Precarious Workers and Probationary Wives: How Immigration Law Discriminates Against Women
| Author | Catherine Briddick |
| Date | 01 April 2020 |
| Published date | 01 April 2020 |
| DOI | 10.1177/0964663919839187 |
| Subject Matter | Articles |
Article
Precarious Workers
and Probationary Wives:
How Immigration
Law Discriminates
Against Women
Catherine Briddick
University of Oxford, UK
Abstract
Immigration law prescribes a range of statuses into one of which individuals must try
to fit to be allowed entry. This range establishes a hierarchy from highly advantageous
forms of permission to enter or remain in the United Kingdom to ones to which few
rights accrue, which create dependency or are precarious. Against the backdrop of
this hierarchy, I make two claims: that women are disadvantaged by immigration law’s
distribution of migration statuses; and, that this disadvantage is the result of rules
which indirectly discriminate against women, discrimination which may be unlawful
revealed by statistical information, I rely on data from over 10 years to demonstrate
that certain migration opportunities are distributed differently to women and men.
This distribution is then subjected to scrutiny, potential ‘justifications’ for it, including
those premised on sexed/gendered stereotypes, being analysed and refuted. Finally,
an understanding of women’s disadvantageous and discriminatory treatment in rela-
tion to the family and labour migration routes considered, is combined with a broader
consideration of gendered patterns of migration and the statuses that such patterns
produce, to found the normative claim that immigration law as whole disadvantages
women.
Corresponding author:
Catherine Briddick, Martin James Departmental Lecturer in Gender and Forced Migration, Refugee Studies
Centre, Oxford Department of International Development, University of Oxford, 3 Mansfield Road, Oxford
OX1 3TB, UK.
Email: catherine.briddick@qeh.ox.ac.uk
Social & Legal Studies
2020, Vol. 29(2) 201–224
ªThe Author(s) 2019
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/0964663919839187
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Keywords
Domestic worker, immigration law, indirect discrimination, labour migration, migration
status, sex discrimination, stereotypes, wife
Introduction
Immigration law prescribes a range of migration statuses into one of which individuals
must try to fit to be allowed entry. This range establi shes a hierarchy, from highly
advantageous forms of permission to enter or remain in the United Kingdom at the top
to ones to which few rights accrue, which create dependency or are precarious at the
bottom. A person’s migration status determines how long she or he is permitted by law to
remain in the United Kingdom (a few months, years or permanently), on what basis (as a
visitor, student, family member, worker or permanent resident) and what rights she or he
has while here (to work, to study, to access welfare benefits or healthcare, to bring family
members and/or to settle here permanently). A person’s migration status is also deter-
minative of an ever-increasing plethora of social rights, including the ability to open a
bank account, rent private accommodation or hold a driving licence (see Part 2, Immi-
gration Act 2016; Yuval-Davis et al., 2018). In the United Kingdom, some migration
statuses, such as ‘indefinite leave to remain’, bestow rights that are almost analogous to
those enjoyed by British citizens/subjects, while others, such as ‘temporary admission’,
provide only a very limited ability to enter and confer very few rights. Migration status is
‘at once transient and indelible’, determining rights for a particular fixed period, but
often also having an enduring impact, even after the ‘migrant’ has become a ‘citizen’
(Freedland and Costello, 2014: 4).
Against the backdrop of this hierarchy, I make two claims about contemporary British
immigration lawand the migration statuses it creates.First, that women are disadvantaged
by immigration law’s distribution of migration statuses. Second, that this disadvantage is
the result of rulesand practices which may unlawfullydiscriminate on the grounds of sex.
Both indirect and direct discrimination on suspect grounds have and continue to be
features of immigration law. Consider, for example, the provisions of the Common-
wealth Immigrants Act 1962 (challenged in East African Asians v. UK (1973)) which
extended immigration control to the citizens of independent Commonwealth countries
and those of British dependencies who had passports issued by the Colonial, rather than
UK government (indirect discrimination on the grounds of race) or the rule challenged in
Abdulaziz, Cabales and Balkandali v. UK (1985) that allowed resident husbands to bring
their wives to the United Kingdom, but denied resident wives the equivalent right (direct
discrimination on the grounds of sex). An appreciation of the prevalence and role of both
indirect and direct discrimination in immigration law enables us to see through what
Bridget Anderson describes as the ‘taken-for-grantedness of immigration controls which
views them as neutral sorting mechanisms, and to consider them as a factor in shaping
action and process productive of certain types of relations’ (2013: 70). As Anderson and
others (Anderson, 2013; Wray, 2006) have observed, immigration law distributes migra-
tion opportunities to certain groups of people to the exclusion and disadvantage of others.
While the gendered and racialized underpinnings of particular rules and decisions have
202 Social & Legal Studies 29(2)
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