Immigration Cases

The immigration team in Southwark Law Centre delivers specialist legal advice and assistance including outreach, telephone and email advice to frontline advice agencies and casework including appeals and judicial review.   

We do not have the capacity to take on a large number of cases, but we prioritise complex cases involving children, women who are at risk of violence, and individuals and families facing destitution and homelessness for reasons relating to immigration status.

For more information on immigration advice services in Southwark and Lewisham click here. Please note that Catford CAB has moved and is now Lewisham CAB Leemore Community Hub, Bonfield Road, Lewisham, SE13 5EU

Long-term residents in the hostile environment

Including “the Windrush generation”

Briefing Paper

Southwark Law Centre & Migrant Legal Action on behalf of Southwark Legal Advice Network (SLAN)

May 2018

This guide is intended to give a basic overview of the position of undocumented, long-term residents in the uk

It is not a substitute for immigration advice 

Please see the immigration advice leaflet for further information on where to access immigration advice in Southwark and Lewisham www.southwarklawcentre.org.uk/immigration 

What is covered in this briefing

The hostile environment

The Windrush generation

• Who has a right to stay in the UK? - people who arrived before 1 January 1973
• Who has a right to stay in the UK? - people who arrived on or after 1 January 1973
• Obtaining citizenship or a document confirming indefinite leave to be in the UK
• Evidence that you have obtained indefinite leave
• Evidence that you have remained in the UK since obtaining indefinite leave
• Other important rights to note
• List of counties of the commonwealth

1. THE HOSTILE ENVIRONMENT

People are not allowed to work, rent property or have access to welfare benefits and services in the UK, including most non-urgent NHS treatment, unless they have documents to show that they have a right to be in the UK.

People who do not have such documents are also at risk of arrest, indefinite detention and enforced removal from the UK. 

Theresa May described this as “a really hostile environment for illegal immigrants” when she was Home Secretary in 2012, but the measures also affect people who do not have documents to demonstrate that they have a legal right to be in the UK.

People who are affected include people who came to the UK from the British Empire and Commonwealth[1] many years ago and have remained here. 

2. THE WINDRUSH GENERATION

The Home Office now admits that the Hostile Environment has unfairly affected the so-called “Windrush generation”, although those are not the only people who are unfairly affected.

The Windrush generation refers to the arrival in London of passengers from Jamaica on a ship called The Empire Windrush, which arrived in London in 1948 carrying people who had been invited to come and work in the United Kingdom, including many former servicemen who had fought for Britain in World War Two.   

The Home Office appears to consider anyone who arrived from the Commonwealth before 1 January 1973 as being part of this Windrush generation.

3. WHO HAS A RIGHT TO STAY IN THE UK? - PEOPLE WHO ARRIVED BEFORE 1 JANUARY 1973 

Significant restrictive changes in immigration law in the UK came into force on 1 January 1973, under the Immigration Act 1971, but the Act provided that anyone who was settled in the UK at that time without any time restriction on their permission to be here and who remained living in the UK would retain their right to remain in the UK indefinitely.  Anyone who was a Commonwealth citizen who came to the UK as a child before 1 January 1973 can be assumed to have had no time restriction on their right to be in the UK if they remained here on that date; and recent announcements by the Home Office suggest that any Commonwealth citizen who arrived in the UK before 1 January 1973 may also be treated by the Home Office as having had no time restriction on their right to be in the UK if they remained here on that date, but this has yet to be tested.

Indefinite leave could (and can) however be lost if: The person was or is absent from the UK for over two years (for Commonwealth citizens this only applied after 1 August 1988– absences of any duration from 1 January 1973 to 1 August 1988 do not matter), or A Deportation Order has been made against the person (a Deportation Order is a measure that is used to expel people whose presence in the UK is considered to be against the public good, usually for reasons relating to criminal offending).

4. WHO HAS A RIGHT TO STAY IN THE UK? - PEOPLE WHO ARRIVED ON OR AFTER 1 JANUARY 1973 

If you arrived in the UK on or after 1 January 1973 but have been given leave to enter or remain in the UK, including indefinite leave, then you have a right to stay in the UK, for as long as the leave remains valid.

