09:54, April 16 124 0 theguardian.com

2018-04-16 09:54:06
Immigration law protection for Windrush immigrants 'was removed in 2014'

The government quietly removed a key protection from the statute books for some British residents of the Windrush generation who could face deportation, the Guardian has learned.

The Home Office said the clause was removed from the 2014 Immigration Act because adequate protections were already in place for people who were initially granted temporary rights to remain in the UK and have stayed for decades.

But the Labour party, lawyers and charities are urging the government to reinstate the clause to ensure all longstanding Commonwealth residents are protected from enforced removal, not just those who have gained “settled” status.

The Guardian has revealed many cases of Commonwealth citizens who have lived, worked and paid taxes in the UK for decades but have been threatened with removal. They have struggled to provide the paperwork required by the Home Office to prove they have the legal right to remain in the UK.

Diplomats from 12 Caribbean countries have called on the Home Office to resolve the situation.

The onus is on individuals to prove they were resident in the UK before 1 January 1973, the date the 1971 Immigration Act came into force. However, a key clause was deleted from the 2014 Immigration Act that had provided longstanding Commonwealth residents with protection from enforced removal. The government did not announce the removal of this clause nor did it consult on the potential ramifications.

Some Commonwealth citizens were given temporary permission to work in the UK or arrived as students before 1973. They are likely to have been born in the late 1940s or early 1950s and are now of pensionable age. As a result of the government’s “hostile environment” policies requiring landlords, the NHS and other bodies to check people’s immigration status, these cases have started to come to light.

Children of the Windrush generation – those invited by the British government to work in the UK after the second world war – were automatically entitled to settled status under the Commonwealth Immigrants Act 1962, provided they have documentation that satisfies the Home Office. There is no equivalent clause specifically protecting Commonwealth citizens granted limited status before January 1973, such as students or people who came on temporary work visas.

All longstanding Commonwealth residents were protected from enforced removal by a specific exemption in the 1999 Immigration and Asylum Act – a clause removed in the updated 2014 legislation.

Frances Webber, a former barrister and vice-chair of the Institute of Race Relations, discovered the deletion of this key clause. “I find it very frightening that rights can be removed in this way, surreptitiously, with no debate,” she said.

“It is particularly cruel that the people secretly stripped of these rights will by definition have lived here for getting on for half a century. The inhumanity of it, and the disregard for democracy, are breathtaking. The deletion of the exemption was clearly deliberate … There is a gap in the protection for long-resident Commonwealth citizens, which needs to be filled.”

Diane Abbott, the shadow home secretary, attacked the removal of the clause without parliamentary debate or announcement and urged the government to rethink it. “We want the legal protections that were previously given to be upheld,” she said. “It would be a small matter to alter the law. But it would mean a great deal to those affected, and enhance this country’s reputation for fair dealing and keeping its word.”

Satbir Singh, the chief executive of the Joint Council for the Welfare of Immigrants, said: “This is yet another example of the government reneging on its commitments to the Commonwealth. It would be simple to correct this oversight, and the government needs to act immediately to do so. Our rights should never be removed in secret or by accident.”

New Home Office guidance relating to Commonwealth citizens who arrived in the UK before January 1973 says they will “most likely” have settled status and “the chances are” they are entitled to permanent residency.

A Home Office spokesperson said: “We are clear that Commonwealth citizens living in the UK before 1 January 1973 are adequately protected from removal – to report otherwise would be misleading. Legislation is complex and, when revising it, it is the normal process to simplify it where possible and remove duplications in law.”

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