Examination of the legal position regarding the Real Windrush Generation

by

George Lee

What follows is an examination of the legal position regarding the Real Windrush Generation.

We are British citizens! Anyone who says otherwise need only show me the error of my ways by quoting the legislation on which they rely.

In 1946, the Dominion of Canada created a separate "Canadian citizenship" apart from the status of British subject. As a result, in 1947, an Imperial (or Commonwealth) Conference was convened of all the self-governing Dominions (i.e. Australia, Canada, Ceylon, India, Newfoundland, New Zealand, Pakistan, Southern Rhodesia, and the Union of South Africa) to resolve the growing confusion.

General agreement was reached on a new scheme to reconcile the citizenships of the individual Commonwealth countries with the overall status of British subject. This formed the basis of the British Nationality Act 1948.

The BNA Act 1948, which came into force on 1 January 1949, introduced the status of citizen of the United Kingdom and Colonies whilst retaining the term British subject to cover every citizen of a Commonwealth country, including the United Kingdom and the Colonies. Between 1947 and 1951, the 9 Commonwealth countries which became independent (for nationality purposes) on 1 January 1949 introduced their own citizenship laws.

Persons closely connected with the United Kingdom or existing British territories remained British subjects but acquired the additional status of CUKC. In some cases, both CUKC and the citizenship of one or more independent Commonwealth countries was acquired.

The 1948 Act provided that:

• Any CUKC or citizen of an independent Commonwealth country was a British subject (s.1(1))

• British subject and Commonwealth citizen meant the same thing (s.1(2))

Under BNA s.4, persons became citizens of the United Kingdom and Colonies by birth if they were born within the United Kingdom and Colonies, provided their father was not a diplomat or an enemy alien in occupation.

This is the point at which all pre-1962 CUKCs became BRITISH CITIZENS.

The British Nationality Act 1948 remained in force throughout the period 1.1.49 to 31.12.82, although it was amended by both nationality and immigration legislation. The first modern immigration statute had been the Aliens Act 1905 which, as the title indicates, applied only to aliens. British subjects had a right to enter and reside in the UK by virtue, simply, of their nationality. However, the immigration entitlements incorporated within British subject status were removed and independently developed between 1949 and 1983.

The notion that the British Empire constituted a single territory, and that all British subjects were free to enter the UK, came to an end with the Commonwealth Immigrants Act 1962.

This is the point at which Jamaicans residing in Jamaica lost their automatic right to British citizenship. That did not apply to those already in the United Kingdom and settled there as lawful British citizens.

Besides, it was the fault of Clement Atlee’s Labour government that this was felt to be necessary, because they had invited 800 million people to the UK without restriction, all of them as citizens. Furthermore, Mr Atlee had to be reminded that the pioneers who had had the audacity to come to the “Motherland” on the Empire Windrush without seeking permission to do so were British citizens. He had wanted to force the Windrush to be diverted to East Africa. However, he had to be reminded that only 492 of the 1,027 people on board the Windrush were Jamaican and that the Jamaicans were British citizens. Apart from which, more than 60 of the passengers were Jamaican RAF servicemen who had just served the Motherland in World War II.  Nevertheless, that is the primary reason the Windrush was permitted to land at Tilbury Docks. Had there been just Jamaicans on board, servicemen and all, the Windrush would have been redirected. I only wish he had succeeded in his wish.

The reason he did not get his wish is because we were British citizens. It is ironic that Atlee wanted to send us back to East Africa because the East African Asian Case (1968) is one of the most infamous and disgraceful episodes in UK immigration history, once again a Labour government.

The important thing to remember is that the UK government has since performed every dirty deed possible to rid the UK of British citizens originating from the New Commonwealth, because of the Windrush episode, especially Jamaica. The fact that it was only possible by means of unlawful acts was of no consequence. One group of British citizens, the legislators, abrogated the rights of fellow citizens, the Real Windrush Generation, in order to placate Enoch Powell. That is why I usually refer to this abominable 1971 Act as the “Enoch Powell Immigration Act”.

To demonstrate how reminiscent of Nazi Germany the actions taken by the UK government against the Real Windrush Generation is one should read the words of Martin Niemoeller:

“First they came for the Socialists, and I did not speak out—
Because I was not a Socialist.

Then they came for the Trade Unionists, and I did not speak out—
Because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out—
Because I was not a Jew.

Then they came for me—and there was no one left to speak for me.”

One group of citizens abrogating the rights of another group of citizens means that we can all become victims of such fascism.

Except for "Commonwealth citizens" (a term which included CUKCs) who were born in the UK or who were the holders of UK passports (as opposed to British passports issued by a colonial authority), the right of entry to the UK was fettered by the provisions of the 1962 Act. The citizens of Commonwealth countries and CUKCs affected were thereafter subject to immigration control, a concept which, prior to 1962, had related to aliens only.

