A man who was prevented from returning home to the UK for nine years by the Windrush scandal has been refused British citizenship because of his protracted absence from the country – despite an acknowledgment from the home secretary that the government was to blame.
The case highlights the Home Office’s failure to provide justice to some of those affected, almost three years since ministers first promised to right the wrongs caused by the immigration scandal.
Trevor Donald, 65, received a letter from Priti Patel in which she expressed her regret that the rigidity of immigration legislation means he cannot be granted British citizenship. The law requires applicants to have been physically present in the UK for the five years preceding their application.
Donald said the latest refusal was ridiculous and painful, and expressed anger at the continued precariousness of his situation. ““It is a blow. They should have rectified the situation years ago,” he said. “The way the system has been treating me and people like me is wrong.”
Donald was stranded in Jamaica for nine years after travelling there to attend his mother’s funeral in 2010. At that point he had been in Britain for 43 years, since arriving as an 11-year-old child to live in Birmingham, legally, in 1967. He was entitled to citizenship but applied only when his mother became ill and he needed to get a passport so he could visit her.
Who are the Windrush generation?
They are people who arrived in the UK after the second world war from Caribbean countries at the invitation of the British government. The first group arrived on the ship MV Empire Windrush in June 1948.
What happened to them?
An estimated 50,000 people faced the risk of deportation if they had never formalised their residency status and did not have the required documentation to prove it.
It stems from a policy, set out by Theresa May when she was home secretary, to make the UK 'a really hostile environment for illegal immigrants'. It requires employers, NHS staff, private landlords and other bodies to demand evidence of people’s citizenship or immigration status.
Why do they not have the correct paperwork and status?
Some children, often travelling on their parents’ passports, were never formally naturalised and many moved to the UK before the countries in which they were born became independent, so they assumed they were British. In some cases, they did not apply for passports. The Home Office did not keep a record of people entering the country and granted leave to remain, which was conferred on anyone living continuously in the country since before 1 January 1973.
What did the government try and do to resolve the problem?
A Home Office team was set up to ensure Commonwealth-born long-term UK residents would no longer find themselves classified as being in the UK illegally. But a month after one minister promised the cases would be resolved within two weeks, many remained destitute. In November 2018 home secretary Sajid Javid revealed that at least 11 Britons who had been wrongly deported had died. In April 2019 the government agreed to pay up to £200m in compensation.
By the end of 2020, victims were describing the long waits and 'abysmal' payouts with the scheme, and the most senior black Home Office employee in the team responsible for the Windrush compensation scheme resigned, describing it as systemically racist and unfit for purpose.
His application was rejected on the grounds he had not submitted enough evidence to prove he had lived in the UK for more than four decades. His mother died before he was granted a passport but he travelled to the funeral using emergency documents, having been reassured by a Home Office official that he would be allowed to re-enter the UK.
However, he was denied permission to return later that year. He was only allowed back nine years later, in 2019, when Home Office staff working for the Windrush taskforce contacted him, apologised and paid for him to fly home to Britain.
He said he was disappointed that his latest application for British citizenship had been refused. “They told me the law says I should be here for five years before my application but it’s not my fault I wasn’t here,” he said. He is not the only person affected by this problem. Ken Morgan described being caught in a “ridiculous catch-22” last year when he too was refused citizenship because of his prolonged absence, also the result of British officials mistakenly refusing him entry back into the UK.
Patel wrote to Donald to say that the injustice he experienced was “shameful” but added that the British Nationality Act of 1981 had a “strict and immovable requirement” to be in the UK for five years before applying for British citizenship.
“For your current application to succeed you would have needed to be in the UK on 17 April 2015. I fully recognise your absence from the United Kingdom on that date was not of your choice and I appreciate how frustrating this must be. It is with deep regret that we are constrained by the parameters of the existing legislation,” she wrote.
While he was in Jamaica, Donald was unable to work, had no money, and lived in an abandoned house, which had no electricity, water, no glass in the windows and no doors in the doorways. The former decorator had to walk a mile to draw water from a well and cooked his food on an open fire in the street. He was separated from his six children in the UK and the prolonged absence has caused permanent damage to family ties in Britain.
“It was terrible,” he says. “I felt like a foreigner in Jamaica; I lost everything while I was there.”
The then home secretary, Sajid Javid, wrote to Donald in 2018 to apologise for the Home Office’s treatment of him. Javid said: “In its handling of your case, the department should have demonstrated more flexibility, common sense and empathy. I wish to assure that the Home Office is making sure lessons have been learned and changes are being made to the approach it takes.”
However, Donald’s lawyer, Connie Sozi, said the department was still not demonstrating flexibility. “The injustice continues, and this was the Home Office’s fault. This is a process that was supposed to rectify the wrongs so why is he being asked to fulfil requirements that he is unable to fulfil because he was wrongly prevented from returning?” she asked.
Donald has been granted indefinite leave to remain and can stay in the UK until rules allow him to reapply for citizenship sometime after May 2023. However, this is a more precarious immigration status.
Patel apologised for the fact there was no legal “exception for members of the Windrush generation who are unable to qualify for citizenship through no fault of their own”. She said she had instructed officials to “urgently consider the scope for changing the law to reflect your circumstances”, adding: “Delivering justice for those who have been affected is my personal priority as home secretary.”
A spokesperson said the Home Office had helped over 12,500 people to obtain documentation confirming their right to live, work and access services in the UK, adding: “We are considering the scope for changing the law to ensure that any members of the Windrush generation who are not currently eligible for citizenship, through no fault of their own, are not disadvantaged.”