EEA Nationals are in an incomparable position to the Windrush Generation.

By Isaac Chambers

Immigration and citizenship rights are key elements to personal identity in a globalised world. However, the complexities surrounding immigration rules and citizenship rights can sometimes lead to categorical exclusion of a group of people.1 This can be seen by examining the Windrush scandal and the treatment of EEA nationals in the UK (“EEA Nationals”) through Brexit. The Windrush generation is often used to refer to people who arrived from the Caribbean countries between 1948 and 1973.2 The Windrush scandal was the expulsion, denial and loss of employment of the Windrush generation as a result of the ‘hostile immigration policy’ enacted by a series of legislation by the UK government.3 It is imperative to understand the concept of citizenship and immigration rules when comparing and contrasting the Windrush generation and the EEA nationals following Brexit. This essay examines the various paths to citizenship of the UK; how these two groups could attain it; and what that means for their immigration status. Despite similarities between the EEA nationals’ current immigration position and that experienced by the Windrush generation on a superficial level, key factors prevent them from being in a comparable position. These factors include a racial connotation and an economic consequence which puts the EEA nationals in a more favourable position when compared to the Windrush generation with respect to immigration and citizenship. Citizenship can be understood as a legal status which provides special legal rights and obligations to those who possess it.4 Citizenship provides one with the right to enter and live in one’s own country.5 The state uses immigration law to prevent the entry and residence of non-nationals.6 The British Nationality Act (BNA) 1948 established the same rights for British-born and colonial-born people as ‘Citizens of the United Kingdom and Colonies’ (CUKC).7 The CUKCs were classified as British subjects and had the same rights to enter, work and settle with their families anywhere within the British territories. 8

This CUKC encompassed the Windrush generation who came to the UK from Caribbean countries between 1948 and 1973.9 During this period, the BNA 1948 functioned as a declaratory system, which allowed the Windrush generation to enter, work and settle with their families without requiring further action to cement their immigration status.10 No other documentation was required, since their status was assured under BNA 1948.11 However, the UK adopted a more restrictive approach to citizenship and immigration through various immigration legislation in the 1960s. For example, the 1962 Commonwealth Immigrants Act enabled citizens of commonwealth countries to become a subject to control for the first time.12 However, this did not restrict the Windrush generation who were already in the UK from bringing their family over. The Commonwealth Immigrants Act 1962 exempted minors (under 16) from immigration control.13 Children were allowed to arrive under their parent’s passport. On balance, the EEA nationals have been in a more protected position, which is further explored below. The UK’s immigration system developed directly out of the collapse of the Empire and a political drive to control the entry of non-white migrants from former colonies.14 Taylor suggests that the Commonwealth Immigration Act 1962 was passed because non-white migrants were seen as not to belong in the UK when being British was synonymous to whiteness.15 The passage of the Commonwealth Immigrants Act 1968,16 and Immigration Act 1971 17 build on the Commonwealth Immigrants Act 1962 and restricted the entry of commonwealth migrants. The UK has always had racialized views towards immigration,18 despite enacting the liberal BNA 1948.‘The UK’s attitude towards race discrimination in nationality law is hard to pinpoint’;19 however, the effects of its immigration legislation in the 1960s suggest a crackdown on non-white immigrants. The Commonwealth Immigrants Act 1968 and Immigration Act 1971 perpetrates the narrative of deserving white immigrants and underserving non-white immigrants. There were 60,000 Irish citizens arriving yearly, but there has no mention of the white migration into the UK as a concern in the government’s policy papers.20 This reinforces the racial stigma that existed towards non-white immigrants in the UK, which arguably puts the non-white Windrush generation in a less favourable position than the EEA nationals in the UK who are predominantly white.21 Enoch Powell makes reference to the idea that white European migrants were more deserving and, therefore, more capable of participating and gaining citizenship and legal immigration rights than the non-white Windrush generation. This line of thinking became more prevalent in the 60s and affected immigration policies; therefore, the two groups are not comparable with respect to immigration and citizenship.

