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Theresa May even now doesn’t understand why the Windrush scandal happened

Theresa May’s unironically named book, The Abuse of Power, reveals that even now, five years later, she still does not understand what caused the Windrush scandal. She blames Clement Attlee’s government, other governments over the intervening years and issues a classic non-apology. It was anyone’s fault but hers.

“At the heart of the problems later faced by the Windrush generation”, she claims, “lay the decision by the then-government, led by Clement Attlee, not to give them papers to show their settled status in the UK.” She claims many now find this “surprising”.

The thing is, it’s not surprising at all. What would have been surprising — astonishing, indeed — would have been if the Attlee government had required the Windrush generation to be issued with papers that marked them out in any way. They were British subjects. Their nationality law status was identical to any person born in Britain. To have issued them with residence “papers”, whatever that means, would have been essentially impossible. Would all British subjects have been issued with them? Or just the black and brown ones? She doesn’t say.

British subjects arriving from the Commonwealth did have passports issued by their local colonial or dominion authority. At least, adults did. And it was these passports that formed the initial basis of exclusion in 1962. The problem was that the issuing authority of a passport tells you nothing about where a person has been living the last few years, so there was no way to distinguish between a colonial British subject who was new to the UK and one who had been living here for years and had established a right of residence.

Also, it is worth remembering this is the same Theresa May who scrapped the previous government’s identity card scheme as soon as she became Home Secretary, remember. That scheme was being gradually phased in over many years to try to mitigate these sorts of problems.

May then makes it worse by suggesting a few pages later that “the idea of regularising the status of the original Windrush generation will have seemed more and more remote – if it entered anybody’s head.”

Their status was “regular”. The Immigration Act 1971 ensured they held Indefinite Leave to Remain. But policymakers at the time decided that it was better to make all legally resident by law and issue papers to some than to issue papers to some and leave others illegally resident. That’s not to say more could and should have been done, particularly when the British Nationality Act 1981 was passed. But the idea policymakers never considered this is plainly wrong and ignorant.

Theresa May herself made the opposite decision when it came to EU citizens residing in the UK after Brexit. As a consequence, the vast majority have papers proving they are legal. But an unknown number who were resident and did not apply for papers, probably in the hundreds of thousands, are now illegal and subject to the hostile environment Theresa May herself introduced. There have been half a million late applications since the deadline passed.

I would add that the incredibly high citizenship registration fees introduced by Theresa May have severely undermined one of the routes by which children become regularised, including descendants of the Windrush generation. The fee was set at a moderate level when it was instituted by the 1981 legislation. It could and should have been free. From 4 October 2023 it will cost a massive £1,214 per child. This is beyond the reach of some families and children will inevitably be denied citizenship because their parents could not or would not pay for the registration. There’s no evidence to suggest this has ever entered Theresa May’s own head.

Returning to the abuse of power, May offers a potted history of immigration and nationality law. In some ways there’s not a great deal wrong with these passages, although purists can query the use of the term British “citizens”. She seems on the face of it to understand the Windrush generation were British but, again, she says “no-one had given them any papers to confirm this”. And so, again, May shows she just doesn’t get it. It’s not a slip of the pen.

She seems to believe that past governments should have created two classes of “citizen” earlier than they did and that this is the problem. Not the de facto ID card policies introduced by later governments from 1996 onwards then reinforced and indeed enforced by one Theresa May with vigour and enthusiasm. She does not seem to understand that subsequent governments were under a duty of care and that they — and she — fundamentally failed these people and their children. She does not seem to grasp that the Windrush generation usually did not really need papers proving their status until she, Theresa May, came along and created the hostile environment.

Her basic case is that an earlier generation of legislators should have anticipated the regime of internal immigration control that was later introduced. This is to turn things on their head. Theresa May and others should, if they were going to insist on internal immigration controls, have anticipated and mitigated the problems that would inevitably arise. But people like Theresa May, Nick Timothy and others simply didn’t meaningfully consult. They didn’t meaningfully care.

May writes that she is “profoundly sorry” (p209). But this is for “the treatment some of [the Windrush generation] received in later years”. Your view may differ but, to me, that does not sound to me like a person accepting personal responsibility for the harm her own policies and her own ignorance have caused.

Similarly, she writes that “hostile environment” was “not a good term to use” (p215). But she is very keen to emphasise that others had used the term before her. “It wasn’t just me, sir, how about Dick and Harry too?” is hardly accepting of one’s own responsibility.

It was, she suggests, the Home Office’s responsibility for not anticipating problems and not warning or educating ministers like her (p218). May quotes the Williams report: the department displayed “institutional ignorance and thoughtlessness towards the issue of race and the history of the Windrush generation”. May goes on to accuse civil servants of “inbuilt cynicism”.

This, from the woman who led the department from 2010 to 2016 — the longest serving Home Secretary for over 60 years — and who personally spoke of a “hostile environment”, the need to drive down net migration to tens of thousands and the pressure migrants allegedly cause to “wages, jobs and social cohesion” and on “infrastructure, such as housing and transport — and public services, such as schools and hospitals.” Why does she think civil servants behaved in the ways she described?

I’m currently working my way through Professor Robert Thomas’ Administrative Law in Action: Immigration Administration. As he says,

“Windrush casework had been heavily influenced by the hostile environment to reduce immigration … the policy goal being pursued by caseworkers was not to give effect to the statutory rights of the Windrush generation, but the more recent ministerial policy of reducing immigration.”

Who was responsible for that?

Nor does May show any hint of awareness of the ongoing discriminatory impact of hostile environment policies on ethnic minority British citizens and others deemed “foreign” by dint of their skin colour, name or accent. If this was ever considered by Theresa May it seems to have been considered a price she was willing for others to pay.

It’s weird but I expected better.

I have always profoundly disagreed with May’s politics and her policies.

But I considered that she was competent, at least in a narrow sense. Dangerously so because she was often able to follow through on her rhetoric, unlike her successors.

And I considered that she had integrity. Also unlike her successors. She seemed driven by a sense of morality to which I do not subscribe but which I thought was, at least, consistent.

I accept that I was wrong. It was all someone else’s fault as far as Theresa May is concerned.

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.