Lords marks 75th Anniversary of the Windrush Generation

Danielle Cohen
By Danielle Cohen Immigration Law Solicitor Linkedin
Danielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
1 August 2023

The Celebration

Many British Caribbean people relocated to Britain as pioneers in 1948, answering to the call to come and live in the country after the Second World War. Thousands followed until 1973 who came with hope and with optimism in their hearts, and Baroness Benjamin was asked by now King Charles III to set up the Windrush portrait committee as he wanted to celebrate the Windrush 75, which coincided with his birthday and also his coronation by having 10 portraits painted of Windrush elders over 90, who have made a contribution to the British society in areas such as the NHS and the economic well-being of Britain across the decades. The BBC is producing a documentary about that project.

The History

In 1948 there was a labour shortage in the United Kingdom following the end of the Second World War. On 22nd June 1948, His Majesty’s troop ship empire ‘Windrush’ travelled back to the UK from the Commonwealth with hundreds of passengers from the Caribbean and other parts of the Commonwealth to fill this labour shortage. These people were popularly referred to as the Windrush Generation. The adult passengers had immigration papers but children travelled on their family members passports and did not have their own. A report published by the National Audit Office in 2018 found that the Windrush Generation who were given a “right of abode” in the UK under the Immigration Act 1971, were adversely affected by the Immigration legislation from subsequent Governments. This was because, in many cases, the Government did not provide documents or keep records confirming their status. These people who did not have UK passports or sufficient documents to prove their right of abode have been subjected to detention, deportation, loss of employment, homelessness, loss of access to healthcare and Benefits and being unable to return if they left the UK.

The Scandal

The Windrush scandal came to light in 2018 but was happening as far back as 10 years prior to that date. It was disappointing that the Government that had records of all slaves and was able to compensate each slave owner for the loss of their “property” in the Slave Owner Compensation Scheme was unable to keep records of those who had been caught up in this scandal. The Government acknowledged this wrong in 2018 and many Home Secretaries have apologised to those affected. In 2019, the Government set up the Windrush Compensation Scheme which people could apply for until 2nd April 2023. The Home Office commissioned a report Original Windrush Lessons Review which was published in 2020. The report aimed to identify the factors that led to members of the Windrush Generation being caught up in immigration enforcement measures which were designed for those who were in the country unlawfully.

In November 2021 the House of Common Home Affairs Committee published a report which found that the majority of the people who had applied as part of the Windrush Compensation Scheme had not yet received any compensation. The Committee recommended that the scheme should transfer to an independent organisation in its proposal, arguing that the Home Office should continue to operate the scheme. As of March 2023, the Institute for Government published a report on the compensation scheme which found that in June 2022, 71% of the claims awaiting a final offer had been waiting for more than six months. By March 2023, this figure had fallen to 38%.

The EU Settlement Scheme

Brexit led to the creation of the EU Settlement Scheme, which allows EA nationals in the UK who have arrived before 31st December 2020 to apply for this scheme. This scheme allows EA nationals and their family members (via the Family Permit route) the right to continue living in the UK after 30th June 2021. EA nationals in the UK can apply for pre-settled status and settled status.

The Windrush scandal was a consequence of a hostile environment created by the Government towards immigrants in the UK. The hostile environment was a wider effort to slash immigration figures by discouraging irregular migrants from overstaying on their visas, taking away privileges and encouraging them to leave. The Government began implementing the hostile environment by applying non-state actors such as private organisations and members of the public to undertake state functions such as conducting checks on people’s immigration status and enforcing immigration related restrictions. These hostile policies affected the Windrush Generation and created the Windrush scandal. The Immigration Act 1971 was not a non-declaratory system which would have forced the Windrush Generation to formalise their right of abode in the country. Many of the Windrush Generation did not formalise their right of abode which would have secured their right to be recognised as UK citizens. Additionally, the UK removed the principle of citizenship through birth in the UK by enacting the BNA 1981. This created problems for many of the Windrush children who were born after 1st January 1983 as their parents had not formalised their right of abode in the UK or attained British citizenship because they were not required to do so under the Immigration Act 1971 and the BNA 1981. Additionally, many of the Windrush children born after 1st January 1983 had no evidence of their parents’ arrival or any other qualifying immigration status since their parents needed to formalise their immigration status to pass on citizenship or rights to them. Furthermore, there have been instances where the arriving Windrush Generation had landing cards destroyed by the Home Office. This created problems for the Windrush Generation of children who were attempting to prove their rights of immigration status.

The hostile immigration policies will affect EA nationals in the UK if they do not formalise their immigration status via the EU Settlement Scheme. EA nationals will no longer have their rights protected under the TFEU, however, the Windrush Generation are not in a comparable position because unlike the EA nationals, the right to reside in the UK was never dependent on them formalising their rights. The burden placed on the Windrush Generation to prove their status ranging back decades proved difficult when the world was not digital. Technological advancement will put the EA nationals in the UK in a more favourable position and the burden of proof on EA nationals in the UK to provide evidence that they have resided for five years will be simpler considering the digitalisation of documents. The European Union played a significant part in securing the rights of EA nationals in the UK.

During the 2019 debates around the introduction of the EU Settlement Scheme (EUSS) which regulates the rights of EU citizens after Brexit Labour MP Yvette Cooper described the scheme as a potential “Windrush on Steroids”. The argument of the critics of the EUSS is that the status does not come with physical documents and it is digital only and this endangers EU citizens in the UK to be in the future mis-categorised and mistreated as happened with the Windrush Generation.

Whilst the Windrush Generation migrants in the UK were exempt from Immigration control, but then were treated as irregular migrants because of the lack of proof of status, EU citizens were free from any migration control but might have difficulties in naturalisation when dealing with the new requirements brought about by Brexit. Part of the paradox in both cases of the Windrush Generation and Brexit is that part of the vulnerability comes from being subject to less migration controls.

Immigration controls policies are all built with the idea of verifying the compliance with immigration rules of the targeted population. Such controls tend to rely on base line migration controls and while being exempt from these is an advantage, it can create vulnerabilities down the line.