The Immigration Act 1971 allowed and cemented the legal right of the Windrush generation in the UK by giving them indefinite leave to remain.22 The Immigration Act 1971 preserved the rights of the Windrush and CUKCS who were already present in the UK, allowing their family members to join them; but it simultaneously restricted further migration from the commonwealth nations.23 Some parallels can be drawn between the effects of the Immigration Act 1971 and the EU settlement scheme. EEA nationals have derived their rights of residence and freedom of movement from the Treaty of Maastricht in 1992. The freedom of movement now lies in Article 45 of the TFEU.24 Brexit led to the creation of the EU settlement scheme which allows EEA nationals in the UK who have arrived before 31 December 2020 to apply for this scheme. The scheme allows EEA nationals and their family members the right to continue living in the UK after 30 June 2021.25 EEA nationals in the UK can apply for ‘pre-settled status’ and ‘settled status’. The former gives EEA nationals in the UK the right to remain indefinitely and the opportunity to be eligible for UK citizenship. The latter gives EEA nationals an opportunity to attain ‘settled status’ after living in the UK for five years.26 However, this is a non-declaratory system, whereby an EEA national might become illegal overnight, if they have not applied or have been unsuccessful in their application.27 A non-declaratory system requires an individual to take further steps to attain legal immigration status. The non-declaratory system puts the EEA nationals in a more favourable position than the Windrush generation. The non-declaratory system makes an effort to force the EEA nationals in the UK to ensure that they have formalised their immigration status, preventing a follow-up of the Windrush scandal. There is no comparable position with the Windrush generation in relation to citizenship and immigration.

The Windrush scandal was a consequence of the ‘hostile environment’ created by the government towards immigrants in the UK.28 The ‘hostile environment’ was a wider effort to slash immigration figures by discouraging irregular migrants from overstaying on their visas, taking away privileges and encouraging them to leave.29 This was achieved by enacting the 2014 and 2016 Immigration Acts, which used tools like destitution and rightlessness to force irregular migrants to deport themselves, at low or no cost to the UK.30 The UK government started deputising private actors as de facto immigration officers via the 2014 and 2016 Immigration Acts to create a hostile environment; allowing non-state actors (i.e. private organisations and members of the public) to undertake state functions, such as conducting checks on people’s immigration statuses and enforcing immigration-related restrictions.31 These wide-ranging hostile policies affected the Windrush generation and created the Windrush scandal. The Immigration Act 1971 was not a non-declaratory system, which would have forced the Windrush generation to formalise their right to abode in the country.32 Many of the Windrush generation did not formalise their right to abode,33 which would have secured their right to be recognised as UK citizens. Additionally, the UK removed the principle of jus soli – citizenship through birth in the UK – by enacting the BNA 1981.34 The removal of this principle marked a move towards jus sanguinis – citizenship by descent.35 Therefore, the BNA 1981 provides that any person born in the UK after 1 January 1983, at the time of their birth, requires a parent to be a British citizen or settled in the UK.36 This created problems for many of the Windrush children who were born after 1 January 1983 as their parents had not formalised their right to abode in the UK or attained British citizenship because they were not required to do so under the Immigration Act 1971 and BNA 1981. Additionally, many of the Windrush children born after 1 January 1983 had no evidence of their parents’ arrival or any other qualifying immigration status, since their parents needed to formalise their immigration status to pass on citizenship rights to them. Furthermore, there had been instances where the arriving Windrush generation had landing cards destroyed by the Home Office.37 This created problems for the Windrush generation and children when attempting to prove their rightful immigration status. This, coupled with wide-reaching hostile policies, resulted in many of the Windrush generation without access to their bank accounts, housing, healthcare and other state benefits –– the Windrush scandal.