The Roman Catholic church spent 1,500 years killing anyone who had a different view of what should be in the Bible claiming any version of the Bible not authorised by them was blasphemous. The United Kingdom government have spent every day since the coming into force of the IA 1971 unlawfully tracking down, confiscating and destroying passports they themselves had issued to British citizens from the New Commonwealth, in particular Jamaicans. The grounds for them doing so was very simply Enoch Powell inspired RACISM. I hope it is now understood why Jamaicans are considered to be easy targets.

In the post-war years, the countries of the British Empire increasingly became independent and enacted their own citizenship laws. This process had a crucial effect on the citizenship status of those CUKCs connected with them. When a colony attained independence, citizenship of the UK and Colonies was withdrawn from all but a few (i.e. those who had an exception to loss) and replaced by that country's own national status.

On independence 3 things could happen:

• The person became a citizen of the new country and lost CUKC

• The person became a citizen of the new country and retained CUKC

Pre-1962 CUKCs were made citizens of Jamaica because this was done, without their knowledge or consent, in the Constitution of Jamaica written as an Order in Council by the UK government. It was not possible for them to lose any rights obtained as they were subject to UK immigration laws in the UK, having entered the UK lawfully prior to the passing of this legislation by the UK government. Any attempt to do so would be retrospective action on the part of the UK government.

Now the general rule, not merely of England and Scotland, but, I believe, of every civilized nation, is expressed in the maxim, “Nova constitutio futuris formam imponere debet non praeteritis”

• The person did not become a citizen of the new country and remained a CUKC (i.e. was unaffected)

Patriality and right of abode

The idea of freedom from immigration control for a class of persons defined in terms of birthplace or ancestry culminated in the concept of "patriality". This term was introduced by the Immigration Act 1971, which replaced the 1962 and 1968 Acts in their
entirety and, together with the British Nationality Act 1948, represented the state of British nationality law from 1 January 1973 to the commencement of the BNA 1981 on 1 January 1983.

The idea of patriality was that it should serve as a secondary status (e.g. an individual CUKC would also have been either a "patrial" or a "non-patrial"). A "patrial" was a person who had a "right of abode" in the UK (s.2(6) of the 1971 Act) and who, as a result, was "free to live in, and to come and go into and from the UK without let or hindrance .....". A "non-patrial", on the other hand, could only enter and "live, work and settle in the UK by permission .....".

Pre-1962 CUKCs were defined by the 1971 legislation as patrials, thus had a status which gave them right of abode. "free to live in, and to come and go into and from the UK without let or hindrance ....." However, those who framed this legislation decided that this status was to be removed, by whatever means. The UK government had decided that as well as confiscating and destroying passports lawfully obtained, they would further undertake to deny pre-1962 CUKCs of their rights by adding the following clause to the 1971 Act

Section 3, clause 8 states:

When any question arises under this Act whether or not a person is patrial, or is entitled to any exemption under this Act, it shall lie on the person asserting it to prove that he is.

This was a deliberate act of deception on the part of those who framed this Act. Anyone doubting this should read the Cabinet Papers.

I would like to briefly explain why. It was known that a large number of pre-1962 CUKCs had entered the UK as children, of which I am one, accompanied by adults under the passport of said adult. As a result of this legislation, speaking for myself alone, I have had to spend the last 45 years without any form of identity. What that has meant to me is not for detailed explanation in this communication. However, it will be dealt with at length when the discussion is one of compensation and damages. I would only say that this was an instruction to the Home Office, and treated as such, that pre-1962 CUKCs were under no circumstances to be permitted their legal right to British citizenship. It is certain that tens of thousands of British citizens died in a state of being “citizens of nowhere”. Since 1^st January 1973, the UK government, through the Home Office has refused the Real Windrush Generation their rights. What is particularly egregious is the fact that this has been done in secret and without oversight or accountability. For example, the Home Office have never given any reason for their assertion that the Real Windrush Generation are not British citizens. I have repeatedly requested to be told which legislation is being relied on for making this assertion. This request has been steadfastly ignored. They cannot name any legislation because none exists. The Home Office refusal to account for their actions is rooted in Section 3, clause 8 of the IA 1971. They have been instructed by legislation passed by the UK parliament to behave in this unlawful manner.

Those who acquired the right of abode under s.2 of the 1971 Act can be summarised as follows:

• CUKCs by birth, adoption, naturalisation or registration in the United Kingdom or Islands (s.2(1)(a))

Pre-1962 CUKCs are British citizens by birth, just the same as CUKCs born in the UK.

