“Windrush Scandal” Have Any Lessons Been Learnt?

Outrage at migrants losing jobs, NHS Care, access to benefits has been widespread. As have fears with respect to how such migrants will be able to prove their status in order to keep their bank accounts, accommodation and remain in the country has swept not just through the Windrush generation, their children and commonwealth migrants who previously were not subjected to the rigors of providing papers to prove their status for everything, but also has prompted a new surge of EEA Applications. Amber Rudd has fallen as the sacrificial lamb to the conservative obsession to bring down Immigration figures and the policies brought in by Theresa May to create the hostile environment. It can have been of no surprise to any Immigration practitioners that the Home Office have been pushing removal targets, given the rampant attitude of remove first and consider later (if at all).

Now that Rudd is gone Sajid Javid the first Asian Home Secretary has stepped in to take her place, appointed on 30 April 2018. Javid is also a commonwealth migrant whose parents emigrated from Pakistan in the Sixties. It is expected that his appointment will help to turn around the “Windrush Scandal” with local elections just around the corner the appointment is clearly designed to appease ethnic minority voters. Javid has been known to be particularly critical of Teresa May and her running of downing street. However, it remains to be seen whether this will result in some much-needed positive changes to how things are run in the Home Office with respect to Immigration.

However, it is clear that those changes are not going to happen overnight and for those impacted by the hostile environment and its fall out for commonwealth citizens a breakdown of the law, the steps taken by the government so far and the benefits of getting independent legal advice is set out below.

The Immigration and British nationality Acts

In 1948 the majority of the “Windrush generation”, citizens of the UK and Colonies, began arriving in Britain. At the time they had a form of British Citizenship, conferred by the British nationality Act 1948 which was also known as Commonwealth citizenship and were not subject to any Immigration restrictions in the UK.

In 1962 the Commonwealth Immigrants brought an end to the single territory of a British Empire, and restrictions started to be introduced with respect to British subjects entering the UK. There were however some important exceptions to these restrictions, in particular section 2(2)(b) of the Commonwealth Immigrants Act 1962, meant that minors (defined as those under 16) were not subject to Immigration control.

1973 was the beginning of real Immigration control after the Immigration Act 1971 which came into force on 1 January 1973 regulating right of entry and stay for people of all nationalities. If you were present and settled before the date the act came into force you were automatically entitled to Indefinite Leave to Remain.

It is should be noted that the Immigration Act 1971 also introduced an exemption from deportation for Commonwealth and Irish citizens who were ordinarily resident at the time of commencement of the Act. However, the present difficulty has been proving this entitlement.

The Response by Government

• The cost of (£229) has been waived for obtaining new documents to prove residence status.

• A 20 person task force has been established by the Home Office to assist people with obtaining these documents:

This unit will actively assist people with finding the necessary evidence to prove their status with the onus moving to the government to check their own records rather than the applicant having to prove their status on their own. Decisions are now meant to be based on “all the circumstances of the case and on the balance of probabilities” – this in fact has always been the public law duty of the Secretary of state.

The Windrush taskforce is open to people who arrived after 1973 but before 1988 (It is understood that this task force will be for people from commonwealth countries only as noted on the .gov website).

• There will be no detentions or removals from the UK while the situation is being assessed. Also, over 8,000 records are being checked to see whether anyone has been deported in “error”.

• Financial compensation “for individuals who have suffered loss or damage because of their inability to evidence their right to be in the UK and to access services” – This will be an independent service from the Home Office and further details are awaited although there has been little information to date.

• The Home Office will “ensure that those who made their lives here but have now retired to their country of origin, are able to come back to the UK… [it] will waive the cost of any fees associated with this process and will work with our embassies and High Commissions to make sure people can easily access this offer.”

• Citizenship applications (naturalisation/registration) will be free for anyone who arrived in the in the UK from any Commonwealth country before 1973 will be free. The same applies to “the children of the Windrush generation”, if any are not British citizens. The current fee is £1,012 to register a child and adult £1,206.

