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  • Emma Harris

The Windrush Scandal: A Nationality Law Perspective


Who are the Windrush generation


When we talk about the Windrush generation we are generally referring to people who arrived in the UK from Commonwealth countries, predominantly those in the Caribbean, between 1948 and 1973.


The name “Windrush” comes from the name of a ship – HMT Empire Windrush – which arrived in the UK on 22 June 1948 with just over 1000 passengers. They were the first wave of about half a million people who came to the UK from the Caribbean after WW2 to help rebuild Britain and they were encouraged at that time to come to the UK by the British Government who were desperate for people to come and work.


These workers also came with their families and we know that many children arrived in the UK with their parents, or later with their siblings, and might have been included on their parent’s or their sibling’s passports.


People from the following countries might typically be classed as part of the Windrush generation:

  • Jamaica,

  • Barbados,

  • Trinidad & Tobago,

  • St Lucia,

  • Grenada,

  • Dominica,

  • St Vincent & Grenadines,

  • St Christopher/St Kitts & Nevis,

  • Bermuda,

  • Anguilla,

  • Antigua

  • Guyana (then British Guiana)

Importantly, although it is the circumstances of those people that I’m focusing on, it isn’t only people from the Caribbean who will have been affected by the law and by the scandal.


The Windrush Scheme currently run by the Home Office can be approached for assistance by people from any country in the world, not only those in the Caribbean or even in the Commonwealth.


Nationality Law


It seems to surprise many people (particularly in light of how the Windrush generation have been treated) to learn that when these people arrived in the UK, for the most part they were perfectly entitled to enter, live and work in the UK. In fact, people from all over the Commonwealth had as much right to do so at that time as anyone who had been born in the UK.


British Nationality and Status of Aliens Act 1914


When the Windrush generation first arrived, the situation for nationality purposes was a straightforward one.


The British Nationality and Status of Aliens Act 1914 provided that:


“A Person born within His Majesty's dominions and allegiance was deemed to be a natural-born “British Subject””

You would also be a British Subject, regardless of where you were born, if your father was a British Subject so it was a much simpler time for nationality purposes.


All of the countries that I’ve referred to above were, in 1948, British Colonies. All of the people arriving from those countries, if that is also where they or their father had been born, were British Subjects.


The same would have been true for the children arriving at that time; if they had either been born in one of those countries themselves or if their father had been, they too would have been British Subjects.


British Nationality Act 1948


There was a shift between 1914 and 1948 which was a move away from the British Empire towards the Commonwealth of Nations and this reflected the fact that some countries within the empire were starting to get their independence and yet wished to remain part of the Commonwealth.


The British Nationality Act 1948 was only the British version of similar nationality legislation which was being introduced in many countries throughout the Commonwealth as they gained their independence.


Under section 12 of the British Nationality Act 1948, everybody who continued to “belong” to the UK or its remaining colonies and who had previously been a British Subject, automatically became, under the 1948 Act, a “Citizen of the UK and Colonies” or “CUKC”.

People connected to countries which were gaining or had already gained independence were intended to become citizens of those countries.


A list of countries gaining independence in or around 1948 was contained within the 1948 Act itself at section 1(3) and subsequently, as other countries gained their independence, they were added to that list.


As a nod to the old imperial code, whether people became Citizens of the UK and Colonies or citizens of an independent country, they would still, for British nationality purposes, collectively have the status of “British Subjects” or “Commonwealth citizens” and those two terms are used interchangeably from this time onwards. The terms “British Subject” and “Commonwealth citizen”, became umbrella terms for all of these people.


At this stage, therefore, if the country of origin was still under British rule (as all Caribbean countries continued to be for a while longer), the people born there became Citizens of the UK and Colonies. The same would have been true for anyone born in the UK and for all of those people who had already arrived in the UK from a British Colony which was not gaining its independence around this time. They should all have become Citizens of the UK and Colonies.


When a country gained independence, they would enact their own nationality legislation to give Australian citizenship or Indian citizenship but everybody, whether they were becoming a Citizen of the UK and Colonies or a Citizen of Australia or India, also became a Commonwealth citizen.


For immigration purposes, the 1948 Act introduced no additional restrictions on people who became Citizens of the UK and Colonies or on other Commonwealth citizens whether they lived outside of the UK at that time or not. All Commonwealth citizens for immigration purposes therefore continued to have the right to enter, live and work in the UK as if they had been born in the UK.


There was free movement of people throughout the Commonwealth.


