The Windrush Compensation Scheme – is it enough?

24 June 2019

The media coverage of the Windrush scandal may have died down since it topped the news cycles just over a year ago, but for the thousands of people impacted, whose lives were turned upside down by the lack of recognition of their lawful status, by the denial of fundamental services and by the loss of livelihoods and homes, the day to day struggle continues.

 

Although the scandal came to prominence in 2018, the headlines merely reflected a reality that many had been living for some time. In fact, for some, they had suffered for months if not years.

This suffering manifested itself in numerous ways. The most egregious violations were felt by those subject to unlawful detention and deportations. People were removed from the UK or prevented from returning. The lack of resolution to many of these situations, despite the admission of failure on the part of the UK Government is a shameful indictment on the UK’s ability to right its wrongs.

However, as the UK has, over the last weekend, celebrated Windrush Day and the achievements of this valuable part of British society, I wanted to look more closely at the steps the Government has purported to take to address the serious financial difficulties members of the Windrush generation faced as a result of the mistakes made in correctly identifying their right to reside.

Among the earliest stories which emerged as part of the scandal were stories of denial of healthcare and of people losing their jobs because, in an intentionally and increasingly hostile environment, they could not demonstrate evidence of their lawful status in the UK.

A failure by the Home Office to resolve these issues in a timely manner, if at all, led to people falling into debt, losing their homes and missing out on public services and funds to which they were entitled.

In order to address these losses, a full compensation scheme was launched on 3 April 2019. Individuals have until 2 April 2021 to make a claim (unless there are exceptional circumstances whereby a claim must still be made by 2 October 2021).

In keeping with the overall approach of the UK Government and the Home Office on this issue, the scheme has been criticised as ‘woefully short of what is expected, what is required and what is fair’.

Let us first look at the details of the scheme.

Who qualifies?

The scheme is open to all those who came to the UK from a Commonwealth country and entered the UK before 1 January 1973. It is also open to those who have a right of abode or settled status who arrived to live in the UK before 31 December 1988, regardless of nationality.

More broadly, some children and grandchildren of Commonwealth citizens, estates of deceased persons who would have been eligible and some close family members of eligible claimants, are also entitled to make a claim.

 

What can you claim for?

Compensation can be claimed for losses related to a wide range of issues including:

  • Employment
  • Immigration fees
  • Detention and removal
  • Housing
  • Health
  • Education
  • Driving licences
  • Banking
  • Impact on normal daily life

There is no overall cap on the amount of compensation someone can receive but, crucially, there are individual caps on compensation for different types of losses. For example, a person unlawfully deported will only be entitled to £10,000 for the fact of that deportation (although they may be able to claim compensation for other losses stemming from that deportation, such as the loss of employment and the impact on normal daily life).

Some of the caps suggest a real disconnect from reality, with payments for denial of access to higher education capped at only £500!

Where a claim is successful, the determination confirming the award of that claim will be accompanied by an apology from the Home Office acknowledging what has happened and the Home Office’s role in the losses suffered.

 

How do you apply?

An application form should be submitted, together with supporting evidence which demonstrates the losses for which the claimant is seeking redress.

The Home Office may request additional information and documentation as part of the consideration of the claim.

Once a determination has been made, the claimant will be notified in writing. The claimant will then have two months to decide whether to accept the determination. If they do not wish to accept it, they can seek a review of the decision.

 

What next?

The announcement of this scheme was rightly critiqued for delay given that the financial struggles suffered by many were urgent. A Government hardship fund intended to provide emergency interim support had only paid out to 9 people by the time the compensation scheme was launched.

Many of the problems which arose in the first place related to overly burdensome requests for evidence demonstrating arrival and time spent in the UK. Concerns have been raised that this new scheme for compensation will fail to deliver just outcomes because of an emphasis on the victims of this scandal suitably evidencing the losses they have suffered.

Some of the caps within the scheme fail to reflect the huge impact the denial of status may have on a person’s life.

That said, despite the limitations of the scheme, it is incredibly important that those who are eligible make claims.  Money alone cannot make up for the mistakes made but it can help address the serious financial impact these policies had on people’s lives.

Despite pledging to learn the lessons from the Windrush scandal, it is unclear that either official Government policy or informal Home Office culture has shifted in the year since the scandal became news. Although the Government has sought to shy away from the term ‘hostile environment’ in recent months, the policies which make up this environment are still very much in existence.

A Home Office impact assessment put the total cost of the compensation scheme at £49million - £587million and when it was launched, it was stated that £200million had been put aside for it.

A month before the scheme was launched, the Home Office was accused, in a report by the Commons Public Accounts Committee of ‘complacency’ and failing to ‘take ownership’ of the problems it had created.

Perhaps having sight of the impact, in stark financial terms, will go some way to finally make the Home Office take ownership of this situation, shift Home Office culture and maybe even provoke real reform of the clearly failed policy of the hostile environment. 

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We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

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