The Windrush Generation is STILL fighting for justice.
I’m going to keep this post brief and limit it to events that have transpired in the last few months. Why? Because if you’ve been reading this blog for a while you will already know what I think and how I feel about the scandal, the Home Office, Priti Patel and the very racist fabric of this country. None of that has changed. If anything, those feelings have intensified, and every day I see the news it is a concerted effort not to explode into a fiery ball of rage.
Anyway, I digress. What’s the update?
Issues with the Compensation Scheme
As I mentioned in my post entitled ‘Priti Patel and the Dangers of the Home Office,’ in 2020 barrister Alexandra Ankrah resigned her position as the head of policy of the compensation scheme, citing it as “unfit for purpose.” Indeed, claimants of the scheme have complained of a number of concerning issues. Firstly, that the scheme has been slow to process their claims. Some claimants have been waiting for at least 18 months for their compensation. Some claimants have died while waiting for their claims to be processed. Secondly, claimants have complained of, and rejected, insultingly low offers. In fact, reports from claimants were so concerning that an inquiry by the Home Affairs Select Committee was announced in November 2020.
During the course of this inquiry the committee heard evidence from Jacqueline McKenzie (an immigration solicitor of McKenzie, Beute and Pope), Holly Stow (a senior case worker at North Kensington Law Centre) and Martin Forde QC, the architect of the compensation scheme. In December I attended a Free Talk session hosted by Preston Windrush Generation and Descendants UK (“Preston Windrush Generation”), at which Martin Forde was a guest. Some of the points he made that night were also given at the inquiry, including the fact that he had encouraged the Home Office to take a “light touch” approach to claims and the evidence it required claimants to provide. Encouragement that, clearly, was not heeded. He also made the point, reiterated at the inquiry, that the appearance of delays was because people were given the wrong expectations – not least because the Home Office announced the compensation scheme months before it was actually ready to be launched, and that it is not unusual for compensation schemes to take up to 18 months to process claims (you can read more about Martin’s testimony here).
One of the main issues that was highlighted by the evidence given by Jacqueline McKenzie, Martin Forde and Holly Stow, was the matter of impact on life assessments. It is very difficult for claimants to provide documentary evidence to prove how the scandal impacted their lives. This is not just because of the fact that some claimants suffered for many years and keeping a paper trail would not have been top of their priority list, but also for a cultural reason. Older West Indians can tend to be very proud people who will address hardship with a certain level of stoicism. The effect of requiring them to provide high levels of documentary evidence to prove the negative impact of the scandal on their lives was that many could not do so sufficiently. To compound this, the maximum amount that could be awarded under this category was a paltry £10,000. This then led to claimants being offered very low amounts under this category that in no way reflected the suffering they had experienced.
Thankfully, the Home Office has now changed at. The cap on impact on life payments has risen to 100,000 pounds, with a minimum award of 10,000 pounds to be offered once a claim has been approved. The Home Office has said that this “will be paid as a new early preliminary payment as soon as someone applying on their own behalf or on behalf of a deceased relative can show any impact on their life under the terms of the scheme. They won’t have to wait for their whole application to be assessed.” (‘Windrush compensation scheme overhauled’, 14 December 2020).
Despite a number of problems remaining with how the scheme is being implemented, that is very much a welcome development.
So what else is new?
The Home Office is being taken to court
Hubert Howard was a victim of the Windrush Scandal. He was dismissed from his job as he could not prove he was in the country legally. I first met Hubert at the protest eyelid in 2018 and subsequently saw him at other Windrush events and marched with him on the day of action in June 2019. Hubert was denied his citizenship by the Home Office because he failed the good character requirement. Why did he ‘fail’ this requirement? Because in 2018 it was alleged that he snatched paperwork from a receptionist’s hand at a doctor’s surgery. In doing so he grabbed her middle finger. He was fined and a 12-month suspended sentence was imposed on him, and that alone was enough for the Home Office to decide he didn’t deserve his citizenship. The department only changed its mind when Hubert was dying in hospital and his lawyer highlighted the urgency of his case – a mere three weeks before his death.
The judicial review against the Home Office’s initial decision was submitted in 2019 while Hubert was still battling them, but his daughter has continued with it in an effort to get the legislation changed. Lawyers acting for Howard and his family have argued that the good character requirement should have been waived for the Windrush Generation under the Windrush scheme, and the scheme is unlawful and racially discriminatory on that basis. In my view, it is mind-boggling that the Home Office would insist on this requirement for the Windrush Generation, when it can clearly be argued that they should have always been considered citizens (of the United Kingdom and Colonies) when they arrived here, which brings me nicely to the next case.
There is a second judicial review being brought against the Home Office, by Windrush Defenders Legal C.I.C and Preston Windrush Generation. The judicial review seeks to “challenge the Home Secretary’s refusal to restore citizenship to those Windrush migrants whose statuses were removed by operation of law.” Essentially, the claimants want all those who were born as British subjects prior to 1948, or as Citizens of the United Kingdom and Colonies after 1948, and who had been settled in the UK for a period of five years by 1 January 1983, to be considered as never having lost their citizenship during that period irrespective of whether their countries of origin had gained independence. There is a whole raft of immigration legislation passed between 1948 and 1983 that will need to be unpacked in order to assess this issue, and that will definitely be a worthwhile exercise, as there is no doubt that the ambiguity and confusion surrounding this has contributed to where we are today. For example, after the passing of the 1981 British Nationality Act, there was a programme aimed at registering people of the Windrush Generation as citizens, because the Act only gave resident Commonwealth citizens five years to do so once it came into force, i.e. until 1 January 1988 (note – the good character requirement was not a factor here). However, during that time, officials also said there was no need to register, meaning at least 8,000 people missed out on their citizenship. I can add a personal anecdote here. It was through this programme that my mother obtained her British citizenship in June 1982. However, this nearly did not happen because of what the officials had said. As she had indefinite leave to remain, my mother thought this would always be sufficient. Luckily for her, her employers told her she should go and get her citizenship as she was entitled to it and a British passport was much more robust than indefinite leave to remain. Her superior specifically told her not to listen to what she was hearing on the news about it being unnecessary and warned her that indefinite leave to remain might not always be good enough. And there but for the grace of God…
Despite slow progress, the struggle continues. Those who have led and contributed to the fight for justice for the Windrush generation have done so with great aplomb and I hope to see their efforts rewarded. I will continue to contribute to that however I can I ask you to do the same. Windrush Defenders Legal and Preston Windrush Generation issued a press statement on 11 January and have set up a Go Fund Me for the judicial review, please give what you can here: gofundme.com/windrushcitizenship.