Efforts by the Home Office to remedy the injustices suffered by people caught up in the Windrush scandal are ongoing. The Windrush compensation scheme has recently begun to issue award offers, and legislation underpinning the scheme has been introduced for the 2019-20 session. Some stakeholders remain dissatisfied with aspects of the Government's response to the scandal.
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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 referred to 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 involved.
What caused the problems?
Whilst 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 aimed at tackling illegal immigration, by making it harder for people without legal status to access services and live undetected in the UK. But in practice some people who were lawfully resident in the UK but didn’t have documentary proof of their rights also became affected by the measures and 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 practical obstacles for some people.
The Home Office has acknowledged that it lost sight of this cohort of cases when designing and implementing broader immigration policies. Successive Home Secretaries have apologised for the “appalling” treatment that individuals have experienced, and vowed to put right the injustices that people affected by the scandal have suffered.
Actions taken by the Government in response
Under pressure to recognise the significance of the problem, in April 2018 the Home Office announced some measures it was taking to address the Windrush generation’s situation. 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. It was originally intended to be open for two years, but the Government has recently extended the deadline for applying until 2 April 2023.
The Windrush Compensation Scheme (Expenditure) Bill was introduced to the House on 8 January 2020. Its purpose is to give Parliamentary authorisation for expenditure under the scheme. It is due to have its Committee and remaining stages in the Commons on 24 March.
The Government’s response to the Windrush scandal continues to be controversial.
Stakeholders have complained of delays in resolving cases referred to the Taskforce and in establishing the compensation scheme and an interim hardship fund. In a couple of cases people have died before their cases and claims for compensation were resolved.
As at 31 December 2019, 1,108 compensation claims had been received. 36 payments had been made. Their combined total was £62,198. The Home Office has said that many of these were interim payments, so claimants may receive further payments in the future.
Although there was an extensive consultation on the design of the compensation scheme, several aspects of the scheme as introduced have been heavily criticised. Objections have been raised against the restrictions on the types of losses that individuals can claim for, and the limits on the amount of compensation that can be awarded for certain categories of loss, for example. The Opposition has also objected to the arrangements for reviewing compensation offers as insufficient.
The Government has recently made some adjustments to the Scheme. 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 for the duration of the Scheme.
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 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 independent ‘Windrush Lessons Learned Review’, led by Wendy Williams, HM Inspector of Constabulary and Fire and Rescue Services, was published 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 report’s 30 recommendations for change call on the Home Office to acknowledge the wrong done, open itself up to greater scrutiny, and change its culture.
The Home Secretary set out the Government’s initial response to the Lessons Learned report in a statement to the House on 19 March. She apologised, on behalf of the current and successive Governments, 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 at all levels to reflect on the report’s recommendations, including those relating to the compliant environment policies and cultural change. She committed to putting “people before process”, and said that the Home Office would issue a detailed formal response to the report within the next six months.
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.