Elspeth Guild, Professor of Law at QMUL School of Law, analyses the Windrush generation immigration scandal
On 23 April 2018 the Home Secretary made a statement to the House of Commons seeking to defuse a public outcry about the treatment of the Windrush generation immigrants by the Home Office. These are people who came to the UK from the late 1940s until the 1970s from British colonies (and as time went by newly independent Commonwealth countries) to help rebuild Britain after the war. This generation and their children usually made their homes here although some, after retirement, spent increasing amounts of times in their countries of birth.
The controversy was triggered by a Member of Parliament, Barry Gardiner, who took up the case of an elderly constituent of his from this category of people who had recently been treated as an ‘illegal’ immigrant by the Home Office, resulting in the withdrawal of his driving license, loss of his job, refusal of NHS treatment and loss of pension rights. This case was not an isolated one, though exact numbers are not known. Other reports include threatened, if not the actual deportation, of elderly British resident Caribbean people from the UK. In the Home Secretary’s statement she indicated that her office had already resolved 9 cases and had 84 appointments to issue documents.
The second of these questions is easier to answer than the first. Before the Commonwealth Immigrants Act 1962 there were no immigration controls on British subjects coming from the colonies to the UK and residing, taking up work etc. here. After the 1962 Act some controls were put in place, then supplemented by the Commonwealth Immigrants Act 1968. The system was still underpinned by the principle of free movement of persons within the British Empire, though now riddled with exceptions, such as the attempted exclusion of the British East African Asians in the late 1960s and early 1970s. On 1 January 1973, when the Immigration Act 1971 came into force, a whole new system of immigration control was launched which is still applicable today though it has been the subject of substantial amendment.
A new status was created in 1973 – ‘the right of abode’. Anyone who held this status was not subject to immigration control, did not need any papers to enter or live in the UK and had no obligation to report to the Home Office. All citizens of British colonies who had at any time been settled and residing in the UK for five or more years qualified for this new status. The proviso was that the five years residence had to take place while the person was still a citizen of the UK and colonies. But the five years of the ordinary residence was not tied to a specific time period, so someone could have acquired the right of abode through five years residence in the UK 15 years earlier even though he or she subsequently left the UK or became a Commonwealth citizen. Acquisition of the status took place by operation of law. No one was required to apply for a certificate of the right of abode to prove that they held the status (this was later changed). They enjoyed the right as a consequence of fulfilling the five year and citizenship requirement. For those people whose states of origin became independent before they achieved their five years residence in the UK, the Act stated that Commonwealth citizens (as most of them would become) settled in the UK at the time the Act came into force, should not be any less free to come and go from the UK than if the Act had not been passed.
When British nationality law was changed in 1981, citizens of the UK and colonies who had the ‘right of abode’ in the UK became British citizens. But this was also by operation of law, no one actually went out offering passports to these people, they simply had the right to request them if they wanted them. However, by 1968 almost all British colonies in Africa had become independent and between 1961 and 1981 most of the Caribbean colonies had also become independent states. So by the time the 1981 Act came into force, there were substantial numbers of persons who had been citizens of the UK and colonies and had lived in the UK for five years, thus acquiring the right of abode, but part of that residence took place when they were citizens of a newly independent Commonwealth country. Many of these people would be among the Windrush generation.
The bottom line is that legally, most Commonwealth citizens who came to the UK between the 1940s and 1970s to work and live here, had acquired a permanent right to live in the UK by 1981. Indeed, many of them became British citizens by operation of law rather than application. Because their status came from statute rather than an application form, the Home Office had no immigration record about them, no Home Office reference number. But that lack of a Home Office reference number did not change their entitlement to live in the UK (or to return to it no matter how long they had been outside the country).
This is the murkier of the two questions I posed at the outset. The Home Secretary provided an oblique explanation in her 23 April statement when she states her enduring commitment to tackle illegal immigration. She acknowledges that steps intended to combat illegal migration had an unintended impact on the Windrush generation who “are here legally, but have struggled to get the documentation to prove their status”. Clearly there is a link with the Home Office’s crack down on undocumented migrants, a policy better known for creating a hostile environment for ‘illegal’ migrants. This policy was put into place in 2013 by the current Prime Minister. From the examples of Windrush generation British residents who have got caught up in the Home Office’s illegal immigration crack down, it seems that people run into trouble when they seek health treatment, social benefits or to return to the UK after a trip abroad. This would seem to indicate that there is some process underway whereby a matching search of personal information from Home Office files with personal information held in other public databases, such as the NHS, is taking place. Those whose personal information pops up in a linked check as; not known to the Home Office as British citizens or known migrants are then the subject of the hostile environment measures – withdrawal of driving licenses, notices to employer that they are liable to fines if they continue the employment of the person, notices to landlords to evict any such person who is a tenant under simplified procedures and soon also closure of bank accounts.
In their search for the elusive ‘illegal’ immigrant, the Home Office has netted elderly legal residents, mainly Black Britons without papers or documentation because their arrival in the UK pre-dated the necessity of extensive Home Office applications. Instead of dealing with the 59,895 people identified as irregularly present in the UK in 2017 (Eurostat 16/04/2018), the Home Office went fishing for ‘more’ undocumented migrants, possibly using invasive database searches, and came up with the Windrush generation.
Elspeth Guild is Jean Monnet Professor ad personam at Queen Mary, University of London as well as at the Radboud University Nijmegen, Netherlands. She is also a partner at the London law firm, Kingsley Napley and an associate senior research fellow at the Centre for European Policy Studies, Brussels. She is also a visiting Professor at the College of Europe, Bruges. She was special advisor to the House of Lords European Union Committee’s Inquiry into Economic Migration in 2005.
Her interests and expertise lies primarily in the area of EU law, in particular EU Justice and Home Affairs (including immigration, asylum, border controls, criminal law and police and judicial cooperation in criminal matters).