On 3 April 2019, the Windrush Compensation Scheme (“WCS”) was launched. Since this time the end date has been lifted, the level of awards increased from a derisory level, preliminary payments have been made available and the application forms have been frequently adapted, yet the WCS remains unfit for purpose.
The main problems are:
- The government lacks clarity on the number of people impacted and who are eligible to apply – with its own review unduly restricted to individuals of Caribbean Commonwealth nationality;
- Limited steps have been taken to engage with those who have suffered detriment;
- The eligibility criteria, explained by a set of rules totalling 48 pages, casework guidance totalling 98 pages with the mandatory application form running to 44 pages is confusing. This leaves many not knowing if they are eligible to apply;
- Legal Aid is not available. Instead applicants may be referred to “We Are Digital,” which provides a limited 3 hours of support to complete the application;
- Applicants report a continuing fear and mistrust of the Home Office as the party responsible for the historic injustice. Many have experienced trauma as a result of their previous interactions with the Home Office. Understandably, this acts as a deterrent to making an application;
- For those who have been able to apply, many have been forced to do so unaided, submitting incomplete or unsubstantiated applications resulting in refusals or repeated requests for further information from the Home Office. This only compounds the underlying frustration of the applicants with the bureaucratic nature of the Home Office and its officials;
- Many have been waiting for years for their claim to be finally determined. There is no expedition process and where a preliminary payment is refused, reasons are not provided and
- Unlike all other immigration decisions, there is no right of appeal to an independent Tribunal. Instead, there is a convoluted four tier review process, with tier 1 administered by the Home Office, all with no set timeframes for consideration.
These flaws mean that although the number of applications is less than anticipated, the bottleneck in the system from complex cases and those which await further evidence, combined with a lack of political will to deliver on the promises made in April 2018, have resulted in lengthy delays with very few applicants receiving a penny of the compensation to which they are entitled.
In April 2021, the Windrush Legal Initiative was launched. GMIAU have supervised this project since April 2022. Its aim is to support Windrush survivors in navigating this broken system with the aim of securing an apology from the government and an appropriate award of compensation.
Pro bono provision is vital as otherwise applicants like Anna and Fezzan will be denied justice.
Anna is a national of Australia. She moved to the UK with her British mother and Australian father in 1980 when she was 11 months old. She studied and worked. She always had the lawful right to be here as she holds a right of abode. Nevertheless, in 2017 she was detained and threatened with deportation. The Home Office wrote to Anna saying there is no evidence that you currently have any status to remain in the UK.
Understandably she was blindsided. She was fortunate to have a solicitor working on her case who secured her release from detention, obtained confirmation of her right of abode and forced the Home Office to back down on the threat of deportation. However, her life has been significantly impacted by this time. She was terrified that she was going to be sent to a country she left as a baby. Her mental health has deteriorated – she reports that the anxiety over her threatened deportation continues to dominate her life.
Many people don’t realise that Australian nationals like Anna could be eligible for the scheme. It applies to all Commonwealth nationalities – not just those from the Caribbean – and to anyone of any nationality who arrived before 31 December 1988 and who is now settled here.
Fezzan is originally from Sierra Leone and has lived lawfully in the UK since 1983. He obtained Indefinite Leave to Remain (“ILR”) in 1988. He came to join his wife who had settled in the UK in 1973 and worked as a nurse. Fezzan dedicated his life to a career with the London Fire Service. In 2014 he received a letter from Capita questioning his right to remain. This was followed in 2015 by a notice of liability for removal from the Home Office. He struggled financially. After a three-year battle, the Home Office eventually issued Fezzan with confirmation of his ILR. In this time, he was twice wrongly denied confirmation of his status and on one occasion offered a lesser form of leave to remain. He spent thousands of pounds on legal and immigration fees to obtain confirmation of the status he always knew he held and his career was effectively ended.
We will fight for Anna and Fezzan to ensure they are compensated for the losses and the lasting damage caused by the Home Office.
As the Home Affairs Select Committee said in November 2021: The treatment of the Windrush generation by successive governments was truly shameful. No amount of compensation could ever repay the fear, humiliation, hurt and hardship that was caused to individuals who were affected. That the design and operation of this scheme contained the same bureaucratic insensitivities that led to the Windrush scandal in the first place is a damning indictment of the Home Office, and suggests that the culture change it promised in the wake of the scandal has not yet occurred.
Our experience of assisting individuals confirms that lessons haven’t been learned. In the last month, one of our clients has been told that her right to remain was incorrectly issued in 2010. This caused great anxiety for a pensioner who arrived in the United Kingdom in 1959 and, having subsequently been granted British Citizenship, thought her rights and entitlements were secure. Another person was refused compensation based on incomplete Home Office records and speculation on the part of the decision maker, while compelling evidence submitted by our lawyers was wilfully or recklessly disregarded. The culture remains one of disbelief, even to long term residents and British Citizens.
On 13 April 2022 the Permanent Secretary Matthew Rycroft in his letter to Priti Patel described the plans to deport people seeking asylum to Rwanda as incorporating the learning from Windrush. This legally and ethically questionable policy will outsource the United Kingdom’s responsibilities to those fleeing persecution to a government with a poor human rights record. Our clients already report feeling traumatised at the prospect of being sent thousands of miles away after making a dangerous journey to the United Kingdom to seek safety.
The Government has wasted an opportunity to truly redress wrongs, while invoking Windrush to justify a new policy that is unworkable, costly and bound to fail in its aim of deterrence. This is unconscionable and further confirmation that Windrush survivors are being continually failed and the magnitude of their suffering forgotten.
Find out more about how to get help through the Windrush Legal Initiative here.