openJustice

Race and citizenship in Britain

Anthony Brown knows what it's like to have to fight for his citizenship rights. He is determined to help others under the Windrush Scheme. But reform is needed.

Christopher Oliver Anthony Brown
17 January 2020
Anthony Brown (third from left) with his colleagues at Windrush Defenders Legal.
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Courtesy of Windrush Defenders Legal.

Anthony Brown migrated from Jamaica to the United Kingdom (UK) in 1967 as a six year old child with his mother, two brothers and two sisters, to join his father recruited as a civil engineer. After returning to Jamaica in 1973 to finish secondary school at Jamaica College, Brown returned to the UK, reuniting with friends and family members who had remained. However, when applying for university in 1983, he was told by the Home Office that he wasn't British because his Citizen of the United Kingdom and Colonies (CUKC) status had been revoked through the 1971 Immigration Act, as he had been out of the country for more than two years and that he should report to Manchester Airport to be deported.

When his story broke in the 1980s, Brown’s family, friends and community waged an “end deportation now” campaign by organising petitions, demonstrations, writing letters, eventually resulting in securing his status of ‘Indefinite Leave to Remain’.

Brown was one of the first to be on the sharp end of Home Office policies that have, since the 1960’s, gradually been restricting the rights of Commonwealth citizens to live and work in the UK.

These restrictions culminated in the 2014 Immigration Act where the Conservative government legislated to create a ‘hostile environment’ for illegal immigrants, introducing a range of checks and controls on access to employment, services such as welfare benefits, the National Health Service (NHS), private renting, driving licences and bank accounts which did not take into account the undocumented status of many in the Caribbean diaspora living in the UK. This led to the Windrush Scandal where thousands of people were, in many cases unlawfully threatened with deportation, detained and deported from the UK.

Brown recalls, “I recognised the fear and distress people were experiencing in 2018 so we began a Windrush legal surgery in Manchester, as I could remember needing support myself.” Brown had coincidentally just graduated with a law degree, completed through the Open University 35 years after his first attempt to go to university.

The work of the weekly surgery, the Windrush Defenders Legal C.I.C, is to support the transition of claimants to full citizenship under the Windrush Scheme and a further stage which considers compensation claims. The scheme was established in the aftermath of the scandal in August 2018 and Brown successfully regained his British Citizenship under it. Although through the process he recognised a lack of community infrastructure available for people in similar circumstances.

The surgery also operates as a forum where cases at the intersection of law and race are studied against the historical trajectory of the Caribbean diaspora in Britain. For Brown, it became clear from listening to the testimonies in the surgery that many people with the status of ‘Indefinite Leave to Remain’, including himself, have been haunted by the fear of detention and deportation, restricting movement and in many cases refusing to formally interact with the proposed fix of the Windrush Scheme.

Although it is stressed by the authorities the border will not be activated through contact with the Windrush Schemes application form, in many cases this fear or refusal is informed by experiences at the intersection of racism, state institutions and incarceration.

Brown's story raises questions on the extent to which refusals have been based upon discriminatory measures of ‘good character’

Brown describes what it was like to know that any encounter with the police which didn't go well could affect immigration status and lead to deportation. “When I was in my twenties driving, you got stopped so many times. You knew that it could go wrong, not for your fault, but because an officer was having a bad day and decided that you were going to be the one to get the rough end of the stick for that. You could see it happening with a lot of people who were just attacked by the police or stopped and harassed by the police. They would then get beaten up by the police, but they'd be charged for resisting arrest” recalls Brown.

A letter sent from the Home Office to the Home Affairs Committee on 23 July 2019 reported that 1,163 claimants from within the UK have been refused by the Windrush Scheme. This is consistent with many cases Brown has worked on in his legal surgery where claims have been refused as a result of prior convictions and others who are deemed to have fallen short of ‘good character’ requirements. The Home Office is exempt from the Rehabilitation of Offenders Act 1974 which means spent convictions may enter into the decision making process.

The 1971 Immigration Act, modified in 1981, states that applicants must prove a level of ‘good character’ measured by the Home Office, in order to obtain British citizenship. Brown’s story of his racialised encounter with state authorities, which resonates with testimonies voiced in his legal surgery, raises questions as to the extent to which refusals have been based upon discriminatory measures of ‘good character’ or other circumstances that blur race with criminality. The Joint Committee on Human Rights reviewed what they describe as the government’s "heavy handed" approach when depriving people of British Citizenship in the application of ‘good character’ requirements, and whether this is contrary to their human rights under the Human Rights Act 1998 (HRA) and the European Convention on Human Rights 1950 (ECHR). On July 25th 2019 the ‘Remedial Order’ removed the good character requirement for British citizenship in certain applications, although it is not clear whether this affects the refusals previously made by the Windrush Scheme.

Although statements made in Parliament by former Home Secretary MP Sajid Javid have claimed to offer full support for the Windrush Generation to transition to British citizenship, 1,163 refusals indicate there is still further work to be done. Therefore, despite the apparent goodwill of Javid’s statement, legally, the framing of ‘good character’ in the 1971 and 1981 Immigration Act has been used by the Home Office to prevent undocumented Commonwealth residents attaining citizenship. Brown claims that legislation must be revisited for alignment between the claims of the Windrush Scheme and the legal framework of the Home Office, in order for Javid’s statement in Parliament to be true. Until then, the lives of those people who have been refused citizenship are on hold and one begins to wonder whether this is to limit the compensation bill and prevent the dialogue spilling over into reparations.

Lead adviser to the design of the current Windrush Compensation Scheme, Martin Forde QC, argues that the social effects of being unlawfully refused citizenship, detained or deported can be priced into a compensation claim, however the sceptical approach to the current implementation of the scheme suggests that the government cannot be relied upon hence Anthony Brown’s adoption of the adage, “If you rely on the state, you will get in a state”. Therefore, Windrush Defenders have extended their community work from the legal surgery towards the support of Saturday schools (such as the Louisa Da-Cocodia Trust based in Moss Side, Manchester) whilst also making links with the Caribbean & African Health Network, Manchester Caribbean Business Forum and the Black and Asian Police Association.

Informed by testimonies in the legal surgery, this collaborative approach aims to create a formal body of research on discrimination in criminal justice, education, health, business and employment. This investigation is informed by a history which should not be considered as some kind of ethnic problem, but a critical historical account of how Britain was and continues to be constructed.

Parliament must ensure the law attunes to the injustice which permeates Brown’s story, the discriminatory use of ‘good character’, and the circumstances of the 1,163 refusals to the Windrush Scheme, to affirm the 'Windrush Generation' and their descendants settled in the UK can fairly transition to British citizenship. This is not to suggest that citizenship status is a definitive solution to this complex situation, but certainly the start of a necessary process of repairing the inequity at the intersection of race and British law.

The Black Cultural Archives (BCA) are holding a public meeting at Lambeth Town Hall for all those affected by the Windrush Scandal on Saturday 18th January 2020. This will be followed by free legal surgeries every Wednesday and Saturday from January 22 until the end of February to help people access the Windrush Compensation Scheme.

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