They are called the “Windrush generation” after the name of the ship that brought people from the Caribbeans to the UK in 1948. That year, the British Nationality Act gave citizenship and the right to settle in the country to all people in the UK and its colonies. As citizens, many arrived from Commonwealth nations to help rebuild Britain after the Second World War. But over time, new immigration laws have changed their status. Lost the citizenship, the immigration act of 1971 granted them Indefinite Leave to Remain, the right to stay in the UK permanently. But many never applied for documents nor registered their children. And if that was not necessarily a problem at the time, an increasingly tough immigration regime is now threatening their future in the country.

Immigration rules introduced in 2014 by Theresa May, then Home Secretary, require landlords, employers and health care providers to demand tenant, employees or users evidence of their legal status. In this ‘hostile environment’, a description used by Theresa May herself, many of the Windrush generation have been put in a difficult position. Without documents or past records to prove their rights, many have been pushed out of the job market, deprived of a pension or denied access to healthcare. Some have also been deported.

Their stories have started to emerge in the media this week, as the Commonwealth biennial summit was taking place in the UK. Prime Minister Theresa May was forced into an apology. The British government promised a task force to deal with the issue, as well as compensation for those affected.

But the scandal of the Windrush generation has sent a shiver down the spine of EU nationals in the UK and raised alarm in Brussels over their status after Brexit. A meeting between representatives of the Home Office and the European parliament has been planned for April 24.

We must avoid a post-Brexit bureaucratic nightmare for EU citizens. We need full guarantees in the light of the #Windrush scandal. The EP will discuss this with the Home Office in Brussels on Tuesday 24 April.

— Guy Verhofstadt (@guyverhofstadt) April 18, 2018

Exactly – what #windrush debate has shown is that ‘indefinite’ in UK immigration policy doesn’t mean ‘eternal’ – it means ‘Until the government changes its mind’. https://t.co/joL3az1qvJ

— Ian Bond (@CER_IanBond) April 20, 2018

Similar situation?

EU nationals can live, work and study in the UK based on EU’s free movement rules. Although their status is changing with the UK exit from the European Union, their situation is different from that of the Windrush generation. Unless talks between the UK and the EU collapse, there will be an international agreement guaranteeing their rights, an independent authority in the UK to oversee its implementation, and a process to document their presence (the ‘settled status’). But none of these conditions will bring the risk to zero.

Stijn Smismans, Professor of European Law at Cardiff University, explains: “I do not think there will be an exact replica of the Windrush situation, but there might be people experiencing difficulties and EU nationals who do not apply for settled status by the deadline of June 2021 are likely to be hit by the hostile environment.” The Migration Observatory has already documented the problem of those who may, even involuntarily, fall out of the system.

Similarities with the Windrush generation could also emerge in the future, for example if people were asked to prove again their status after years, or if children born in the UK from parents from the EU were required, later in life, to prove the legal position of their parents.

“The problem is that, as it stands now, the UK’s EU withdrawal agreement does not include enough guarantees,” says Smismans.

Which solutions?

Smismans argues that to protect EU nationals in the UK, the withdrawal agreement should detail how the ‘settled status’ will work, so that this will be translated in UK primary legislation.

The second solution would be, in his opinion, adding a binding protocol to the withdrawal agreement, where the UK makes the unilateral promise of the conditions and procedures that will be put in place for settled status.

Third, the independent authority that will be created in the UK to monitor the implementation of the withdrawal agreement should be jointly made, and paid for, by the UK and the EU. “It makes little sense to leave monitoring of an international agreement to the sole initiative of the party that has the least interest to ensure such monitoring,” he said in a blog post for the London School of Economics. Based on the withdrawal agreement, this authority can be abolished after 8 years, leaving EU citizens in the UK in a weak position for the future.

The Institute for Government, a think tank specialised in UK governance, argues that in the present context the ‘hostile environment’ should just be dropped. “The current Home Office approach is not compatible with a department that will need to get a huge number of EU nationals registered in a short space of time. The new settled status process is not about reducing numbers, it is about providing documentation to the overwhelming majority that are here by right,” the institute said.

Claudia Delpero © all rights reserved.
Photo via Pixabay.