I hope you're enjoying the nice weather that we've been having recently and that you're keeping well.
This blog we will be looking at the Immigration Act of 2014 and the impact that this has had on Commonwealth Citizens residing in the UK, in particular those from the Caribbean. We will also be examining how this affects those with dementia.
To understand this more fully we will need to take a history lesson back to 1948 when the first Caribbean immigrants landed on UK shores.
They had been invited by the British government to help re-build Britain after the Second World War due to post war labour shortages. They were granted leave to remain for their service and this in effect meant that they were British citizens.
The term "Windrush Generation" comes from the name of the ship that brought the first of the Caribbean immigrants from Jamaica, Trinidad and Tobago and other neighbouring islands. The name of this ship was MV Windrush, and it landed at Tilbury Docks, Essex on June 22,1948.
It is unclear how many people belong to the "Windrush Generation", since many of those that arrived as children, travelled on their parents' passports and never applied for travel documents - but they are thought to be in their thousands.
End of an Era
The influx ended with the arrival of the 1971 Immigration Act, when Commonwealth citizens already living in the UK were given indefinite leave to remain.
After this, a British passport holder born overseas could only settle in the UK if they firstly had a work permit and, secondly, could prove that a parent or grandparent had been born in the UK.
What this meant, is that people who entered the UK before the 1st of January 1973 (the day the 1971 Immigration Act came into force) would most likely have had settled status. Settled status would only be broken if that person had spent 2 years or more outside of the UK.
People with settled status can apply for a no time limit biometric residence permit (BRP) which proves you have settled status in the country. People able to establish their settled status may also be able to apply for British citizenship. And this is where we encounter the first hurdle, as the cost of this BRP is £229 per person. So, for instance, a person with settled status and 3 dependants (dependants being children under the age of 18) would be paying out at a cost of £916. Not exactly cheap. If you would like to access the Government's Premium Service then you can add another £610 per person on top of that which, for our person with 3 dependants, would then tally up to £3,356. But first and foremost, you would need to prove that you have settled status in the UK. And herein, lies the crux of so many of the problems that you may have read about.
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| The much vaunted BRP card |
Proof of settled status
Once you have filled out form NTL, you then have to provide documentation to prove your immigration status in the UK. This would include your current passport or travel document, your immigration status document (if separate from your passport), your dependants passports or travel documents and your dependants immigration status documents (if separate from their passports). In addition you may also be asked for all passports or other travel documents you or your dependants have been issued since being granted Indefinite Leave to Enter/Remain.
Now that's quite a lot of documentation if you have it, but if you don't have this (as many of the Windrush Generation didn't), then you needed to provide the following evidence of continuous residence in the UK during the period that you or your dependants were granted indefinite leave, such as:
- Council Tax Letters
- Letters from a GP confirming dates of attendance
- Letters from a school/college confirming dates of attendance
- Electricity, gas or water bills
- Letter from an employer/employers confirming employment and
Not only does this seem like a lot of information to provide when a simple email to HMRC would confirm the bulk of this information, but as you will find out later, the information the Home Office held was lacking quite a lot of relevant details.
To see a copy of the NTL form you need to fill in to apply for indefinite leave to enter/remain follow this link https://www.gov.uk/government/publications/application-to-transfer-indefinite-leave-to-remain-in-uk-form-ntl
The case of Michael Braithwaite
Michael Braithwaite had resided in the UK for over 50 years. He arrived in the UK at the age of 9 with his parents from Barbados in 1961. Michael attended primary and secondary school in the UK before starting into continuous employment as a teacher to children with special needs. Along the way, Michael became a father to 3 children and grandfather to 5 more. He had been working at a primary school in North London for 15 years when a routine check into his immigration status flagged that he did not have up-to-date identity documentation.
Michael was contacted by his personnel department and informed that if he did not supply the relevant documentation, then they would not be able to employ him anymore.
Realising that he needed the new documentation, Michael contacted the Home Office to prove that he had a legal right to reside in the UK. The Home Office records showed that Michael did indeed have indefinite leave to remain in the UK but failed over 2 years to provide him with this documentation.
In 2017, a local authority ruled that Michael had not provided the documentation necessary and he subsequently lost the job he had held for 15 years. Needless to say, Michael was devastated as he now was deemed as an illegal immigrant and due to the Immigration Act of 2014 and the Hostile Environment policy that the Government had introduced to tackle illegal immigration, he now was at risk of losing his house and being deported. Also, Michael had no recourse to public funds and Legal Aid for this kind of case had been abolished in 2012.
