How to avoid a replica of the Windrush scandal for EU citizens in UK

They are called the “Windrush generation” after the ship that brought people from the Caribbeans to the UK in 1948. In the following years, many arrived from Commonwealth nations to help rebuild Britain after the Second World War. Over the years, howerer, immigration laws have changed their status. Although the 1971 immigration act granted them Indefinite Leave to Remain, acknowledging their right to stay in the UK permanently, many never applied for documents nor registered their children.

That was not necessarily a problem at the time, but with an increasingly tough immigration regime, their rights are now threatened. Immigration rules introduced in 2014 by Prime Minister Theresa May, then Home Secretary, require landlords, employers and health care providers to demand evidence of legal status before providing certain services. In this ‘hostile environment’, a description used by Theresa May herself, many people 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. Many have been deported.

Their stories were brought up by the media as the Commonwealth biennial summit took place in the UK this week. 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.

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.

The Migration Observatory has documented the problem of those who may, even involuntarily, fall out of the system. Stijn Smismans, Professor of European Law at Cardiff University, says: “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.”

Smismans argues that the settled status does not completely exclude a situation similar to the Windrush cases, if people were asked to prove again their status after years. An example, he told Europe Street, is the potential demand of the documents required for permanent residence (despite its replacement with the simpler settled status) when applying for British citizenship.

Another possible similarity concerns children born in the UK from parents from the EU. What if they 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?

The Law Professor says that the withdrawal agreement should detail how the settled status will work, so that this will be translated in UK primary legislation.

“The European Union has refused to do that because the withdrawal agreement is based on the EU free movement directive which applies also to the remaining 27 EU countries. Writing more detail on settle status in the Withdrawal Agreement is therefore perceived as a revision of that Directive that would undermine the existing system in the EU,” he says.

The second option 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 applied for settled status.

Third, the independent authority that will be created in the UK to monitor the implementation of the withdrawal agreement with regard to citizens’ rights 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 wrote in a blog post for the London School of Economics.

Based on the withdrawal agreement, even this authority could be abolished after 8 years, leaving EU citizens in the UK in a weak position, he notes.

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.

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