Ongoing need for Independent Immigration Advice

The fee waivers to prove Indefinite Leave to Remain and to apply for citizenship are encouraging steps. However, much of what the Home Office are proposing, in particular statements to conduct cases taking into account all the facts and on the balance of probabilities was already an obligation they were required to comply with under public law. It is of concern that there were not already senior caseworkers providing supervision and guidance for junior caseworkers and that the Home Office is only now starting to do something about a problem that has been foreseeable from the time the hostile environment policy was first introduced in 2010 and has been reluctantly acknowledged as having been an issue known to the Home Office for a significant period of time.

The message from the government and Home Office in particular is that those commonwealth citizens and their children who have been impacted by the policies introduced by the Home Office to prevent people from being able to have any kind of normal life where they are unable to prove their legal Immigration status satisfactorily is come to us directly, you don’t need independent legal advice. This is particularly worrying as where those who approach the Home Office and don’t fall into the box currently being given protection could find themselves in a much worse situation if they haven’t first sought independent legal advice. Furthermore, it is questionable that the advice given by the Home Office will be correct for even those who do fall into the correct box and with the number of people being impacted in the thousands it is unclear if the Home Office and their small taskforce will be able to effectively deal with the high demand.

As such it is understandable that many are suspicious of how their cases will be handled if they come forward and make an application and rather sensible that people will first wish to seek independent legal advice rather than relying on the Home Office with respect to advising on their Immigration matters.

One of the concerns that has been picked up on by Immigration practitioner’s such as myself, is that the Home Office have indicated in previous guidance that you need to have stayed continuously in the UK from the date that the Immigration Act 1971 came into force on 1 January 1973. In fact, this is not in accordance with the law which was amended only on 1 August 1988 following the coming into force of section 1 of the Immigration Act 1988. From this time onwards those commonwealth citizens who had arrived from 1 January 1973 in the UK were required not to leave the UK for more than 2 years to keep their status. However prior to this they could go and please as they wished without restriction and still maintain their status without any time limit in the UK, effectively enjoying what is known as right of abode. Sadly, the Home Office appear to be continuing to advise that there must be no absences of 2 years or more from 1 January 1973 rather than 1 August 1988.

The need to take advantage of the offers made by the Government to waive fees is clear. It is unknown how long this will be in place and is certainly to be taken advantage of giving how costly getting updated Indefinite Leave to Remain stamps and citizenship currently is. However, getting independent legal advice from a qualified source remains vital to ensure that you receive full and accurate advice that is in your best interest.

The Home Office have given indication of wishing to resolve the root cause of the problem. They have gotten rid of Amber Rudd and appointed the first ethnic minority Home Office Secretary. A new Home Office Contact centre is being set up with “experienced case workers” to advise anyone struggling to navigate the many different Immigration routes. Furthermore 50 experienced caseworkers will be available to assist junior members of staff unsure about a decision to ensure discretion is exercised properly.

Unspecified protections for landlords, employers and other private citizens expected to enforce the hostile environment checks is to be put into place. There are also unspecified plans to compensate those who have suffered as a result of being unable to evidence their right to live in the UK. Presently, this appears to only be targeted at Commonwealth citizens and raises concern as to the disparity of treatment for other migrants struggling to demonstrate their genuine right to live and work in the UK for reasons as simple as the failure of the Home Office to acknowledge their pending applications.

With Immigration law being more complex than ever and with the onus having been moved to private individuals to “police” Immigration enforcement with limited education and assistance, positive changes in how the Home Office is run to allow a fairer, more transparent system is welcome. I genuinely hope that improvements will be made to assist individuals in navigating the increasingly murky waters of UK immigration law. Only time will tell. However, it is difficult not to be sceptical of the timing of the changes and weary of putting too much faith in the Home Office as one does not know where the political wind will blow next. In the meantime, I urge those impacted by the hostile environment whether from the Windrush generation or otherwise to take action sooner rather than later to get legal advice with respect to their options and status in the UK. To make an appointment, please do not hesitate to contact us on 0203 959 9123.

By Jordana Adams, of OTS Solicitors - Jordana dedicates herself to finding solutions for her clients and providing a friendly and professional service from start to finish. Jordana has several years of experience in her field and is passionate about obtaining the best result for her clients. This has led to a high success rate with respect to Immigration applications, appeals and judicial review challenges.