The Faux British and the So British: Looking for the Real McCoy in United States Visa Waiver Admissions

There may be a plan afoot which would distinguish between the faux British and the so British in Visa Waiver Program admissions to the United States.

According to the New York Times, United States homeland security secretary Michael Chertoff has opened talks with British authorities to close an apparently dangerous “loophole” in United States visa laws. Under current regulations, persons from specified countries are allowed to enter the United States as tourists or business visitors for up to ninety days without a visa under the Visa Waiver Program (VWP), Section 217 (c) of the Immigration and Nationality Act (U.S.C. 1187) . Most of the favored countries are in Europe and include the United Kingdom (an interesting study is to look at which European countries are excluded—faux Europeans?). Canadians may also enter the United States under similar terms, but their admission is premised on different regulations.

The loophole complained of apparently allows British citizens of Pakistani descent to enter the United States under the VWP as other British citizens do. Some American officials, observing that a number of British terror plots have involved British citizens of Pakistani descent, fear that Brits of Pakistani ancestry will export terror plots to the United States and reportedly wish to limit entry of such persons .

Two possible solutions are said to be on the table. The first would divide British entrants between Brits of Pakistani descent and everybody else, and allow only those not of Pakistani ancestry to enter under the VWP. This would leave Brits of Pakistani descent to make regular visa applications for admission and thereby be subjected to full scrutiny. Under the second solution the VWP could be eliminated for all of the British, so instead of separating the faux British from the so British we'd simply go to no British in the VWP. This would, admittedly, avoid the messy problem of making ethnic, racial or nationality-based distinctions among British entrants seeking VWP admission to the U.S. It is worth noting that shortly after the publication of the supposed plan British officials denied reports that they are working with United States officials to close the “loophole,” and stated that singling out Britons based on ancestry would not be “acceptable”. United States officials also repudiated the reports, rejecting “the notion of profiling based upon ethnicity, religion, sex, age, what have you.” Forceful denials, indeed.

The alleged plan comes on the heels of a heightened concern with “British identity” and the way in which the lack of such identity may foster terrorism. After the London bombings of July 7, 2005, there was a fear that British universities were hotbeds of extremism. In response, the British government commissioned a study of the citizenship curriculum, which has been in place since 2002 (in response to the 2001 British race riots.) The report, released in January 2007, found that British identity was insufficiently covered in the curriculum and that much more was required to provide the "essential glue that binds people together". It was not so long ago that discussions of British identity often centered on class and issues such as whether one spoke English in a U, upper class, or non-U dialect. Given the multiracial, multiethnic climate of Britain and much of the Western world, we’re now well away from such concerns. Today’s young Brits can apparently call the knave a jack if they want to, just so long as they learn about “democracy, tolerance and duty”. The reported on proposal seems to be a way of assigning a proxy for those who don’t get the lesson.

Let’s just imagine that such a proposal is in the works. How different would it be from other regulations now existing in the United States which discriminate based on national origins, all in the service of the antiterrorism agenda? Since 9/11, the United States has either enacted or started to enforce a plethora of regulations aimed directly or indirectly at entrants from Arab and Muslim countries. Among these initiatives are mandatory detention in connection with removal proceedings involving terrorism claims and even in the case of certain asylum claims based on the nationality of those involved (mostly those from Arab or Muslim countries). Other regulations allow the detention of "Unlawful Combatants", and extensive intelligence-gathering programs, often without warrants. In addition, provisions on requiring financial institutions to police “suspicious” activities and persons have focused heavily on those from Arab and Muslim countries and other so-called pariah countries.

The United States has had no shortage of allies who have embraced a number of the stringent, seemingly discriminatory regulations of the post 9/11 world and even crafted their own. I've written before in this blog about the transnational reach of U.S. domestic law. Consider for example how U.S.-based antiterrorist banking regulations have had a spillover effect in Canada and other countries offering U.S. dollar accounts. In January 2007 the CBC reported that the Royal Bank of Canada had refused for much of 2006 to open U.S. dollar accounts for Canadians who may be dual citizens of Iran, Iraq, Cuba, Sudan, North Korea and Myanmar. The Canadian citizenship of those barred apparently availed them nothing. So, is it really likely that antidiscrimination norms will insulate British citizens of Pakistani ancestry from discrimination in the administration of the Visa Waiver Program? Only time will tell—but I wouldn’t bet on it.