Thankfully, Michael's case was highlighted in The Guardian newspaper and due to the media attention that followed, the Home Office then issued Michael with the documentation that stated he had indefinite leave to remain in the country.
Sadly there are many cases like Michael's from Albert Thompson, a 64 year old man denied cancer treatment on the NHS due to the same set of circumstances, to Renford McIntyre, a retired builder who ended up losing his house and ending up homeless on the streets of Dudley, through to Paulette Wilson who had worked as a cook and served food in the House of Commons. Paulette was detained in an Immigration Removal Centre in Yarl's Wood and but for a last minute legal reprieve, would have been deported back to Jamaica, a country that she had not visited in 51 years.
For a full and detailed list of people affected by the Windrush case follow the link https://www.theguardian.com/uk-news/2018/apr/20/its-inhumane-the-windrush-victims-who-have-lost-jobs-homes-and-loved-ones
So why have all these high profile cases been happening? To find this out, we need to visit the Immigration Act of 2014 and the Hostile Environment policy that was designed to run alongside it.
The Immigration Act of 2014 and the Hostile Environment Policy
The Immigration Act of 2014 was introduced by the then Immigration Minister, Mark Harper (co-incidentally the MP for the Forest of Dean). Here is an overview of the 2014 Act.
Mark Harper said :
"The UK has a long and proud history of immigration. Our immigrant communities are a fundamental part of who we are and we are a richer and stronger society because of them.
"But the public expects and deserves an immigration system which is fair to British citizens and legitimate immigrants and tough on those who abuse the system and flout the law.
"The Immigration Bill will stop migrants abusing public services to which they are not entitled, reduce the pull factor which draws illegal immigrants to the UK and make it easier to remove people who should not be here.
"We will continue to welcome the brightest and best migrants who want to contribute to our economy and society and play by the rules. But the law must be on the side of people who respect it, not those who break it."
Background:
Immigration is down a fifth since it's peak in 2010 and net migration is down by a third. The Immigration Rules have been reformed to cut out abuse where it was rife while at the same time retaining the UK's position as an attractive place to work for the brightest and best around the world. But there is still more to do.
As things stand, it is too easy for people to work in the UK illegally and take advantage of our public services. The appeals system is like a never-ending game of snakes and ladders, with almost 70,000 appeals heard every year. The winners are foreign criminals and immigration lawyers - while the losers are the victims of these crimes and the public. It is too difficult to get rid of people that have no right to be here.
This is not fair to the British public and it is not fair to legitimate migrants who want to come and contribute to our society and economy.
What we are going to do:
- Reform the removals and appeals system, making it easier and quicker for those with no right to be here;
- End the abuse of Article 8 - the right to respect for private and family life
- Prevent illegal immigrants accessing and abusing public services or the labour market
The Bill will make it :
(i) Easier to identify illegal immigrants by extending :
- powers to collect and check fingerprints;
- powers to search for passports;
- powers to implement embarkation controls;
- powers to examine the status and credibility of migrants seeking to marry or enter into civil partnership
- cutting the number of decisions that can be appealed from 17 to 4 - preserving appeals for those asserting fundamental rights;
- extending the number of non-suspensive appeals. Where there is no risk of serious irreversible harm, we should deport foreign criminals first and hear their appeals later;
- ensuring the courts have regard to Parliament's view of what the public interest requires when considering Article 8 of The European Court of Human Rights in immigration cases;
- restricting the ability of immigration detainees to apply repeatedly for bail if they have previously been refused it.
- requiring private landlords to check the immigration status of their tenants, to prevent those with no right to live in the UK from accessing private rented housing;
- making it easier for the Home Office to recover any unpaid civil penalties;
- prohibiting banks from opening accounts for migrants identified as being in the UK unlawfully, by requiring banks to check against a database of known immigration offenders before opening accounts;
- introducing new powers to check driving licence applicants' immigration status before issuing a licence and revoking licences where immigrants are found to have overstayed in the UK.
- introduce a new requirement for temporary migrants who have only a time limited immigration status to make a contribution to the National Health Service;
- give the Office of the Immigration Services Commissioner new powers to better regulate the immigration advice sector, to protect migrants from exploitation and prevent spurious and inappropriate applications for which waste public funds and delay the handling of immigration cases;
- simplify the current fees legislation, which is spread across a number of different Acts, amending the criteria and process in regards to the Home Office's ability to charge fees for immigration services.