The hostile immigration policies will affect EEA nationals in the UK, if they do not formalise their immigration status via the EU settlement scheme. EEA nationals will no longer have their rights protected under the TFEU. Douglas-Scott suggests that migrant rights of non-EU nationals in the UK, were considerably more restrictive.38 However, the Windrush generation are not in a comparable position: unlike the EEA nationals, their right to reside in the UK was never dependent on them formalising their rights. The burden placed on the Windrush generation to prove their status ranging back decades proves difficult when the world was not digital. Technological advancements will put the EEA nationals in the UK in a more favourable position. The burden of proof on the EEA nationals in the UK to provide evidence that they have resided for five years will be simpler considering the digitalisation documents.39 The settlement scheme provides EEA nationals in the UK with digital proof of their status and an official reference number.40 This reference number can be used to prove their immigration status –– something that did not exist for the Windrush generation. This position significantly reduces any concern of a Windrush scandal 2.0 for EEA nationals in the UK and cannot put them in a comparable position with the Windrush generation with respect to immigration and citizenship. The European Union (EU) played a significant part in securing the rights of EEA nationals in the UK.41 The EU has always used its trade agreements as a way to insert migration policies which protect the rights of its citizens.42 This puts the EEA nationals in a more favourable position than the Windrush generation. The possibility of breaking the EU–UK Trade and Cooperation Agreement will create economic consequences for the UK.43 If EEA nationals living in the UK were wrongfully detained, deported, denied entry into the country or access to public and private services, the EU would impose similar sanctions on the 1.3 million British nationals living in the EEA member states.44 This acts as a safety net for EEA nationals living in the UK. The Windrush generation in the UK never had the backing of one the largest trading blocs in the world.45 EEA nationals in the UK have their rights safeguarded through an interlocked scheme, where many of the EU member states provided Britons living in the respective member states with declaratory and non-declaratory systems. The EEA nationals in the UK are not in a non-comparable position with respect to citizenship and immigration. Historical trends suggests that the UK has always preferred white migration from the EEA over non-white migration – the latter pertaining to the Windrush generation,46 due to concerns of assimilation,47 and economic prosperity. While the UK started restricting migration from the non-white commonwealth countries, it joined the EU and allowed the free movement of white migration into the UK. Economic prosperity plays a part in making immigration and citizenship decisions.48 The Windrush generation were invited to the UK post World-War II to help rebuild the economy.49 However, the growing racial tension from the 1960s led to harsher immigration restrictions being placed on those arriving from the commonwealth. The economic union with the EU led to further white migration into the UK for economic reasons. While the citizenship and immigration policies of EEA nationals in the UK might appear to be on a comparable level with the Windrush generation as a result of the hostile immigration policies, the economic consequences from the EU and digitalisation leaves them in a more favourable position than the Windrush generation.

FOOTNOTES

1 Devyani Prabhat, Britishness, belonging and citizenship: Experiencing nationality law, (1st edn, Policy Press, 2018) 18.

2 JCWI, ‘Windrush scandal explained’ (The Joint Council for The Welfare of Immigrants, 2021) <https://www.jcwi.org.uk/windrush-scandal-explained> accessed 19 April 2021.

3 Melanie Gower, 'Windrush generation: Government action to 'right the wrongs' (House of Commons Library, 22 June 2020) <https://commonslibrary.parliament.uk/research-briefings/cbp-8779/> accessed April 15 2021.

4 Prabhat (n1) 2-3.

5 Satvinder S Juss, Immigration, Nationality and Citizenship (1st edn, Mansell 1993) 48.

6 Satvinder S Juss, Immigration, Nationality and Citizenship (1st edn, Mansell 1993) 48.

7 British Nationality Act 1948 (BNA 1948).

8 Bridget Byrne and others, Ethnicity and Race in the UK: State of the Nation (1st edn, BUP 2020) 37.

9 JCWI (n2).

10 BNA 1948.

11 Roch Dunin-Wasowicz, 'The EU Settlement Scheme needs to be a declaratory registration system' (LSE Brexit, 9 September 2019) <https://blogs.lse.ac.uk/brexit/2019/09/09/long-read-eu-settlement-scheme-needs-to-be-a-declaratory-registration-system/> accessed 25 April 2021.

12 Commonwealth Immigrants Act 1962 (CIA 1962).

13 CIA 1962, s2(2)(b).

14 Melanie Griffiths and Colin Yeo, 'The UK's hostile environment: Deputising immigration control' (2021) Crt Soc Policy, 1 <https://doi.org/10.1177/0261018320980653> 20th April 2021.

15 Ros Taylor, 'The Windrush Generation have been treated appallingly. EU migrants may expect an even worse deal' (LSE Brexit, 20 April 2018) <https://blogs.lse.ac.uk/brexit/2018/04/20/the-windrush-generation-have-been-treated-appallingly-eu-migrants-may-expect-an-even-worse-deal/> accessed May 6 2021.

