GMIAU and Kenworthys Chambers respond to the Windrush compensation consultation

In May 2018, the Home Secretary launched a call for evidence to help shape a bespoke compensation scheme for members of the Windrush generation. This was declared “the first step to establishing the scheme for those who have suffered financial loss because of difficulties proving their immigration status”.

On 6th June, we published our response to the Windrush compensation consultation.

We ask that, in addition to compensation based on individual circumstances, a minimum amount is given to everyone affected by the scandal with an additional set amount given to anyone who travelled back to the UK after a visit abroad. You can read our full response here.

We are pleased to share below the responses of the Greater Manchester Immigration Aid Unit (GMIAU) and Kenworthys Chambers.

“We propose that the government agree to pay everyone affected by the ‘Windrush’ scandal a minimum level of General Compensatory Damages. This is in addition to compensation payments to be made based on a persons’ individual circumstances” – GMIAU

“There needs to be both a political and commercial response to right the tragic wrong[s] which has been done to far too many, by providing a reparative payment that truly reflects the harm done to all those who have been wronged. A baseline figure [£10,000] should be given to all and be increased on a case by case basis depending on the complexity of each case” – Kenworthys Chambers

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Windrush compensation scheme consultation

Response of the Greater Manchester Immigration Aid Unit

1 Delaunays Road, Manchester M8 4QS

Greater Manchester Immigration Aid Unit is a voluntary organisation who have been supporting people subject to immigration control for over 25 years.

We deal mainly with asylum and human rights cases but have also dealt with a number of ‘Windrush’ cases. We have highlighted below some of the specific cases we have dealt with recently and have later highlighted some of the types of ‘Windrush ‘ cases we have dealt with in the past.

We propose that the government, for reasons set out below, agree to pay everyone affected by the ‘Windrush’ scandal a minimum level of General Compensatory Damages. This is in addition to compensation payments to be made based on a persons’ individual circumstances.  

We also propose that clear and simple details of the compensation scheme, and ways of applying for it, are publicised widely, including directly with all advice agencies working in the communities affected.

Case A

A is a Jamaican national who was born in 1942.

He came to the UK in 1962, a few months before Jamaica became independent. He therefore came in on a British Subject (Citizen of the United Kingdom and Colonies) passport with the absolute right to enter and live in the UK.

He has lived in the UK since and travelled back to Jamaica a few times.

He has Jamaican passports covering the periods September 1981 to September 1991, June 2000 to June 2010 and a recent one covering June 2012 to June 2022.

The first passport has no exit or entry stamps in it, the second passport has two ILE (indefinite leave to enter) entry stamps dated March 2001 and November 2004, the last passport has an ILE stamp dated June 2015.

He was advised in 2015 by people he knew that Jamaican nationals were having problems returning back to the UK and so decided to make an application for an ILR biometric card. He did this in March 2015. A few weeks later he withdrew this application as he had to travel to Jamaica on an emergency. The Home Office records show that in July 2015 his file was sent to the removals casework section (despite him having been issued with ILE at Manchester Airport a few weeks before)

He was then sent letters from Capita stating that he was in the UK illegally and that he had to make arrangements to leave.

In March 2016 he was issued with an IS96 asking him to report to the local enforcement Unit. In May he reported to the enforcement unit and took his passports with him to show that he had status in the UK.

In his own words:

“The immigration officer I saw, who was male, white and young, impounded my passports and also told me that not only was I illegally in the UK but that I would now be deported.”

He came to see the Greater Manchester Immigration Aid unit in May 2016. We wrote to the enforcement section pointing out that

“Our client did not require leave to enter when he first came to the UK as he was still, at that time, a Citizen of the United Kingdom and Colonies and, as such, had no restrictions on his right to enter and remain in the UK.

Section 1(2) of the 1971 Immigration Act conferred indefinite leave to remain on him.

This would, no doubt, be confirmed by the re-entry stamp on his previous passport, which was seen by the Immigration Officer and retained.”

There was no response.

