Grace Brown is a public law practitioner with a particular focus on human rights, immigration and refugee law.  She commenced practice in 1995 and was awarded the 2021 BSN Lawyer of the Year, in the Chambers category, at the UK Diversity Legal Awards.  She is joint head of Garden Court Chambers.

In this short excerpt Grace talks about the challenges, which faced individuals who wished to regularise their status as a result of the 2012 LASPO Act.  She notes that the seniority of the impacted cohort would have compounded their stress-levels and that many, although not all, would have been unaware of the impact of the changing legislation on their status.  She also talks about the terms of Indefinite Leave to Remain, the 2-year rule, and rights of re-entry under the Returning Resident’s rule.

This interview took place on 10 August 2022 at Garden Court Chambers, 57-60 Lincoln’s Inn Fields, London WC2A 3LJ.

Interview by Juanita Cox, Institute of Historical Research, University of London

Grace Brown - Part 2 of Interview [Excerpt 1]

KEYWORDS: 2012 LAPSO Act, Citizenship, Justice, Legal Aid, Nationality, Family, Cost, Regularised, Windrush Generation, Elders, Stress, Immigrant, Health, Employment, Jamaica, Removed, Court Records, High Court, Deportation, Airplane, Law, Migrants, British, Policy, Commonwealth, Letter, Solicitors, Home Office, Records, Caribbean, Indefinite Leave to Remain, 2-Year Rule, 1971 Immigration Act, Crime, Returning Resident’s Rule

Copyright & Permissions: Grace Brown granted copyright and performing rights in this interview to the University of London.  She agreed for the interview to be made accessible as a public reference resource for use in research, publication, education, lectures, broadcasting, podcasting and the internet.  Permission to use this material beyond the Windrush Scandal website should be sought before reproduction.


JC:         Dr Juanita Cox (Interviewer)
GB:        Grace Brown (Respondent)


10 August 2022.  Garden Court Chambers, 57-60 Lincoln’s Inn Fields, London WC2A 3LJ


Part 2 of Interview: Excerpt 1 [from 00:00-13:01]

Keywords: 2012 LAPSO Act, Citizenship, Justice, Legal Aid, Nationality, Family, Cost, Regularised, Windrush Generation, Elders, Stress, Immigrant, Health, Employment, Jamaica, Removed, Court Records, High Court, Deportation, Airplane, Law, Migrants, British, Policy, Commonwealth, Letter, Solicitors, Home Office, Records, Caribbean, Indefinite Leave to Remain, 2-Year Rule, 1971 Immigration Act, Crime, Returning Resident’s Rule


JC  00:05

What impact do you feel the passing of the 2012 Legal Aid, Sentencing and Punishment of Offenders Act had on the ability of individuals to resolve their citizenship status? I mean, do you think that that was a really significant, impactful change?

GB  00:26

Yes, I think one of the main impacts was the access, access to justice, of course, so that it would have been difficult for individuals to obtain legal aid, to get advice, so that if it meant that they had to pay for that advice, which many people do and have to and did have to, then the advice wasn’t going to be sought or obtained.  It was just going to be left because the issues of nationality are often complex to work out and the person advising will often need to, to investigate and obtain documentation, going back years, sometimes having a meeting not only with the individual, but sometimes some of his family members. So that the work that needs to be done is not simple and straightforward, but detailed and in depth, which all means that the cost is higher rather than lower. If there’s no legal aid available for that, that’s not going to happen and the consequence is that the person doesn’t get advice, doesn’t get regularised, so I  think it had a significant impact on individuals.

JC 01:58

And do you think that, I mean, say like, when I think of the Windrush generation, I’m guessing most people would be maybe in their 50s and over.  Probably older than that. 60s probably. And I’m wondering to what extent their age would have affected how easy it is for them to regularise their status as well, just in terms of, for instance, the likelihood of still having documentation, all these years ago, from all those years ago. But also, just in terms of the the stress you can feel when you’re older, trying to sort things out.

GB 02:38

Yes. Its uhm, it does impact and they are an older cohort to use that expression that the Home Office use, uses to describe this group. And it varies, of course, within that.  In general, a lot of people find it stressful, and, you know, younger people find, trying to navigate the legal system stressful as well. But they find it that… The Windrush generation will find it particularly stressful due to their age, and the fact that they will have had these problems for very many years. Maybe not necessarily with the immigration authorities, but through employment or lack of employment, health, etc, and that, that’s just compounding the difficulty that they now have to try and deal with. Some, one or two of them, one person I can think of, in particular, again, from Jamaica, so he had been deported from the UK and deported as opposed to being removed, some time in the early 2000s. But when we obtained his paperwork and the documents that he had been issued with at the time, and also the, one or two of the court records, which were not complete, but we did have some of the orders made by the court because he challenged the deportation order. And what you could see was that there was a point when he wasn’t represented by any solicitors. He did have solicitors at some point. But when he wasn’t represented, he was saying to that, the High Court in fact, because he was trying to fight and essentially getting on a plane and removal, that he was exempt from deportation and he actually was exempt because he arrived prior to 1973. He was deported. But he knew and understood the law. I did find that a little bit unusual, because many of the Windrush generation now will understand it if you explain it.  If they, if it is explained to them this was the impact of the changes as time went on, but he had understood it back then in 2000 and – I think it was either 2002 or 2004 when he was deported, possibly 2006 – but anyway quite a long time ago. So it does vary, as to people’s understanding. I have another individual who, who is abroad at the moment. Again, he had been deported. Uhm interestingly, the Home Office said when he was deported in 2012, or 13 (he was deported when he was nearly 70 was 69), yeah, and they said in their letter to him: Dear Mr. X, you’ve told us that you have been residing here since 1970. Sorry, since 1969. Please provide proof of that, basically. And he didn’t I don’t know why. But he didn’t. He wasn’t represented by solicitors and they, the Home Office removed him. So what was clear from that was that the Home Office knew what, sorry, they had been told that he’d been here prior to 1973. January. They ought to have had records as we know, what we don’t know is whether they looked at those records and ignored them, or they didn’t look for them. And or they didn’t have any records. But in any event, they were told that but they still removed him. And he’s still in the Caribbean country and hope, we’re hoping to get him back. But he’s now 84. So in terms of his level of engagement, it’s, he’s almost despondent, I think is the expression I would use.  He doesn’t have any insight into the way that the law was operating at the time when he came in the 60s, at the time when he was removed from the UK, and deported. And even now. So it does range between many of the individuals.

