Continued Challenges for the Windrush Generation

In 2018, the British government came under fire for wrongly detaining and deporting those belonging to “the Windrush generation”.  

Between 1948 and 1970, nearly half a million people moved from the Caribbean to Britain, which then faced severe labour shortages in the wake of the Second World War. These immigrants became known as “the Windrush generation”. Many of the them were children who had travelled on their parent’s passport and have never applied for their own travel documents, viewing themselves to be British citizens. The UK government’s plan to deport many of these persons is known as the Windrush scandal.  

The modus operandi of the current administration—to deport “serious” criminal offenders to Jamaica—has come under serious scrutiny. The operation led by Home Secretary Priti Patel led to 170 Members of Parliament (MPs) calling for the deportation flights to be stopped. The current decision by the Home Office has raised tension within minority communities across the UK and led to accusations of racism within the British government. Politicians, including former Labour Shadow Home Secretary Diane Abbott, have called the deportation order unfair as most of those affected arrived in the UK as children, and have little to no ties to the Caribbean.  

PURPORTED LEGAL BASIS FOR DEPORTATION 

The Home Office have defended their deportation plan saying the planned flight will only remove those who have been convicted of “serious offences” carrying sentences of more than a year, including causing grievous bodily harm and manslaughter. They have stated that they are bound by the UK Borders Act 2007, which sets out that foreign criminals can be deported if they were convicted in the UK and have been jailed for 12 months or more.  

Those who are affected by the deportation order, however, sincerely believe that they are British citizens and not foreign nationals. To forcibly remove them from the country effectively strips them of their nationality as well as their personal identity, violating their right to nationality under article 15 of the Universal Declaration of Human Rights.  

VIOLATIONS OF THE ECHR 

The UK government’s policy pertaining to the Windrush generation violates articles of 8 and 14 of the European Convention of the Human Rights (ECHR). Article 8 of the ECHR provides for the right to respect for private and family life. The Home Office publication on this specific article affirms certain exceptions to deportation under the UK Borders Acts even for a “foreign national” so long as they have been a resident for “most of their life” and are culturally integrated into the UK. In this case, the UK determines that the person’s right to family or private life under the ECHR outweighs the government’s interest in deporting them.  

In early February 2020, a court of appeal ordered the Home Office not to deport additional people to Jamaica unless they first had adequate access to legal advice, which was an issue due to problems with the phone signal at detention centres. Article 6 of the ECHR protects a person’s right to a fair trial, including access to legal assistance. Despite the court’s decision, the UK government continued with a planned deportation but removed certain passengers from the flight who did not receive legal advice. The government has also said that they will appeal the court’s ruling. 

In addition, article 14 of the ECHR prohibits discrimination, and there are growing concerns that the deportation orders of the Windrush generation violate this article on the basis of race and exposes embedded racism within the British government. The chair of the Equality and Human Rights Convention, David Isaac, said the Windrush scandal has exposed the “deep flaws” in the UK’s immigration system. Many in agreement with this sentiment have participated in demonstrations throughout the country protesting the Home Office’s policy, encouraged by other leaders, including former Labour Party leader Jeremy Corbyn.  

SPLIT POSITIONS ON THE LEGALITY OF DEPORTATION 

The Junior Home Office minister Kevin Foster responded to the protests saying that the deportations only target “serious and persistent” foreign offenders regardless of where they are from—Jamaica or elsewhere. He stressed that there were no British nationals on the deportation flight that went ahead. Foster’s view is one of a small number that support the government’s policy in opposition to the 170 MPs who disagree and cited in a letter “grave concerns” about the deportation plan. The MPs ultimately agreed that flights should be suspended until a report on the Windrush scandal has been finalised and published; the government, however, has not officially decided to suspend any flights. 

Whilst the Windrush situation is ongoing, many believe this scandal points to many larger issues the British government needs to address—namely, racism and xenophobia. An independent report concluded that there are “serious concerns” of racism in the Home Office. The head of the review, Wendy Williams, said the Windrush scandal happened due to the public’s and officials’ “poor understating of Britain’s colonial history”. It is the duty of a country that prides itself on freedom and democracy to be able to protect its citizens and their basic human rights, as established in the ECHR among other instruments. Many of those in the Windrush generation are citizens of the UK and as such deserve to be treated as members of British society and not an issue to be disposed of. 

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Enakshi is currently a second year law student at the University of Liverpool and is pursuing a career as a solicitor. She is involved in the Liverpool Law Clinic where she helps clients in family court and is committed to advocating for human rights.

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