The Windrush Scandal – Institutional Racism Married with Decades of Governmental Error

By Milly Sheed

The Windrush scandal – a political blunder that hit the United Kingdom only a few weeks ago – has forced the British government to apologise and compensate for the unlawful refusal-of-entry, detainment and deportation of descendants of the Windrush generation immigrant workers. The scandal has sparked national and international debate about the immigration status of those who arrived in Britain from the Caribbean prior to 1971. Discrepancies in government policy and hostile attitudes from the Home Office have come to the forefront over the past few weeks. This sparked fears that some of the descendants of Caribbean workers, who arrived in Britain on the SS Empire Windrush in 1948, have been ejected from the United Kingdom unlawfully and without moral vigilance. This scandal must serve as a cautionary tale for New Zealand, as our government barrels towards similar harsh immigration cuts and policy changes.

The origins of the Windrush scandal begin at the end of World War II, with Britain’s appeal for foreign workers to assist in infrastructure reconstruction and bolster public services. The government looked to the British colonies in order to achieve this mammoth task, resulting in an influx of immigrant labourers. The SS Empire Windrush docked into Tilbury Docks, Essex in June 1948 from Jamaica, carrying over 500 workers and their families.[1] The British Nationality Act 1948 predicated this vast response from the West Indies, as it offered free entry and for all people living in the Commonwealth, conferring citizenship with full rights to work and settle in Britain.[2] Many argue that due to the Windrush workers and other post-war immigrants, Britain was able to efficiently rebuild its economy and support public initiatives such as the National Health Service.[3]

An increased number of foreign workers residing in the United Kingdom soon generated racial tension in communities, leading to the famous Notting Hill riots in 1958.[4] A growing societal prejudice towards those who were not born in Britain was met with new legislation. The Immigration Act of 1971 was passed to extinguish citizenship rights of the Windrush workers and their families, redefining their right to reside and work in Britain as merely a “right of abode”.[5] The Act severed all those with a prior link to Britain, for example a parent or grandparent who was legally entitled to live. It forced the children of the Windrush to navigate a truly complex immigration system. The Act also required them to gain documentation for their legal right to reside, despite not having needed such documentation prior to 1971. In more recent times, the Immigration Act 2014 removed protection for Commonwealth citizens who had previously been exempt from deportation from the United Kingdom.[6]

The next generation of the Windrush immigrants are now, over 50 years on, facing threats from the state that their rights to reside in the United Kingdom are illegitimate. This has resulted in refusal of entry, detainment and deportation of many. The aforementioned developments in immigration legislation has meant that it is not adequate, by law, for the children of the Windrush generation to remain in the United Kingdom by virtue of their parents and grandparents’ citizenship. They now hold no legal right, according to statute, to live and work in Britain. They hold only an “indefinite leave to remain”.[7] But others argue that these peoples’ citizenship have simply been, “…theirs all along.”[8] Those who arrived in the United Kingdom before the 1971 Act was passed were given settlement and citizenship by virtue of their Commonwealth nationality, and did not need any specific documentation to prove their rights to reside in Britain.[9] Many dedicated their lives to helping Britain recover from the war. Despite their service, their children and grandchildren have faced unreasonable treatment. Diane Abbott, Shadow Home Secretary for the Opposition, alleges, “This is a generation with unparalleled commitment to this country, unparalleled pride in being British and unparalleled commitment to hard work and to contributing to society, and it is shameful that this Government have treated that generation in this way.”[10]

Figures are unknown as to how many Windrush children have been refused re-entry, detained, or even deported in error. Caroline Nokes, Minister of Immigration, has admitted to the media that some of these people, upon seeking help to regularise their status in the United Kingdom, have, in actual fact, been detained by the Home Office with the presumption that they reside in Britain illegally.[11] Several devastating stories have come to light over the last few weeks detailing the extent of distress and trauma felt by the Windrush children, due to being stripped of their “British-ness” by the government, as well as threatened and disbelieved by the Home Office. Discussion in the House last week focused on severe discrepancies in the preservation of documentation belonging to the Windrush generation, specifically landing cards, argued to have been destroyed by the Home Office in 2010.[12] Unquestionably, these documents would have proved a right to reside in Britain under the Immigration Act 1971. Members of Parliament continue to shift blame on which government was responsible for this administrative failing.

How did the government allow this political and constitutional disaster to occur in the first place? Many blame the Conservative government whose policies take a bureaucratic focus,[13] and are often described to be “institutionally racist”.[14] A prime example of this type of prejudice is evident in Theresa May’s “hostile environment” policy,[15] implemented when she acted as Home Secretary in 2012. The policy is a series of administrative and legislative measures designed to tackle illegal immigration in Britain. It encourages the Home Office to be sceptical and threatening in their assessments, resulting in uncomfortable conditions designed to deter possible illegal aliens. May also introduced “ludicrous immigration targets”,[16] said to provoke widespread discrimination across the country.[17] Accumulatively, it is clear to see the decades of failure to recognise descendants of Caribbean immigrant workers as truly British, represents an underlying theme of systematic racism, allowed tolinger by a government built on racial prejudice. New home Secretary, Sajid Javid claims that this type of hostile immigration rhetoric from Theresa May will not be the path taken by his administration.[18]

Thankfully, in recognition of their errors, the Home Office have introduced policy changes, fee waivers, and compensation under urgency in order to redress the victims of wrongful scepticism, detainment and deportation.[19]  The British Government has also issued a public apology to the Windrush children who have lived, worked, grown families, and paid their taxes in Britain for over 50 years, and yet have been treated as illegal aliens by the government. Before her resignation, Home Secretary Amber Rudd affirmed in the House her plans to rectify the wrongs made against those of the Windrush generation, particularly those who have “retired” to their country of origin.[20] She has additionally instituted a task force that will assist the Windrush generation in proactively gathering the correct documentation required to legally reside in Britain, rather than insisting on an unreasonable burden of proof.[21] To those who were on board the Empire Windrush, who regarded their British-ness as “non-negotiable”,[22] it is unclear whether these measures will be sufficient in creating a new image of British affability.