Commonwealth Immigrants Act 1962


The next relevant piece of nationality legislation wasn’t until 1981 but, long before that, there were drastic and significant changes made to immigration law which decimated the rights of Citizens of the UK and Colonies and other Commonwealth citizens.

In accordance with section 1 of the Commonwealth Immigrants Act 1962, the new laws applied to:

“any Commonwealth citizen who hadn’t been -
(a) born in the United Kingdom : and
(b) to any Citizen of the UK and Colonies who wasn’t holding a United Kingdom passport”

The definition of a UK passport given in this section, meant that it had to be a passport issued by the UK directly and not by any other Colony or Commonwealth country.


Coming into effect from 1 July 1962, this Act ended free movement into the UK for anyone who had not been born here or had a passport issued in the UK. This obviously applied to citizens of independent Commonwealth countries but it also applied to most Citizens of the UK and Colonies who had been born outside of the UK.


The immigration powers that were brought in at section 2(1) were the powers to refuse admission, to put a time limit on someone’s stay and to restrict employment.


There were, however, important exemptions to this at section 2(2). Immigration controls could not be imposed on any Commonwealth citizen (Citizen of the UK and Colonies or otherwise) who was already living here, so long as they had been ordinarily resident within the last 2 years. Immigration controls could also not be imposed on the wife or child of any Commonwealth citizen (Citizen of the UK and Colonies or otherwise) entering the UK after the introduction of this immigration control so long as they were entering with or to join a Commonwealth Citizen already resident in the UK.


Under section 2(3) there were further exemptions for people entering with an employment voucher, entering for the purpose of studying or entering as a self-sufficient person.

A lot of the Windrush generation are people who came to the UK as children with or to join their parents and what we know from this Act is that there was never a power to put a time limit on the length of residence of those children.


It is difficult now to imagine what “immigration control” really looked like in the 1960s where there was a power to impost conditions because we think of the “hostile environment”.


This is an extract from a Parliamentary Immigration Instruction in 1962:


"The Immigration Officer has the power to impose a condition limiting the visitor’s length of stay in the United Kingdom. Where this power is exercised, he can in addition impose a condition limiting or prohibiting the visitor’s employment or occupation. It will not be necessary to use these powers frequently. But the Immigration Officer should consider imposing a condition limiting the period of stay where the visitor’s intentions are not clear, and he thinks it important that the visitor should appreciate that he is permitted to stay only for a limited period."

Even after 1962, therefore, people were continuing to enter the UK from all over the Commonwealth and, although they were technically subject to immigration control, it wasn’t the expectation of this country that restrictions would be imposed in all cases or even in the majority of cases.


Commonwealth Immigrants Act 1968


Although not of direct relevance to the Windrush generation as I’ve defined them, there was a further tightening of immigration control through the Commonwealth Immigrants Act 1968 with the sole aim of preventing Citizens of the UK and Colonies of Asian descent from coming to the UK from Kenya. They held UK passports that had been issued to them by the UK government directly and that meant that the controls introduced by the 1962 Act hadn’t applied to them and thousands of Kenyan Asians had been coming to UK fleeing political turmoil in the wake of Kenyan independence. This Act was introduced to stop that.


Because the Windrush Scandal has a much wider impact on people beyond those of Caribbean origin, although this Act didn’t impact the Windrush generation specifically, it may well be relevant to other clients.


Independence Legislation


For many, but certainly not all of the Windrush generation, the next legislative change to affect them will have been the independence legislation brought in for their country of birth or the country of birth of their parents.


Commonwealth countries not only gained independence at different times, but some went directly to independence, some became “Associated States” before later becoming independent, some became Associated States before becoming British Dependent Territories and some just became British Dependent Territories (which we now call British Overseas Territories).


Because of the various routes to independence, I will give just a couple of examples to show how changes taking place abroad and being mirrored in British law very deeply affected people who had come here from those countries because it meant that, later on, some people became British citizens automatically and some people didn’t.


Jamaica


Jamaica is one of a group of countries in the Caribbean which gained its independence in the 1960s. Other countries whose legal changes very nearly mirrored the Jamaican model of independence for nationality purposes are Trinidad & Tobago, Barbados and Guyana but there were many other Commonwealth countries with a similar model.


Jamaica became an independent Commonwealth country on 6 August 1962.


For nationality purposes it used the standard “two-point formula”.


