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Why is the Windrush generation facing problems with their immigration status?

In June 1948, the ship HMT Empire Windrush brought nearly 500 West Indian migrants to the UK. The Windrush was a troopship en route from Australia to England, docking in Jamaica. As a result of losses during World War II, the Government encouraged people throughout the British Empire and Commonwealth to relocate to the UK with their families to fill shortages in the labour market.

The migrants quickly filled jobs at British Rail, public transport and the NHS. Although the migrants were encouraged to relocate to Britain through campaigns created by the British Government, many faced intolerance and racism.

Immigration status and the Windrush generation

The right to free movement between Commonwealth nations ended in 1971, following the enactment of the Immigration Act. Commonwealth citizens who were already living in the UK were given indefinite leave to remain.

The Home Office kept no records of those granted status in the UK.

Children born to parents who were given indefinite leave to remain obtained no separate status or documents from the Home Office.

People born in Caribbean countries would arrive in the UK on their parents’ passports, without having their own identification documents. These children and young people have completed their education; they have worked, paid taxes and raised their children in the UK.

For years, there had been no imposition on landlords to check a tenant’s immigration status, and employers were not required to check whether their employees had the right to work. As a result, many descendants of the Windrush generation have resided in the UK understanding that they are in the country legally.

Why is your immigration status important?

The Immigration Act 2016 introduced provisions for the offence of illegal working as well as offences of employing illegal workers. The Act also introduced an offence if leasing premises to an adult who is disqualified as a result of their immigration status. Infamous are also powers to carry out searches relating to driving licences and freezing bank accounts that have been introduced last year.

Other serious issues stemming from misconceptions of the immigration status of Commonwealth citizens include denying medical treatment or withdrawing access to benefits.

Employment and immigration status

We have seen a surge in employment claims. In the 2017 case of Baker v Abellio London Limited, the company dismissed a bus driver, a Jamaican national, for not being able to provide a document which would prove that he had the right to work in the UK. In reality, Mr Baker has the right of abode in the UK, but did not have a document from the employer’s list. In this case, the Home Office confirmed that Mr Baker had the right to live and work in the UK. However, the employer, in fear of a substantial fine or criminal prosecution, dismissed Mr Baker.

The Employment Appeal Tribunal found that the dismissal, on the ground of failure to produce a document that would prove his right to work, was unfair and that there was no mandatory obligation on the company to seek evidence of his status. Amongst other important legal outcomes, this case demonstrates the effect that immigration law has on the public.

What’s next for Commonwealth citizens?

We hope that the Government will take appropriate steps to rectify the situation in which Commonwealth citizens who have built lives in the UK nevertheless find themselves facing rejection by employers, authorities and the Home Office.

The UK is hosting the biannual Commonwealth Heads of Government Meeting (CHOGM) in April 2018. The Queen will officially open the meeting. It is yet to be seen whether the treatment of Commonwealth citizens living in the UK will be on the agenda of the meeting.

[1] Baker v Abellio London Limited [2017] UKEAT 0250/16 


This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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