JC 06:50

So just for the benefit of listeners, you mentioned that the gentleman you’re talking about earlier, you said that he understood he had been exempt from deportation. What made him exempt from deportation? Is that anybody who’s been had settled here prior to 1973?

GB 06:50

Yes, because he had indefinite leave to remain. And there was a provision under the 1971 Act. And I think it’s sections seven of the 1971 Act that related to, to, to those who had indefinite leave to remain, and which which made them exempt from deportation. I don’t believe that yeah, go on…

JC 07:38

Even if they had committed a crime, for example.

GB 07:41

Yes, yes, they were settled in the UK and exempt, but that has now gone, so that, I don’t know when it was removed.

 JC 07:52

So, because I’m just thinking about people who then had indefinite leave to remain and then went overseas. And there’s there’s a lot of people seem to have spent more than two years overseas and therefore not being allowed, back. But there also seems to be some confusion as to whether that applied to certain groups and not others.

GB 08:16

So that relates to what we call the Returning Resident’s Rule. And the Returning Resident/s Rule has undergone some evolution, since the rules were created in 1973 or laid before Parliament in 1973 to date.  The Returning Resident’s Rule, I believe, used to be under Rule, for example, 54 or 55? I believe it’s now around Rule 18 or 19. And it was in two parts. And sorry, from from about 2000. The Rule was in uhm… I would start my answer again, actually. So so we have the Returning Resident’s Rule, which was laid before Parliament in about 1973 and still continues today.  The rule has always been in two parts. The first part is that if you have indefinite leave to remain, and you leave the UK, but you come back within two years, you have a right of reentry. And that is straightforward. The second part of the Returning Resident’s Rule has changed since it was laid in 1973. It used to say that if you’ve stayed away for more than two years, but you had indefinite leave to remain before you left, you could be readmitted if you’d spent most of your life in the UK. So there was… Unless there was a reason not to admit that person they should be readmitted. So that’s the way we’ve always understood it.  That Rule so you understand that Rule, is that person, person leaves the UK, has indefinite leave to remain,stays outside for longer than two years, but has lived in the UK for longer than they’ve lived anywhere else, that, that person should not be refused entry. So that’s they way that should operate. Over, over time, and I believe it was perhaps around about 2005/6/7, I’m not entirely sure, but the Rule, the second part of that Rule just changed so that it’s, it’s said that a person may be readmitted if they’d spent most of their life in the UK, and they had strong ties in the UK. So they added another element to it. But again, quite a lot of the Windrush migrants would have had strong ties and do have strong ties, because they would have had their family members and would have had their families here, and many of those family members would remain. So again, although they’d spent longer than two years out of the UK, they should be readmitted. As I understand it, there were other elements, other parts of the immigration rule, that might be applied to them. And unless those other parts were applied, they should be readmitted even though they spent longer than that outside.

JC 11:18

So have you dealt with any cases like that? Because I was just wondering. I saw that the Home Office had updated their website, saying something about the fact that a few people had been given British citizenship, even though they’d been outside of the UK, for more than two years, whereas now, there was, that was an error, but they weren’t going to obviously take away their citizenship. But going forward, anybody who was now applying for British citizenship, if they had been outside of the UK for longer than two years, they were going to bring it [I’d meant to say reject the application].

 GB 11:52

Yes. I’ve seen that as well. I think what they were saying was that they, the Home Office had been applying the law and the policy incorrectly for a number of years, a long time, in that the way they had been applying the law and all their policy was to the effect that Commonwealth citizens were exempt from the two year rule. So they said, well, actually, we’ve got that wrong for so many years, everyone who has got citizenship or any status as a result of that, we’re not going to take that away, but we’re now going to, we’re now saying that you are not exempt from the two year Rule. That being said, the Rule still remains that you still have that second part of the Returning Resident’s Rule, which means that if you can show that you’ve lived here for most of your life, and/or you have the strong ties, you’re still admissible. So that, what they were saying, what the Home Office was saying was simply that there is no exemption from the two year Rule for Commonwealth migrants.  I hope that makes it clearer.

JC 13:05

I see, that makes that clearer.

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