How the Commonwealth Immigration Acts laid the foundations for the Windrush Deportation Scandal

Michaela:   Welcome to “Who do we think we are?”, a podcast exploring some of the forgotten stories of British citizenship.

I am your host, Michaela Benson, a sociologist specialising in citizenship, migration and belonging, and professor in public sociology at Lancaster University.

Join me over the course of the series as I debunk the taken-for-granted understandings of citizenship and explore how thinking differently about citizenship helps us to make sense of some of the most pressing issues of our times.

Elsa: In a sense, what this actually tells us is that all the people who moved between 1948 to ‘73 was made to believe that they would be moving as full citizens.

This was hardly the case.

And so, it is unsurprising that they were not given any proof of documentation to show that they had automatic rights to move to the UK—which we know became quite fatal to a lot of them when the Windrush scandal broke out in 2018.

So really that fine link between what happened in 1948—the way in which the establishment behaved with them, how they were made to believe, but clearly how it all panned out quite wrongly—became only clear in 2018; really 70 years on.

Michaela: That was Dr Elsa Oommen, independent scholar and visiting researcher at the universities of Warwick and Goldsmiths, talking about the thread linking the British Nationality Act of 1948, and subsequent immigration reform, to the Windrush deportation scandal.

Elsa is a sociologist specialising in immigration and border studies and has recently conducted in-depth research with long-term British residents of the Caribbean diaspora.

We’ll be hearing more from her shortly.

But, I wanted to start with a story published in the Belfast Telegraph in August 1962.

George stumbled across this when he was doing some research in the British Newspaper Archive for this series.

Let’s hear more from George about what he found.

George:  The article is simple.

It reports that UK’s Home Office had been notified about 125 recommendations for deportation.

While the headlines highlight that 64 of these were for citizens of the Republic of Ireland, it also listed 21 from Jamaica, ten from British Guiana, eight from Trinidad and Tobago, eight from the Windward Islands and Leeward Islands, three from Australia, two from Barbados, Malta and New Zealand, and one each from Canada, Hong Kong, Mauritius, Pakistan and Tanganyika.

Most of those who were recommended for deportation were, at the time, serving prison sentences for criminal activity.

Several of these territories have since been renamed, their borders redrawn, but the important thing that they hold in common is that they were, or had been, part of the British empire.

As such, all of those recommended for deportation held a status as citizens, or in the case of the Irish, quasi-citizens.

Michaela:   Just pause for a second to think about that.

Before 1962, it was possible to deport aliens but something happened that made citizens—at least those with no ancestral link to the United Kingdom—deportable.

A month earlier, the Commonwealth Immigration Act of 1962 had been enacted, and with it, new powers to deport these citizens.

In this episode, we’ll be looking in more depth at the introduction of immigration controls in the 1960s and ‘70s.

In particular, we’ll examine how these explicitly excluded those who had been named as “citizens” through the British Nationality Act of 1948; I’ll introduce you to the Commonwealth Immigrants Act of 1962, and we’ll be hearing more from Elsa about how immigration reform in the ‘60s and ‘70s set the stage for the Windrush Deportation Scandal.

But first, let’s head back into those archives.

As George and I ventured deeper into the archive, we found out a little bit more about Hok Kwang Lai, the 23-year-old, originally from Hong Kong, who had been recommended for deportation.

Let’s hear more from George about what we found.

George:   In an article dated from the 6th of October 1962, the Cheshire Observer reports that Hok Kwang Lai had been found guilty of larceny and served notice under the newly introduced Commonwealth Immigration Act 1962.

This was the Act that both introduced immigration controls and brought in the power to deport Commonwealth citizens who had been convicted of offences punishable with imprisonment.

Moreover, it gave criminal courts the authority to recommend deportation in these cases.

Michaela:   What this shows is that the development of immigration controls at this time was not just about keeping people out.

While deportation had previously been legislated for in the case of aliens, the 1962 Act was the first time that provisions were introduced permitting the removal of people from the United Kingdom whose legal status in nationality law might otherwise entitle them to the right to settlement.

We heard in previous episodes about the British Nationality Act of 1948, and how this had placed no restrictions on movement to the UK from within the Empire and Commonwealth.

However, this free movement would be short-lived.

In the 1950s, both immigration and emigration to and from the UK reached a peak.

The Commonwealth Immigrants Act of 1962 was the first attempt to place restrictions on movements into the UK.

It introduced an understanding that some citizens might be considered as aliens for the purposes of immigration control.

Just think about that; citizens, but also migrants? 

Prior to seeking entry to the UK, people would need to apply for a work voucher from the Ministry of Labour—although even this would not be a guarantee that they would be permitted entry.