Any person born in that country after that date would have automatically been born a Jamaican citizen. Additionally, under the Independence Constitution of Jamaica, any Citizen of the UK and Colonies who had been born in Jamaica or whose father was a Citizen of the UK and Colonies who had been born in Jamaica automatically became a Jamaican citizen.


Simultaneously, under the Jamaican Independence Act 1962 within UK law, any person who became a Jamaican citizen automatically ceased to be Citizen of the UK and Colonies.

There were no specific exceptions to this for people no longer living in Jamaica or any option for people to retain their Citizenship of the UK and Colonies if they wished to. The only people to whom this didn’t automatically apply were people born, naturalised or registered in a place which, on independence day, remained within the UK and Colonies.


All of those who had newly gained Jamaican citizenship would have remained Commonwealth citizens because that was still the umbrella term applying to everyone.


My understanding is that people were not very well informed about this (if at all) and many may never have realised that they ceased to be Citizens of the UK and Colonies at that time.


Associated States


Apart from countries that following the two-point model, between 1967 and 1969 six colonies (Antigua, Dominica, Grenada, St Christopher-Nevis-Anguilla (as it was then), St Lucia and St Vincent) became Associated States. That status gave those countries independence in many ways but, for nationality purposes, persons connected to those countries remained Citizens of the UK and Colonies. When these countries became Associated States, there would therefore have been no change to the Citizenship of anyone from those countries and they would have continued to be Citizens of the UK and Colonies wherever they were living.


The Immigration Act 1971,


The Immigration Act 1971 came into force on 1 January 1973 and it introduced the new concept of “patriality” or “the right of abode” as its also known. A person who has the right of abode in the UK is someone who is not subject to immigration control.


Section 2(1) of the Immigration Act 1971 as originally drafted set out the people who were to automatically have the right of abode on commencement.


People who were deemed to have the right of abode were limited to those set out in section 2(1) of the 1971 Act:

"(a) he is a citizen of the United Kingdom and Colonies who has that citizenship by his birth, adoption, naturalisation or (except as mentioned below) registration in the United Kingdom or in any of the Islands; or
(b) he is a citizen of the United Kingdom and Colonies born to or legally adopted by a parent who had that citizenship at the time of the birth or adoption, and the parent either—
(i) then had that citizenship by his birth, adoption, naturalisation or (except as mentioned below) registration in the United Kingdom or in any of the Islands; or
(ii) had been born to or legally adopted by a parent who at the time of that birth or adoption so had it; or
(c) he is a citizen of the United Kingdom and Colonies who has at any time been settled in the United Kingdom and Islands and had at that time (and while such a citizen) been ordinarily resident there for the last five years or more ; or
(d) he is a Commonwealth citizen born to or legally adopted by a parent who at the time of the birth or adoption had citizenship of the United Kingdom and Colonies by his birth in the United Kingdom or in any of the Islands."

At first glance it is difficult to discern how this legislation discriminates by race. However, the only way in which a Commonwealth citizen who was not also a Citizen of the UK and Colonies would get a right of abode was under section 2(1)(d) and as Wendy Williams notes in the Windrush Lessons Learned Report:

People from “old” Commonwealth countries like New Zealand or Canada were much more likely to meet this qualification than those from “new” Commonwealth countries. For Commonwealth citizens who were CUKCs this concept of “patriality” effectively meant that only CUKCs born in the UK could pass on their right of abode to their children and grandchildren, so excluding the vast majority of Windrush generation arrivals.”

Regarding section 2(1)(c) (i.e. Citizens of the UK and Colonies who had been ordinarily resident in the UK for a period of 5 years and at least by the end of that period had become “settled”) the term “settled” means without being subject to a “restriction on the period of time for which a person may remain”.


Any Citizen of the UK and Colonies who arrived prior to 1962 will qualify as settled and, although immigration control powers were introduced in the 1960s, that was not something that was expected to be used frequently and quite a lot people who had arrived in the UK even after 1962 will potentially therefore qualify as “settled” so long as no time limit was imposed on their stay.


Additionally, we know that all children, wives, students and those arriving with employment vouchers who arrived will have had no time limit because the 1962 Act exempted them from having conditions applied to their stay.

However, by 1973, anyone who was originally from the Jamaica-like group of countries and had made no applications in the UK would no longer have been a Citizen of the UK and Colonies and so could not have qualified for the right of abode.


Conversely, anyone from one of the Associated States, could have qualified.


For those who didn’t qualify for the right of abode, section 1(2) of the 1971 Act provided for anyone who was present and settled in the UK on the date of commencement to be treated thereafter as having been given Indefinite Leave to Enter or Remain.


