Immigration Corner | Help for the Windrush Generation

Dear Mr Bassie:

I am sure that you have noticed all the recent media attention surround-ing the immigration problems that have been experienced by some persons who have been classified as being part of the 'Windrush Generation' of British residents. I, too, have relatives who are in fear of being deported from the United Kingdom (UK) after being there for over 50 years.

I am hearing a lot of talk, but I am not understanding what can be practically done to help the situation. I am hoping that you can shed some light on this.

H.N.

Dear H.N.:

I understand that the term 'Windrush Generation' relates to those persons who travelled to the UK from the West Indies in 1948. A number of them travelled on their parents' passports and were never formally naturalised in Britain. As a result of these persons being unable to prove that they have the right to be in the UK, these long-term UK residents have been denied access to healthcare, have lost jobs and pensions, and, in some cases, have been made homeless and threatened with deportation.

It would seem that as a result of the amendments to the immigration law in 2012, persons have to prove their right, through documentation, to access healthcare benefits, work, and rent property.

In addition, this problem surfaces when persons have to produce documentation when engaging the British authorities, for example, when applying for benefits and/or their pension.

It appears that over the past few days, events have overtaken the situation, and it is reported that from a previously relaxed posture, the British government has repositioned itself and publicly apologised for the treatment of the Windrush Generation by the British government. On Friday, April 13, the British Home Office issued a guidance summary concerning what "Commonwealth-born, long-term United Kingdom residents" should do if they were in this category and if they felt that they did not have the necessary documentation to prove their right to be in the UK. This guidance summary was updated on April 17, 2018. This documentation is meant to guide the Commonwealth citizens, known as 'Windrush' cases, who are long-term residents of the UK and do not have documents to demonstrate their status. The summary explains the potential applicant's position, as seen by the state, and the steps that need to be taken with a view to regularisation.

The summary makes clear that it is not a substitute for immigration advice and that persons would need to contact an immigration adviser. If they are having difficulty in affording legal advice, they may wish to contact Citizens Advice Service in the UK. The Citizens Advice Service provides free, confidential and independent advice to help people overcome their problems.

Entitled stay

The British authorities point out in the document that if persons had entered the UK before January 1, 1973, then it is quite possible that they are entitled to live there permanently, and their status would only be broken following a long period, say, two years, outside of the United Kingdom.

Persons are advised that they can apply for a no time limit biometric residence permit. A no time limit biometric residence permit is a card that proves that the holders are entitled to live there permanently. If given indefinite leave to remain and upon confirmation of the status, persons may be eligible to apply for British citizenship. The process for applying for a no time limit biometric residence permit is outlined on the British Government Services website.

The guidance paper also confirms that if persons entered the United Kingdom after January 1, 1973, then they are not likely to have automatic status there but may have been granted leave to enter, leave to remain there, and then indefinite leave to remain.

In addition, the document says that if persons entered the United Kingdom after January 1, 1973, and have been there for a number of years but are concerned that they have never applied to the Home Office, no one has ever applied on their behalf, or their status has lapsed, then they may need to apply for leave to remain on the basis of their long residence and life over there.

The guidance also speaks to what evidence may be proffered to support their application. The British authorities state that they are aware and understand that some persons are unlikely to have documents that are over 40 years old. Nevertheless, they request that applicants send as much information as possible in support of their application.

This information is meant to assist in building a picture of their life in the United Kingdom. Persons are advised to think about where they went to school, where they might have studied, where they have worked, whether they have family there, and where they have lived while in the UK. Further, there may be documents available to the applicant that can help support the application, such as exam certificates, employment records, their National Insurance number, birth and marriage certificates, bills and letters. Please note that persons should be aware that they can contact UK Visas and Immigration to discuss their application on 0300 123 2241 (select option 1).

I hope this helps.

John S. Bassie

- John S. Bassie is a barrister/attorney-at-law who practises law in Jamaica. He is a justice of the peace, a Supreme Court-appointed mediator, a Fellow of the Chartered Institute of Arbitrators, a chartered arbitrator and a member of the Immigration Law Practitioners Association (UK). Email:lawbassie@yahoo.com