The Home Secretary commissioned a “lessons learned review” into the events leading up to Windrush. See below the response by the Greater Manchester Law Centre.
Q1. What, in your view, were the main legislative, policy and operational decisions which led to members of the Windrush generation becoming entangled in measures designed for illegal immigrants?
The main reason why the ‘Windrush scandal’ occurred was because of policies initiated by successive governments to target migrants in an effort to prove that they were not soft on immigration, the government’s belief being that they had to take this line in order to obtain votes. They were willing to ignore the effects of their anti-migrant rhetoric on those from the ethnic communities who were in the UK legally. They were willing to ignore the increase in racist violence which occurred whenever anti-migrant rhetoric was aired and were, in particular, willing to see residents who had been in the UK legally for decades lose their jobs, be refused healthcare and benefits and see the lives of those with the right to be in the UK ruined by a policy targeted at immigrants, built on an ideological pursuit of political targets.
For example, one of the main ways of demonising migrants was by using the word ‘illegal immigrants’ as a generic label for anyone suspected of having no status, the legal term being either ‘illegal entrant’ or ‘overstayer’. This label, which is used excessively in the press and by politicians (and in this question) is emotive and is now common language in the streets when directing racist abuse at individuals from the ethnic minorities.
This anti-migrant rhetoric led to legislation restricting the access to public services for immigrants which in turn has led to an attitude within the Home Office that those perceived as migrants are of no value.
This combination of circumstances directly created the ‘Windrush scandal’.
The main relevant legislation is:
a) The law on preventing illegal working in sections 15 to 25 of the
Immigration, Asylum and Nationality Act 2006
b) The 2014 and 2016 Immigration Acts which extended Immigration
enforcement to landlords, banks, etc.
c) Legal Aid, Sentencing and Punishment of Offenders Act 2012 which
restricted access to legal aid for those with immigration issues
The main policy was the policy, set out in a UK Home Office report from February 2010, which said that they will ‘make the UK a hostile environment for those that seek to break our laws or abuse our hospitality”.
This concept was first introduced under the then Labour government and formed the basis of the subsequent Conservative government’s approach to immigration, with the then Home Secretary, Theresa May, totally determined to have a zero tolerance policy to those who had no right to be in the country without regard for the consequences of such a policy on those with the right to remain in the UK.
The Home Office, in line with this policy, made it a priority to concentrate on removing people from the UK and set targets. For example:
1) the Home Office’s decision to “set a target of achieving 12,800 enforced returns in 2017/18 … this will move us along the path towards the 10% increased performance on enforced returns which we promised the Home Secretary earlier this year”.
2) The decision in January 2017 by the then Home Secretary, Amber Rudd, to refocus ‘ immigration enforcement’s work to concentrate on enforced removals. In particular I will be reallocating £10m (including from low-level crime and intelligence) with the aim of increasing the number of enforced removals by more than 10% over the next few years’
Additionally there was the operational decision made in 2009 to destroy previous landing cards despite opposition from Home Office staff, as confirmed by a Guardian article on the 17th April 2018, where it is reported that the former employee (who has asked for his name not to be printed) said it was decided in 2010 to destroy the disembarkation cards, which dated back to the 1950s and 60s, when the Home Office’s Whitgift Centre in Croydon was closed and the staff were moved to another site.
Employees in his department told their managers it was a bad idea, because these papers were often the last remaining record of a person’s arrival date, in the event of uncertainty or lost documents.’
The decision to destroy these cards showed a total lack of concern about people who had been here for a long time. This was a decision made by the
then Labour government and meant that the vast majority of the ‘Windrush’ generation did not have records of their existence within the Home Office system and were automatically assumed to be in the UK without status and slated for removal to meet the other operational targets.
There was, in essence, a political culture which drove operational polices which left a whole generation of people extremely fearful about their right to be in the UK, with many being refused access to services and some being unlawfully deported.
Q2 What other factors played a part?
Other factors included the withdrawal of legal aid for those with immigration issues, combined with the introduction of fees for making applications for status.
Many of the ‘windrush’ generation ended up without jobs or benefits because they could prove their status to employers or the Benefits agency. They were then expected to make an application to prove that they were, in fact, in the UK legally. They were, therefore, not able to instruct solicitors to make their case as they clearly could not afford to do so. There was also no legal aid available for them to instruct legal aid firms. In addition they had to pay for applications to the Home office just simply to prove their existing status, the fees being in the region of 200 pounds. This created an extra unnecessary burden and stress.
