Compensation for the Windrush generation

During the Commonwealth Summit in April, Theresa May made an “absolute commitment” to Caribbean leaders that “…the UK will do whatever it takes including, where appropriate, payment of compensation, to resolve the anxieties and problems that some of the Windrush generation have suffered”. So far, we have had no clear details of what the scheme will involve; we have only been assured that it will be independent of the Home Office. This independence is important and hopefully means that those eligible for compensation, who have been on the receiving end of years of intolerable treatment by the Conservative government, will be able to have a degree of confidence that their claims will be fairly assessed.

In setting up a compensation scheme, the government is clearly seeking to put in place a form of ‘dispute resolution’ designed to avoid full blown litigation in the courts. While we have no clarity as to how the scheme will operate in principle, we are clear that it will need to offer genuine recompense for the wrongs that Commonwealth citizens have suffered under the ‘hostile environment’.

Only last year, the Victims Commissioner launched an investigation into the Criminal Injuries Compensation Authority for the failures of the scheme to properly compensate victims of child sex abuse. Clearly, the compensation scheme that will be set up for the Windrush generation will be a bespoke scheme, but the Government needs to be careful to avoid mistakes that have been made in the past with other compensation schemes. The consequences of getting it wrong could be expensive judicial review claims and other litigation.

To offer a genuine attempt at dispute resolution, the scheme will need to take account of the many different situations Commonwealth citizens have found themselves in over the past years. The commitment is to provide compensation to “… individuals who have suffered loss or damage because of their inability to evidence their right to be in the UK and to access services”. As we’ve already highlighted, big questions remain as to the extent of loss the scheme will cover, and how much evidence those administering the scheme will require before making a payment.

Litigation, including actions for judicial review to challenge the behaviour of Immigration officials to date remains a possibility for individuals. The behaviour of the Home Office staff responsible for enforcing Immigration policy may well amount to unlawful discrimination and could, potentially, meet the threshold needed to prove inhuman and degrading treatment in Article 3 of the European Convention on Human Rights in some cases.

Litigation is usually a last resort, but if the compensation scheme fails to deliver, it may well be the only option for people who have lost jobs, found themselves unable to access health care or suffered other injustices – including being refused entry back into the UK after holidaying abroad.

Litigation might also be necessary if individuals find they are refused compensation under the new scheme (whatever the scheme comprises). Administrative decisions can be challenged through judicial review, a legal process which examines how a decision is taken, and whether the individuals and organisation taking the decision took account of the right factors and did not act illegally or unlawfully. It’s a legal procedure that, as Immigration lawyers in London, we’re very used to advising on. We hope that those who will be administering the Windrush compensation scheme will have a wide remit to ensure that meaningful compensation can be granted, and will understand their responsibilities – although ultimately, the levels of compensation available will be set by the government.

For anyone attempting to regularise their Immigration status or looking to take advice from an expert Immigration lawyer about the treatment they were receiving, one huge stumbling block in recent years has been the lack of availability of legal aid for most Immigration matters. Legal aid is more likely to be available for discrimination claims or for claims relating to Human Rights which may be of some comfort to people considering litigation. Talking to an Immigration solicitor who can advise you on your eligibility for legal aid as well as the possible legal claims you may have, will help clarify the position for you and help you decide how you want to proceed.

The commitment to set up a compensation scheme is a small step towards making sure that members of the Windrush generation don’t suffer any further loss, financial or otherwise. We are reserving judgment as to whether the scheme will offer genuine recompense, and look forward to seeing the full details of the scheme and to understanding how it will work in due course. In the meantime, another concern for Immigration practitioners in London and across the UK is the attitude of the Home Office and the UK Government towards other people with a right to be here but struggling to prove their status in an environment of increasingly complex Immigration law. It is to be hoped that in the race to put things right for the Windrush generation, other individuals and communities aren’t ignored.