Author: BRUCE MENNELL
The Windrush scandal has drawn attention to the harshness of UK immigration policy. Many people who lived in the UK for decades have been unable to satisfy the Home Office of their status. They lost jobs, benefits or housing, were told to leave the country, or even deported, despite most such persons likely having the legal right to remain in the UK.
The historic immigration practice and law underlying the crisis has not been explained in the media and is poorly understood. There has also been very limited record keeping of Commonwealth immigrants. I discuss this in detail in a paper that can be downloaded from my own website. This post attempts a simple outline of the arguments in that paper.
Before July 1962, citizens of the UK and Colonies, Commonwealth countries and Ireland, and British protected persons were not subject to any form of UK immigration control.
From July 1962 the Commonwealth Immigrants Act 1962 took effect and Commonwealth citizens were examined on entry. Those not exempt from control could on a selective basis be made subject to a condition (a restriction) limiting length of stay or employment.
A Commonwealth citizen settled in the UK or who had been settled in the preceding two years, and the wife or child aged under 16 of a Commonwealth citizen entering simultaneously or already resident (even temporarily or as an overstayer), was entitled to admission with restrictions. The admission of others was determined by published Immigration Instructions analogous to the modern Immigration Rules, and various categories of Commonwealth citizens were eligible for admission without conditions. But no records of lasting value were kept by the Home Office, whereas non-Commonwealth citizens (aliens) were closely recorded and monitored, leaving useful evidence of residence and status. People who managed to enter the UK without being examined before 8 March 1968, even clandestinely, were lawfully present and not subject to conditions.
The Immigration Act 1971 identified persons free of control. All others needed express leave to enter in order to enter the UK or leave to remain in order to remain beyond expiration of any existing leave. This was a much tighter scheme of control. The Act commenced on 1 January 1973.
The two transitional provisions of the Immigration Act 1971 should in theory have conferred indefinite leave to remain or enter on all persons settled in the UK or who had been admitted without conditions. In practice there were gaps in the drafting and for Commonwealth citizens who arrived before 1973 evidence of residence and status has often been hard to find.
A detailed history and analysis of the pre-1973 law is set out in the article. Appendix A has examples that illustrate the complex and varied scenarios. The article is likely to be of interest to practitioners trying to advise persons who have been affected, to people who are trying to influence or assess the legislative changes that are expected to soon be drafted and to those seriously interested in the history of UK immigration law.
Detailed research into the history of the issues facing the Windrush generation has led me to four proposals intended to resolve the current morass.
First, there should be provision of legal aid for nationality and immigration advice for Commonwealth citizens who arrived before 1973. Second, the Home Office should fund services providing access to online record services to find data from public sources and, if possible, should arrange access to relevant census data. Third, I propose a new addition to the Immigration Rules for indefinite leave to remain that is easier to administer and prove than the transitional provisions of the Immigration Act 1971. Finally, I suggest new legislation providing for registration as a British citizen for those who lost Citizenship of the United Kingdom and Colonies despite having been resident in the UK during that time and since.