By Helena Wray (University of Exeter), GLOBALCIT Collaborator

Introduction

Within the space of a few weeks, the ‘Windrush Generation’ story has erupted on to the front pages of the British media although the problems it highlights began some years ago. It involves Commonwealth citizens who came to the UK, usually from the Caribbean but also from other Commonwealth countries, in the period after the Second World War. Now at or close to retirement age, their right to live in the UK has come under challenge with catastrophic consequences for some. The story has become a major political scandal and has led to the resignation of the Home Secretary Amber Rudd. It is a rare instance of public and mainstream media support for migrants.

Public and political debate has often been confusing however. There are claims by some that those affected are already citizens, yet the government says that it will offer them an easy route to the citizenship they already supposedly possess.[1]  Calls for an ‘amnesty’ suggest that there may be some irregularity when the basis of the scandal is that people have done nothing wrong and are in the UK lawfully.[2] Some, including leading politicians, have suggested that individuals are responsible for their predicament by failing to resolve their status.[3] This blog post aims to unstitch the nationality and immigration laws behind the scandal. It demonstrates how easily ambiguity crafted to meet government’s immediate tactical objectives can have repercussions decades later, with lessons for those concerned with the fate of EU27 nationals in the UK after Brexit.

The problems facing the Windrush children

The term ‘Windrush generation’ may be evocative but it is inexact. The Empire Windrush brought one of the first groups of post-war British Caribbean citizens to the UK in 1948. It is mainly their children who have been affected, finding that their right to work, to access services, and to remain in the UK are questioned despite decades of residence. They have lost homes, employment and access to welfare support, becoming destitute. They have been asked to pay for healthcare and have even been detained. Individuals who return to their country of birth for a family event have been barred from re-entering the UK and others have been unable to travel, missing family events and deathbed reunions.[4]

The cruelty is shocking and is principally caused by policies pursued since 2012 when the then Home Secretary, now Prime Minister, Theresa May announced her intention to create a ‘really hostile environment for illegal migration’.[5]  In the years that followed, access to rented housing, banking services, non-urgent health care and a driving licence all became conditional on showing the right to live in the UK.[6]  Obtaining employment and welfare benefits was already subject to establishing the appropriate immigration status but a culture of suspicion alongside increased penalties on employers led to more regular and detailed checks.[7] Problems might emerge through employer or bank checks, refusal of services or when an affected individual tried to travel abroad. Others were shocked to receive, apparently unprompted, a letter from the immigration service advising them that they have no right to be in the UK.  The extension in 2016 of ‘expel first, appeal later’ policies to those with family or private life human rights claims is a further exacerbation as an individual might be removed without having an opportunity to show the immigration appeals tribunal that they have a right to stay. [8]

The nationality and immigration status of the Windrush children

The hostile environment is the immediate cause of the problems. Without it, they would not have arisen or could have been resolved with some administrative flexibility (as was often previously the case). However, the scandal has exposed how much uncertainty there still is about the nationality and immigration status of many UK residents.  Those affected often did not think about their position until these events because they understood themselves to be British citizens or at least to have a secure status. Usually, they were right to do so but, if they were not, their confusion is understandable. The British government has a history of wanting to have its cake and eat it. From the 1950s onwards and despite decolonisation, it sought to maintain British pre-eminence through the Commonwealth, while ensuring that British subjects of colour could not freely enter the UK. The individuals concerned often came at a time when there was still the appearance, if not the actuality, of a common status and a confusing legal regime mixed nationality and immigration concepts. The passage of time and the loss of documentary evidence means that they cannot establish their legal status to the exacting standard now required. A further complication is that the uncertainty continues through generations as, since 1^st January 1983, citizenship by birth within the UK depends on the status of the parents. The child of a Windrush parent born after that date may find that their own nationality, and even their right to live in the UK, is in question as a result of their parent’s problems.

There is little doubt that most individuals affected have a legal right to remain in the UK although the majority of Windrush children will not be British citizens. They should also have protection from expulsion on human rights grounds even if they cannot demonstrate that legal right to the satisfaction of the authorities. Inability to access services may raise further human rights issues, particularly where it results in destitution.[9] To that extent, they are all in the same position. However, in strict legal terms, there is not one Windrush generation but several.