The other main factor was the culture within the Home Office that those people with immigration issues had no value and that it was not necessary to either properly train their staff or provide a decent service.
As outlined in a Guardian article ‘Asylum offices ‘in a constant state of crisis’, say whistleblowers’ ( 25th December 2017) – which reported on the way asylum, family and human rights applications are dealt with by caseworkers.
The source also said that mistakes are being made by caseworkers when they decide whether applications are denied or accepted, because they have targets for the number of cases they must deal with each day. “Caseworkers don’t have time to request more documents if something is missing or if more information is needed,” they said. “Sometimes they don’t even have time to read the applications properly.”
The second whistleblower comes from inside the Family and Human Rights Unit (FHRU), a department inside the UKVI which focuses on visas for spouses and parents of British and EU nationals. They describe a similar state of constant crisis: “We currently have staff who are trained for one week before doing live cases. There is a high turnover (in the unit), staff are leaving and coming every week,” they said. “Caseworkers will make poor decisions because of lack of training, support and mentoring from experienced caseworkers. This in turns creates a bigger workload for post-decision casework,” they said. “On my team, we are seeing a shocking increase of complaints and MP enquiries questioning the delay. We are just told to give standard lines.” Mike Jones, Group Secretary for PCS, the union for Home Office employees, has canvassed his members and has found both whistleblowers’ comments to be “correct”. Essentially the Home office staff have minimal training even to deal with standard asylum, family and human rights applications, never mind receiving any training with respect to the status of people who arrived in the UK decades ago.
The default setting within the Home Office, with respect to Windrush situations, is that the person is here without status. This is because the driving impetus is to stop immigration to the UK as well as to classify foreign nationals as having no right to remain in the UK and remove them. This driving impetus follows on from political statements denigrating all those classified as immigrants, i.e those of a non British ethnic origin, regardless of whether they have an entitlement to remain in the UK or not. There were, in addition, rigid guidelines on the documentary proof required to make successful applications, the applicant having to prove the date of their arrival, that they were granted permanent stay on arrival and that they had been in the UK for each year since their arrival. There was simply no recognition of the fact that people had lost the passports they had arrived on, that the schools that the children went to in the 1960’s either no longer existed or had no records dating back to that period or that women who raised children would often not receive any income support and so would not be recorded on the national insurance records. This lack of recognition of the particular difficulties faced by very long term residents was abysmal but not surprising given the clear lack of concern within the Home office of such people.
Q3 Why were these issues not identified sooner?
The issues had been in existence for a number of years and had been raised individually with local MPs.
However there was clearly no will within the politicians and the home office to take their attention ( and devote resources ) away from their primary agenda of removing as many people as possible and making living in the UK as difficult as possible for those perceived as having no status. There was consequently no desire to recognise that the individual cases that came to their attention revealed a wider pattern. For example, as stated by the whistleblower, “On my team, we are seeing a shocking increase of complaints and MP enquiries questioning the delay. We are just told to give standard lines.” It is clear that the home office essentially did not care about the quality of the service they provided.
With respect to the government, the first major newspaper article on this issue was on the 28 November 2017. This was the story of Paulette Wilson, who had lived in the UK for more than half a century who had been detained with a view to removal. The second major article was on the 1 December 2017, about Anthony Bryan who also been detained facing removal after having been in the UK for over 50 years. More cases then emerged leading to Caribbean diplomats condemning the treatment of the ‘Windrush’ generation on the 12th April 2018. However the initial response of the government ( on the 15 April 2018) was to refuse a formal diplomatic request to discuss the issue at a meeting of the Commonwealth heads of government.
There was a desire, even when they were provided with information suggested that a whole set of people had been grossly mistreated by their policies, to avoid the issue. They had to be forced to acknowledge the suffering caused by their policies only after the press coverage escalated to such an extent that it could not be ignored. The government is not even willing now to accept this responsibility and has, in fact, confirmed that the ‘hostile environment’ policy is still valid.
Theresa May has refused to roll back her controversial “hostile environment” crackdown following the Windrush scandal, despite her own home secretary’s call for change. Speaking to The Independent on her trip to the G7 summit, the prime minister rejected – three times – calls for a rethink on policies to curb illegal immigration, which have trapped British citizens. Instead, she insisted she had the public’s backing for measures which have turned employers, landlords, the NHS and banks into “de facto border guards”, required to make immigration checks.