The Bill will benefit:
British citizens and legal migrants by:
- Deterring illegal immigrants from coming to the UK in the first place;
- Allowing the Home Office to identify, and enforce the removal, of illegal immigrants;
- Encouraging more of those that are here unlawfully to leave;
- Reducing the cost to the taxpayer of the immigration system through fewer appeals and more cost recovery through fees;
- Reducing pressure on services therefore freeing up capacity for the lawfully resident population.
Why is there nothing in the Bill to stop migrants accessing benefits?
DWP have already taken measures in the Welfare Reform Act to prevent illegal migrants from receiving contributory benefits and statutory payments (such as Statutory Maternity Pay) if they have no right to work in the UK at the point of claim. The government are also taking steps to further tighten migrant access to benefits. New powers in primary legislation are not required for this:
- The Home Office is creating a new statutory presumption that the EU right to reside as a jobseeker, and consequently access to benefits, will stop after 6 months - unless the person can prove that they are actively seeking work and have a real chance of getting a job. To introduce this measure, we will amend the Immigration (European Economic Area) Regulations 2006 to come into effect in January 2014.
- DWP are also strengthening the Habitual Residence Test. All migrants, including British nationals returning from a period of living or working abroad, have to satisfy the test to claim income related benefits. DWP have improved the question set and this will be supported by an intelligent by design IT system that will tailor the questions asked to individual circumstances. The strengthened test will be introduced by the end of 2013.
The Hostile Environment Policy
The aim of a hostile environment policy was to root out illegal immigrants in the country by tightening the rules around immigration and to get landlords, priests and bank workers to police the system for the government.
In 2013, the government launched it's first attempt to encourage those with illegal immigration status to return to their country of origin.
Unfortunately for the government, it looked like this.
This was the beginning of the government's hostile environment policy and was widely condemned at the time for being heavy handed and in the words of Yvette Cooper, "using the language of the National Front".
As you will be aware from the overview of the 2014 Immigration Act, the government were driving through a stringent policy of checking the status of immigrants via landlords, employers, bank workers and driving agencies. This facilitated the need for people who needed to prove their immigration status to provide a seemingly never ending supply of documentation to prove they had the right to be in the country.
Now this is where the problems began for the Windrush generation. Most of their parents had never been given a letter to confirm their indefinite leave to remain in the UK, as this was protected in the Immigration Act of 1974. However, the removal of a clause in the 2014 Act was to remove that protection. The clause which stated that all longstanding Commonwealth citizens were protected from enforced removal and formed part of the 1999 Immigration and Asylum Act was removed from the updated 2014 version. The government did not announce this, nor did it seek consultation on potential ramifications.
A big bone of contention during all of this was the landing cards that had been signed by the Windrush generation on arrival in the UK. They had been used previously by officials to prove subsequent generations right to remain in the UK, so why weren't they being used now. The answer was that they no longer existed.
In October 2010, a decision was made to shred the documents due to data protection issues when the offices that they were held in, in Croydon, closed down. This was despite numerous warnings from staff and case workers that it would make it harder to prove the right to remain for Caribbean born residents.
Now there have been accusations and counter accusations regarding who ordered the destruction of these landing cards and why they weren't digitised, which would have complied with Data Protection, and it has already cost one Home Secretary her job and forced the Prime Minister into a series of public apologies.
On 03/05/2018, Theresa May addressed parliament and promised an inquiry into the Windrush errors with access to all information pertaining to the case.
In an ironic twist of fate, one of the first people to suffer from the implementation of the 2014 Act, was the Immigration Minister, Mark Harper, who on 08/02/2014, had to resign his post when it was revealed that he had unwittingly hired an illegal immigrant as a cleaner.
Well thanks for the history lesson Mark, but what has this got to do with dementia?
Well as you can imagine, it's been pretty difficult for those who are in possession of full capacity to prove their cases, so this would be doubly so for someone with dementia. The burden of proof lies with the individual, not the Home Office, and the hostile environment is still in play as the government have stated that this is what the majority of the British public want.
Now if you have to apply for British citizenship, one of the criteria stated is "not being of unsound mind", which means having full capacity. Those that have been following this blog will know that one of the main features of dementia is that it leads to fluctuating capacity. Therefore without full capacity, this creates a bit of a dilemma for someone with dementia applying for British citizenship.
The Home Office have issued the following guidelines for their staff where full capacity might be an issue.
The Full Capacity Requirement
Full capacity is defined in Section 50 (11) of the British Nationality Act 1981 as being "not of unsound mind". It is not further defined in the Act, but you can consider the requirement as having been satisfied if the standard set out in this guidance is met.
