Windrush generation: Government action to ‘right the wrongs’

In late 2017 The Guardian newspaper began reporting stories of longstanding UK residents who were being wrongly classed as illegal immigrants and consequently, denied access to employment, healthcare and other services in the UK and targeted for removal.

The obstacles these individuals encountered trying to prove their status, and the dire implications for their lives in the UK, have come to be known as the ‘Windrush scandal’.

The overall number of people affected isn’t known. Attention initially focussed on people from Caribbean Commonwealth countries, particularly ‘Windrush children’ – people who came to the UK as children to join family members who had migrated post-WW2. But people from other countries have also been affected.

What caused the problems?

The Immigration Act 1971 provided that foreign nationals who were ‘ordinarily resident’ in the UK on 1 January 1973 (when the Act came into force) were deemed to have ‘settled’ status (i.e. Indefinite Leave to Remain). In practice many people have been living in the UK for decades without documentary proof of their immigration/nationality status.

This has become increasingly problematic for individuals as laws to detect and discourage illegal immigration have proliferated, particularly following the introduction of ‘hostile’ (also known as ‘compliant’) environment policies since 2010. These policies were intended to tackle illegal immigration, by making it harder for people without legal status to access services and live undetected in the UK. But in practice they also affected some people who were lawfully resident in the UK but didn’t have documentary proof of their rights. They found themselves denied healthcare, welfare benefits, pensions, housing and jobs.

In theory they could resolve their difficulties by applying to the Home Office for confirmation of their status. However, issues such as the significant application fee, and the amount of supporting evidence required by the Home Office, posed additional obstacles for some people.

The Home Office has acknowledged that it lost sight of this cohort of people when designing and implementing immigration policies. Successive Home Secretaries have apologised for the “appalling” treatment that individuals have experienced and have vowed to put right the injustices that people affected have suffered.

Actions taken by the Government in response

In April 2018 the Home Office announced some measures to address the Windrush generation’s difficulties. These included:

• conducting reviews of historical Caribbean Commonwealth cases wrongly targeted by the Home Office for detention/removal or a compliant environment sanction;
• establishing a ‘Windrush Scheme’ to issue confirmation of status documents (and in some cases, grants of British citizenship) free of charge to eligible applicants;
• establishing a ‘Windrush Taskforce’ to assist people who may be eligible under the Windrush Scheme;
• establishing a ‘Windrush Compensation Scheme’;
• initiating an independent ‘Lessons Learned’ review; and
• suspending aspects of the ‘hostile/compliant environment’ policy and amending some related guidance.

Most of these workstreams are still in progress.

The time-limited compensation scheme was launched in April 2019. The deadline for applying has been extended to April 2023.

Ongoing controversies

The Home Office’s response to the Windrush scandal continues to attract criticisms.

Stakeholders have complained of delays in resolving cases referred to the Taskforce and in establishing the compensation scheme.

There are concerns that the compensation scheme is receiving considerably fewer applications than anticipated, and that claims already submitted are being subjected to lengthy delays. There have been some cases of people who have died before their cases and claims for compensation were resolved.

Published data on the operation of the compensation scheme, up to the end of March 2020, shows that

• 1275 compensation claims have been made so far;
• 60 claims have received payments;
• The total value of payments made so far is £362,996.92; this includes a single payment of over £100,000.

The Home Office has said that many of the reported payments were interim payments, so the affected individuals might subsequently receive further payments. Additional offers of payments totalling approximately £280,000 had also been made, but were still pending acceptance or review, so ad not yet been included in the published data.

Although there was an extensive consultation on the design of the compensation scheme, the final arrangements have been heavily criticised. Objections have been raised against the restrictions on the types of losses that individuals can claim for, the limits on the amount of compensation that can be awarded for certain categories of loss, and the complexity of the application form and supporting evidence required.  

The Government has made some adjustments to the compensation scheme in response to feedback. For example, it has broadened the “mitigations policy” so that decision-makers can consider a wider range of actions taken by individuals to resolve their situation. It intends to appoint a permanent Independent Adviser for the scheme, and it is tendering to extend advice and support services to potential applicants.

Some further measures to promote the scheme and assist potential applicants were announced by the Home Secretary, Priti Patel, on 19 March. She also announced the establishment of a cross-Government working group to improve the lives of people who have been caught up in the Windrush scandal, such as through employment programmes, education and training schemes, or dedicated mental health support. The Group was launched on 22 June (Windrush Day 2020).

External scrutiny

The Home Office’s role in the Windrush scandal and the adequacy of its response has been heavily criticised by the National Audit Office, and several parliamentary Committees.

The ‘Windrush Lessons Learned Review’, which was led by Wendy Williams, HM Inspector of Constabulary and Fire and Rescue Services, was laid before Parliament and published online on 19 March 2020.

The report found that “what happened to those affected by the Windrush scandal was foreseeable and avoidable”, observing that “A range of warning signs from inside and outside the Home Office were simply not heeded by officials and ministers”.

Considering the question of whether the Home Office is institutionally racist, Ms Williams’ report concluded

While I am unable to make a definitive finding of institutional racism within the department, I have serious concerns that these failings demonstrate an institutional ignorance and thoughtlessness towards the issue of race and the history of the Windrush generation within the department, which are consistent with some elements of the definition of institutional racism.

The Home Secretary set out the Government’s initial response in a statement to the House on 19 March. She apologised for the actions spanning decades which had led to the Windrush generation’s suffering. She confirmed that, over the coming months, the department would work to reflect on the report’s recommendations, including those relating to the compliant environment policies and cultural change. She said that the Home Office would issue a detailed formal response to the report within the next six months.

The Equality and Human Rights Commission has recently announced that it is conducting an assessment of the Home Office’s compliance with the Public Sector Equality Duty in relation to understanding the impact of its policies on the Windrush generation. It intends to complete the assessment by September 2020.

Might other groups be at risk of similar difficulties?

Observers have identified other groups of people living in the UK who are facing similar difficulties in securing or documenting their status, or might do in the future, as a result of Home Office policy and practice. Specific concerns have been raised about people living in the UK with rights under EU law, undocumented children, and Chagos Islanders. The Home Office has rejected the comparisons.