Windrush: Commonwealth Citizen children arriving in the UK prior to 1973

Introduction

The Windrush generation who came to the UK as children prior to 1 January 1973 often have problems proving their UK arrival, and thereafter status prior to that date, when seeking to regularise their status in the UK or when seeking compensation under the Windrush Compensation Scheme for ill-treatment at the hands of the Home Office.

Some of these problems are specific to their status as minor children on arrival and thereafter when in-country. As such, they deserve discrete consideration. The most problem important is tracing status against the development of UK immigration control of Commonwealth citizens from 1962 onwards. However, brief mention must be made of two other issues: (1) passports and, (2) the process of decolonisation and independence.

Passports

Tracing the legal status children of Commonwealth citizens who arrived in the UK prior to the commencement of the Immigration Act 1971 on 1 January 1973 can be fraught with difficulty. Such children may have been included in a parent’s passport rather than having a separate travel document of their own. That parent’s passport may now be lost. Even were the child to have travelled to the UK on their own passport, that too may now be lost. Thus, on occasion there will be a need to look for other records: birth certificates, baptism records, school records (both in the UK and the country of departure), etc. With the passage of time, it is not always easy to secure such documents. However, it should not be forgotten that personal testimony (from the person concerned or others) is also a form of evidence and that affidavits and witness statements can serve to prove a person’s position.

Independence

A further matter to consider is the movement of decolonisation and the achievement of independence by British colonies and other British protected places. Typically, on the independence of a colony, under independence arrangements, a person’s British nationality was substituted for the nationality of the newly independent country. In some circumstances British nationality was nonetheless retained. Often, a Commonwealth citizen in the UK would not have been aware of the change of their nationality status occasioned by the independence of their place of birth or of its consequences for them. Moreover, prior to 1 January 1973, such a change of nationality status may have had little impact on their UK immigration status. Great care must be taken in tracing the evolution of a person’s nationality status and its consequences. The Home Office understanding of what happened in an individual case may want for accuracy.

The development of UK immigration control

The development of UK immigration control of Commonwealth citizens, including of minor children, from 1962 onwards, needs to be properly understood. As is well-known, prior to the Commonwealth Immigrants Act 1962, Commonwealth citizens (whether from remaining British colonies or from newly independent countries) were free of UK immigration control. Thereafter, controls were introduced by the 1962 Act and then further extended by the Commonwealth Immigrants Act 1968.

Thus, at the beginning of the 1960s children who were Commonwealth citizens would have been free of immigration control on arrival and thereafter when in-country. However, as the decade wore on restrictions were placed on the ability of new arrivals to be admitted to the UK.

A further complication arises as a result of the way children of different ages were treated. Until 1 January 1970, the age of majority was 21. However, the Commonwealth Immigrants Act 1962 only provided for a child under the age of 16 to be admitted to the UK as of right and ordinarily free of conditions. The 1968 Act retained that feature. Further, that right arose only where one parent was a Commonwealth citizen and the child accompanying or joining both parents in the UK (NB the right also subsisted where one parent was dead and the surviving parent was a UK resident).

Such was the provision in statue. However, there were policies for the exercise of discretion as regards children of divorced or separated parents, as well as in respect of children born out of wedlock. Further there was also a policy for those children aged 16 and over but under 18. In addition, there was also a policy of considering exceptionally children aged 18 or over but under 21 and even, in very limited circumstances, children aged 21 and over.

Thus, the tracing of UK immigration status, requires mapping a Commonwealth citizen child’s UK arrival: and thereafter their residence: the date of their arrival, whom they were accompanying of joining, whether they had a right to be admitted to the UK on arrival, and if not, whether there is a factual matrix to enable a conclusion that they were probably admitted at discretion and free of conditions.

For those children who were free of restrictions on 1 January 1973 when the Immigration Act 1971 came into force, where those children did not have the UK right of abode and wanted for other status but were otherwise settled in the UK, indefinite leave was deemed to have been conferred by operation of law under s 1(2) of the Immigration Act 1971. Thus, much is at stake when examining the prior position.

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