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.Print