On 30 May 2018, the Home Office updated once again their “Windrush page”, by adding a new application form which can be used by in-country applicants.

A new form to apply from abroad should be published soon and in the meantime, applicants overseas who think they are eligible, can contact the dedicated taskforce who should be able to assist them re-entering the UK.

The number provided is a freephone which presumably only works within the UK (0800 678 1925), but applicants can email the taskforce at:  commonwealthtaskforce@homeoffice.gsi.gov.uk

The Scheme

The Windrush scheme officially started yesterday, 30 May 2018, however the first information was already published by the Home Office on 13 April 2018.

The webpage has been constantly updated, first with the introduction of a freephone, then with details of the measures to be implemented to assist the Windrush generation, and finally with information for landlords and employers, and news of the compensation .

Who can apply?

Applications can be made from the UK by:

• A Commonwealth citizen who was settled in the UK before 1 January 1973 and has been continuously resident in the UK since their arrival.

The taskforce will consider if the person applying is already a British citizen, or is eligible for naturalisation. In this case, the residence requirement (5 years or 3 years if they are married to a British national) will have to be met. It is also necessary to show that the applicant has a “good character”, but luckily there is no need to take the English language or Life in the UK tests.

Alternatively, applicants can be given a Certificate of Entitlement to the Right of Abode, if they qualify, or settled status.

• A Commonwealth citizen who was settled in the UK before 1 January 1973 whose settled status has lapsed because they left the UK for a period of more than 2 years, and is now lawfully in the UK and has close and continuing ties with the UK.

In this case successful applicants will be given a document confirming settled status, unless they are deemed liable to deportation. For many it will be easy to show their “close and continuing ties with the UK” but others will probably have difficulties if they have no family ties and are not working. It is also worthy of note that applicants must demonstrate that they are “lawfully” in the UK, meaning that they must have at least limited leave to enter or remain.

An exlanation of what “continuing ties” means and examples of how to prove the various requirements can be found in the UKVI Windrush Scheme Guidance, which runs 46 pages and is heavily redacted.

• A child of a Commonwealth citizen who was settled in the UK before 1 January 1973, where the child was born in the UK or arrived in the UK before the age of 18 and has been continuously resident in the UK since their arrival.

This third category will probably affect many. The taskforce will look at these applications in the same way as those under the first category, the only additional detail being that applicants may be able to register as British. Registration is another way to acquire British citizenship, slightly less complex than the naturalisation route, and it is available because these applications are made by people either born in the UK or arriving as minors.

• A person of any nationality, who arrived in the UK before 31 December 1988 and is lawfully settled in the UK. 

In this case the taskforce will consider if the applicant is already British or has a right of abode, alternatively, “the Taskforce will consider whether they are settled in the UK and, if so, they will be given a biometric document confirming their settled status”.

Applicants who are currently abroad

Applications can be made from overseas by

• a Commonwealth citizen who was settled in the UK before 1 January 1973 but who does not have a document confirming their Right of Abode or settled status, or whose settled status has lapsed because they left the UK for a period of more than 2 years.

The taskforce will consider if the applicant has a right of abode, or meets the requirement for a “returning resident”. Once in the UK, the applicant will be able to naturalise as British once he has resided here for a sufficient period to satisfy the usual residence requirements.

The UKVI guidance states that if applicants only want to visit the UK, they will also need to meet the immigration rules regarding visitors. I wonder how many would go through the hassle of applying under the Windrush scheme in these circumstances, considering that they simply can apply as visitors under the normal route.

The application form

The form is 17 pages long, which makes it a very short form for Home Office standards. There is no fee to submit it, and not fee is payable when biometrics are given at a Post Office. In addition to this, the application can be sent by Freepost, although it may be advisable to send it by recorded delivery.

It is suggested that documents in support “can be provided” but it is not necessary, as the Home Office will contact the applicant if required.

It is also stated that the Home Office “will not refuse your application without giving you the opportunity to provide more information”. This is a welcome clarification, which departs from the usual Home Office policy that applicants must submit complete applications and that caseworkers “may” contact them to provide additional evidence.

It is expected that the applicant discusses the case with a representative of the taskforce over the phone, and it is unclear whether the taskforce caseworkers will contact a legal representative if the applicant has one. This should be expected as the form asks for details of a legal representative, but only time will tell.

The form itself is very straightforward, perhaps too simple and it is advisable to provide a cover letter explaining one’s personal circumstances in more detail as well as supporting documents.

What is missing?

The scheme is new and it is not clear whether taskforce caseworkers will be prepared to deal with a variety of possible scenarios and a large amount of applications.

The chances of a refusal of the application are therefore significant. But what would happen then?

Although the UKVI guidance states that “No information provided to the Taskforce will be passed on to Immigration Enforcement”, there is no right of appeal or to have the decision administratively reviewed.

This is a serious omission which will probably lead to a series of Judicial Reviews, making the Upper Tribunal quite unhappy.

Information on the Windrush scheme can be found here:

https://www.gov.uk/government/publications/undocumented-commonwealth-citizens-resident-in-the-uk

The Home Office guidance is here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/710566/Windrush-Scheme-Casework-Guidance-v1.0EXT.PDF

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