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There has been much coverage in the press over the last couple of weeks about the experiences of
The Windrush Generation partly lading to the resignation of the Home Secretary. Whilst the debate
has used the terminology “Windrush Generation,"  essentially problems are arising for those
Commonwealth Citizens who arrived in the UK in the 1950s and 1960s, and cannot evidence their
right to reside in the United Kingdom through lack of paperwork.

There was a change with The Commonwealth Immigrants Act 1962 which made citizens of
Commonwealth countries subject to immigration control, except those who arrived as minors (under
the age of 16). Then the Immigration Act 1971 came into force, and this provided that those who
were already present and settled in the UK when the Act came into force on 01 January 1973 were
automatically entitled to stay indefinitely in the UK.

The problem has arisen because recent changes to the law (in particular the Immigration Act 2014)
mean that if a person wishes to work, rent property or have access to benefits and services in the
UK, then they will need to produce documents to demonstrate that they have the right to be in the
UK. Theresa May, as Home Secretary, said that the purpose behind the 2014 Act was “to create a
really hostile environment for illegal migrants… what we don’t want is a situation where people
think that they can come here and overstay because they are able to access everything they need."

When this intention was declared, immigration lawyers anticipated the consequences of the hostile
environment since a person’s immigration status is not necessarily straightforward. Those fears have
now been proven to be well-founded, as is clear from the treatment of the Windrush Generation.
Under pressure from journalists and MPs, the Home Office have now produced Guidance for
“undocumented Commonwealth citizens."

Amber Rudd, the recently resigned Home Secretary agreed to waive the citizenship fee for anyone in The Windrush Generation who wishes to apply for citizenship, waive the requirement to carry out a knowledge of language and life in the UK test, waive the fee for the children of the Windrush Generation who are in the UK who need to apply for naturalisation, ensure that those who have made their lives here but have now retired to their country of origin are able to come back to the UK, compensate people who have suffered loss as a result of being subject to immigration enforcement procedures because they have been unable to produce documentation, establish a new customer contact centre so as to assist anybody who feels that they may be able to benefit from this new Guidance, and, finally, ensure that people who arrived after 1973 but before 1988 can also access a dedicated Windrush Team, and access the support and assistance needed to establish their claim to be here legally.

A further problem has arisen since although under the 1971 Immigration Act, all Commonwealth
citizens already living in the UK were given indefinite leave to remain – the Home Office have
destroyed landing card records meaning it is difficult for the individuals to now prove that they are in
the UK legally. (These records were important because they held information detailing the date of a
person’s arrival in the UK). The decision to destroy these records has serious implications for
individuals’ lives.

Please do get in touch with our Edinburgh or Glasgow Immigration teams should you require advice
on making an immigration application.