The constitutional wrongs done against the Windrush generation have, arguably, come about due to decades of administrative, political and social error by a government driven by deportation quotas and institutional racism. There must be a balance struck between battling illegal immigration in Britain, and a respect for those who arrived in pursuit of a better life.Hostile immigration policy requires a re-examination by the government to make room for a people to which modern Britain and its infrastructure, public services and economy will forever be indebted.

As immigration remains a rife political issue here in New Zealand, it is important that government plans to reduce net immigration figures remain constitutionally sound. Promises by the new Labour government assured the public there would be a decrease in people entering and working in New Zealand (with the estimated reduction aimed at 20,000-30,000 people).[23] However, the government has already faced criticism that racial profiling has been used in Immigration New Zealand’s modelling data, highlighting the risk factors of new immigrants.[24] This data has been used to identify groups that most commonly commit crimes, increase hospital expenditure, and various other public fund-draining acts.[25] This is evidence of racial hostility affecting practical policy, and there must be room for caution that scandals similar to Windrush not occur in New Zealand.

Amidst fears of a net gain in immigration numbers, there is evidence to suggest that New Zealand can actually benefit from workers entering the country, in particular to assist with Christchurch rebuild.[26] In this case, it is important our government does not throw the baby out with the bath water. We should not let Britain’s failure to respect the many advantages of immigration, seep into New Zealand policy. Institutionalised racism within government bodies and the public, arguably, are the fuel behind these strict immigration reductions and harsh quotas. As Green Party Immigration spokeswoman Golriz Ghahraman puts it, “Immigrants are not data points in an algorithm, they are people who contribute to our communities and to our economy.”[27]

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[1] Mike Phillips and Trevor Phillips Windrush The Irresistible Rise of Multi-Race Britain (Harper Collins Publishers, London, 1998) at 1; Lucy Rodgers & Maryam Ahmed “Windrush: Who exactly was on board?” (27 April 2018) BBC News <http://www.bbc.com/news/uk-43808007>.

[2] British Nationality Act 1948, s 4.

[3] “Postwar immigration.” The National Archives <http://www.nationalarchives.gov.uk/pathways/citizenship/brave_new_world/immigration.htm>.

[4] Ann Stenhouse “What is the Windrush scandal? How the Windrush generation got their name and why many fear deportation” (30 April 2018) The Mirror <https://www.mirror.co.uk/news/politics/what-windrush-scandal-how-windrush-12383743>.

[5] Immigration Act 1971, s 2(1).

[6] Immigration Act 2014, s 1(1).

[7] (23 April 2018) 639 GBPD HC 620; Immigration Act 1971, s 3(1)(b).

[8] (23 April 2018) 639 GBPD HC 626.

[9] Above n 8 at 619.

[10] Above n 8 at 624.

[11] “Windrush detentions: Immigration minister Caroline Nokes” (16 April 2018) BBC News <http://www.bbc.com/news/av/uk-politics-43784794/windrush-detentions-immigration-minister-caroline-nokes>.

[12] “Windrush: Investigation urged over landing cards” (19 April 2018) BBC News <http://www.bbc.com/news/uk-politics-43818860>.

[13] Above n 8 at 620.

[14] Quote from Dawn Butler, “Windrush: Home Office to ‘scrap immigration removal targets” (26 April 2018) BBC News <http://www.bbc.com/news/uk-politics-43902599>.

[15] (25 April 2018) 639 GBPD HC 871; Amelia Hill “’Hostile environment’: the hardline Home Office policy tearing families apart” (28 November 2017) The Guardian <https://www.theguardian.com/uk-news/2017/nov/28/hostile-environment-the-hardline-home-office-policy-tearing-families-apart>.

[16] (23 April 2018) 639 GBPD HC 625; The Conservative Manifesto 2010 An Invitation to Join the Government of Britain (Conservative Campaign Headquarters, April 2010) at 21.

[17] (25 April 2018) 639 GBPD HC 871.

[18] (30 April 2018) 640 GBPD HC 35; Joe Watts “New home secretary Sajid Javid says Theresa May’s hostile immigration rhetoric is not British” (1 May 2018) The Independent < https://www.independent.co.uk/news/uk/politics/sajid-javid-theresa-may-new-home-secretary-immigration-rhetoric-hostile-not-british-a8330151.html>.

[19] Home Secretary Amber Rudd “Statement on Windrush” (press release, 23 April 2018).

[20] At n 8 at 620.

[21] Above n 8 at 620.

[22] Above n 1 at 5.

[23] “Making immigration work for New Zealand” (2017) Labour 2017 Election Policy <https://www.labour.org.nz/immigration>.

[24] Lincoln Tan “Immigration NZ’s data profiling ‘illegal’ critics say” (5 April 2018) New Zealand Herald < https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=12026585>.

[25] Lincoln Tan, above n 24.

[26] “Job market & key industries” (23 March 2018) New Zealand Immigration < https://www.newzealandnow.govt.nz/work-in-nz/nz-jobs-industries>.

[27] Lincoln Tan, above n 24.