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Windrush: the inevitable result of a hostile environment and no legal recourse

As the UK government designs the compensation scheme for victims of the Windrush scandal, we look at the toxic combination of factors that caused the scandal in the first place.

The plight of the Windrush generation is rightly viewed as the most shocking scandal to emerge from the UK immigration system for a generation.

As a result of deliberate UK government policy, long-term British residents were ensnared by a Hostile Environment dragnet. This approach to immigration renders people who look or sound ‘a bit foreign’ as undesirable or unlawful until they show their papers to their landlords, their employers and their doctors. And it essentially turns basic public service providers, and our fellow citizens, into Border police.

This is what happened to Eleanor Peterson (featured in the film above). After living and working in the UK for her entire adult life, “everything imploded” in 2015 when she tried to apply for a new job. Having lost her residency papers in a flood at her home, she was unable to prove her status. Upon contacting the Home Office, she was informed that no records were held. This triggered a stressful and lengthy process to prove she was entitled to live and work in the UK.

Such hostile environment measures were rolled out despite the government being repeatedly warned that the risks of discrimination were too high. Tens of thousands of people who migrated from former British colonies after the war, at the British government’s request, do not have the right type or volume of papers that the Home Office’s notorious bureaucracy now demands. 

Although the system should be simple enough for people to navigate the rules and access the relevant documentation and processes that apply to them, it is notoriously complex and opaque. As one immigration solicitor said, the Home Office gives little guidance and “you can be refused for failing to produce a document you were never asked for in the first place”.

The legal profession's recommendations to the government, made in a 2014 report published by the Legal Action Group, were to create a specialist task force to deal with the fallout from the Hostile Environment policies. They were ignored.

The harsh measures taken by the government and the absurd decisions taken by the Home Office would not have had such a devastating impact if the people affected had enjoyed the ability to legally challenge decisions that they knew to be completely wrong. However, due to the cuts to legal aid in 2013, when the government removed legal aid for almost all immigration cases, this was impossible for many of those affected. Given that 50% of Home Office decisions that are legally challenged are then reversed, the unfairness of this is being felt by many.

In full knowledge that the Home Office fails us so frequently and knowing that its own Hostile Environment measures would likely be used discriminatorily, the government withdrew the means to seek justice.

As a result, people were detained and deported and some tragically died. The Home Office recently admitted that the number of people wrongly detained or deported will likely rise from their initial estimate of 164 after they wrongly classified certain people as having criminal convictions, excluding them from the count. 

People have lost their jobs, their homes and their right to access bank accounts, healthcare and public funds. Eleanor felt “criminalized” and was prevented from seeking employment or applying for benefits.

Eleanor was lucky to have eventually found a lawyer at the Islington Law Centre who was able confirm her Indefinite Leave to Remain with the Home Office. Law Centres do not solely rely on legal aid funding but their reach and recourses are limited. Since 2013, Law Centres have been gradually closing as a result of the legal aid cuts and cuts to other funding. Many people caught up in the Windrush scandal were not as lucky as Eleanor.

The annual savings of the legal aid cuts were forecast at £350m per year. For context, this is less than one tenth of one percent of annual government spending and is dwarfed by the £500m contract for immigration detention awarded by the government in a single year to a single company.

Now it is very possible that the UK government will end up paying more in compensation to the Windrush victims (given that their problems were allowed to escalate) than they would have paid in legal aid at the start of the issue.

The government are reviewing the legal aid cuts. This is the last chance to tell them you care. Please take three minutes to write to the Lord Chancellor, sign this petition and write to your MP.

About the authors

 

Satbir Singh is Chief Executive of the Joint Council for the Welfare of Immigrants (JCWI) which campaigns for justice in immigration, nationality and refugee law and policy. For more visit https://www.jcwi.org.uk

 

Charlotte is a lawyer, researcher and campaigner and Editor of openJustice. From working on death penalty cases in Louisiana to unveiling the housing conditions of vulnerable migrant children living in London, Charlotte's work focuses on using the law, investigation and advocacy to help marginalised individuals hold larger powers to account.


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