Government ministers repeatedly claimed that this was not a measure driven by racial discrimination towards the increasing numbers of people of colour arriving in the UK.

Indeed, they were questioned repeatedly by those opposing its impositions on precisely these grounds.

But, it became clear that the discretion that this allowed immigration officials—meaning that they could “exercise such a measure of discrimination as they think desirable”—meant that, in practice, the controls were rarely applied to those from the Dominions, the white-settler colonies.

Beyond the control of immigration, the Commonwealth Immigrants Act of 1962 also laid out the provisions to deport those citizens with no ancestral link to the UK, if they were found guilty of criminal activity.

What I should stress here is that this reference to ancestry, which is often referred to as patriality, was also a thinly veiled attempt to bypass accusations that the new controls were racist.

And this was just the beginning.

The so-called Kenyan Asian crisis brought into view the mismatch between Britain’s immigration and nationality legislation that had been generated by the original Commonwealth Immigration Act of 1962.

And you’ll remember that under the terms of the 1962 Act, citizens of the UK and Colonies (with no links to the UK) had become subject to the UK’s immigration controls.

In the late 1960s, as Kenya and other East African countries moved towards independence, those among this settled population of British Asians, who were not eligible for citizenship in these newly independent countries, started to be met with restrictions on their employment and their ability to carry out trade, as these countries privileged their own citizens.

In other words, those who had no choice but to remain British began to lose their livelihoods and access to education, unemployment and social security payments.

Understandably, in light of these changes to their status and wellbeing, they started to consider where else they might live.

Now, it’s complicated to spell out in full the challenges they faced in consequence of the fact that they were citizens of the UK and Colonies, but suffice it to say that they were left in a situation where it wasn’t clear if they had a right to residence anywhere… including in the UK.

Now, you might think that the right thing to do would have been for the UK to step up.

But the anti-immigration lobby—including Enoch Powell—had been agitating about the volume of people that the UK would have to accept; they’d created a moral panic about the potential migration of the Kenyan Asians.

Controversially, this led to the Government putting in place further obstacles through the 1968 Act that meant that all those who did not have a parent or grandparent born, adopted, registered, or naturalised in the United Kingdom would be subject to immigration control.

The new Act was a blatant attempt to restrict the entry of citizens of the UK and Colonies into the UK.

But now, it’s over to Elsa to hear more about how later immigration reforms laid the foundations for the Windrush Deportation Scandal.

Elsa:   In early 2018—between April and May 2018—a series of Guardian investigations, mainly by a reporter, Amelia Gentleman, revealed that several long-term Caribbean migrants who had lived in the UK for decades having legally entered the country in the early ‘50s and ‘60s were threatened with forceful removals.

And so, the first case she brought to our attention was by a small refugee charity, called Refugee and Migrant Centre in Wolverhampton, who wanted to bring the media attention to the case of their client, Paulette Wilson, a former chef at the House of Commons, who was being detained and threatened with deportation in October 2017.

I must pause to say that Paulette Wilson has sadly passed away yesterday, and she hasn’t even got the Windrush compensation that she should have got.

But anyway, she had moved to the UK in 1968 when she was just 8 to 10 years old from Jamaica, which she has never visited since, she has had her schooling here, and she raised her daughter and granddaughter here until one day the Home Office branded her “illegal immigrant”.

I said this case specifically because this was the first case that came to our attention from the Windrush era children, who were getting hounded by the Home Office for the documents they cannot produce, because they were never required to have them, and secondly they were never told they should have them or even given any documentation towards the same.

Now, this case was published just three days before my doctorate was officially granted and having completed my thesis in sociology and having done a whole look through the immigration legislation up until that point in time, I was so shocked that this could happen, because the 1971 Immigration Act had made it very clear that anybody who had moved to the UK before the Act came into place or who were resident in the country before the Act came into place, which is January 1973, had automatic rights to be in the country.

Michaela:   That’s really really helpful in terms of laying out how something like Windrush—and there have been other scandals like this as well—have a much longer history and the making of them has been going on for much longer than the last ten years, for example.

The law that underpins a lot of this was already being mobilised and being put in place for a long time.

Elsa:   So, what I am aiming to do is how the consequent erosion of rights happened.

So how can a group of people be given rights, automatic deemed rights, as citizens of the UK and Colonies, and suddenly—not suddenly, not at all—but how can they be systematically made less of citizens and made illegal by 2012 legislation?

It is very clear, but I think how legislation works to illegalise people, how it works to make people less of citizens in the eyes of the law as well as in the common sense, is what kept happening with this group of people.

