122.This inquiry has focused on the plight of members of the Windrush generation but concern has also been raised with us about other groups of people who are also experiencing problems with the immigration system through no fault of their own.
123.Concern was raised with us about children who live in the UK or migrated here at an early age, who are running up against problems in the compliant environment. There are parallels with the Windrush generation and their children, in that they are undocumented, have lived in the UK since an early age (or were born here) and consider themselves to be British.
124.University of Oxford’s Centre on Migration, Policy and Society (COMPAS) estimated in 2012 that “120,000 irregular migrant children live in the UK. A large majority of these are either born in the country or migrated here at an early age.” The Children’s Society estimated in 2016 that the figure had risen to 144,000. If these children do not or cannot regularise their status when they become adults, then they too will find themselves unable to rent property, access student loan support, employment, social security and other entitlements.
The Children’s Society and Coram Children’s Legal Centre told us about Yemi, who was nine years old when she came to the UK from Nigeria to stay with an aunt. She was told by her mother that her visit was a holiday but shortly after her arrival, her mother went missing and Yemi had no contact with her mother since. She has always thought that she was British and only recently found out, at the age of 17, when applying for university that she wasn’t.
Anxious about her lack of status, she immediately set about trying to secure legal support to help her regularise her status. She relied upon a friend in a similar situation to recommend lawyers to her. Yemi feared removal to a country that she no longer knew. She needed legal advice to support her through her application for leave. She became terrified all the time. She was not only fearful of her application being rejected, but also about raising the funds to pay for her lawyer which totalled £3,000.
Her application was rejected and she was faced with the prospect of the uncertainty of further costs to appeal the refusal. Her college attendance and work were severely impacted. In addition to all these burdens, as soon as she turned 18, she was sent letters and texts from Capita warning of her impending return and emphasising her ‘illegal’ stay in the UK.
125.In order to regularise their status undocumented children can face high fees. The Children’s Society and Coram Children’s Legal Centre point out that Home Office immigration fees for limited leave to remain have increased by 79% between 2014 and 2018 to £1,033 per person, an application for ‘indefinite leave to remain’ in the UK, which often marks the end of an individual’s immigration journey, has increased by 127% to £2,389, while child registration for citizenship costs £1,012. The processing costs for ILR and child citizenship stand at £243 and £372 respectively.
126.The Home Office has been setting fees at above-cost since 2007 but it is only in recent years that they have increased so significantly as the Home Office has sought to use them to help part-fund the rest of the immigration system. For some young people, if they are successful in gaining permission to stay, they will be granted leave for two and a half years and may need to make up to five applications, wait ten years and pay over £8,000 before they can obtain indefinite leave to remain. The Children’s Society argue that these fees pose insurmountable financial barriers for many young people and their families who are often living in poverty and cannot afford such costs.
127.In many cases, undocumented young people may have a legitimate right to be in the UK and may even be entitled by law to register as British citizens. However, high fees and a lack of legal aid can them leave trapped with an uncertain status and unable to access the documentation they need to move on with their lives. Legal aid is normally unavailable for undocumented children to get basic advice about their status. Adrian Berry explained, “A child may not know whether he or she came here at the age of one or two or was in fact born here by a parent who subsequently disappeared. You do not know what the route is to regularisation, necessarily. It is not straightforward.” We note that the Windrush Scheme Guidance sets out that some of the children about which we raise concern will be able seek assistance from the taskforce and be issued with a certificate of registration as a British citizen.
128.144,000 undocumented children is a problem the Government must solve. A failure to do so will leave many in a precarious position, unable to study, work or seek the support of social security as they transition into adulthood. There is no benefit to society in people being in this position, many of whom are likely to be British citizens or else entitled to be in the UK. A failure to act will also only serve to increase costs in the future. The Government needs to reduce the barriers to them regularising their status. The fees for children to establish their status are simply too high and the routes for doing so too long and too complex. The Home Office should reduce fees for children to cost-level, introduce waivers for those who are particularly vulnerable and reduce the number of regular applications that are required. The case for reintroducing legal aid for children is most pressing.
129.We welcome statements in the Windrush Scheme Guidance that some of the children about which we raise concern, specifically those with links to the Windrush generation will be able seek assistance from the Taskforce and be issued with a certificate of registration as a British citizen. We also note that the Independent Chief Inspector of Borders and Immigration has launched a call for evidence on the Home Office’s approach to charging for its services. Fees for immigration services have increased considerably over recent years. The Home Office should not seek to recover the costs of the Windrush taskforce or compensation payments by further increases to fees.
130.We have heard compelling arguments for another group unfairly affected by UK immigration policies, people from the Chagos Islands. In the 1960s and 70s the inhabitants of the Chagos Islands, a UK Overseas Territory, were forcibly exiled by the UK Government while their homeland was leased to the United States for use as a military base. The British Overseas Territories Act 2002 had the effect of making people born on the Chagos Islands British Overseas Territory citizens and British citizens giving them the right of abode in the UK. As Fragomen LLP explain, the children of those born on the Chagos Islands will today have both BOTC and British citizenship. But the grandchildren of those born on the Chagos Islands normally would not, since British nationality generally only descends to the first generation born outside of British territory. In order to remain in the UK, grandchildren instead have to go through the expensive naturalisation process.
