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Ending free movement rights on Commonwealth and EU citizens in the UK – parallels and differences

Nando Sigona

/ 9 Minuten zu lesen

In the 1960s and 1970s, the UK curtailed the free movement of Commonwealth citizens. Fifty years later, Brexit striped EU citizens of free movement rights. Is history repeating itself?

Barbara Walker's “Burden of Proof” at Sharjah Biennale 15, which deals with the impact of the Windrush scandal (September 27, 2023). (© picture-alliance)

Recent United Kingdom's immigration history is marked by two significant events that affected the lives of millions of UK residents with migration background: the restriction and then cessation of free movement for Commonwealth citizens in the 1960s and 1970s, and the termination of free movement for EU citizens following the implementation of the 2016 Brexit referendum. These events have had profound implications for the individuals involved and their families, including British nationals living in the EU, and have significantly shaped the UK's immigration landscape.

The determination to curtail the free movement of people compelled the UK government to distinguish between EU citizens already resident in the UK and those who might seek to relocate at a later date. The challenge that arose from this mirrors the policy dilemma faced during the winding down of Commonwealth immigration several decades ago.

In the 1960s and 1970s the UK government decided to simply continue the lawful residence of British subjects from Commonwealth countries already residing in Britain by operation of primary legislation. There was no need for them to apply for a new immigration status. Following Brexit, the UK government has decided to force long-term resident EU citizens who wanted to remain lawfully in the UK to apply for a bespoken registration scheme, the EU Settlement Scheme. While there are a number of similarities, these different pathways produce specific vulnerabilities for those eligible.

From Commonwealth subjects to irregular migrants

The so-called Windrush scandal, which became public in the spring of 2018, revealed that for decades hundreds of Commonwealth citizens living in the UK, many of whom British subjects who migrated from the Caribbean with their parents in the 1950s and 1960s, had been wrongly detained, deported and denied legal rights in the UK.

The public and international outcry forced the UK government to publicly apologise for the distress caused by the treatment of the ‘Windrush generation’, so called because some arrived on board the Empire Windrush ship which docked at the port of Tilbury in June 1948 carrying 492 people from Commonwealth countries. Hundreds of thousands of people from the Caribbean and the West Indies followed over the next 20 years often responding to recruitment campaigns by British employers.

They arrived in the UK, not as migrants, but as British subjects exercising a form of freedom of movement which was granted to British subjects within the borders of the British territories.

Many of them never applied for a British passport, partly because their status already enabled them to reside in Britain, and partly because there was no real interest on the part of British authorities to actually issue them such documents: racism and anti-immigration sentiments – especially towards people of colour – were widespread among the British establishment and public. In the 1960s, calls to reduce immigration of (Black) people from Commonwealth countries led to the adoption of three pieces of legislation that significantly curtailed their right to enter and remain in the UK: the 1962 and 1968 Commonwealth Immigration Acts as well as the 1971 Immigration Act. Though the 1981 British Nationality Act eventually ended Citizens of the UK and Colonies (CUKC) status, it maintained the right of abode of Commonwealth citizens in possession of this right before 1 January 1983. However, not being in possession of documents proving their legal status, should later become problematic for members of the Windrush generation and their descendants.

But why the Windrush scandal came to the fore only in the late 2010s? Since 2012, the UK government has made concerted effort to create a ‘hostile environment’ for irregular immigrants making checks on legal papers more stringent, widespread and frequent. Banks, landlords and employers are compelled to check the immigration status of clients, tenants and employees. And access to public services has increasingly become a checkpoint for immigration enforcement.

These policies have caused a huge amount of anxiety and distress among the Windrush generation and their descendants, many of whom lack the documents necessary to support their claim to British citizenship – a situation made worse by the Home Office’s decision to destroy Windrush-era landing cards in 2010 that had previously been used to prove the right of abode in the UK.

From EU citizens to immigrants

According to Office for National Statistics (ONS) estimates, at the time of the Brexit referendum in the summer of 2016, EU-born UK residents, who overall accounted for five per cent of the UK population, comprised between 0.7 per cent and 25.8 per cent of the resident population in local areas, with geographical distribution concentrated around London, the South East, and the East of England. Over forty years of EU membership transformed the makeup of the EU-born population in the UK. In the first Census post-EU membership in 1981, EU-born citizens made up 1.8 per cent of the UK population. A historical perspective on the evolution of EU population in the UK highlights the presence of long-established communities who may be in their second and third generation in the UK. Major changes to the size and distribution of the EU population occurred after the EU enlargements in the 2000s: Within one decade, more than one million people from the newly acceded EU countries immigrated and Poland became the top country of origin of the EU-born population in the UK.

