The government has finally taken responsibility today for the appalling way it has treated the ‘Windrush children’ – Commonwealth nationals who arrived in the UK as children during the 1950s and 60s, whose parents were actively encouraged to move to live and work in the UK, and who lawfully entered and have lawfully remained in the UK for decades since then.
Such Commonwealth nationals may automatically hold indefinite leave to remain in the UK, acquired by law on 1 January 1973 through the enactment of the Immigration Act 1971. For decades, they have lived, studied and worked in the UK without issue, until the introduction of the ‘hostile environment’, designed to prevent unlawful migration by denying access to services, public or private, to those who cannot correctly prove their status. This ‘hostile environment’ created a society where ID documents are effectively mandatory for daily living – to open a bank account, see the doctor, rent a house or take a job – but without first ensuring that all those lawfully present in the UK have, or have access to, ID documents. It was entirely foreseeable.
Amber Rudd, Home Secretary, has apologised today for the treatment of these Windrush children, while promising that they won’t need to pay to resolve their position. According to newly published Home Office guidance, this can be done by making an application for a “no time limit” biometric residence permit, which usually costs £234 (https://www.gov.uk/government/publications/undocumented-commonwealth-citizens-resident-in-the-uk/undocumented-commonwealth-citizens-resident-in-the-uk).
Commonwealth nationals in this position should also be advised that, in addition to applying for a no time limit (NTL) document, they may also be eligible to naturalise as British citizens if they wish to and without first obtaining a biometric residence permit. This may be preferable to those who wish to become British citizens and the applications require similar levels of evidence. While a valid identity document is usually required for an NTL application, which requirement has caused difficulties for the ‘Windrush children’ we have represented, there is no such mandatory requirement for a naturalisation application.
The requirements to naturalise as a British citizen are set out in Schedule 1 of the British Nationality Act 1981. An applicant should be able to demonstrate at least five years’ lawful residence, of which at least 12 months must have been ‘free from immigration time restrictions’. Commonwealth nationals who acquired indefinite leave automatically on 1 January 1973 have been free from immigration time restrictions for more than 45 years since then, usually with no absences from the UK.
Page 15 of the Nationality policy: Naturalisation as a British citizen by discretion, Version 2.0 confirms that applicants are not required to provide their original passport or travel document. The policy states that, “if the applicant does not have passports to cover the qualifying period”, then they can submit:
“other evidence such as employers’ letters or tax and National Insurance letters: in such cases you should assess whether there is sufficient evidence to show that that applicant has been resident in the UK during the qualifying period, giving them the benefit of any doubt where claimed absences are within the limits we would normally allow and there are no grounds to doubt the accuracy of the claim.”
HMRC employment records can be obtained as far back as the 1960s and are a good place to start to show length of residence and pension entitlements acquired as a result of NI contributions. Ancestry.com may have records of when applicants (or their parents) arrived in the UK, if coming by boat, and may corroborate an applicant’s account of their and their families’ lives in the UK, along with birth, marriage and death records for family members. Schools, hospitals, local authorities, employers and banks can also help, although many of these will have closed down or changed hands.
The same evidence required for a successful NTL application can therefore be used for a successful naturalisation application, without first having to acquire a biometric residence permit or other ID.
In addition to the residence requirements, an applicant for naturalisation must also demonstrate they are ‘of good character’ and that they have sufficient knowledge of language and life in the UK. This usually involves taking the Life in the UK citizenship test and, if not from an English speaking country, a specified English language test. Both of these require ID documentation simply to take the test, which may be a barrier in these cases, although the requirement is waived for those over 65 years and the Home Office has the discretion to waive these requirements in other cases as well. It is also possible to make an application to naturalise as a British citizen and then request the Home Office contacts a test centre to allow a person to take a citizenship test where they have been unable to do so due to lack of ID.
A naturalisation applicant must also show that they intend to keep living in the UK, which should not be difficult to establish if the applicant has not left the UK since at least 1972.
The greatest barrier to making a citizenship application is undoubtedly the cost. An application to naturalise as a British citizen now costs £1,330, a significant amount especially to an applicant who may have lost their job as a result of the hostile environment and had their bank accounts closed.
If the Home Office will now process NTL applications on behalf of the Windrush children for free, why not make a proper gesture of goodwill and waive the hefty naturalisation fee as well? There is precedent for this in the correcting of other historical wrongs, such as for children born to British mothers or fathers at a time when they were unable to pass on citizenship. This would then allow this Windrush generation to become full British citizens, if they wish to, and finally secure their position in the UK.