131.There are reports of many families struggling with the costs of acquiring citizenship and, as a result, many grandchildren of people born on the Chagos Islands but now living in the UK have been, or are due to, face removal to the Seychelles or Mauritius once they reach adulthood. Perhaps perversely, had Chagossians remained on the Chagos Islands and not been forced to reside elsewhere, such as in the UK, they would all be entitled to register as British citizens today.
In April 2018, The Guardian described the experiences of a woman, then 44, who was born in Mauritius to Chagossian parents. Following a legal change in 2002 she, like all the first generation of Chagossians born in exile, was given British nationality. She now lives in the UK. But her son who has just turned 18, could face deportation if she cannot raise the money for a visa. The Home Office is asking for £2,500 for his initial visa—aside from the cost of obtaining citizenship by “naturalisation”, which could set her back more than £10,000 over five years.
132.We note that in January, Henry Smith MP presented the British Indian Ocean Territory (Citizenship) Bill 2018—a Private Member’s Bill that, if passed, would allow anyone who can prove that they are descended from a person born on the Chagos Islands to register as a British overseas territories citizen. The Bill has yet to have Second Reading. We wrote to the previous Home Secretary asking whether similar support to the pre-1973 cohort could be made available to individuals in a similar position from the Chagos Islands but we did not receive a reply. In giving evidence to us, the previous Home Secretary made the following commitment: “I know that the Foreign Office is very involved [ … ] and I will certainly speak to them and come back to you.”
133.Chagossians are a unique case but there are parallels with the Windrush scandal in that they are yet another cohort of people whose descendants struggle to access British citizenship. The Government should support Henry Smith MP’s Private Member’s Bill and allow anyone who can prove that they are descended from a person born on the Chagos Islands to register as a British overseas territories citizen and thereby have a right to remain in the UK.
134.After the UK leaves the EU, more than three million EU citizens living in the UK will become subject to some form of immigration control. We note the Government has announced that a settlement scheme for EU citizens living in the UK will be fully open by 30 March 2019. It is crucial the Government ensures that EU citizens resident in the UK do not end up facing the problems that members of the Windrush generation and their children have had to deal with. But in our view there are still some very considerable risks—especially with regard to take up of registration. The Government says that lawful residence for EU citizens will depend not on the facts of their previous residence, but simply on whether they have the required registration documents. Yet, as we saw from Windrush, there are many circumstances when long standing residents—particularly those coming here as children—do not get the paperwork they need.
135.The Migration Observatory point out, using examples of government programmes for tax credits as well as the requirement to submit a tax return, that for a number of reasons the response to Government schemes requiring registration is never 100%. The Migration Observatory draw particular attention to children, some of whom may wrongly assume—or their parents may wrongly assume—are British citizens and therefore do not apply. We have already discussed how complex nationality rules are. Vulnerable people such as victims of domestic abuse, trafficking and exploitation, children in care, and those with mental health issues may also fail to apply in time. David Wood, former Director General of Immigration Enforcement, warned us that EU nationals, particularly those arriving after Brexit, may find themselves easy targets for enforcement activity:
with the pressure on resources, they will be quite easy candidates for removal from the UK, quite frankly, and with pressure on enforcement teams and removal numbers there might be an overconcentration on simple-to-remove Europeans and more harm-based cases are left.
136.The Government has said it is:
carefully considering the lessons learned from the treatment of Windrush generation migrants who had lawful status in the UK but did not have the necessary documentation to prove it, and will ensure these important lessons are reflected in the design of any new system of controls introduced for EU citizens after the UK leave the EU.
137.In preparing for the registration of EU nationals but especially for the enforcement of that scheme in future years, the Government must be mindful of the fact that there will be some EU nationals who do not register through no fault of their own. This is likely to include children who believe, wrongly, that they are British. The Government will need to ensure that processes are in place to deal with such cases in a positive manner so that they do not find themselves locked out of living a lawful life in the UK as we have seen happen to members of the Windrush generation.
160 COMPAS, , 29 May 2012
161 The Children’s Society and Coram Children’s Legal Centre, , April 2018, p3
162 The Children’s Society and Coram Children’s Legal Centre, The impact of the ‘hostile environment’ on children and young people today: briefing, April 2
163 Q 45
164 Fragomen LLP, , 15 March 2018
166 Letter from the Committee Chair to the then Home Secretary,
167 Q 172
168 Home Affairs Committee, Third Report of Session 2017–19, , HC 421
169 Home Office, 21 June 2018
170 Migration Observatory, 12 April 2018
171 Oral evidence taken on , HC (2017–19) 421, Q 2
172 Home Affairs Committee, , HC 1075, Response to Recommendation 37
Published: 3 July 2018