Because, by the sheer fact that the Government did not provide them any proof of documenting their deemed status, deemed rights as people who can settle here indefinitely, was the main reason that they found themselves in this situation.

What has been quite stark to me in my research, in putting together both my researches, is how the Government can go to extreme lengths in ensuring that some people are always made to belong and how some citizens, or some people could be citizens from the get-go, but could be made to feel like they are nothing and deportable; this what is the most striking revelation from my ongoing research, that there is really a continuum in which you can be a Commonwealth citizen but you can always be treated as a Commonwealth migrant. 

Michaela:   I think that’s really important in terms of showing how the seeds of what happened were already in place that far back, and actually what then happens is that, over time, there are people who are more likely to be scrutinised for their rights to be here, and those people then become scrutinised and it is found that they don’t have whatever documentation it is, which they are, as the law says, I mean those laws from back then say that they may be required—the burden is on them to prove their right to be here—this is what the legislation actually says, isn’t it?

So then they don’t have that documentation to show that they’ve been here for 50 or 70 years.

Elsa:   I think also, Michaela, something that was a finding from the Windrush Lessons Learned review by Wendy Williams, which was published in May 2020, is that there was a 1987 registration scheme which would have allowed a lot of these long term British citizens of Caribbean Diaspora to then register as British citizens, so a form of naturalisation—less of a naturalisation but still giving them some sort of documentation that would have proved that they were rightfully here.

But, her review into this scandal found out that those administering the 1987 registration scheme did not do enough advertising—so in a sense the campaigns were not run earnestly because they were not expecting to stimulate a flood of enquiries.

So, in fact, the publicity leaflets from the time also explain that there would be no consequences if people chose not to register at the time.

So, Wendy Williams actually concludes that it is unsurprising that many people did not register—right?—so they were told that there would be no consequences and again a vital opportunity to make sure that many of them didn’t fall foul of the system was not done properly.

Michaela:   Yeah… I think it is really important to think in that more genealogical way about how we get to this state and the lessons learned from that and the things not done and the promises made, the promises broken—all of those kinds of things.

It is really important work that you are doing in terms of tracing those policies, those legislations and how they shape contemporary experience and contemporary practice and actions.

I am going to skip forward to the final question.

Work is really thoroughly historicised, and I think this is the kind of, this is a “What would you change?” question.

I mean, there are so many things that could be changed from what you said but what moment in Britain’s immigration history would you change and, I suppose, the one to pick probably is the one that you think would have the biggest impact.

Elsa:   Although there is so much I would like to go and be there in person and ask policymakers “Why did you do this, what was the rationale for this?”, I think a legislation I would categorically want changing would be the 1962 Commonwealth Immigrants Act, because I think that set the tone for bringing massive changes, flouting conventions of passport and nationality laws.

So if a British passport holder could be made into the category of a refugee, then it’s immediate stripping of rights, and if that was allowed, it then would have made it very easy for subsequent legislation to not guarantee rights to some people as opposed to others.

So, it is because of the ‘60s legislation that the 1971 Act could shape Britain as this white nation-state, by making patriality the bedrock of the Immigration Act of 1971—Britain was constructed as this white state—and so, that ‘60s legislation that brought the first racialisation within legislation would be what I would change to ensure that there are severe push-backs to that and so, if that was stopped, then I am hoping the 1971 Act would have been different.

Michaela:   I think that Elsa illustrates really well the long tail of the immigration reforms of the 1960s and ‘70s.

I’ve been thinking quite a lot about this.

But, in respect to something else that’s been going on, the registration of EU citizens in consequence of Brexit, and I’ve been wondering whether we might see a similarly long tale and fall-out from that in the years to come.

I should stress here that when you go back to the parliamentary records, at the time that these Immigration Acts were introduced, the possible fall-out of these measures and the way that they were designed to be implemented had been anticipated.

But the ministers intent on bringing these into force chose to look the other way.

What this shows is that the stage was set for the Windrush Deportation Scandal long ago and that people knew it was coming.

You should find a list of resources in today’s episode notes, including links to some of Elsa’s work with long-term Caribbean residents, and some interesting pieces she has written about another timely issue: the Hong Kong British Nationals (Overseas) Visa scheme.

But before we go, I want to turn back to that observation about how the Commonwealth Immigrants Act of 1962 brought an end free movement within the Empire and Commonwealth.

This was the start of a process of exclusion that was caught up in the politics of migration and citizenship, that was undoubtedly racialised.

These processes of exclusion remain resonant in the present day because of the devastation that they continue to wreak in the lives of some long term residents, but also in the everyday, as racialised citizens and migrants alike find themselves questioned for the right to belong in Britain.

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