The Windrush scandal continues to dominate headlines and underscore issues with UK immigration policy. Scores of people who have lived in the UK for decades have been told to leave, or even been deported, despite most likely having the legal right to remain in the UK and having lived here for decades. Yet media coverage of this unfolding scandal has generally failed to explain the historic immigration practice and law underlying the crisis.
After World War Two, many immigrants began to arrive in the UK from territories which were — or had been — British colonies. The tens of thousands who arrived from the Caribbean in the 1950s and 1960s are often called the “Windrush generation” after the MV Empire Windrush, a passenger ship famous for carrying an early wave of Jamaican migrants to the UK in 1948. Many more followed later.
Immigration law and practice before 1973
At that time, immigration controls were very different to today. Before July 1962, almost all arrivals from the Commonwealth and UK colonial territories were completely free to enter and remain in the UK without examination or restrictions in the same way as a UK-born citizen. Non-Commonwealth citizens were classed as ‘Aliens’ and had restrictions on entering Britain, were monitored closely by the Home Office, and were required to register regularly with the police.
The Commonwealth Immigrants Act 1962 introduced immigration controls for Commonwealth arrivals for the first time. However, a Commonwealth citizen could remain and work in the UK as long as he or she wished unless restrictions were imposed at the time of entry. Immigration Officers had huge discretion in deciding whether to place restrictions on an individual, and when they were imposed these restrictions were not documented. As the Home Office explained in an internal memorandum in 1970, “[we] keep no record of Commonwealth citizens admitted unconditionally, and cannot trace all of those admitted subject to conditions.”
Before 1965 these powers were not used very often, and many categories of people were exempt from immigration control altogether. Nevertheless, most Commonwealth arrivals were examined and had their passports stamped. If the Immigration Officer decided to restrict someone’s stay, a date was stamped or written in the passport. If there were no restrictions, the stamp was left bare. Commonwealth citizens arriving at a port with no Officer on duty could sometimes enter without a stamp or time restrictions.
What has changed?
The 1971 Immigration Act made it more difficult for Commonwealth citizens without close blood ties to Britain to be admitted without restrictions, and required people with restrictions to have permission to enter or remain in the UK, reversing the previous situation for Commonwealth citizens. However, most of those admitted before 1973 without restrictions continued to enjoy the right to remain in the UK. Others subsequently gained it by staying in the country for long enough.
One of the key issues behind the current scandal is the lack of paperwork to prove that right.
There are several reasons for this. In comparison with record of non-Commonwealth immigrants, there were simply few records to begin with — especially compared with countries like the USA or Australia, where immigration records are carefully preserved.
Many of the people affected were admitted the UK without restrictions and few systematic, centralised records have been kept of these arrivals or how they were processed. Some useful records such as landing cards appear to have been destroyed. Stamps in an individual’s passport showing admission without restrictions before 1971, but unsurprisingly not everyone is able to produce their passport from nearly half a century ago.
Add to this the ‘hostile environment’ immigration policies pursued by the Government and Home Office, and legal changes which now require employers and landlords to request proof of residency rights from employees and tenants. From this, the current scandal begins to emerge as people with little proof of their status have to prove that status or risk losing employment and accommodation or even being deported.
How can the right to remain be proven?
When a Commonwealth migrant’s status is called into question by the authorities, it’s easy to see how hard it might be for an someone to prove when they arrived in the UK and under what circumstances they were admitted.
In many cases, a single piece of evidence which would act as a “smoking gun” in proving the right to remain is unlikely. However, it’s a well established principle of civil law, including immigration law, that it is enough to demonstrate a case with better than 50% probability based on facts relating to the case, prevailing law, policies and practices.
A competent immigration advisor or solicitor could establish a person’s right to remain in the UK in the absence of other proof by setting out a case based on an understanding of the immigration laws and practices at the time of arrival, in combination with a range of other evidence such as schooling and health records, ships’ passenger lists, tax and benefit records, rental agreements, and utility bills.
When it considers such cases, it is vital that the UK Government, and especially the Home Office, fully appreciates the long-term development of immigration law and practices, as well as their own historic shortcomings keeping and maintaining records.
This article is a summary of a more detailed and technical report produced by Passportia on historical changes to immigration law and policy and they affect the Windrush Generation and other Commonwealth immigrants to the UK. Read the report here.