Instead, in June 2016, his driving licence was revoked. We made representations to the Home Office sanctions section the same month again setting out his history and pointing out that he had ILR under the 1971 Immigration Act. However, despite this, the decision to revoke the Driving Licence was still maintained. We then lodged an appeal to the Magistrates court against the revocation decision resulting in the immediate withdrawal of that decision by the Home Office.

The decision that he was in the UK illegally was finally withdrawn in September 2016 after repeated representations by us. 

The decision was withdrawn based on the information in the passports that he had sent in March 2015 and which had then been returned back to him. They were also the passports which were impounded by the Immigration Officer in May 2016.

This case highlights systematic failures within the Home Office when dealing with those with status in the UK.

These are

1. The decision to refer our client to the removals section after he withdrew his application for ILR. This is despite the fact that the passports he enclosed with his application proved that he had ILR. This clearly indicates that their response to the withdrawal of any application was to automatically to initiate removal proceedings regardless of the person’s status in the UK.
2. The threats issued by the Immigration Officer to remove our client whilst actually holding in his hand proof that he was legally in the UK.
3. The decision to maintain the revocation of our client’s driving licence until faced with the prospect of ending up having to justify this in a Magistrates court.
4. The delay between May 2016 and October 2016 in accepting that our client had ILR in the UK despite having had proof of this on the file.

Given the above facts this client should be entitled to the following heads of damages

1. General Compensatory Damages for the distress and anguish caused by the threats to remove him and having to report to the Home Office.
2. Punitive Damages, given the reprehensible and wrongful behaviour of the Home Office.

Case B

B was born in Jamaica in 1956 and entered the UK in 1962. She also came in before Jamaica became independent and so came in on a Citizen of the United Kingdom and Colonies passport. She has lived here since.

She started working as a carer in 2000. She was then transferred under the ’Transfer of Undertakings (Protection of Employment) Regulations 1981’ to two different firms, the first transfer occurring in 2010 and the second transfer occurring in the middle of 2016.

She was asked to produce confirmation of her right to work each time she was transferred.

She produced the passport she came in on plus a visitor’s passport she had obtained in 1979 to prove her right of work for the first transfer. She also had a Carters travel agent receipt to show her entry to the UK in 1962. This was accepted as proof of ability to work.

She produced the same evidence in 2016. This time her evidence was not accepted and she was suspended without pay in November 2016.

We became involved in November 2016.

We made representations to the latest employer but their position was that, whilst they understood that she was likely to have status, they were bound by the conditions as set down by the Home Office in their July 2016 ‘ An employer’s guide to right to work checks’. They particularly referred to Annex A of that guide which set out the documents which an employer had to see to ensure that they were protected against being charged under sections 15 to 25 of the Immigration, Asylum and Nationality Act 2006 (the 2006 Act).

That list, which we enclose, did not cover the situation of our client and the employer therefore had a legitimate and defendable excuse for maintaining our client’s suspension from work.

We therefore had to make an application for our client to obtain an ILR card and this required providing proof of our client’s continual residence in the UK since her arrival here. This was problematic as the schools that our client went to no longer existed. Our client, who had no income, also had to arrange to borrow the money to make the application.

An application for the ILR card was made in May 2017 and a residence card finally issued in December 2017.

Our client was re-employed in September 2017 once there was confirmation from the home office that an application had been made.

The case highlights the impact of the ‘hostile environment’ policy as initiated by the government. It particularly highlights the following:-

1. The fear engendered within employers of employing someone who might not have status. In this case the employer was sympathetic to our client’s circumstances but was also aware that they were in danger of being prosecuted if they carried on employing our client whilst she did not have any of the documents specified in the Home Office guidance.
2. The ongoing toughening of the ‘hostile environment’ policy. For example, our client was accepted as having the legal right to work in 2010 but was not accepted as such in 2016. This was because, in May 2014, the government introduced a public policy called ‘an employer’s guide to the right of work’ which included a restricted list of document which were acceptable to avoid prosecution. No account was taken, in this policy, of those people, like our client, who did not possess these documents but had an absolute right to work.

