Months after the ‘Windrush’ scandal caught the public imagination- sparking a public debate on the wilful institutional neglect which contributed to the destruction of thousands of lives- distressing stories continue to hit the news. Yesterday, for example, we read of the early death of Sarah O’Connor, who had been resident in the UK since the age of 6, and had spent the last year of her life trying to convince the UK’s authorities that she was, in fact, lawfully resident in the country.
The Government has launched the Windrush Learning Review sessions, one of which is to be held in Birmingham on October 3rd. The stated aim of the sessions is ‘to do right by those’ whom have demonstrably been failed by repeated institutional failures to uphold their statutory rights. This is, of course, welcome.
Yet what is striking is the extent to which, notwithstanding the multiple injustices ‘Windrush’ has revealed, the Home Office continues to disregard the legal rights of those it falsely constructs as subject to immigration control.
In particular, ASIRT is concerned by the Home Office’s routine treatment of children who have an established entitlement to be recognised as British citizens under paragraph 1(4) of the British Nationality Act 1981.
Under this provision:
‘A person born in the United Kingdom after commencement who is not a British citizen by virtue of subsection (1) [F9, (1A)] or (2) shall be entitled, on an application for his registration as a British citizen made at any time after he has attained the age of ten years, to be registered as such a citizen if, as regards each of the first ten years of that person’s life, the number of days on which he was absent from the United Kingdom in that year does not exceed 90.’
In other words, Parliament has decreed that British-born children who spend the first ten years of their lives in the UK have an entitlement to register as British citizens. A 10 year old child in such circumstances is then, to all intents and purposes, British.
And yet ASIRT finds itself routinely working alongside children and young people, as old as 16 years of age, who meet this requirement, and yet remain subject to immigration control, and at risk of removal from the UK- the country of their birth, the country they consider to be their home, and the country in which they have legally recognised citizenship rights.
This is because they are effectively ‘priced out’ of claiming their basic citizenship rights by Home Office fee charging policies, which appear deliberately designed to prevent vulnerable children from claiming them.
One such child is ‘Maria’, with whom ASIRT has been working for the past 3 years. We first met Maria when her mother, ‘Sade’, attended our office, in floods of tears, to tell us that an application she had made under paragraph 276ADE of the Immigration Rules- broadly, the rule to the effect that children resident in the UK for 7 years-plus should, all things being equal, be granted leave to remain in the UK- had been rejected.
The reason for the rejection, in this instance, was that the Home Office had determined that Sade’s income- section 17 Children Act support of around £70 per week- was not considered low enough to qualify for the application fee- then set at around £1200 for the two applicants- to be waived, and that she was therefore expected to save from her subsistence allowance, or to borrow money from elsewhere, in order to have her application considered.
Considering this action unlawful, ASIRT initiated the judicial review pre-action protocol. The Home Office consequently agreed to consider the application- which it then refused, on the basis that Maria could reasonably be expected to return with Sade to her mother’s country of origin- a decision which was then upheld by the Immigration and Asylum Tribunal.
In September 2017, Sade again sought to regularise her immigration status, and that of her daughter, who was then over 9 years old, resubmitting a paragraph 276ADE application.
This was refused, with no right of appeal, in June 2018- just one month short of Maria’s 10th birthday- on which date she would, of course, become legally eligible for registration as a British citizen.
ASIRT again initiated the Judicial Review pre-action protocol, noting that the Home Office’s actions were unreasonable, and disregarded the citizenship rights which were imminently Maria’s to claim. We requested a review of the decision, either granting Maria and her mother leave to remain in the UK, or, at the very least, allowing the right of appeal.
The Home Office withdrew its decision- and this week issued a new one, once again refusing to grant leave to remain, albeit now with the right of appeal.
This decision has been justified with the observation that:
‘It is noted that at the date of this decision your daughter will be 10 years and 1 month old. You state in your letter dated 14/06/18 that she will therefore be eligible for registration as a British citizen under section 1(4) of the British Nationality Act. At the date of this decision your daughter is a Nigerian national and has made no application for British citizenship’.
This is, of course true. And it is true precisely because Sade, surviving on section 17 Children Act subsistence support, cannot reasonably be expected to find the £1012 application fee charged by the Home Office for her daughter’s registration as a British citizen under paragraph 1(4), having been repeatedly denied leave to remain, and thus recourse to public funds and to the labour market. It is known that actual administrative cost of such applications to the Home Office is just £372 . The Home Office is, in other words, seeking to make a profit of £640 from Maria’s application to be granted a right which has been bestowed on her by Parliament- and actively seeks to withhold this right from her unless and until it receives this profit.
Maria, having spent her life to date in destitution as a consequence of Home Office decisions, now not only finds that destitution wielded against her by the very same Home Office as justification to deny her basic citizenship rights- but is, furthermore, now being told that she is at risk of removal from her country of birth.
This cannot conceivably resemble justice.
It is, then, welcome that the Home Office is seeking to put right the historical injustices suffered by the Windrush generation. But no meaningful lessons can be said to have been learned unless and until attention is paid to the ongoing and systematic injustices meted out on the children of today, seeking to establish homes and security in the country of their birth, and in which they have established legal citizenship rights.