeli and Lauchlan T Munro (eds), Canada and the Challenges of International Development and Globalization (University of Ottowa Press 2018). ↑

89. Peter Skilling, ‘Immigration Policy in New Zealand: Divergent Narratives, Shared Assumptions and National Identity’ (2013) 6 Crit Pol Studies 363. The 2009 act tidied up outdated terminology in immigration law. New Changes brought by the Immigration Act 2009 of New Zealand—Visa Lawyer Blog—19 October 2010. ↑