Anyone who had come from the Associated States would therefore have had the right of abode once they’d been in the UK for five years and any Commonwealth citizen from the Jamaica-like group of countries, so long as they hadn’t had any time restrictions imposed on their stay under the 1962 Act when they entered, would have had Indefinite Leave to Enter and Remain.


Independence Post-1973


Although it appears that someone from one of the Associated States might have been better off at that stage, that advantage didn’t last for all of them.


The Associated States of Antigua, Grenada, St Vincent, St Lucia and Dominica (i.e. all except for St Christopher & Nevis) became fully independent at various times between 1974 and 1981. With the notable exception of people connected with Antigua, anyone who had been born in those countries, or who had a father, mother, (and in some cases grandfather) born there became citizens of those countries and simultaneously lost their Citizenship of the UK and Colonies.


In order to have a right of abode under section 2(1)(c) of the 1971 Act it was a precondition that you had to be a Citizen of the UK and Colonies and so (with a couple of exceptions) the people who lost their Citizenship of the UK and Colonies also lost their right of abode.


For anyone from an Associated State who had been a Citizen of the UK and Colonies with the right of abode, they would still have qualified for Indefinite Leave to Remain under section 1(2) of the 1971 Act so long as they had been physically present in the UK on 1 January 1973, just as people from the Jamaica-like group of countries had done.


Non-Independent Countries


By 1983 there were a few colonies in the Caribbean that still hadn’t gained their independence.


St Christopher & Nevis, also known and referred to as St Kitts, was still an Associated State and remained within the UK and Colonies until 19 September 1983.


Additionally, Anguilla had separated off from St Christopher-Nevis-Anguilla and had become a dependent colony and Bermuda continued to be dependent colony throughout.

These countries remained within the territory of the UK and Colonies until after the 1981 Act came into force so anyone who had come from one of those countries would have entered as a Citizen of the UK and Colonies and if they had met the requirements under section 2(1)(c) of the 1971 Act would have had the right of abode throughout this period.


Antigua and Belize


There were a couple of countries that dealt with citizenship on independence differently.


Antigua was the only country from among the Associated States that included a provision in its independence legislation that if you were a Citizen of the UK and Colonies who had a right of abode in the UK, you would not lose that citizenship on its independence day. Those people became dual nationals instead.


Antigua was one of only two Commonwealth countries to include such an exception; the other was Belize.


Wives of CUKCs with the Right of Abode


Another exception to the usual rules comes from looking at section 2(2) of the Immigration Act 1971 which provides that a woman who is a Commonwealth citizen will have the right of abode if she “has at any time” been the wife of a Citizen of the UK and Colonies with the right of abode. This one has some rather unusual consequences.


Consider the Associated States that gained their independence in the late 1970s and early 80s, where people had been Citizens of the UK and Colonies with the right of abode and overnight lost both. The position for a married couple where they’d both been born in (for example) Dominica, which became independent in 1978 is that they will both have been Citizens of the UK and Colonies and, if they had been in the UK for 5 years, they would both have had the right of abode under section 2(1)(c) of the 1971 Act.


For the husband, on independence day he will have lost his Citizenship of the UK and Colonies and his right of abode.


For the wife, nothing will have prevented her from also losing her Citizenship of the UK and Colonies but both of them will still remain Commonwealth citizens when they become Citizens of Dominica. As the wife of a man who had been a Citizen of the UK and Colonies with the right of abode, she continues to satisfy the requirements under section 2(2) of the 1971 Act, and because she satisfies those requirements, she retains a right of abode.


We can see from this that some of these broad-brush provisions probably have unintended consequences but they could make a world of difference to some peoples’ current status.



Registration as a CUKC under the 1948 Act


Despite the changes to immigration laws during this time, the 1948 Act was still in force right up until 1983.


For all of those Commonwealth citizens who had been stripped of their Citizenship of the UK and Colonies by independence legislation, there would have been the option to register for Citizenship of the UK and Colonies if they were ordinarily resident in the UK and had known to make the application.


The original requirement under section 6(1) of the 1948 Act was that a person could register for Citizenship of the UK and Colonies if they were citizens of a newly independent country (as listed under section 1(3) of the 1948 Act, no matter when the country was added to that list) and had been ordinarily resident in the UK for a period of 12 months.


