The recent coverage of the UK’s treatment of the so-called “Windrush generation” appears to be a tipping point whereby the government has been forced into acknowledging the consequences of the hostile environment policies, pioneered by Theresa May during her time as Home Secretary.
Over the past year a steady stream of stories has documented the experiences of long term residents, many arriving in the 1950’s and 60’s as Citizens of the UK and Colonies who have suddenly found that they are no longer being recognised as having permission to remain in the UK. Under the hostile environment they are prevented from accessing NHS care, employment, welfare benefits, rented accommodation, bank accounts and driving licences.
The government has now promised a new team of caseworkers to address this as a priority. The Home Secretary has made a statement to the House of Commons, apologising to those affected and promising them a free route to British citizenship and the possibility of compensation.
Clearly this is a welcome development, yet the consequences of the hostile environment have been apparent for some time, from the reports on the discrimination caused by the right to rent scheme to the reports by charities of the growing number of long term resident non-nationals facing difficulties accessing medical care. Incredibly the government has not put in place mechanisms to monitor the wider social impact of such policies or their success in deterring illegal migration, as confirmed by the Chief Inspector of Borders and Immigration in his recent report.
And whilst criticism is rightly directed towards Theresa May for her time as Home Secretary, we should not forget that the majority of the hostile environment measures were approved by Parliament in the Immigration Act 2014, despite significant written evidence being provided to MP’s predicting that such policies would have a damaging impact on British citizens and other lawful residents who were unable to prove their status.
For a number of years now Kent Law Clinic has been dealing with cases of individuals caught up within the bureaucratic nightmare of trying to prove their existence as a lawful member of the UK, like characters in Kafka novels who find themselves in a seemingly incomprehensible situation. Their initial response is often to imagine that this can be cleared up by a simple phone call to the Home Office to explain that it is all a misunderstanding – and yet then months and sometimes years pass with no response.
A recent Kent Law Clinic case involved a US citizen, resident in the UK for over 50 years since the age of 18 months, who suddenly found himself unable to work when the Home Office employers checking service informed a prospective employer that the Home Office had no record of his lawful residence. This was despite an almost unbroken record of national insurance contributions since the age of 16. It took almost six months, the intervention of the Law Clinic and a local MP before it was resolved. Our client described how his life was destroyed, he was unable to work, became bankrupt and suffered depression and anxiety not knowing if he would face deportation. Other cases can take longer to resolve and lead to the senseless waste of an individual’s life whilst they are unable to participate in society.
So, whilst it is positive that the government is now acknowledging this problem, given the warnings from concerned NGO’s it should not require newspaper coverage to reach a critical mass before the government takes action.
The Tip of an Iceberg – The UK as a Precarious Home
The cases that have been recently highlighted as the “Windrush generation” are however only the most extreme end of a wider spectrum of long term residents who are finding that even after many years of living in the UK they have no right to remain. In the case of those who arrived from the Commonwealth prior to the Immigration Act 1971, most should have a lawful status. The problem they are having after so many years, is proving that they arrived prior to the commencement of the act, a task made more difficult by the revelation that their landing card records have been destroyed. Calls for some kind of amnesty are therefore inappropriate – the real problem is the standard of proof being required for a long term legal resident to demonstrate their residence, and secondly the lengthy delay that it takes to resolve such cases.
However, there are plenty of other cases which are more complicated and where an individual’s immigration status may be uncertain or even unlawful and yet they have been resident for many years. This is particularly the case for those who were brought to the UK as children and for whatever reason never had their immigration status regularised. In such cases they may only have discovered their lack of legal status as an adult when confronted by an aspect of the hostile environment. Whilst many of these may have valid immigration applications they could make based on human rights arguments, high fees and the lack of legal aid make this a very difficult process.
The Law Clinic recently acted for a young man who had already been granted a period of 30 months leave based on his residence and private life in the UK. However, confronted by an application fee of £993, unable to access legal advice to understand the possibility of applying for a fee waiver and simultaneously dealing with housing difficulties and potential homelessness he managed to overstay his leave to remain. He has therefore returned to the “hostile environment” and will continue to face this until his status is eventually regularised once again.
Those of the Windrush generation who were citizens of the UK and colonies were able to immediately settle in the UK. Yet recent government policy has been to delay or restrict altogether the settlement of non-EU nationals, even as the UK still relies significantly on temporary labour migration. There are therefore a growing number of resident non-nationals building lives in the UK, becoming integrated but with no guarantee that they will ultimately be permitted to settle. Further legal developments have made it more difficult for those on temporary leave to rely on human rights arguments to remain based on their established private life. The UK is becoming an increasingly precarious home for those without British citizenship and this has potentially damaging consequences for attempts to create integrated communities.
One example is a family of four who even after 12 years residence cannot afford the £9,556 necessary to obtain indefinite leave to remain and are therefore faced with needing to make repeated further immigration applications every 30 months. Such individuals live with a continuing sense of uncertainty – not knowing if the law will change in the future or whether a small error in a future application will lead to a refusal, creating a situation where they lose their leave and are suddenly locked out of meaningful participation in a community to which they have belonged for years.
As the UK prepares to confer a new “settled status” in UK law on resident EU citizens (to replace their current free movement rights protected by EU law), recent stories concerning the situation of former Commonwealth migrants clearly act as a warning to the EU to ensure that adequate safeguards are made a part of the withdrawal agreement.
Given the light that has been shone on the plight of the “Windrush generation”, perhaps it is also now time to question the wider approach to future generations of long term resident non-nationals.
(For an extended discussion of the recent developments in immigration law increasing the precarity of non-nationals residence see my chapter ‘UK as a Precarious Home’ in the upcoming book Law and the Precarious Home: Socio-Legal Perspectives on the Home in Insecure Times)
 Home Office, 16/04/18 https://www.gov.uk/government/news/new-team-to-help-commonwealth-citizens-confirm-their-status-in-the-uk
 JCWI, Passport Please. 13/02/17. http://www.jcwi.org.uk/blog/2015/09/03/right-rent-checks-result-discrimination-against-those-who-appear-%E2%80%98foreign%E2%80%99
Bolt, D (2018) An inspection of the “Right to Rent” scheme https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/695273/An_inspection_of_the_Right_to_Rent_scheme.pdf
 MiCLU Report, Precarious Citizens https://miclu.org/assets/uploads/2017/04/Precarious-Citizenship-Report.pdf
 York, S Law Clinic Blog, https://blogs.kent.ac.uk/kentlawclinic/2017/04/04/immigration-fees-set-to-rise-again/
 Reference to the UK as a Precarious Home Article https://www.bloomsburyprofessional.com/uk/law-and-the-precarious-home-9781509914609/