The history

The Windrush children came after the British Nationality Act 1948 was enacted in response to pressure from former colonies for control over their own nationality laws. It made most British subjects into either a Citizen of the United Kingdom and Colonies (CUKC) or a Citizen of an Independent Commonwealth Country (CICC). The former applied to those who lived in what was then still the British Empire; the latter to citizens of independent Commonwealth countries (at that time Canada, Australia, New Zealand, South Africa, India, Pakistan, Zimbabwe and Sri Lanka). Critically, both CUKCs and CICCs were subjects or, as they were now called, Commonwealth citizens and, as such, could continue to enter and live in the UK even after independence. As former colonies became independent, those originating from the newly independent country would take the new nationality, and lose their status as CUKCs unless retained through an ancestral connection, but they remained Commonwealth citizens.[10] Early arrivals from the Caribbean, including some Windrush children, came as CUKCs before independence of their country of birth. They may not have appreciated that, although they lived in the UK, they were no longer CUKCs after independence but citizens of the new state. Their lack of concern was understandable; at that time, and despite the Commonwealth Immigrants Act 1962, their position in the UK did not depend on their nationality.

The 1962 Act removed the unconditional right of Commonwealth citizens to live in the UK by imposing a voucher system on some Commonwealth citizens entering the UK for work. The Act distinguished between them not by nationality, which would at least have had some logic, but indirectly by skin colour although this was not apparent from the wording of the Act.[11] However, those already resident in the UK were exempt from controls, as were the wives and children of residents or of arrivals admitted under the new regime. Irrespective of nationality therefore, some Commonwealth citizens could continue to enter and live in the UK as workers, students or family members, a right that was protected by statute.

The Immigration Act 1971 and the British Nationality Act 1981 sustained the impression that formal nationality was not necessarily significant in founding a right to reside in the UK. This was for inglorious reasons; these Acts continued the pattern of the Commonwealth Immigrant Acts 1962 and 1968 by awarding residence rights not on the basis of nationality but of an ancestral connection with the UK. A British passport was no guarantee of a statutory right to live in the UK but its lack was not always an insuperable barrier. While the racism of these laws has rightly been castigated, carve-outs were made in the 1971 and 1981 Acts for those already settled in the UK that made, for those individuals, the absence of nationality an irrelevance for most purposes.

The 1971 Act created two categories: those who were subject to immigration control and those who were not as they had the ‘right of abode’ in the UK i.e. an unconditional right to live in the UK. Instead of aligning those categories with nationality law, they cut across them. CUKCs with an ancestral connection to the UK had the right of abode. CUKCs without such a connection were subject to control (as they had been under Commonwealth Immigrants Act 1962 and 1968). Some citizens of independent Commonwealth countries, mainly those with an ancestral connection to the UK (presumably obtained through the female line so that they were not citizens by descent) had the right of abode but most did not. However, those already resident in the UK were treated differently. CUKCs not of British descent but settled in the UK (i.e. from remaining colonies) and the Commonwealth citizen wives and children of CUKCs naturalised in the UK all had the right of abode. Other settled Commonwealth citizens, their wives and children had indefinite leave to enter and remain under s.1(2) of the Act and were protected by s.1(5) of the Act from future erosion of their current position but they did not have the quasi nationality status of the right of abode and were subject to immigration control. To be settled meant that the individual was ‘ordinarily resident’ without a time limit imposed by immigration laws and the statutory rights would have applied to most of the CUKCs and Commonwealth citizens living in the UK at that time.

After the 1971 Act came into force on 1^st January 1973, therefore, most of the ‘Windrush generation’ and their descendants already living in the UK had a statutory right to live in the UK, either as  CUKCs with the right of abode, Commonwealth citizens with the right of abode or as settled residents under ss1(2) and 1(5). That position did not materially change under the British Nationality Act 1981, under which CUKCs with the right of abode became British citizens. Commonwealth citizens with the right of abode retained that right which carried almost identical rights as citizenship.

Those who entered the UK after the 1971 Act however were in a different position as they were subject to immigration rules. The succeeding period saw a progressive tightening of the rules of entry for both work migrants and family members not protected by the Act, alongside administrative measures designed to frustrate the claims of those who did have statutory rights.[12] Once admitted however, settled status was instantaneous if they came as the child of a settled resident or citizen and even spouses had immediate settlement until 1977 for husbands and 1985 for wives (although the admission of husbands in particular was very difficult during this period).

There are thus several groups of ‘Windrush children’:

• Those who came as CUKCs, lost their citizenship after arrival and became Commonwealth citizens but had statutory protection and settled status under the Immigration Act 1971;
• Those who came as CUKCs, were still CUKCs when they were given the right of abode under the Immigration Act 1971. If they were still CUKCs when the British Nationality Act 1981 came into force on 1^st January 1983, they became British citizens (with the right of abode);
• Those who came as Commonwealth citizens and who had the right of abode under Immigration Act 1971, usually through their relationship with a CUKC;
• Those who came as Commonwealth citizens, did not obtain the right of abode under Immigration Act 1971 but had statutory protection and settled status under Immigration Act 1971;
• CUKCs or Commonwealth citizens present in the UK on implementation of Immigration Act 1971 but who did not obtain the right of abode or protected status under that Act because they were not settled at the relevant time;
• Those who came as Commonwealth citizens after the Immigration Act 1971 and were subject to the Immigration Rules. If they came as children, they would have obtained a settled status on admission and spouses would either have acquiredsettled status at once or could apply for it after a short period.

It is hardly surprising, given this patchwork of rights, that many individuals were unsure what their formal legal status might be. All of them had a right to remain indefinitely in the UK or could obtain it within a short period. While acquiring citizenship would have been relatively straightforward at that time, it would have not have seemed necessary to most when they could live normal lives without it; they even had voting rights in national elections.[13]

The erosion of rights

Since that time, the secure position of Commonwealth citizens without the right of abode has been eroded. The Immigration Act 1988 removed the statutory protection in s.1(5) Immigration Act 1971, making those affected subject to the immigration rules. They could lose their right to live in the UK if they were absent for more than two years and could be joined by family members only as permitted by the immigration rules. From 2006, all non-citizens had to prove their right to work under the UK’s immigration laws and there were enhanced powers of deportation and, it seems likely, more refusals of re-admission because of minor breaches of immigration rules.[14] Most of those who needed it, however, could apply for a No Time Limit (NTL) endorsement in their passport or, recently, an NTL Biometric Residence Permit and this was usually granted with relatively little difficulty. Those of limited means could get legal aid to help with the application.

In 2014, however, government guidance changed to make the evidential burden for obtaining an NTL permit much more onerous, arguably unlawfully so.[15] The contemporaneous implementation of the hostile environment, near abolition  of legal aid,  and a shift in official culture driven by political pressure to reduce immigration created the conditions under which hundreds, if not thousands, have now been made subject to the full coercive power of the immigration state while unable to prove their status to official satisfaction. The reported destruction in 2010 by civil servants of historic landing cards, which might have proved disembarkation into the UK, will not have helped.[16]

At the time of writing, the government has said it will make the process of obtaining an NTL cheaper and easier and that naturalisation will be free. It has also promised compensation in ‘appropriate’ cases.[17] Some individuals may turn out to have the right of abode or even citizenship but most will have to naturalise if they want the added security of citizenship. Even if the fee is waived, the good character requirement looks set to apply. Attending a citizenship ceremony and pledging allegiance may grate on those who lived legally as quasi citizens for decades until rejected so heartlessly by the state to which they must now demonstrate their loyalty.

Changing the goal posts: The expansion of the internal border

Decolonisation usually involves attribution of the former or of the new nationality according to the relative strength of connection with each territory. A former colonial power could recognise its bond with its former subjects through continued citizenship (offering dual citizenship therefore) or enhanced immigration rights but the UK preferred to minimise its legal connection to its former colonised subjects while tolerating those already present in the UK. It could have offered automatic dual citizenship to existing residents although that would have required the new state also to permit dual nationality or it might have offered those already present a choice of nationality. This, however, might not have made much difference. Most newly independent citizens in the UK could easily have naturalised during the succeeding period if they had so chosen and many did, but others relied only on their new nationality, an understandable choice given pride in independence and statutory guarantees of residence. It is indisputable that the UK behaved deplorably towards its former and remaining colonial subjects during this period, as the East African crisis showed, but its priority was preventing admission. The idea that those already in country could be made subject to repeated tests of their status was not in contemplation. The problems that are occurring now are the result of the policies that have been implemented now: the inward expansion of the border and the co-option of civil society – landlords, medical authorities, welfare services, banks – as immigration agents so that anyone whose status is uncertain or ambiguous may find themselves at risk.