The requirements were amended by the 1971 Act so as to prevent anyone arriving in the UK after 1 January 1973 from being able to register but, right up until 31 December 1982, anyone who had been stripped of their Citizenship of the UK and Colonies continued to be eligible to register for it so long as they could show that they had been ordinarily resident in the UK for a period of least five years or, if longer, since 1 January 1973.


Anyone who registered as a Citizen of the UK and Colonies would also have had the right of abode under section 2(1)(a) of the 1971 Act.


Anecdotally, I am aware that there was a last minute rush to register as many people as possible in the run up to 1 January 1983 but if people had not been aware that they had lost their Citizenship of the UK and Colonies then they would not have known that this applied to them or that they would only benefit by making such an application.


The British Nationality Act 1981


The British Nationality Act 1981 came into force on 1 January 1983. This Act was the first that specifically provided for British citizenship.


A person automatically became a British citizen under section 11 of the 1981 Act if immediately prior to commencement they were a Citizen of the UK and Colonies who had the right of abode.


Anyone from St Kitts, Anguilla, Bermuda or Antigua who had arrived in the UK prior to 1978 and was settled would have automatically become a British citizen on 1 January 1983.


Most of the people from the rest of the countries I’ve given examples of, including Jamaica and any of the other Associated States who gained their independence prior to 1983, will have continued to have Indefinite Leave to Remain in the UK (or in the case of some wives a right of abode) but they won’t automatically have obtained British citizenship when the 1981 Act came into force because they were no longer Citizens of the UK and Colonies.


Anyone who had known and been able to register as a Citizen of the UK and Colonies in time would automatically have become a British Citizen.


Loss of Indefinite Leave to Remain


The fact that people didn’t know what their status was over the years was particularly important because, in 1988, Commonwealth citizens who had Indefinite Leave to Remain under the 1971 Act lost some of the protection they had had previously.


Section 1(5) of the 1971 Act, had provided that Commonwealth citizens who were settled in the UK when the 1971 Act came into force, as well as their wives and children, should continue to be as free to come and go from the UK as though that Act had not been passed.


That protection was repealed by the Immigration Act 1988.


Under the regime in place at the time, when a person left the UK, even temporarily, their leave to remain lapsed. Upon their return, a rule of thumb was that if a person had a long period of leave or indefinite leave and the absence had not been longer than two years, their leave would be reinstated on re-entry.


The position was formalised by the Immigration (Leave to Enter and Remain) Order 2000 which provided that a person’s leave to remain (whether or not that leave was Indefinite leave to remain) would lapse if they remained outside of the UK for a period of more than two years.


Prior to the repeal of section 1(5) the two-year rule had not applied to Commonwealth citizens but from 1988 onwards, Commonwealth citizens were exposed to these laws and would lose their Indefinite Leave to Remain if they were absent from the UK for a period of more than two years. Such a person would then be required to apply to return as a Returning Resident, if they knew to do so.


The fact that some wives retained the right of abode under section 2(2) of the 1971 Act becomes notably important therefore because a right of abode does not lapse through long absence from the UK. Anyone with a right of abode would have a lot less to prove now in order to get documentation because they aren’t going to have to prove their continuous residence since 1988, unlike a person who had Indefinite Leave to Remain.


Conclusion


In many of the cases impacted by the Windrush Scandal, people will have been here in the UK since at least the 1970s. It may not be correct in law to say that they are now all British Citizens but they were born with exactly the same nationality and the same rights as anyone born in the UK.


Whilst people born in the UK (prior to 1983) went on to be classified as British Citizens, this group were stripped of their citizenship, regardless of whether they were living in the UK or not. Depending on where they were from some of them will still have become British citizens automatically but the vast majority will not. They will have instead been reclassified as "immigrants" and given the lesser, and more precarious status of Indefinite Leave to Remain.


It is also worth noting that under the 1981 Act, a person is entitled to apply to naturalise as a British citizen after living in the UK for five years and having Indefinite Leave to Remain for at least 12 months before applying.


At the very least therefore, a lot of the people who ended up without British citizenship have been entitled to apply to naturalise as British citizens for many many years.


It is simply wrong that people in this position have ever been treated as any less than British.


Given the distinct lack of communication, documentation and guidance provided to those affected by the legislative changes over the years, and the repugnant treatment of these people within the hostile environment, it is long overdue that government and Parliament to consider how to make amends. The implementation of the recommendations within the Wendy Williams' Windrush Lessons Learned Review should only be the beginning.

©2019 by Nationality Advice Service.