OTS LexisNexis report: Brexit, the new Windrush generation

 

On the 30th of May OTS Solicitors were asked to comment on Brexit as being the cause of a new Windrush Generation. The following comments were provided to Lexis Nexis the UK's largest Legal Journal [See Full Report Here].

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James Callaghan the architect of Windrush Mark I

Sajid Javid the architect of and EU “Windrush Mark I”

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On the 12th February 1968 the then Home Secretary James Callaghan was told that proposed legislation to retrospectively deprive Citizens of the United Kingdom and Colonies of their right of abode was a breach of the Universal Declaration Humm Rights

Article 13(2) of the UDHR states: "Everyone has the right to leave any country, including his own, and to return to his country". The Declaration did not impose legal obligations but, as the Prime Minister Harold Wilson said in Parliament on 4th February 1965,

"it does of course have great moral authority which Her Majesty's Government, for their part, will do all in their power to support".

That 1968 was International Human Rights Year was an irony not lost on United Kingdom citizens who were deprived of effective rights of citizenship.

The Commonwealth Immigrants Act 1968 was in its effect in breach of United Nations Convention on Racial Discrimination

"States who are parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights ........... The right to leave any country, including one's own, and to return to one's country".

The United Kingdom signed the 1966 Convention which was adopted and entered into force in 1969. It was ratified by the UK in the same year. The proposed extension of Immigration control to Citizens of the United Kingdom and Colonies was therefore open to challenge, on the basis that it was discriminatory on grounds of race, colour or national or ethnic origin.

The Commonwealth Immigrants Act 1968 was in breach of the International Covenant on Civil and Political Rights

"No one shall be arbitrarily deprived of the right to enter his own country".

The Commonwealth Immigrants Act 1968 was also in breach of the European Convention of Human Rights

Article 3(2) of the Fourth Protocol ECHR states: "No one shall be deprived of the right to enter the territory of the state of which he is a national".

If these arguments sound familiar that is because the same retrospective diminution of acquired citizenship rights will also take place under the auspices of the UK-EU withdrawal agreement.

The withdrawal agreement proposes that settled status is available to EU citizens who have accrued five years of continuous residence in the UK prior to 31 December 2020. Those who moved to the UK prior to 31 December 2020 (or the date of the UK’s departure from the EU in the case of a ‘no deal’ scenario) but who have not yet lived in the UK for five years may be eligible for pre-settled status.

The Committee recommends that:

- EU citizens legally resident in the UK before Brexit should have their rights protected and entitlement to remain enshrined in law.

- The Settlement Scheme should operate as a means for EU citizens to obtain formal, physical confirmation of their status, not just as a digital system.

- The granting of legal rights and the Settlement Scheme should operate in the same way if the UK leaves the EU with or without a deal.

- Improvements must be made to the application process which has been blighted by technical issues.

- The Scheme must identify ways of supporting children and vulnerable individuals to apply.

- The Government must clarify its intentions towards those who fail to apply.

However the Select Committee’s demands fall short of the commitment in Section 5(1) of the Immigration Act 1971 which preserved the free movement rights of the spouses and children of Commonwealth Citizens as if the 1971 Act had never been enacted. The standstill clause preventing the rules on settlement from becoming more restrictive than those enjoyed before 1973 which said.

“Immigration Act s.1(5) The rules shall be so framed that Commonwealth citizens settled in the United Kingdom at the coming into force of this Act and their wives and children are not, by virtue of anything in the rules, any less free to come into and go from the United Kingdom than if this Act had not been passed”.

What James Callaghan did in 1968 and what Sajid Javid proposes to do today is to unlawfully deprive citizens of their entrenched rights by the application of retrospective legislation. It was breach of international law and settled conventions then and it remains so today.