That is a key point because the hostile environment has many victims, including amongst the young. There are the children growing up without a secure residence, unable to plan their futures; child asylum seekers expected to leave the UK on turning 18, suffering a dreadful blight over their teenage years, and now living in fear of removal; families torn apart by harsh rules on family reunification and in-country regularisation.[18]  Each turn of the screw makes lives harder. Regular migrants and citizens of migrant descent are also facing increased scrutiny.[19] The hostile environment has turned the UK into an immigration state in which commonplace transactions, the stuff of everyday life, are, at worst, a repeated cause of fear and exclusion, and, at best, a reminder of the conditionality of acceptance through unpleasant and time-consuming paperwork

A route to citizenship offers future stability but the barriers are substantial. Naturalisation for adults depends on obtaining a secure status which will elude many later arrivals, particularly now that in-country regularisation is so difficult.  Children born in the UK have quite strong registration rights on paper but a good character requirement applies from the age of ten, and troubled adolescents may be excluded for minor criminality.[20] Children who come at a young age are reliant on their parents’ status or government discretion. Even if there is eligibility, fees are out of reach for many; the current fee for naturalisation is £1,250 and registration of a child costs £1,012 while the cost of obtaining a status from which to acquire citizenship is also exorbitant.  However, while access to citizenship for long term residents sends a critical message of welcome from the host state, the issue is less the end destination than the route, which will often be messier and more chaotic than governments would wish. A tidy, narrow path to secure status and citizenship is unrealistic for many given the character of modern migration and the widely criticised complexity of the law. As the Windrush scandal shows, an immigration system based for decades on border controls cannot be retrospectively switched to one based on post-entry checks without immense human cost, but the Windrush children are not the only victims of this policy reorientation.

 

[1] ‘Windrush generation will get UK citizenship, says Amber Rudd’ Guardian 23^rd April 2018; David Lammy MP for Tottenham responded on Facebook on 24^th April saying that ‘British citizenship is theirs by right and is not something that your government is now choosing to grant them’.

[2] An online petition called for an ‘amnesty for anyone who was a minor that arrived In Britain between 1948 to 1971’: https://petition.parliament.uk/petitions/216539.

[3] ‘Damian Green “dismissed Windrush citizenship pleas”’ Guardian 25^th April 2018.

[4] For some stories, see ‘It’s inhumane’: the Windrush victims who have lost jobs, homes and loved ones’ Guardian 20^th April 2018.

[5] ‘Theresa May interview: “We’re going to give illegal migrants a really hostile reception”’ Daily Telegraph 25^th May 2012.Immigration Act 2016, Part 2.

[6] Immigration Act 2014, Part 3; Immigration Act 2016, Part 2.

[7] Immigration Act 2016, ss. 34-38.

[8] Immigration Act 2016, s.63; In the absence of an in-country appeal, a judicial review of the legality of removal without appeal may be brought but this is an expensive, legalistic process which will examine more limited issues than an appeal.

[9] R. (on the application of Limbuela) v Secretary of State for the Home Department [2005] UKHL 66.

[10] Exceptions were made for those of South Asian descent living in East Africa who feared Africanisation policies after independence. Their right to enter the UK was removed by Commonwealth Immigrants Act 1968.

[11] For a discussion of the Commonwealth Immigrants Act 1962 and its aftermath, see  Dummett, A. and Nicol, A. (1990) Subjects, Citizens, Aliens and Others: Nationality and Immigration Law (Weidenfeld and Nicolson).

[12] For a discussion, see Juss, S. (1997) Discretion and Deviation in the Administration of Immigration Control (Sweet and Maxwell) or Wray, H. (2011) Regulating Marriage Migration into the UK: A Stranger in the Home (Ashgate).

[13] Representation of the People Act 1983, s.1.

[14] ‘”I feel disgusted”: how Windrush scandal shattered two brothers’ lives’ Guardian 22^nd April 2018.

[15] The government has required evidence of continuous residence in the UK from arrival, whereas gaps in residence (and then only of at least two years) would be relevant only from 1988, when the statutory right to indefinite leave in Immigration Act 1971 was repealed.

[16] ‘Home Office destroyed Windrush landing cards, says ex-staffer’ Guardian 17^th April 2018

[17] ‘Windrush generation will get UK citizenship, says Amber Rudd’ Guardian 23^rd April 2018.

[18] On these, see, for example,  Ealing Law Centre Systemic obstacles to children’s registration as British Citizens (November 2014); Griffiths, M. (2017) ‘Seeking asylum sand the politics of family’ Families, Relationships and Societies,6(1), 153-156; Sigona, N. and Hughes, V. (2012) No Way Out, No Way In: Irregular migrant children and families in the UK (COMPAS).

[19] Joint Council for the Welfare of Immigrants (2017) Passport Please: The impact of the Right to Rent checks on migrants and ethnic minorities in England (February 2017).

[20] Ealing Law Centre Systemic obstacles to children’s registration as British Citizens (November 2014).