There has been no concern by politicians of the effects of their rhetoric on the lives of ordinary citizens. There is still no concern as evidenced by their refusal to abandon the discredited ‘hostile environment’ policy.
It was shocking but sadly not surprising that in the light of these events that this issue was not taken seriously earlier.
Q4 What lessons can the Home Office learn to make sure it does things differently in future?
The Home Office need to re-evaluate their internal structure. They need to be able to take account of the legitimate views of their own staff and trade unions, who at times legitimately questioned the lack of training offered to them.
In addition, the Home Office’s culture is determined by the agenda set by the politicians. There can therefore be no impetus for change until this wider agenda changes. The agenda has to move away from viewing migrants, whether here lawfully or unlawfully, as being a totally negative factor into viewing them as potentially being a positive factor in society. Once the agenda has changed the Home office will need to ensure that, at the very least, they set in place adequate training of staff to ensure that they are able to make decisions based on the law and to accept that the people that they are dealing with are treated as human beings and not another number to be added to their removal list.
Q5 Are corrective measures now in place? If so, please give an assessment of their initial impact.
Generally no – The Windrush taskforce has worked relatively effectively to ensure that such people are getting status and nationality. However this should just be the start of the process as there has been no acceptance within the Home Office that the ‘Windrush Scandal’ highlights wider failing within the organisation, specifically, the lack of understanding of the law by case workers and their need to appreciate that they are dealing with human individuals and not criminals who must always be deported. There has also been absolutely no acceptance within this government that the ‘Windrush scandal’ occurred directly as a result of their policy to create a ‘hostile environment’ for Immigrants.
What (if any) further recommendations do you have for the future?
At the minimum a withdrawal of all legislation which outsources Immigration enforcement to landlords, banks, etc.
A public withdrawal of the ‘ hostile environment ‘ policy and an associated change of culture with the Home Office.
Restoration of legal aid in Immigration cases to ensure that Immigration decisions can be effectively challenged.
Restoration of a full right of appeal to those refused any immigration status.
Review of fees for making applications as existing rates are punitive and arguably discourage people to seek confirmation of regularisation of their immigration status.
It also has to be recognised that to others subject to migration controls will go through the same traumatic experiences as the ‘Windrush’ generation unless
the Home Office is substantially reformed. Practices which led to the Windrush generation losing their jobs, losing benefits, having their bank accounts closed and being thrown out of their accommodation must never occur again
Case A
A is a Sierra Leone national who came into the UK on the in 1970 when he was 15 years old. He arrived to join his parents and has the passport he arrived on which is endorsed with an entry certificate ‘to join parents’ and no restrictions on entry.
He has been in the UK since and has recently received the ILR biometric via the ‘windrush’ process.
He was in receipt of benefits but had this stopped in 2016 because he was deemed to have no status in the UK. He also then received a decision from the Department of Works and Pensions (DWP) seeking to recover all the benefits paid to him since 2009 (adding up to a total of over £30,000). This was in April 2016.
These decisions were made by the DWP on that basis that they had contacted the Home Office to find out whether A was entitled to benefits and had been told, in March 2016, that A ‘had no leave to remain in the UK’. A had had since his arrival no contact with the Home Office so they would have no records of his existence on their system. They would, in particular, have no proof of his entry to the UK as his landing card would have been in of the ones destroyed by the Home Office in 2010. The Home Office also did not contact A at any stage to find out about his history so it is clear that they automatically classified him as having no status because he was not on their system.
This wrong classification has directly led to A having no income (or accommodation) since the 16th April 2016 and having to live with the stress of owing over £30000 in benefits plus a possible criminal charge for defrauding the benefits system. He has been living with friends.
We appealed against the decisions that he owed this money and the DWP confirmed at an initial hearing that their decision was solely based on the Home Office response that he had no status.
The DWP have just recently confirmed that they are withdrawing their decision given that he has received an ILR card now under the ‘Windrush’ scheme.
This case shows the effects that the destruction of landing cards had on this individual, the Home Office having immediately classified him as having no status simply because they had no records of any interaction with him.
Windrush: lessons learned review call for evidence
Response of the Greater Manchester Law Centre
159 Princess Rd, Manchester M14 4RE
Email development@gmlaw.org.uk