16 Commonwealth Immigrants Act 1968 (CIA 1968).

17 Immigrants Act 1971 (IA 1971).

18 Niamh Quille, 'The Windrush Generation in Britain's 'Hostile Environment: Racializing the Crimimmigration Narrative' (MSc Dissertation, 2018) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3274533> accessed 21 April 2021.

19 Clayton (n6) 71–72.

20 Quille (n24).

21 Martin Kahanec and others, 'Ethnic minorities in the European Union: An Overview' (2010) IZA, 5397 <http://ftp.iza.org/dp5397.pdf> accessed April 29 2021.

22 IA 1971, S1 (2).

23 IA 1971.

24 Consolidated Version of the Treaty on European Union [2008] OJ 115/65.

25 GOV.UK, 'Apply to the EU Settlement Scheme (settled and pre-settled status)' (GOV.UK, 2021) <https://www.gov.uk/settled-status-eu-citizens-families/what-settled-and-presettled-status-means> April 27 2021.

26 Ibid

27 Roch Dunin-Wasowicz, 'Avoiding a Brexit ‘Windrush on steroids’ for EU nationals in the UK' (LSE Brexit, 2 September 2019) < https://blogs.lse.ac.uk/brexit/2019/09/02/avoiding-a-brexit-windrush-on-steroids/> accessed 21 April 2021.

28 Guy Hewitt, ‘The Windrush Scandal’ (2020) 66:1 Caribbean Quarterly 108.

29 James Kirkup and Robert Winnett, 'Theresa May interview: We're going to give illegal migrants a really hostile reception' The Telegraph (25 May 2012) <https://www.telegraph.co.uk/news/0/theresa-may-interview-going-give-illegal-migrants-really-hostile/> accessed 21 April 2021.

30 Frances Webber, 'On the creation of UK's 'Hostile Environment ' (2019) 60 R & C 76.

31 Griffiths and Yeo (n19).

32 Helena Wray, 'The 'Windrush Generation' and Citizenship' (Global Citizenship Observatory, 2 May 2018) <https://globalcit.eu/the-windrush-generation-and-citizenship/> accessed 24 April 2021.

33 Quille (n24).

34 British Nationality Act 1981 (BNA 1981), s 1.

35 Clayton (n6) 79-80.

36 BNA 1981.

37 JCWI (n2).

38 UK Parliament, 'Chapter 3: The loss of EU citizenship?' (UK Parliament, 2016) <https://publications.parliament.uk/pa/ld201617/ldselect/ldeucom/82/8206.htm#footnote-153> accessed April 27 2021.

39 Dunin-Wasowicz (n14).

40 HM Government, 'EU SETTLEMENT SCHEME IMPORTANT INFORMATION' (GOV.UK, September 2020) <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/924361/HO_EUSS_Important_Information_Leaflet.pdf> accessed 07 May 2021.

41 Catherine Barnard and Emilija Leinarte, 'Brexit and Citizens' Rights' (2019) 11 Eur J Legal Stud 117.

42 Falvia Jurje and Sandra Lavenex, 'Trade Agreements as Venues for 'Market Power Europe'? The Case of Immigration Policy' (2014) 52 JCMS 320.

43 TRADE AND COOPERATION AGREEMENT BETWEEN THE EUROPEAN UNION AND THE EUROPEAN ATOMIC ENERGY COMMUNITY, OF THE ONE PART, AND THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND, OF THE OTHER PART [2020] OJ L 444/14.

44 UK IN A CHANGING EUROPE, 'How many British citizens live in the EU' (UK IN A CHANGING EUROPE, 21 September 2020) <https://ukandeu.ac.uk/the-facts/how-many-british-citizens-live-in-the-eu/> accessed May 4 2021.

45 EU Affairs, 'Brexit: protecting the rights of EU citizens living in the UK' (European Parliament, 21 January 2020) <https://www.europarl.europa.eu/news/en/headlines/eu-affairs/20170505STO73508/brexit-protecting-the-rights-of-eu-citizens-living-in-the-uk> 2 May 2021.

46 Quille (n24).

47 Taylor (n20).

48 Clayton (n6) 51- 52.

49 JCWI (n2).

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