Given the above facts this client should be entitled to the following heads of damages

1. Special damages – the wages she has lost between November 2016 and September 2017 plus the cost of making an application for ILR benefits he has been entitled to since April 2016
2. General Compensatory Damages = compensation for mental anguish

Case C/D

This is a linked case of a mother (C) and her son (D).

C is a Jamaican national who came to the UK in February 1968 when she was 7 years old. She came to join her father and has remained in the UK since.

The documents she has, as proof of her residence in the UK, are

1. Ticket/boarding card dated February 1968 with her name and the ship she arrived on
2. Hospital letter addressed to her in the UK dated February 1969
3. Doctor’s clinical notes covering the period February 1968 to January 1969
4. Hospital letter dated November 1972 which related to appointments she had from November 1972 to November 1972
5. Doctor’s clinical notes for February 1974, May 1976, June 1976 and August 1977.
6. Her full national insurance record from 1976 onwards showing her presence in the UK during the whole of that period.

Her son (D) was born in the UK in November 1992 and should have been entitled to a British passport as his mother had settled status in the UK when he was born.  

D applied for a British passport twice before he came to see us but was refused both times as he was told that he was not British as his mother was not settled in the UK at the time of his birth.  C was obviously distressed that she was deemed not to have status in the UK despite having lived here for nearly 50 years.

We formally took over the case in May 2017 and sent a letter to the Passport office pointing out the circumstances of the mother, the legal position with respect to the 162 Commonwealth Immigrations Act and the 1971 Immigration Act as well as copies of C’s documents. We asked for acceptance that this confirmed that she had ILR in the UK when D was born.  We received an undated reply in June 2017 which simply said that ‘as previously explained to the applicant, there is no claim for British citizenship as the applicant’s mother did not have Indefinite leave to remain at the time of her child’s birth.’ The letter did not address any of the issues we raised.

D then made a formal application for a British passport in November 2017. We then received a call from the passport office in December asking whether we wanted the client’s documents to be sent back to us. Our notes of the conversation are as follows:-

Spoke to  Mr XXXXX – 0151 471 6160 – he was just going to return all the stuff and say no as ‘ it is all random information’

Explained to him what the issue was – i.e. Jamaican children who came in before 1973 had automatic ILR and retained it – he expressed total disbelief at this idea – said ‘ am I telling him that mother automatically got ILR’ – said he has been with the office for a very long time and has never heard of this at all – can’t be true  – he clearly had no idea of the pre – 1973 system – ended up quoting the 1971 act to him and explaining what the situation before was – i.e any commonwealth person being allowed in before 1962 and then children upto 1973

Also said that we would be challenging any decision and that it therefore needs to be well thought out

He finally agreed to look at the law and the case – said it would take a few days

We heard nothing and chased this up in March 2018 only to be told that everything had been sent back to our client directly the preceding January with a standard cover letter saying that he was not British.

Our client confirmed that he had received this letter but was too disillusioned to chase it up.

We also recently informed C of the Windrush procedure and she was immediately issued with an ILR card.

This case highlights the following

1. The fact that it is not just immigrants who were negatively affected by the refusal of the Home Office to take account of the existence of people who had been in the UK for decades with no proof of their status but also their British Born children.
2. The ignorance within the Passport Office of the law. It is extremely worrying that a passport official ( who was clearly experienced ) was able to say that the documents we sent in were just ‘random information’, and expressed disbelief at the idea that someone who came in pre-1973 was automatically granted ILR on arrival.

Given the above facts both clients should be entitled to:-

1. General Compensatory Damages – compensation for mental anguish

D should in addition be entitled to

1. Special damages – the cost of making the 3 failed passport applications. He should now also be entitled to a free British passport.

General

In addition to the above cases, we have, over the years, dealt with a number of other cases where someone who has been in the UK for decades and who has then either been refused entry at Manchester airport on returning from a visit abroad or, more commonly, been granted visitor status. They have all complained about being interrogated by an Immigration Officer on their return and have, reasonably, felt that this was because of their nationality. Virtually all of them have been Jamaican.

All of these have been resolved with ILE finally being granted. However they have only been resolved after our intervention. There are clearly cases where the situation was not resolved.

Events like this not only affect just the individual but, given the closeness of community ties in Manchester (and no doubt elsewhere), would lead people generally being aware of the difficulties of re-entry to the UK. We believe that this has led to people being afraid to travel or access services in the UK.

We believe that the vast majority of commonwealth citizens who have made the UK their lives have, in some way, been affected. All these should be entitled to compensation.

We understand that it will be difficult to assess the value of compensation some of these people are entitled to as it is very difficult to prove that a person did not travel because they were afraid to do so.

We believe that a logical approach would be to set a minimum level of General compensatory Damages for every one affected by the ‘windrush’ scandaland that some individuals are then granted a further compensatory damage depending on their individual additional factors.

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RESPONSE FROM KENWORTHYS CHAMBERS IMMIGRATION TEAM

KENWORTHYS CHAMBERS MANCHESTER

The Compensation Scheme formula must include a reparation element in terms of making true amends to the harsh realities and consequences that have resulted from the policy of creating a ‘Hostile Environment’. Awards must demonstrate a true recognition of the real and lasting harm that has resulted. All victims are deserving of reparative damages. What price can be given to a ruined life?

There needs to be both a political and commercial response to right the tragic wrong[s] which has been done to far too many, by providing a reparative payment that truly reflects the harm done to all those who have been wronged. A baseline figure [£10,000] should be given to all and be increased on a case by case basis depending on the complexity of each case.

Although the compensation formula may be difficult to compute, the methodology and reasoning must be both transparent and clearly explained. It is vital that those impacted can understand how and why any final settlement figure is arrived at.

“If you can’t explain it simply, you don’t understand it well enough” – Albert Einstein

Many Windrush victims threatened with unlawful expulsion have had to seek and pay for legal advice and assistance, as no legal aid or public funding was available. Many were too frightened to approach lawyers because of the feared legal costs. Therefore on a wider note, while the Government continues to use its “deport first, appeal later” powers in removal cases, the risk of further injustice remains. The restrictions on access to justice in the immigration appeal system adds to the compensation debate and perhaps further explains the cavalier approach of Home Office officials making first instance decisions to expel many people,  who simply have had no proper recourse to appeal and challenge these decisions with the assistance of Legal Aid. We ask that the government reinstates an in-country right of appeal in such cases and makes available legal aid so that those who are affected have proper access and recourse to justice.

Further the Government and Home Office response thus far arguably neglects a fundamental point. Many of those impacted by the Windrush Generation debacle do not just need confirmation of a right to remain in the UK; they should be entitled to recognition of their RIGHT to be recognised as British citizens immediately.

The Government should be moved to act expeditiously to pass legislation allowing for amendment to s3 of the British Nationality Act 1981, to allow the impacted ‘Windrush generation applicants ‘ to register as British citizens as of right.

Like many others we share  and endorse the view that the ‘ hostile environment’ polices initiated by Government have created a culture of fear within black communities and have led to them being deprived of services and support  and security which they should have been  entitled to as of right. It is also clear to us that the policy has affected the vast majority of the commonwealth citizens who have made the UK their lives. It is not clear if this result was intended or foreseen by policy makers. There is a feeling by many that the Government simply did not care about the impact of such policies.  Reckless conduct leading to real harm is deserving of exemplary compensatory awards.  

Kenworthys Immigration Team

George Brown – Barrister

Mark Schwenk – Barrister

John Nicholson – Barrister

Gita Patel – Barrister

Shazia Khan – Barrister

Rebecca Pickering  –Barrister

Jonathan Greer – Barrister

Craig Holmes – Barrister

Steve Tettey – Barrister

Leona Bashow – Pupil Barrister

6.6.2018