Again, indefinite leave could (and can) however be lost if:

The person was or is absent from the UK for over two years (for Commonwealth citizens this only applied after 1 August 1988 – absences of any duration from 1 January 1973 to 1 August 1988 do not matter), or

A Deportation Order has been made against the person (a Deportation Order is a measure that is used to expel people whose presence in the UK is considered to be against the public good, usually for reasons relating to criminal offending).

5. OBTAINING CITIZENSHIP OR A DOCUMENT CONFIRMING INDEFINITE LEAVE TO BE IN THE UK

If you are confident that you have indefinite leave in the UK, you can apply for British citizenship or, if you do not qualify for citizenship or do not want that, for a Biometric Residence Permit confirming that you have indefinite leave. 

The usual way to apply for a Biometric Residence Permit confirming that you have indefinite leave is to complete a form to submit to the Home Office, with supporting evidence and fees (presently £229).

To qualify for citizenship, you will usually need to prove that you have been lawfully resident in the UK for most or all of the last 5 years (3, if married to a British citizen) and that you have had indefinite leave for the last year at least (unless married to a British citizen).  You must also be of Good Character, according to the Home Office’s definition of this, which you might not meet if you have a history of criminal offending or civil judgments made against you.

The Home Office has announced that they will:

waive the citizenship fee and some of the usual requirements for “Windrush generation” people who wish to apply for citizenship; 

ensure that those who made their lives here but have now retired to their country of origin, are able to come back to the UK – the cost of any fees associated with this process will be waived be setting up a new scheme to compensate people who have suffered loss – this will be run by an independent person; 

establish a new customer contact centre, so anyone who is struggling to navigate the many different immigration routes can speak to a person and get appropriate advice;

ensure that people who arrived after 1973 but before 1 August 1988 can also access the dedicated Windrush team so they can access the support and assistance needed to establish their claim to be here legally.

assist those who contact the dedicated team to obtain evidence of their residence in the UK, including employment and health records.

But, BEWARE:

the law in this area is complicated and the Home Office has, for many years, been unreasonable and hostile in its approach to long-term residents without documentation, including applying an unreasonably high standard of proof in cases, only backing down when challenged through the courts;

a criminal offending history can lead to Deportation action being taken against a person, even if they have been lawfully resident in the UK for many years;

if the Home Office decides that a person does not have a right to be in the UK, the person will be at risk of arrest, indefinite detention and enforced removal from the UK;

legal advice and assistance should be obtained if at all possible before approaching the Home Office;

Government cuts mean that Legal Aid may not be available, even if the person is eligible to receive that: see the Immigration Advice leaflet for further information about what is available in Southwark and Lewisham. www.southwarklawcentre.org.uk

6. EVIDENCE THAT YOU HAVE OBTAINED INDEFINITE LEAVE 

The first thing you need to show is that you have indefinite stay, which could be done in one of the following ways:

Passport showing no time limit on stay in UK

Some people, even those who arrived in the UK many years ago will still have a passport that shows that they were in the UK without a time restriction on that date

Commonwealth citizen who came to the UK as a child

Anyone who was a Commonwealth citizen who came to the UK as a child before 1 January 1973 can be assumed to have had no time restriction on their right to be in the UK if they remained here on that date

Commonwealth citizen who arrived in the UK before 1 January 1973?

Recent announcements by the Home Office suggest that any Commonwealth citizen who arrived in the UK before 1 January 1973 may also be treated by the Home Office as having had no time restriction on their right to be in the UK if they remained here on that date, but this has yet to be tested.

One of the problems with producing this evidence of obtaining indefinite leave is that the Home Office and overseas missions have destroyed their records of grants of indefinite leave to enter the UK, so if the person has lost the passport they entered on they might have no way to prove their indefinite leave in the UK. 