To meet the requirements, applicants must be able to understand the purpose of their application. You must not expect a total understanding of either:
- nationality
- citizenship
- knowledge of procedures
- the statutory provisions
Waiving the requirement to be of Full Capacity
Under Section 44a of the British Nationality Act 1981 as inserted by section 49 of the Immigration, Asylum and Nationality Act 2006 the Secretary of State has the discretion to waive the requirement of full capacity, if they think that it is in the best interests of the applicant to do so.
Consideration of Applicants
Most applicants have no difficulty in meeting the full capacity requirement. You must assume that the applicant meets the requirements unless there is information provided to cast doubt.
Such information could include a letter from a referee or a doctor stating that the applicant has a physical or mental health condition that prevents them from meeting the full capacity requirement. In such a case, referee enquiries may be appropriate to establish the decision.
Alternatively, a letter to the applicant's agent, guardian or to the applicant themselves may help establish enough information to make a decision. Where applicants have lodged their own applications, the presumption is that they meet the full capacity requirements unless there is substantial evidence to the contrary.
If it appears that the applicant may have a mental or physical illness and is receiving treatments, you must give applicant's, their guardian or their agent the option of submitting a report from their doctor or a medical professional. (NB that this at the cost of the applicant, their guardian or agent). You must explain the full capacity requirement and our interpretation of it, and request as much information as possible to help us reach our decision on the application.
In some cases, there may be conflicting professional opinions about an applicant's mental capacity. In such cases, you normally give the applicant the benefit of the doubt.
In cases where the applicant cannot be considered of full capacity you must consider whether it would be in their best interests to waive the requirement. It would normally be appropriate to take into account of the:
- views of the applicant, to the extent that they are able to express them
- views of any person, professional or otherwise who have assumed responsibility for the applicant's welfare
- citizenship of any other family members, especially those with who the applicant resides or is in regular contact
So unless the person with dementia has family members or care staff to help them with all the paperwork and costs relating to their application, there is a very good chance that this might not be successful. The knock on effect being that this would then affect their ability to access benefits, medical care and possibly lead to deportation.
Would the British Government seriously deport someone with dementia though?
Well you wouldn't think so, given the amount of bad publicity that this would generate.
You'd think that, and yet, I give you the case of Hakeem Muhammad Haleem.
Hakeem Muhammad Haleem, at the time in 2016, was 77. He was partially blind and deaf, had diabetes, suffered from a heart condition and had been diagnosed with Alzheimer's Disease.
He faced being sent thousands of miles away from his family after the Home Office ruled that he had to return to his homeland.
Since 2010, he had lived with his son, daughter in law and granddaughter in Oldham following the death of his wife, but was refused a visa due to a change in the law in 2012.
Before then, settled UK residents could be joined by parents or grandparents over 65 if financial and living support could be provided, which was the case with Mr Haleem. The change in the law stated that this could only now be the case if long term care in their own country was more expensive or non-existent. Therefore the family's application was denied, as well as a bid to appeal the decision, despite Mr Haleem having been a British subject and his father holding a British passport.
Thankfully, The Manchester Evening News took up the case and once the story began to get national attention, the Home Office reversed their decision.
So to the future and what can we do as an organisation to help?
As these stories are gaining more and more publicity and public outrage at the way these individuals have been treated is quite high, there seems to be a willingness to stop these kind of scandals from re-occurring. So how do we do this?
Throughout our sector, there may be tenants that have been affected by the Immigration Acts of 2014 and 2016. We should try and work closely alongside them and liaise with Home Office departments to find out what paperwork and documentation is needed so that unlike Renford McIntyre, they don't end up sleeping rough on the streets they used to live on.
We could look at finding out where the local BME groups are and having a representative on them, as we do in Gloucester with the quite superb Donovan Kelly.
It is part of our core beliefs that we value our customers, make a difference and help foster vibrant communities and this is an issue where we may be asked to rise to that challenge. I believe that we are more than capable and as long as we build great teams that communicate effectively, then we should be able to help our tenants avoid some of the pitfalls that you have read about.
From a dementia point of view, we are part of the Gloucester Dementia Action Alliance and also I will be holding a Dementia Friends session with the Oxford team at the end of May. I'll also be promoting Dementia Awareness Week next week, which coincides with this blog.
Special Thanks
I would like to say a big thank you to Donovan Kelly and Rupert Redway for providing me with evidence, pointing me in the right direction and generally being a sounding board in the creation of this blog piece. Could not have written this without you.
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