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September 10th 2019

The Windrush Compensation Scheme

The Windrush Compensation Scheme

The National Audit Report A recent report from the National Audit Office says that Home Office processes led to wrongful detentions and deportations for members of the Windrush generation.

The National Audit Report

A recent report from the National Audit Office says that Home Office processes led to wrongful detentions and deportations for members of the Windrush generation.

It is thought that at least some sixty people were wrongly deported from the UK as a result of Home Office blunders. Many others have lost their rights to live, work and access services.

The “Windrush generation” does not simply refer to those passengers of the famous ship that brought workers to the UK in 1948. It means an estimated 500,000 people now living in the UK who arrived between 1948 and 1971 from Caribbean countries.

How the Windrush scandal unfolded

Under the Immigration Act 1971, all Commonwealth citizens already living in the UK were given indefinite leave to remain – but the right to free movement between Commonwealth nations was ended from that date onwards.

Moreover thousands of these people were children travelling on their parents’ passports, and without their own documents. The Home Office did not keep a record of those granted leave to remain or issue any paperwork meaning it is difficult for the individuals to now prove they are in the UK legally.

In 2012, the government launched a crackdown on illegal immigration, which meant those without documents were suddenly asked for evidence to prove that they were entitled to remain in this country.

The result was disastrous for people brought up in this country, and who were legally UK citizens. Some were held in detention or actually deported. Between March and September 2017, 49 people were deported to Ghana and Nigeria in 2017. One lady who had come across to the UK fifty years ago, was held in an immigration removal complex and lost benefits for two years.

The bureaucratic disaster has also affected Australian, Canadian and South African, Indian and Pakistan-born citizens.

In the meantime, the Home Office had destroyed documentation that could have proved that people were entitled to live and work in the UK.

Home Secretary Sajid Javid has issued an apology to the Windrush generation and is “absolutely determined to right the wrongs of the past“.

The compensation scheme

The Home Secretary has also said that the government is committed to providing them with the support and compensation that they deserve.

The Home Office is currently working to put in place a compensation scheme for Commonwealth citizens, who have faced difficulties in establishing their status under the immigration system.

A public consultation on the design of the compensation scheme began on the 18th July 2018 and ended on the 16th November 2018.

Details of the final scheme and how to apply, will be published in the New Year. The following is a very brief summary of what is proposed, and which can be found on the government website.

What is the damage done?

The government listened to some 650 people who had been affected by the Windrush disaster. The most common impacts were:-

  • Emotional distress
  • Costs related to confirming immigration status i.e. fees
  • Loss of income and/or access to benefits;
  • An inability to travel
  • Difficulties accessing public services
  • Difficulties accessing infrastructure, such as bank accounts and driving licences
  • Detention and/or removal

The losses reported went back to before 1999.

Who will be eligible to apply?

The government have suggested that the following will be eligible for compensation.

  • Anyone of any nationality who arrived in the UK before 31 December 1988 and is
  • lawfully settled in the UK
  • Certain children of the Windrush generation eligible for help under the Windrush
  • Scheme, for example, children born in the UK.
  • Commonwealth citizens who were settled in the UK before 1 January 1973 but who left the UK and whose right to be in the UK has since lapsed.

What kind of compensation will be paid?

  • Any fees paid in connection with an application to the Home Office to secure their immigration status.
  • Supplementary items (such as fees for copies of official documents or having documents certified) associated with collecting and presenting the evidence necessary to secure immigration status.
  • Legal costs paid to secure immigration status subject to a cap
  • Loss of income
  • Loss of benefits
  • Compensation for :-
    • Detention or removal from the UK
    • Denial of exit or re-entry to the United Kingdom
    • Denial of Access to Public, Private and other Services
  • Compensation for impact on Normal Daily Life

Some losses will have a known value, for example, fees that have been paid. Other losses will not have a specific value attached, such as anxiety and distress. With that in mind, the government is proposing that the Scheme includes different approaches to calculating payments, dependent on the type of loss.

The government will set up a tariff to calculate the compensation for certain types of loss, which cannot be qualified precisely, such as impact on normal daily life. There will also be discretionary awards for exceptional circumstances.

However, there are limitations to the Scheme.

  • There will be a “cap” or maximum amount which can be paid under the Scheme, as well as a “minimum” size of claim.
  • The Government also proposes to calculate the total compensation payment, not by adding together the different type of losses but by taking into account the “full range of circumstances of the individual.”
  • Compensation paid from other sources, such as backdated benefits will be taken into account.

There will also be a non-financial remedy available, such as an apology or re-instatement of employment.

Legal costs for submitting an application to the Scheme

There’s no provision proposed for the costs of instructing a solicitor to submit an application to the Scheme. For some simple claims, this isn’t a problem but for more complex claims it means that the costs of using a solicitor will have to come out of the compensation.

It’s plain that some people will have quite substantial claims, and there may be difficult questions about eligibility under the Scheme.

The Way Ahead

We shall see what the New Year brings.

Hudgell Solicitors has a team of lawyers who act for hundreds of people making applications to other compensation schemes, such as the Criminal Injuries Compensation Authority, the Lambeth Children’s Home Redress Scheme, the NHS Contaminated Blood Scheme and former residents of Grenfell Tower. If you want to know more about the Windrush Compensation Scheme, contact Malcolm Johnson or Steve Walster

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