7. EVIDENCE THAT YOU HAVE REMAINED IN THE UK SINCE OBTAINING INDEFINITE LEAVE 

This is also essential, because indefinite leave could (and can) be lost if the person was or is absent from the UK for over two years (for Commonwealth citizens, this only applied after 1 August 1988 – absences of any duration from 1 January 1973 to 1 August 1988 do not matter).

Providing supporting evidence can be difficult for some people, who might have worked under the tax and National Insurance threshold or cash-in-hand or been a stay at home parent or carer.  Some records will have been destroyed, such as records of school attendance.

The Home Office suggests the following sources of evidence:

exam certificates;

employment records;

National Insurance and tax records;

birth and marriage certificates; and

bills and letters.

Medical records and tenancy records can also be useful evidence, but any evidence should be considered by the Home Office, including the applicant’s own testimony of their life and residence in the UK and testimonials from anyone who has known them during their lives in the UK; the person should only be required to prove their residence in the UK on the balance of probabilities, i.e. you only have to prove that it is more likely than not that your claimed residence is true.

8. OTHER IMPORTANT RIGHTS TO NOTE

Note: some of these rights can only be accessed if an application to be made the Home Office costing over £1,000.

Rights to British citizenship

Most people who were born in the UK before 1 January 1983 will be a British citizen by birth.

Most people born in the UK on or after 1 January 1983 will only be British (or have right to be made British) if: one or both of their parents was British or had indefinite leave or permanent residence at the time they were born (an application may be required, depending on when the person was born, if only their father had that status and their parents were not married; one or both of their parents obtained British citizenship, indefinite leave or permanent residence after they were born but before they reached the age of 18, and application is made before the person reaches the age of 18;

they lived in the UK for the first ten years of their life without being absent for more than 90 days in each of those years, and an application is made, whatever age they are now.

Human rights related to long residence & family life

The Immigration Rules set out the circumstances where people will usually have rights to be allowed to remain in the UK under Human Rights law, and should not normally be forcibly removed from the UK.  These include where:

the person is under 18 and has lived in the UK continuously for 7 years AND it would be unreasonable to expect them to leave the UK;

the person is aged 18 to 24 and has lived in the UK continuously for half of their life

the person is 25 or over and has lived in the UK continuously for 20 years;

some cases where the person is a parent of a British child or a child who has lived in the UK for 7 years; and

some cases where the person is the partner of a person who is British or who has indefinite leave in the UK AND it would be unreasonable to expect the couple to live outside of the UK.

People who might benefit from these provisions must usually apply for leave to remain if they want to have the right to work, rent property or have access to welfare benefits and services in the UK, and they must pay fees to apply unless requiring them to pay fees would make them destitute. 

A criminal offending history or record of civil judgments against a person may disqualify a person from the benefit of these rights.

COUNTRIES OF THE COMMONWEALTH, BY REGION

Migrant's Access to Healthcare - Presentation to Forum for Equalities and Human Rights 13th July 2016

Please click here for the presentation notes.

Please see this guide on how to register with a GP for asylum seekers, refugees, undocumented migrants and refused asylum seekers.

Brexit and EU citizens' rights

Please click here to read Tim Lawrence’s paper for our workshop on Brexit and EU citizens' rights with Housing Action Southwark and Lambeth (part of the London Coalition Against Poverty).

Leave to remain with ‘No Recourse to Public Funds’ - January 2018

A guide on preparing a 'change of conditions' application for people who are destitute

For individuals, please click here

You should use this guidance if:

• You have limited leave to remain for 2.5 years

• With no recourse to public funds

• You are facing homelessness or very serious poverty

• You want to apply to the Home Office to get access to mainstream welfare benefits and social housing

 For Immigration Advisors, please click here

You should use this guidance if:

• You are a registered immigration advisor accredited at OISC Level 1 or above

• Your client has limited leave to remain on the basis of their family or private life (except under the 5 year parent or partner route)

• With no recourse to public funds

• They are facing homelessness or very serious poverty

• They want to apply to the Home Office to get access to mainstream welfare benefits and social housing

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