• CUKCs born to a parent who, at the time of their birth, had right of abode under s.2(1)(a) (s.2(1)(b)(i))

• CUKCs born to a parent who, at the time of their birth, had right of abode under s.2(1)(b)(i) (s.2(1)(b)(ii))

• CUKCs who had been ordinarily resident in the United Kingdom for a continuous period of 5 years or more whilst a CUKC (or a British Subject if any part of the period of residence was before 1949). Although the 5-year period could include time spent in the United Kingdom on immigration restrictions (periods of unlawful residence did not count), these had to be lifted by the end of the period. The 5-year period had to be completed by 31 December 1982 (s.2(1)(c))

Persons who had right of abode through being a CUKC normally ceased to have right of abode if they lost CUKC (e.g. on independence). However, persons who renounced CUKC could retain right of abode if they were also Commonwealth citizens

Over the years, it became increasingly urgent to find a ready means, expressed in terms of nationality, of knowing who had the right of entry and settlement in the UK and who had not. The aim of the British Nationality Act 1981 was to create a new law which would give all existing CUKCs a citizenship status which reflected their circumstances, particularly the strength of their connection with the UK.

The BNA 1981 received Royal Assent on 30 October 1981. Its main provisions came into effect on 1 January 1983. The Act amended the 1971 Act so as to cast the right of abode in terms of citizenship, and replaced citizenship of the United Kingdom and Colonies with 3 separate citizenships:

• British citizenship, for people closely connected with the United Kingdom (including the Channel Islands and the Isle of Man)

• British Dependent Territories citizenship, for people connected with the dependencies;

• British Overseas citizenship, for CUKCs who did not acquire either of the other citizenships at commencement

British citizenship

All CUKCs who had the right of abode acquired British citizenship automatically at commencement, except stateless persons who had been registered as CUKCs by virtue of their mother's CUKC - these persons acquired whichever of the 3 new citizenships their mother did.

Here, I shall simply restate the law: All CUKCs who had the right of abode acquired British citizenship automatically at commencement.

No-one who was formerly a citizen of the United Kingdom and Colonies was left without a citizenship, and the Act contains provisions which comply with the United Kingdom's obligations under the UN Convention on the Reduction of Statelessness.

The Act did not adversely affect the position under the immigration laws of anyone who was lawfully settled in the United Kingdom. The special voucher scheme under which certain United Kingdom passport holders, originally from East Africa, may be admitted to the Unite Kingdom for settlement, continues

Once again, I only need to point out: The Act did not adversely affect the position under the immigration laws of anyone who was lawfully settled in the United Kingdom.

The Act provides that where the Home Secretary is required to exercise his discretion, he shall do so without regard to the race, colour or religion of the person concerned.

The excuse given by the UK government for the improbity of the treatment we have received is that we are not able to assimilate. After hundreds of years of subjugation, it must be said that you must be dreadful teachers. Why? You treat your pupils like dogs! What do you think a dog will do if you continually mistreat it? It WILL bite you!

To behave in this manner towards the Real Windrush Generation, admit that you have done wrong and then permit those who have wronged us to act as court judge and jury against us shows who you are. To then continue to deny us our rights, give us a “Windrush Day” to celebrate shows moral and ethical turpitude.

The only thing left to say is that Enoch Powell’s prophecy was in a way self-fulfilling. There will be “rivers of blood” if the UK government continues to treat the descendants of the Real Windrush Generation the way they have treated the Real Windrush Generation.

To Reginald Maudling and Enoch Powell I say:

In Rights of Man, published in 1791, Thomas Paine argued that: “Every age and generation must be as free to act for itself, in all cases, as the ages and generations which preceded it. The vanity and presumption of governing beyond the grave is the most ridiculous and insolent of all tyrannies.”

When the night is over, comes day. From this day forward, any decisions regarding the Real Windrush Generation must be made in the light of day. We have suffered 45 years of home Office decisions made in secret and if the UK government forces me into a court of law, I shall be seeking aggravated damages because of unreasonable behaviour and the insult of the Windrush Day while continuing to deny our rights and seeking to manipulate the process by unlawfully trying to limit our rightful compensation. Instead of £10 million compensation, I shall demand £20 million. Furthermore, any attempt to cap compensation by the UK government will be tested in a court of law as it is illegal.

Final question, by which legislation was the Home Office given dictatorial powers similar to those given to Adolf Hitler?

IS IT BECAUSE WE ARE BLACK?

It has become necessitous to coin a new maxim, the “Real Windrush Generation”. There needs to be a clear distinction made between pre-1962 Citizens of the United Kingdom and Colonies (pre-1962 CUKCs) and those New Commonwealth citizens who entered the UK after the point in time marked by the entry into force of the Commonwealth Immigrants Act 1962. Without this distinction it is not possible to see that we are considering two separate issues.

Perhaps the Guardian should produce an article which explains the distinction between the Real Windrush Generation (the pre-1962 CUKCS) and the definition given by the government for the “Windrush Generation”, which is in fact a misnomer. The reason for this suggestion is elucidated in what follows.

