The 1948 journey of the HMT Empire Windrush between Jamaica and London was just one voyage amongst many (and not the first) that brought jobseekers into the UK from different corners of the globe. Many had already been in the UK during the war working in munitions factories or serving in the forces. The passengers were free to live in the UK as they were British subjects, coming either from a colony of the British Empire or from an independent Commonwealth nation. The Prime Minister, Clement Atlee, publicly welcomed the Windrush’s arrival. However, his cabinet expressed fears of uncontrolled 'coloured migration' (as they termed it) and throughout the 1950s, the Government discussed administrative means of deterring or limiting the numbers of black and Asian British subjects moving to the UK.

These concerns led ultimately to the 1963 and 1968 Commonwealth Immigrants Acts that dismantled the right of British subjects from outside of the UK to live in the UK. Only those born in the UK or Ireland or who had a passport issued by UK or Irish authorities could enter the UK freely (in 1968 the latter category was narrowed further to include only those with British born grandparents in order to limit the movement of British subject Asians from East Africa). The restrictions caused a surge of immigration before they came into force.

The distinctions introduced by the 1963 and 1968 acts shaped the Immigration Act 1971 that underpins the modern system of immigration control. Those with a strong connection with the British Isles (for example through birth, registration or naturalisation there) were free from immigration control. They were named 'patrials' but in due course would be referred to as holders of the 'right of abode'. The rest, the 'non-patrials', needed to obtain permission if they were to live lawfully in the UK.

How did these changes affect the Windrush generation already living in the UK when the changes took effect on 1 January 1973? Those from the remaining colonies (such as the Bahamas, independent on 10 July 1973) could have automatically obtained the right of abode through five years residence in the UK. Those from independent Commonwealth countries (eg Jamaica, 6 August 1962) could have registered and thereby obtained the same status. If they did qualify for the first and could not or did not register for the second then they would likely automatically have acquired ’indefinite leave to remain’ (ILR); this was acquired by those who had established themselves in the UK at the time the act came into force. The potential complexities are, however, endless; political ties between home country and UK, parentage, marriage, divorce, and time spent out of the UK are some of the factors that may have strengthened or weakened a particular person’s status.

In 1973, nationality was not aligned with immigration status. The British Nationality Act 1981 rectified this, with effect from 1 January 1983. It introduced the status, 'British citizen' to refer to those citizens of the UK or its colonies who had the right of abode (ie partials) and others who had registered or naturalised. Some Windrush passengers therefore would have become British. On the other hand some would have had no UK rights – for example, if they had moved between different countries and not settled in the UK.

Example one A Jamaican called Jonathan arrived as a boy with his mother and father in 1952. He and they were automatically entitled to live in the UK until 1 January 1973 notwithstanding the independence of Jamaica in 1962. On 1 January 1973 because Jamaica was independent the family did not automatically qualify for the right of abode. However because they had been resident for more than five years they might have registered to obtain the right of abode. For time and cost reasons the family did not register and so they automatically obtained the less secure state of indefinite leave to remain, on 1 January 1973. Some of Jonathan’s Jamaican friends registered and consequently became British citizens on 1 January 1983. Jonathan’s own status – ILR – is not as secure because it can be lost if the holder leaves the UK for more than two years, and it may also be revoked in certain situations (eg criminal offence). Jonathan has not left the UK for any prolonged period of time. His ILR status is confirmed by a stamp put in his passport by an immigration officer at the border and this has allowed him to travel, live and work freely in the UK for most of his life. As a holder of ILR he can apply for British citizenship subject to certain other conditions.

Hostile environment

The Immigration Act 2014 introduced a package of measures to prevent illegal migrants from enjoying the benefits of a normal life in the UK. The Government was given powers to limit access to the NHS, bank accounts and driving licences and to punish landlords who give tenancies to illegal migrants. Employers had been regulated to deter them from employing illegal migrants as workers since 1998, but in 2014 the Government doubled the maximum penalty that an employer might face from £10,000 per illegal worker to £20,000. Because document or identity fraud might occur and because immigration status is mutable (ie can be lost or be invalidated), no single document can prove beyond all possible doubt that a person has a right to work but an employer could establish a ’statutory excuse’ and avoid liability for any illegal working as long as they conducted a baseline check. To do this, employers were required to inspect a proof of status document that the Government prescribed as being acceptable. Until 2014 one of the forms of acceptable proof of status was a passport, current or expired, that had a stamp indicating that the holder had ILR. From 2014 an expired passport was no longer sufficient. At the same time the immigration officers at ports were no longer stamping people’s passports with these stamps even where they were satisfied that they held this status. People with ILR now must apply for a biometric residence permit if they are to confirm their status in the UK in a way that the Government recognises. When a person applies for a biometric residence permit to confirm they have ILR they have to prove they have their status. This means showing evidence of how the status was acquired and evidence that the status has not been lost at any time since. Consequently not all applications succeed. People are losing jobs and being deprived of services.

Example two Jonathan has proven his right to work to employers previously using an old passport showing an ILR stamp and this has always been accepted. He moves jobs in January 2018 and his new employer asks for proof of his right to work and refuses to accept the old passport. The employer insists that he provide a current passport with an ILR stamp, but the Government won’t stamp a new passport. Instead he must apply for a biometric residence permit, or else apply to become British (a slower and more expensive process). Jonathan acquired his status automatically on 1 January 1973 because he was established in the UK at that time. His first task is therefore to prove that he was living in the UK at this time, and not just visiting. Evidence of employment or education prior to 1 January 1973 would do this. Jonathan then must show that he has not left the UK since 1 January 1973 for more than a two year period. He can do this if he has kept all of his previous passports. Or else he can do this by showing that he has been working since then but this might be difficult because of gaps in employment, closure of business, death of employers and so on. The cost of the application is £230 but he is unlikely to be successful without some legal help. There is no form of legal aid to help with applications. The waiting time is approximately eight weeks, unless he is prepared to pay an extra £510. Jonathan might face the same problems in accessing healthcare, etc. If his application is unsuccessful because of a lack of evidence, he may be asked to leave the UK.

Response

The Government has been stung into action. It has created a dedicated team to help all Commonwealth migrants facing difficulties of this nature and an MP hotline. It has also indicated it will waive fees for relevant applications. Applicants are encouraged to apply for biometric residence permits and for British nationality through the naturalisation process. The Government has also indicated compensation may be paid to those who have lost money because of their exclusion from work or services in the UK. Logically these same concessions should be extended to all other nationals who were lawfully present in the UK on 1 January 1973 and no longer have the recognised proof of their status. There will be many other long term lawful migrants who arrived after 1973 who also rely on an old ILR stamp and it may be even harder for them to prove their status. Why should they be treated differently?

European nationals have had free movement rights since 1 January 1973 but if they were already settled in the UK at that time they also obtained ILR. They will shortly lose all of their free movement rights and they may find it difficult to qualify for the protection being negotiated in the Article 50 negotiations because it may be so long since they have worked. A small but not insignificant percentage will fall through the cracks and face exclusion from services in the future, after Brexit.

The present problem has arisen because the Government has prioritised reliability of the checks over fairness. This approach has forced migrants to pay the costs of obtaining reliable proof, making the checks easier for the checker and more reliable for the Government. This is unfair in relation to those with many years’ residence because it retrospectively forces people to make applications for rights they already have secured. A better approach would be to allow employers and others to accept less formal documents, as already happens in the case of those who are born in the UK.

This article was published in New Law Journal in May 2018.