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There hasn’t been much good news in the press recently. So we, at OTS Solicitors, though we would buck the trend and report on a Windrush success story. It is about one woman and her fight against the Home Office to prove, through judicial review proceedings that she had Indefinite Leave to Remain in the UK. You may remember her as she and Stephen Slater, senior lawyer at OTS Solicitors, appeared in the BBC series ‘’who should get to stay in the UK?’’
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Who should get to stay in the UK?
The BBC television programme ‘’who should get to stay in the UK?’’ made for compelling TV, even if we say it ourselves. That is because, in our view, it gave viewers an insight into how hard a battle it can be to secure immigration status in the UK, whether you are applying for asylum, applying for a Tier 2 (General) visa, spouse visa or, as in the case of Nancy, having to take on the Home Office to prove that she, and her family, were entitled to remain in the UK.
If you missed the airing of Nancy’s story ,featuring Stephen Slater, senior lawyer and in-house advocate at OTS Solicitors, then the programme is still available on BBC i-player for a couple of months.
From Stephen Slater’s point of view the programme should be compulsory viewing, at least for Home Office officials and politicians, as whilst they may have read about and spoken on the subject of Windrush it isn’t until your hear from someone like Nancy that you realise just how devastating an impact Windrush has had on ordinary people’s lives.
Nancy’s story is not uncommon – one woman’s battle to stay in the UK. Nancy came to the UK from Gambia at age six. Her mother, a commonwealth citizen, was invited to come to the UK where she worked as a nurse and brought Nancy up. Nancy became a makeup artist. Her dream was to travel the world working in the field of make-up. However, in 2007 Nancy’s passport was stolen and with the theft went the only evidence (a stamp on a page in her passport) that Nancy had that said she was entitled to be in the UK.
Most of us would assume that a simple request for a new passport would sort out Nancy’s issues. However, when Nancy applied for a replacement passport she was told that Home Office officials had no evidence that she was entitled to be in the UK and that she could therefore be classed as an ‘’illegal’’. That is hard news to hear when you are an adult who came to the UK as a child aged six.
For Stephen Slater, Nancy’s case was full of frustrations. It seemed obvious to him that Nancy was a victim of circumstances and that had it not been for Home Office record keeping failures the loss of her passport would have been a minor matter. After all, when Nancy arrived with her parents they filled in all the correct paperwork but the Home Office destroyed it. Then, to compound that error, Home Office officials assessing whether Nancy should be able to stay in the UK, applied current immigration Rules to Nancy’s circumstances rather than the immigration Rules that had been in force when Nancy had arrived in the UK, age six.
Stephen Slater was able to challenge the Home Office assertion that Nancy was in the UK illegally by tracking down the 1988 immigration Rules. Page 13 of those immigration Rules said a child should get the same leave to remain as a parent entering the UK and in Nancy’s case that meant she had Indefinite Leave to Remain.
Judicial Review proceedings
To secure her rights Nancy had to start judicial review proceedings against the Home Office decision. Stephen Slater is delighted to say that the legal challenge was a success. The Home Office conceded in her judicial review that Nancy had enjoyed Indefinite Leave to Remain since 1988.
In addition, Nancy brought a legal challenge against the HMRC. The Social Security Appeal Tribunal accepted Nancy's Indefinite Leave to Remain status and not only overturned the decision to reclaim £35,000 worth of child benefit but they back dated the award of child benefit for Nancy’s three children to July 2017 (when it was unlawfully cut off as part of the hostile environment policy that Nancy was subject to because of her Windrush status).
Nancy may have appeared to ‘’win’’ but as her daughter said in the TV programme the family hasn’t won ; they just got what they were entitled to after years of battling with the Home Office and officials and enduring the stress of the hostile environment policy.
In our view, what made Nancy’s story so compelling was her ordinariness. She isn’t a nuclear scientist or National Health Service key worker but a makeup artiste and mother. What set her apart in the TV programme was her warmth and energy; you get that impression just from seeing her on screen.
Although we have all read about Windrush in the newspapers many people who aren’t immigration solicitors don’t know anyone personally affected by the scandal .That is why Nancy’s televised story is so important in the battle to ensure that no one forgets or fails to learn the lessons of Windrush.
In Stephen Slater’s view, Nancy’s story epitomises the Windrush generation and their battle for justice. Nancy certainly isn’t the one who had to undergo such a long and arduous journey to prove that she has Indefinite Leave to Remain in the UK but we think that her courage and her very ordinariness makes her story worthy of inclusion in the BBC ‘’who gets to stay in the UK’’ TV series.
Windrush – the fight goes on
For Stephen Slater and the team of immigration lawyers at OTS Solicitors the fight for justice for the Windrush generation goes on. The Home Secretary commissioned a ‘’lessons learned’’ review into the events leading up to Windrush. It was an internal review with independent oversight provided by Wendy Williams.
"I welcome the work you have undertaken in the Independent Windrush Lessons Learned Review. However, I fear that further errors have been made in respect of the 31st December 1988 cut-off date used to assess entitlement to redress under the Windrush scheme.
Although the immigration Act 1988 received Royal Ascent on the 1st August 1988 the repeal 1(5) of the immigration Act 1971 merely lifted a prohibition on the application of the immigration rules to the wives and children of CUKC's.
The Secretary of State did not introduce the first iteration of the immigration rules free of that prohibition until she tendered a Statement of Changes to the immigration Rules HC 388 Laid before Parliament on 14 June 1989 under section 3(2) of the immigration Act 1971 effective from 8th July 1989 after the date the Secretary of State currently applies.
Such changes to the immigration Rules are not retrospective in their effect unless the parliamentary instrument expressly so provides
You will appreciate that it is source of legitimate frustration on the part of Windrush victims that the very scheme designed to put right institutional wrongs should persist in errors of law. I appreciate your review has come to a conclusion but in light of the points raised above I would be grateful for your support to ensure that compounded errors in law are not permitted to stand’’.
You may think that the letter is rather technical. It is, but it was the focus on immigration law and rules that led to Nancy’s success story. Stephen Slater hopes that by continuing to investigate there will be more Windrush success stories for people like Nancy and that just as importantly the ‘’lessons learned’’ review will be challenged by immigration solicitors to make sure that the lessons of Windrush are really learned.
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Posted on: Wednesday, 15 April, 2020