New details on the Windrush Generation
The Home Office has announced a formal application process that became live on the 30th May 2018 to help long term residents to secure the correct documentation to prove their right to live in the UK.
The Home Secretary, Sajid Javid, says that this more formalised system will make it easier for those concerned to receive the support they need. Most applicants will be considered under existing law and policy. However some elements of the scheme are underpinned by the Immigration and Nationality (Requirements for Naturalisation and Fees)(amendment) Regulation 2018. This has replaced the helpline introduced by Amber Rudd.
There has been some chatter on forums and websites claiming an amnesty has been introduced. This is not the case and applicants can be refused, where they do not qualify.
Citizens of commonwealth countries who were living in the UK before 1st January 1973 and have stayed since then will be issued with proof of their British citizenship. If they are not all ready British they will be considered for naturalisation and although they will not need to sit the Life in the UK test or attend a citizenship ceremony, they will have to meet the residence and good character requirements. The applications for citizenship will be free, but the application for a first British passport will not be free and applicants will need to pay to secure a passport.
The nationality status document or certificate of naturalisation under the hostile environment will not be sufficient evidence to prove a person has a right to work, rent or access public services. Therefore they will have no choice but to secure a British passport.
Proof of residence
Those who do not qualify for British citizenship or do not want it will be assessed to see if they have a right of abode. Those who may not qualify for a right of abode maybe issued with a no time limit permit instead.
The Home Office have said that those Commonwealth citizens who were settled in the UK before 1st January 1973 may have let their right lapse if they left the country for more than two years. If they have, then the applicant maybe granted indefinite leave to remain, where they can demonstrate that they have a close and continuing ties to the UK, unless they are subject to deportation for criminal or other bad behaviour.
Those living aboard
Commonwealth citizens who lived in the UK before 1st January 1973 but now live aboard and do not have proof of their right can check if they have a right of abode. If they do not have a right of abode, applicants can apply for a returning resident visa to come back to the UK and eventually naturalise. The Home Secretary has said that the rules on this visa will be interpreted generously in respect of the Windrush generation. Those who do not wish to return to the UK can apply for a 10-year multi visit visa to allow them access to the UK. Again no fees are being charged for these applications.
Children of Windrush generation
Children of the Windrush generation who were born in the UK or arrived as children and have lived in the UK continuously will be considered for British citizenship held by law, British citizenship by registration, British citizenship by naturalisation, right of abode, no time lime permit or indefinite leave to remain.
It appears the Home Office will work down the list until the applicant meets one of the entitlements. However it appears that the child’s status will only be resolved once the parents’ status has been resolved.
Migrants in the UK, or any Nationality, who arrived before 1988
Certain non – commonwealth citizens can also benefit from the scheme:
· People of any other nationality who arrived in the UK and had indefinite leave to remain before the 1st January 1973
· People of any nationality who arrived in the UK before 1st January 1973 with limited leave but settled between then and the 31st December 1988
· People of any nationality, who arrived in the UK between 1st January 1972 and 31st December 1988 and who have settled status
Again the Home Office will consider their entitlement to British citizenship already held by law, right of abode and no time limit permit. All applications will be free accept securing the passport.
Although the Home Office has indicated they will take a holistic approach to these applications, where applications are refused there is no right of appeal or administrative review for these applications.
Although the guidance seems to be flexible and the Home Office have indicated a flexible approach, the fact that these applications have no right to appeal or administrative review is a cause for concern and legally questionable. The only redress to applicants who are refused would be judicial review, which is a costly process.