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

Abstract

The word ‘alien’ should be replaced with ‘non-citizen’ or ‘foreign national’ in UK case law and legislation. Legal transplantation of the term from England to other countries such as Australia and the United States which were part of the British Empire, and are largely populated by European settlers, resulted in departures from its original usage to mean non-subject. It was used to control foreign populations, as well as those already present long-term within these countries (including indigenous populations) in a deeply racialised manner took place. In the UK, exclusion of former colonised subjects from the British Isles was attempted by removal of subjecthood status and associated legal barriers to their entry and residence rather than through identifying aliens. While in present-day UK, statutory instruments do not use the term alien very often, in Australia it is a specific constitutional power. In the United States, the term alien is part of many statutes including those wholly unrelated to immigration or nationality. Yet in other similar Empire-linked settled jurisdictions which also borrowed the term from Britain, such as New Zealand and Canada, the word alien was dropped from modern immigration and nationality statutes altogether in order to avoid its pejorative connotations. The implication of this comparative analysis is that the word alien is far less entrenched in current UK law than it is in Australia or the US, and the UK may be able to adopt similar changes as New Zealand and Canada.