As explained in our detailed piece on the plight of long-resident Commonwealth citizens, free legal advice used to be available for those making immigration applications.

Before it was scrapped in April 2013, this legal help was available to the “Windrush children” when applying for documents to confirm their status in the UK.

One of the reasons for its demise was the claim, made by the government, that immigration law was so simple that the advice and assistance of lawyers was not required.

In response to concerns about the impact of these cuts in 2014, Shailesh Vara MP, then junior minister at the Ministry of Justice, provided the following reassurance:

The immigration process is designed to be straightforward and easy to navigate. Therefore people in immigration cases should generally be able to deal with their own application and not need a lawyer.

In light of the Windrush children cases, this is becoming harder and harder to sustain. Had the people involved been able to deal with their own applications, they would not have lost their jobs or access to cancer treatment.

Indeed, it is a cruel irony that the guidance recently released by the government for long-term Commonwealth residents seeking regularise their status contains a fundamental legal error.

Chickens, roosting

Exactly five years after the end of free legal advice for this group, it is absolutely no surprise that these problems have now erupted.

It is unlikely that these recent cases would have reached the desperate stages that they have if the people concerned had had access to early-stage legal advice and assistance.

And having cut legal aid, explaining that these processes were simple and straightforward, the Home Secretary has now had to –- effectively –- create an in-house legal team of twenty staff that will

help… people to evidence their right to be here and to access the necessary services. The team will help the applicants to demonstrate that they are entitled to live in the UK.

Of course, this is what publicly funded lawyers used to do in these cases, for a £234 fixed fee (ie bugger all).

In the several cases I handled for Commonwealth citizens in this position before legal aid was cut, we managed to produce the required evidence to the satisfaction of the Home Office and residence documentation was issued in all of them.

Do the Windrush children need lawyers now?

In her response to David Lammy’s urgent and impassioned speech on the Windrush children in the House of Commons yesterday, the Home Secretary declared:

It is my firm belief that the [Windrush children] will not need legal advice, because the process will be simple.

However, the government is still getting the legal position wrong. The recently published government guidance for Commonwealth citizens states as follows

If you entered the UK before 1 January 1973 then the chances are you are entitled to live here permanently. Your status is only broken following a long period outside of the UK (two years).

This is echoed in the No Time Limit guidance, which broadly states the same thing:

The applicant must provide evidence they were present and settled in the UK on 1 January 1973 and have continued to reside here since.

The NTL form confirms that Applicants

must provide…evidence of continuous residence in the UK during the period since you and any dependant(s) who are applying with you were granted indefinite leave.

This is wrong: applicants in this position are not required to provide evidence of continuous residence since 1 January 1973, but instead back to 1 August 1988. 

Section 1(5) of the Immigration Act 1971 originally contained what was, essentially, a stand-still provision which meant that the indefinite leave to remain (ILR) automatically granted on 1 January 1973 could not be lost through absence from the country:

The rules shall be so framed that Commonwealth citizens settled in the United Kingdom at the coming into force of this Act and their wives and children are not, by virtue of anything in the rules, any less free to come into and go from the United Kingdom than if this Act had not been passed.

The provision was repealed by the Immigration Act 1988. After this time, ILR could be lost by the Windrush children if out of the UK for more than two years, just like anyone else with ILR.

What this means in terms of evidence to be provided of residence since 1973 is that the Windrush children only need to show evidence of continuous residence since 1 August 1988, not before.

This is not just wrong in a technical sense: this mistaken understanding will have impacted upon the ability of almost all of the Windrush children to obtain documentation. It will obviously continue to affect decision-making going forward if not rectified.

Most galling is that it is confirmed in (now withdrawn) guidance issued by the Home Office in 2014:

Under section 1(5) of the Immigration Act 1971, Commonwealth citizens were protected from losing their indefinite leave status through absences abroad until 1 August 1988, when section 1(5) was repealed. This means they could not lose their indefinite leave if, for example, they spent more than two years outside the UK. Since 1 August 1988, Commonwealth citizens have been subject to the returning resident requirements in the same way as other nationals.

Perhaps the Windrush children still need lawyers after all.