Since the Brexit referendum two parallel migration trends have emerged: a significant decline in arrivals in the UK from the EU, and an increase of departures of EU citizens formerly living in the UK. On 31 December 2020, the UK’s membership in the EU ended. Brexit stripped free movement rights of EU citizens who want to relocate to the UK. They must now apply for a visa if they want to stay and work there. For those EU citizens who were already residing long-term in the UK before Brexit, a bespoke immigration pathway was created – the EU Settled Status programme. It granted those eligible the right to live, work, and remain indefinitely, free of immigration control. It also grants holders of this status access to public funds (e.g. benefits), and after twelve months, the possibility to apply for British citizenship.

The Windrush scandal that came to the fore in the midst of the Brexit negotiations raised concerns among EU nationals living in the UK. Alike the Commonwealth citizens a few decades earlier, the EU citizens also exercised freedom of movement to come to the UK, however, not as subjects of the British Empire, but as fellow citizens of the EU. As for the Commonwealth citizens, they were being asked at the time to produce retroactive proof of their right to remain in the UK. Research identified children born to long-resident EU parents after Brexit as particularly vulnerable in this transition period. While the introduction of the EU Settled Status scheme brought more clarity in terms of rights of residence and reduced some of the administrative barriers to naturalisation for adult EU citizens, the legal position of dependent minors remains more complex with children’s long-term residence status depending on their parents applying for the new settled status on their behalf. This is where the similarities with the Windrush generation and the risks they face today are particularly striking.

There are also important differences. The Windrush scandal emerged when the Windrush generation faced the current hostile policy environment to immigration in the position of being lawfully resident but without documentary proof. The problem faced by resident EU citizens who did not apply for settled status within the deadline of 30 June 2021 is arguably worse: their residence in the UK becomes unlawful and, as a consequence, they commit criminal offences if they work, rent accommodation or drive without immigration status. The system of forcing EU residents to apply for settled status by a deadline ameliorated one potential problem — lots of lawful residents lacking proof of their lawful status — but created arguably a worse problem: a significantly sized population of residents who may become literally unlawful as well as undocumented. This issue is exacerbated by the creation of an interim temporary legal status – the pre-settled status, which requires the grant holder to apply for permanent status once eligibility criteria are met. If they don’t, this may lead to irregularity.

According to official UK data, of the estimated 6.2 million people who applied to the scheme by the end of June 2023, 5.6 million people have obtained a grant of status, with 2.1 million holding pre-settled status.

Racism is embedded in the immigration regime

The Windrush scandal, in particular, has been widely criticized as a reflection of institutional racism towards Black Britons. The majority of the Windrush generation were from Caribbean countries and were people of colour. Similarly, the end of free movement for EU citizens following Brexit has also been influenced by racial undertones. The Brexit campaign was marked by anti-immigration rhetoric, often targeting individuals from Eastern European countries and racialised ethnic minorities.

Certain groups among EU citizens are particularly affected by the end of free movement. These include elderly EU citizens, EU citizens with disabilities or serious illnesses, non-EU family members, children of EU citizens, victims of domestic abuse or human trafficking, and EU citizens in precarious employment or who are homeless. The Roma community, one of the largest ethnic minorities in Europe, is also significantly affected due to factors such as digital exclusion, language barriers, lack of documentation, discrimination and social exclusion, and fear and distrust.

Learning from the past

In conclusion, the experiences of the Windrush generation and EU citizens in the UK serve as stark reminders not only of the impact of immigration policies on people's lives, but also of the precarity of legal status and citizens’ rights. They underscore the need for policymakers to ensure that history does not repeat itself and that the rights and dignity of all residents are respected. As the UK charts its post-Brexit course, it is imperative for policymakers to reflect upon these parallels and differences. Lessons also apply to EU policy makers faced with over a million British citizens who enjoyed EU freedom of movement in the EU before Brexit. By heeding the lessons of the past, the UK can strive to create a more inclusive, fairer, and just immigration system that respects human rights, embraces diversity, and fosters social cohesion.

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Nando Sigona is Professor of International Migration and Forced Displacement and Director of the Institute for Research into International Migration and Superdiversity (IRIS) at the University of Birmingham, UK. His research interests include: irregular migration; statelessness; youth and family migration; Romani politics and anti-Gypsyism; asylum in Europe and the Mediterranean region; intra-EU mobility and the making of EU citizenship. Externer Link: