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Amendments to the Windrush Compensation Scheme are welcomed, but real reform is still necessary

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We first heard of the Windrush scandal in early 2018, as a result of powerful investigative journalism. It stands for decades of injustice experienced by thousands, whose lawful existence in this country was denied by the state. Individuals faced constant questioning about their rights and entitlements and were told that unless they had documents they were never provided with, they could be detained and deported from the place they call home. It caused many to lose their jobs, their homes and even their loved ones.

There followed a public apology and a resignation from Amber Rudd, the then Home Secretary, and a consultation with legal input from Martin Forde KC. In April 2019, the government launched the Windrush Compensation Scheme, aiming to financially recompense those who were impacted. Over the years, amendments have been made to improve the scheme, including the latest changes published this summer.

How has the scheme performed so far?

Unfortunately, the scheme has faced criticism from the start. The payments offered were woefully low given the injustice experienced. Many claimants were trying to navigate the scheme without legal assistance, but the application process is complex, with forms 50 pages long and the need for extensive supporting evidence.

Amongst those impacted, there was either a lack of knowledge about the scheme, or a distrust of the Home Office to deliver results. Despite an initial surge in applications when the scheme first launched, the numbers of claimants applying was lower than anticipated. Nevertheless, delays in decision-making soon crept in. Press reports of the Home Office failing Windrush survivors, for a second time, increased.

The Home Office made some positive changes to the scheme in January 2021, after which the statistics show a significant jump in applications again. It is hoped that the new changes this August will encourage more applications once more.

Although the Home Office has repeatedly lowered the number of claimants eligible to apply under the scheme, we know that as of Windrush day 2022, only 7% of those impacted had been compensated for their losses.

Key changes to the scheme

Three years since the scheme launched, there have been several key changes. There is now no end date for submitting applications, a preliminary impact on life payment was introduced, and the level of awards payable for impact on life was increased. Sadly, the scheme is still not designed to fully compensate claimants for the financial losses they suffered.

On 22 August 2022, the Home Office published further amended guidance and rules. Surprisingly, the changes arrived without fanfare. They should have been widely publicised, given that they increase the value of claims for a large number of claimants and may encourage more to apply.

In case you missed it, there are three main changes.

Homelessness

It is now possible to claim for losses if a claimant became homeless for a reason unrelated to their status, but continued to be homeless due to an inability to demonstrate their lawful status.

This is a significant change that more accurately reflects the lived experience of many. It should also lead to increased payments for many.

Living costs

This is a completely new section. It is available to those applying as close family members that significantly supported a primary claimant with:

  • rent;
  • utilities;
  • contributions towards food and household essentials;
  • travel; or
  • prescription fees.

Individuals must be able to show that the costs incurred were a direct result of the primary claimant being unable to demonstrate their lawful status in the United Kingdom.

We know that many children, partners, parents and extended family members have supported loved ones with these essential living costs out of necessity and it is only right that these costs are now recoverable. This addition could significantly increase the number of claims made under the scheme.

Medical evidence

It has always been possible to ask the Home Office to commission and fund medical or other expert evidence. But, for the first time, it has now been confirmed in the guidance. The request is more likely to be approved where a higher payment for impact on life is being considered.

For financial governance reasons, three quotes from different experts should be provided. For those who do legal aid work, this process will be familiar. Experience tells us it does not always result in the instruction of the most suitable expert.

Expert evidence is key to the proper consideration of these claims. The guidance and rules afford significant discretion to the decision-maker. In the absence of case law and judicial guidance, there is a real inconsistency between decisions and the potential for unfairness between claimants.  

What’s next for the scheme?

Windrush survivors and campaigners have long called for real reform.

The fact that reform is needed for a scheme that is only three years old shows that it wasn’t fit for purpose when it was first introduced. The justification for getting it in place as quickly as possible was obvious. Rather than tweaking round the edges, leading to further delays while claims are reassessed under the new guidance, now is the time for the new Home Secretary to seize the mantle. She is the fourth Home Secretary since the scheme was launched and more is expected than yet another mealy-mouthed apology while those impacted continue to live in poverty and are forced to work far beyond retirement age. Windrush survivors and campaigners have long called for real reform. But what would that look like?

Take the scheme away from the Home Office

The compensation scheme is run by the department that caused the injustice, forcing the abused to confront the abuser to seek redress.

Taking the scheme away from the Home Office would inject it with transparency and partiality. Many more claimants may feel that their claim will be fairly and fully considered, and so will come forward to claim the compensation they are entitled to.

Introduce an independent appeals process

The scheme currently allows for a tier 1 review where the claim is considered by a senior reviewer within the Home Office, and a tier 2 review by an Independent Adjudicator (who is also the tax adjudicator). Beyond this, a complaint can be made to the Parliamentary and Health Service Ombudsman through a claimant’s Member of Parliament.

Immigration law is notoriously complex. Many claims are not straightforward because the individual’s immigration history is long and complex, and reliant on legislation from the 1960s, 70s, and 80s. There can be factual disputes such as the length of time spent abroad and the impact on the relevant leave to enter or remain in the country.

The Home Office has sought to dodge the question of the number of successful reviews, just like the previous Home Secretary dodged the scrutiny of the Home Affairs Select Committee. A recent FOI from a sitting MP shows that of 3,020 tier 1 review outcomes in 2021, only 38 (1%) were successful. Of 459 tier 2 review outcomes in 2021, only 4 (0.08%) were successful.

The deterrent effect continues. Not only does the Home Office perpetuate the injustice, but it also gets to mark its own homework; even then the results are shrouded in secrecy. The lack of transparency undermines the scheme. 

The First-tier Tribunal (Immigration and Asylum) and its appeals chamber, the Upper Tribunal, have the expertise to determine questions of law and fact. The right to onward appeals and the independent scrutiny the tribunal affords, means that it is a much more suitable forum to determine challenges against decisions made under the scheme. This will also allow decision-makers, representatives and claimants access to previously decided claims and promote consistent and fair decision-making.

Provide Legal Aid or other funding

Independent research from the Windrush Justice Clinic and Justice makes a compelling case for all claimants to have support from a legal representative in order to navigate the scheme. It is up to the government to amend legislation to make legal aid available, or for there to be provision within the scheme for payment to representatives who have assisted with successful applications.

Claimants are currently reliant on pro bono provisions; another reason for fewer claimants applying to the scheme than anticipated. It may have also contributed to delays and low success rates upon review. Unrepresented claimants are less likely to have been able to provide key evidence in support of their claim and may struggle to respond to requests for further information.

Expand the types of loss

There are many real-life losses which are not accounted for in the current rules and guidance. This includes pensions, savings, and the loss in property values where a person was required to sell their home. Unless a claimant is compensated for the actual value of the loss experienced, they will remain disadvantaged.

Example

One of my clients, aged 79, is still working as a carer. She simply cannot afford to retire.  She’s currently awaiting a decision on a tier 1 review. Due to her inability to prove her lawful status, she was forced to sell her home in an affluent part of the southeast many years ago, a property which should have been her security for this time in her life. She now shares a one-bedroom flat with her adult son.

Continue to raise awareness

It remains a common misconception that the scheme only applies to Caribbean nationals. It covers all Commonwealth nationals settled before 1973, their children, and grandchildren. It also applies to individuals from any country who arrived before 31 December 1988 and who are now settled here. It is clearly a massive task to ensure that all are apprised of their ability to apply for compensation under the scheme.

The Community Engagement Fund was announced on 20 September 2022. It is a £150,000 grant fund offered by the Home Office to support grassroots and community groups to engage their local communities, raising awareness of the policy and support available.

Utilising community groups and thinking creatively to spread the message is welcomed. However the fund currently only covers short and easy-to-deliver projects across the financial year 2022 to 2023. More proactive steps should be taken to raise awareness of the scheme and the eligibility criteria, and the government should commit to long-term funding for this purpose.

Conclusion

These suggestions are not new or novel; many have been put forward by campaignersJustice, the Home Affairs Select Committee and the scheme’s independent person, Martin Levermore. If they were implemented, secondary complaints over delays, a lack of an effective expedition mechanism, poor quality decision-making, and a failure to respond to and update claimants might also be remedied. Hopefully, distrust would be replaced with confidence in a functioning and fair system.

The case for reform is compelling. Without it, the sad fact is that many will die without receiving the compensation to which they are entitled.

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Nicola Burgess

Nicola Burgess

Nicola Burgess is a solicitor at GMIAU, and former Legal Director at the Joint Council for the Welfare of Immigrants. She has over 12 years’ experience working in immigration and asylum law. She qualified as a solicitor in 2009 and is also an IAAS level 2 accredited caseworker and supervisor. Nicola has a particular interest in legal aid work and assisting the most vulnerable: including victims of torture, those with mental health issues and victims of trafficking. She has developed considerable expertise in representing foreign national prisoners in challenging their deportation and securing their release from detention. Nicola regularly secures damages on behalf of her clients who have been found to be unlawfully detained. Nicola is also a part of the Windrush Legal Initiative.

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