A Guide to Making a Windrush Scheme Application
The Windrush scheme was enacted against the backdrop of the Windrush scandal and therefore, to understand why the current scheme exists, who it aims to help and what issues it seeks to resolve, an understanding of the legal and historical background might be helpful.
A detailed look at the history behind the Windrush scandal is largely beyond the scope of this article and, in any event, has been explored in detail in previous blog posts and the Home Office’s Windrush Guidance. Instead, our focus will be on the scheme’s legal and policy framework, specifically in relation to individuals in need of documentation to prove their status in the UK.
Legal Background to Windrush
The first significant statute to discuss is the Commonwealth Immigrants Act (1962) which ended the idea that the former British Empire was a single territory and thus, that all British subjects were able to enter the UK proper. However, Section 2(2)(b) of that act provided that children (under 16) of a commonwealth citizen who was resident in the UK were not subject to immigration controls.
Section 1(2), Immigration Act (1971) later established that individuals who were already settled within the UK when this act came into force on 1 January 1973 were entitled to remain in the UK indefinitely. However, as identified in the Windrush Lessons Learned Review, Progress Update 2022 this statute “hadn’t automatically given them the documentation to prove it. Nor had the Home Office kept records confirming their status.”
Section 7, Immigration Act (1971) further served to exempt commonwealth and Irish citizens who were “ordinarily resident” in the UK from being subject to deportation.
In theory, these Acts should have protected the rights of the Windrush generation to continue residing in the UK. The issue, however, was that many individuals did not have documents which evidenced that they had arrived in the UK prior to 1 January 1973 and had remained in the UK since then. This, combined with the ‘hostile environment’ policies of previous governments, placed many individuals’ continued residence in the UK on precarious grounds.
What Issues Does the Windrush Scheme Aim to Address?
As alluded to earlier, the Windrush scheme aims to address situations where an Applicant has gaps in, or entirely lacks, documentary evidence resulting in difficulties proving their right to work, rent and receive healthcare. The Windrush Scheme Casework guidance provides that;
“The Windrush Scheme formalises and extends the assistance provided by the Taskforce, to help the Windrush generation to prove their settled status (or right of abode), or to apply for British citizenship.”
Therefore, making a Windrush Application would be beneficial for individuals who arrived in the UK prior to 1 January 1973, but lack the documentary evidence needed to confirm their arrival or continued residence in the UK since that date. The scheme thus seeks to overcome this evidential difficulty by giving caseworkers the ability to conduct cross-checks where such evidence is lacking. Specifically, the Windrush guidance states that caseworkers should;
“Recognise that people may not have documents that are over 30 years old and help people to build a picture of their life in the UK, using documentation and evidence provided, or that you can access through systems available to you, including through use of cross-departmental data sharing.”
Thus, a clear advantage of this scheme over, say, an NTL BRP or Appendix EU Settlement Scheme application (as explored in previous blog posts) is that the cross-checking powers of caseworkers in Windrush applications eases the practical difficulties many Applicant’s would encounter when gathering the necessary documents to prove their status.
Who Can Make a Windrush Application?
The Windrush Scheme casework guidance establishes four groups of individuals who can apply via the Windrush Scheme. These are as follows;
- Commonwealth citizens who were either settled in the UK before 1st January 1973 and continuously resident in the UK since arrival or who have the right of abode.
- Commonwealth citizens who were settled in the UK before 1st January 1973 whose settled status had lapsed due to their absence from the UK for 2 years or more.
To fall under this category an Applicant would also need to:
- Be in the UK lawfully
- Have strong ties to the UK
(A complete list of all the countries whose citizens are considered ‘commonwealth citizens’ can be found here.)
- Children of a Commonwealth citizen whose parent settled in the UK on 1st January 1973 or has the right of abode.
To fall under this category, an Applicant would also need to:
- Be born in the UK, or arrived in the UK before they turned 18 and;
- Have been continuously resident in the UK since their arrival and their parent was settled before 1st January 1972 or has right of abode
- Individuals of any other nationality who arrived in the UK between 1st January 1973 and 31 December 1988 and are settled in the UK.
What Status Does the Windrush Scheme Provide?
One of the benefits of making this application is that it may result in the issuing of a document, free of charge, which confirms an Applicant’s status in the UK. Aside from this, the Windrush scheme also provides a route to British citizenship and, according to the Windrush Review 2022 “as of December 2021, more than 14,800 people had received confirmation of their legal status or citizenship”. Determining which of these two options an Applicant is eligible to claim turns on which of the following categories they fall under;
Children of a Commonwealth citizen can apply for either:
- British Citizenship
- Settlement (Indefinite leave to remain)
- Documentation confirming their right to live permanently in the UK
- Documentation confirming they have right of abode in the UK
- Documentation confirming that they are already a British citizen
Individuals of any nationality can apply for:
- Documentation confirming their right to live permanently in the UK
- Documentation confirming their right of abode in the UK
- Document confirming that they are already a British citizen
Commonwealth citizens settled in the UK before 1 January 1973 and continuously resident in the UK since arrival can apply for either;
- British Citizenship
- Documentation confirming their right to live permanently in the UK
- Documentation confirming they have right of abode in the UK
- Documentation confirming that they are already a British citizen
Commonwealth citizens settled in the UK before 1 January 1973 whose settled status had lapsed can apply for either;
- British Citizenship
- Settlement (Indefinite leave to remain)
British Citizenship Under the Windrush Scheme
As noted above, Commonwealth citizens who were settled in the UK prior to 1 January 1973 or the children of these individuals can apply for British citizenship under the Windrush scheme (Subject to them meeting the requirements set out for categories 1-3 under the section ‘Who can apply?’ above). Making an application for citizenship through the Windrush scheme is free of charge, as opposed to the fees usually applicable to other forms of citizenship applications. Additionally, where an Applicant was settled in the UK by 1 January 1973, they will satisfy the ‘knowledge of language and life in the UK’ requirement and will not be required to attend a citizenship ceremony. Aside from this, the same good character and residency in the UK requirements are also applicable to citizenship applications made through the Windrush Scheme.
Final Thoughts on Making a Windrush Application
Overall, as will hopefully be seen from this article, there are certain advantages to making a Windrush Application, ranging from the fact that it is a free application to the more practical benefits of caseworkers being able to cross-check records, relieving some of the normal pressures of needing to gather the evidence necessary to prove an Applicant’s date of arrival and continued residence in the UK.
Contact our Immigration Barristers
For expert advice in relation to a UK visa application or immigration appeal, contact our immigration barristers on 0203 617 9173 or complete our enquiry form below.
