Introduction

The past was a different place. People did things differently. Even the Home Secretary. That matters when members of the Windrush generation seek to regularise their status or seek compensation for past wrongs. There is a common mistake at large that when a person left the UK for more than two years, their indefinite leave lapsed. That might be true today but it was not always true in the past. Why does it matter?  The answer is that it changes the way past events should be viewed. If you want to know how a member of the Windrush generation should have been treated by UK Immigration Officers in the past, as opposed to how they were treated, when seeking to regularise their status or seek compensation today, you need to know what the law was at the relevant time.

From 1 January 1973 onwards

It is well-known that a person who was settled in the UK on 1 January 1973 (when the Immigration Act 1971 came into force) without a time-restriction as to how long they could remain, was deemed to have indefinite leave to enter or remain (ILE/ILR) under the Immigration Act 1971, s 1(2). Many Commonwealth citizens and foreigners benefited from this provision. But what if you left the UK thereafter?

The moment a person left the Common Travel Area (the UK, Republic of Ireland, Channel Islands, and Isle of Man), leave lapsed, Immigration Act 1971, s 3(4). There was no two-year non-lapsing rule and no provision for leave to continue. At that time, indefinite leave was really a description of how a person last had been controlled in the UK for immigration purposes, it was not a status enduring when outside the UK. That being so, what happened when a person returned to the UK?

Picture the scenario, a Commonwealth citizen from Ghana has ILR in the UK having been present in the UK without time restriction in since 1960. On 1 March 1974 she travels to Ghana for a holiday. Her indefinite leave lapses on departure. On her return one month later, she boards the plane in Accra without the need for a visa and presents herself to an Immigration Officer at London Airport seeking admission to the UK. What happens next? She has no visa and no non-lapsing leave. Is she to be admitted as a visitor (for a short stay and with an intention to return to Ghana) or can she seek admission to resume her residence/settlement in the UK?

The answer lies not in the statutory provision for leave to lapse but in the Immigration Rules setting out the policy as to when a person will be given leave to enter the UK and on what basis.  Thus, the focus is not on whether leave lapsed (it did) but on the rules governing entry or admission to the UK. From 1 January 1973 onwards, there were different rules governing UK entry (i) for certain Commonwealth citizens settled in the UK on that date and who had been settled in the UK within the previous two years prior to seeking re-admission (such persons had statutory protection), and (ii) other persons who had had indefinite leave when last in the UK and who returned to the UK within two years. What matters though is that both could return within two years and be re-admitted to the UK by entitlement for settlement. Why do these provisions not amount to a two-year rule, albeit one relating to UK-entry rather than non-lapsing leave?

What needs to be added in is the further provision made in the Immigration Rules to admit for settlement, those persons previously settled in the UK but away for more than two years. Further provision was made to grant indefinite leave to enter to such persons at discretion, in circumstances where that discretion was drafted in relatively liberal terms: “if, for example, he has lived here for most of his life”. The purpose of the discretion was to avoid an inflexible two-year rule and provide a workable basis to readmit for settlement, where a person had previously been settled in the UK.

Recalling the example of the UK-resident Ghanaian citizen, who returned to the UK in April 1974, after a month of holiday in Ghana. Her leave had lapsed when she left the UK but on return she has an entitlement to seek entry to the UK to resume settlement as she has returned to the UK after only a month away. It is possible she may have been wrongly admitted or even refused as a visitor but the Immigration Rules (underpinned by statute) provided a right of entry to resume her settled life and she should have been so admitted. What if she returned after more than two-years away, not in April 1974 but in April 1976, still with an intention to resume settlement? True, she has been away for more than two years but there is no hard-edged two-year rule. Instead, she may be admitted at discretion under the Immigration Rules but in circumstances where the exercise of such discretion is framed in relatively liberal terms.

Thus, when assessing whether a person outside the UK and seeking to claim Windrush compensation had a lawful status at a time in the past when she sought entry to the UK and had been refused UK-entry, it is important to bear in mind that (prior to 30 July 2000, see below), there was no concept of non-lapsing leave on departure from the UK (all leave lapsed when leaving the Common Travel Area) so it is meaningless to speak of leave subsisting for up to two years away. However, the Immigration Rules provided Commonwealth citizens and others with an entitlement to admission if returning within two years to resume settlement, as well as a liberally expressed discretion to be admitted to resume settlement even where away for more than two years. As regards a returning resident, if there was evidence of her previously having been settled in the UK, an Immigration Officer ought to have considered whether she had returned within two years: if so, she was entitled to be admitted; if away for more than two years, he ought to have considered whether to admit her at discretion? If the Immigration Officer did not ask those questions but merely controlled her as a person seeking entry as a visitor and refused her entry, the door to compensation ought to open.

The problem with an immigration system that had no provision for leave not to lapse on departure from the UK was that on a person’s return, an Immigration Office at port had to consider whether to admit a person from scratch. For the arriving person who had been living a UK-settled life previously, that was pointlessly burdensome and risked disrupting their settled UK-life if they were refused entry. For the Immigration Officer, it was time-consuming to assess whether to admi the person to the UK and offered much scope for error. Hence the introduction of non-lapsing leave in 2000.

Non-lapsing leave on and after 30 July 2000

Provision for leave not to lapse on a journey outside the Common Travel Area (the UK, Republic of Ireland, Channel Islands, and the Isle of Man) was made by the Immigration and Asylum Act 1999, which inserted ss 3A and 3B into the Immigration Act 1971. Thereafter, the Immigration (Leave to Enter and Remain) Order 2000, in force 30 July 2000, was made under ss 3A and 3B of the Immigration Act 1971. That Order made provision in Article 13 for non-lapsing leave.

For these purposes ‘leave’ means leave to enter the UK, includes leave to enter at port and leave to enter conferred by means of an entry clearance (i.e. when outside the UK), as well as leave to remain in the UK. Broadly speaking, where a person has leave which is in force and which was conferred by means of an entry clearance (other than a visit visa), or given by an immigration officer or the Home Secretary for a period exceeding six months, that leave does not lapse on leaving the Common Travel Area.

Such leave remains in force either indefinitely (if unlimited) or until the date on which it would otherwise have expired (if limited). However, where the person has stayed outside the UK for a continuous period of more than two years, the leave laspes.

The effect of a person returning with non-lapsing leave is that the port Immigration Officer has less to do: he needs to check the leave is still in force and, if relevant, if there are grounds for cancellation. However, he does not have to assess whether the conditions for granting leave are satisfied.

Conclusion

Prior to the introduction on non-lapsing leave on 30 July 2000, it was common for people to be wrongly controlled when seeking UK admission on arrival at port, having previously been resident and settled in the UK. If a returning resident, away for more than two years but previously settled, was controlled as if she was seeking entry a visitor, without any enquiry as to whether she ought to have been admitted at discretion, then that may give rise to a need for compensation today.