Quotations used are from the following article: 

https://www.theguardian.com/uk-news/2018/jul/18/they-erased-a-bit-of-my-life-windrush-generation-on-home-office-treatment

Four people describe ordeal of having their British citizenship questioned and downgraded

How does one downgrade someone’s citizenship without it being a retrospective abrogation of their rights? Of the four people mentioned in this article, it can be stated with certainty that at least two of them are Real Windrush Generation and British citizens. When it concerns the Real Windrush Generation, everyone seems to forget that the law exists for all citizens and must be obeyed, even by Her Majesty’s Government. At this point, it ought to be clearly stated that the legislation passed by parliament which establishes the right of all pre-1962 CUKCs to British citizenship is the British Nationality Act 1948.

What is said to be the Windrush Scheme has nothing whatsoever to do with the revocation of the rights of the Real Windrush Generation. I have now made six different attempts to communicate with those responsible for this Scheme, but to no avail. The reason for this situation is clear. One thing has nothing to do with the other.

The Windrush Scheme was set up to deal with persons entitled to Indefinite Leave to Remain, which does not apply to pre-1962 CUKCs. As far as can be ascertained, no authority has been given to deal with matters concerning pre-1962 CUKCs. I have been directed and redirected until I have arrived at a dead end. Moreover, I have been informed that the Windrush Scheme is only for the purpose of assisting the “Windrush Generation”. Is it not ironic that the Home Office should introduce a Scheme called “Windrush” which excludes the Real Windrush Generation? Has it anything to do with the fact that the Real Windrush Generation are British citizens and acceptance is being denied?

The Real Windrush Generation have been making representations to the United Kingdom government for more than 40 (forty) years. Every application has fallen on deaf ears as per the wishes of the legislators, clearly stated in the Immigration Act 1971, as amended by the British Nationality Act 1981. Decisions on this matter have been made in secret and without recourse to the relevant legislation since 1973. This has occurred without any form of accountability since the entry into force of the Immigration Act 1971. The legislation instructed those who were to enforce it, that if the Real Windrush Generation attempted to claim their rights, they were to be told to “prove it”. I use the expression “prove it” because it has been used to me so many times by the Home Office and every UK embassy I have visited over the years since 1988. No matter where the application was made the responses were almost always identical.

This action has led to countless unlawful deportations and exclusions and, even worse, the confiscation and wilful destruction of perfectly legitimate and legally obtained passports, which is another reason it is transparently deliberate action on the part of the UK authorities in order to abrogate the rights of the Real Windrush Generation.

With reference to passports, Lydden Lewis needs to be careful as the UK government do not usually return such passports, once confiscated. In fact, as stated, they are usually destroyed. The evidence is destroyed enabling one to be told, “Prove it!” Every time such decision was taken with regard to pre-1962 CUKCs, was the law broken? Incidentally, the point to note is this. The only passports confiscated and destroyed were the ones which confirmed the rights of the Real Windrush Generation. Thereafter, the legitimate owners of said passports were told they were not citizens, even though the passport seized and destroyed demonstrated their right to citizenship.

To demonstrate the point with another example from the above-named Guardian article. Tony Perry was told, “We are sorry to inform you that you are not a British citizen”. Due to the fact that he arrived in Britain, from Jamaica, in 1959, there is no basis in law for him to be given that information. Furthermore, magnanimously awarding anyone in this situation with a visa giving him or her Indefinite Leave to Remain is an abrogation of rights established under the British Nationality Act 1948. Thus, the actions taken in this case is not just ultra vires, it is unlawful. The assumption is that the Home Office know immigration law, but do they?

Why has the Home Office been permitted to operate outside the law for so many years, with such action being taken in secret and without oversight from those responsible for so doing?

One only asks the reader to consider the number of people from the New Commonwealth who lawfully entered the United Kingdom between 1948 and 1962. That is the number of people caught in this limbo, and the number who have been denied their lawfully acquired rights by the United Kingdom government since 1973.

Surely it can be seen that what has taken place is a grave abuse of power which has affected a large number of people? How many? It is impossible to calculate because the number is greatly affected by the date of Independence of each New Commonwealth state.

Most of the people affected are dead, that is the only known factor. It would appear, probably much to the joy of the UK government, as it seems the method by which the “Windrush Generation” may be denied their rights to compensation is a current preoccupation.

This purgatory, which is in effect worse than slavery, must be ended. It is even more important that the condition in which the people referred to above died, becomes public knowledge.

If the government of the United Kingdom wishes to disavow any statement made in this communication, I respectfully request that they state upon which legislation they rely.

No more decisions about the Real Windrush Generation made in secret by people who know us not, and who have been instructed to deny rights given in legislation by the parliament of the United Kingdom.

Just one last question! Is it because we are black?