In October we saw a significant win for the Windrush Legal Initiative, led by Nicola Burgess, our solicitor at GMIAU. Thanks to legal proceedings she brought on behalf of our client, Joel*, the Home Office have amended the rules of the Windrush Compensation Scheme, after we argued that their previous rules were irrational, inconsistent and discriminatory.
What did we challenge?
Previously, the Home Office said that children and grandchildren of Commonwealth citizens who were settled in the UK before 1973 were required to have lived continuously in the UK in order to be eligible for compensation under the Windrush Compensation Scheme, even if they were automatically a British citizen from birth.
What did this mean for Joel?
Joel, who we represented, was born in the UK to parents who were Commonwealth citizens, settled in the UK, which meant he was automatically a British citizen at birth. His family decided to relocate when he was very young. There then followed thirty years of struggle for Joel, as he was denied his automatic right of re-entry to the UK as a British citizen. He was refused leave to enter as a visitor and, when he was finally permitted to enter, the Home Office consistently refused to recognise his British citizenship. As a result, he was treated as someone with no right to be in the UK, he was made street homeless and destitute: all having an immeasurable and detrimental impact on his mental health.
In May 2018, shortly after the Windrush scandal hit the public conscience, his British nationality was finally confirmed after decades of disbelief. The Windrush Compensation Scheme was set up to compensate people for exactly the kinds of irreparable losses and harm he was subjected to by the Home Office. Yet following an application in February 2022, he was told that he was ineligible for compensation as he had not lived continuously in the UK since birth.
What has changed?
It’s not just Joel who was affected by this restriction in the eligibility criteria. But it was his case that GMIAU was able to take into a legal challenge, arguing that he should not be required to show continuous residence. We argued that the requirement of showing continuous residence was irrational and contrary to the purpose of the Windrush Compensation Scheme; that it was unlawfully discriminatory under human rights law; and that refusing Joel compensation was inconsistent with the Home Office confirming his British nationality in 2018.
The claim for judicial review was settled by the Home Office who agreed to review the eligibility criteria, and have now expanded eligibility for compensation. They removed the need for British Citizen children and grandchildren of Commonwealth Citizens settled in the UK before 1 January 1973 to hold continuous residence in the UK.
What does this mean for the Windrush Compensation Scheme?
We have been speaking out for several years about the limitations of the Windrush Compensation Scheme. It’s difficult to navigate, plagued by severe delays, and the process of having to relive and prove the harm caused by the Home Office – sometimes decades ago – in order to be considered for compensation is retraumatising to people who have faced so much injustice. The application is too difficult to complete without legal help but there is no legal aid funding available, which is why the Windrush Legal Initiative is only able to work with pro bono help from private law firms. As it stands the Windrush Compensation Scheme is unfit for purpose.
But this win is a significant step forward, a change to the rules that will have real consequences, and benefit not just Joel, but many others too. We’ll keep fighting for our clients’ individual rights to the compensation they’re entitled to, and also to change the system as a whole. Through working with people to share their unique stories and push for change, and through expert legal work, we’re determined to see justice for survivors of the Windrush injustice.
GMIAU would like to thank counsel, Victoria Laughton of One Pump Court Chambers, the pro bono team at White & Case and all members of the Windrush Legal Initiative for their unwavering support in securing compensation for Windrush survivors.
If you are a British child or grandchild of a Commonwealth Citizen and were previously refused compensation on the basis of your inability to show continuous residence, or were deterred from applying for compensation on this basis we would be interested to hear from you –please email windrush@gmiau.org.
*Our client’s name has been changed.