Time to end the ‘hostility’

The Windrush scandal came as no surprise to immigration lawyers. The only surprise is the scale of the media response and subsequent government action. The ‘tens of thousands’ target and the openly stated ‘hostile environment’ policy arising from the Immigration Act 2014 have resulted in the flourishing of discriminatory policies and practices.

The effective deputisation of landlords, employers and banks and building societies as de facto arms of the immigration enforcement system has led to other injustices and discriminatory outcomes. With so many groups forced to make risk-based decisions on who they perceive to be in the UK lawfully, without knowing the complexities of the immigration system, this is unsurprising.

But what of Windrush? Commonwealth citizens who arrived in the UK before 1973 were given indefinite permission to reside in the UK.

However, some, such as those who arrived on their mother’s passport, have no documentation confirming this. Some have been prevented from returning to the UK following overseas travel, faced bankruptcy and destitution after being prevented from working, and been left unable to access healthcare, public funds and pensions. The evidential burden has made it extremely difficult to prove their settled status, leaving them fully exposed to the effects of the hostile environment.

Now that the government has, rightly, set up a taskforce to deal with cases ‘quickly, effectively and efficiently’, attention is naturally turning to compensation.

Theresa May said ‘where appropriate, payment of compensation, to resolve the anxieties and problems that some of the Windrush generation have suffered’ will be made. A new independent scheme is to be set up and payment is to go beyond the reimbursement of legal fees incurred in proving the right to remain, to recognise the pain inflicted.

David Lammy MP called for compensation for ‘anyone who had lost their job, their pension, access to healthcare, or been detained or deported’. May’s comment that it will be awarded ‘where appropriate’ indicates a more restrictive intention, likely due to the scope of complainants, which may extend beyond Windrush to those affected by the ‘hostile environment’ in general.

The Home Office has said that rather than provide definitive evidence of entry or continuous residence, caseworkers will ‘make a judgement based on all the circumstances of the case and on the balance of probabilities’. But this gives no clarity on how to make a successful application. The Home Office has also said the Windrush generation will be able to apply for British citizenship without paying the £1,330 fee, or proving English language or knowledge of life in the UK. And there will also be a new ‘customer contact centre’.

But these pledges do not go far enough. The Home Office should end uncertainty by issuing a temporary document confirming the right to reside in the UK pending application outcomes. This would permit individuals to work, obtain housing and access public services in the interim. In relation to the application, clear guidance as to the minimum documents accepted should be provided.

For citizenship applications, discretion on the residence requirement should be exercised for those prevented from returning to the UK following overseas travel. The ‘good character’ requirement should also be waived as, otherwise, minor, out-of-court disposals may lead to a refusal. Finally, there should be a priority route as such applications can take up to six months to be processed.

On a wider scale, the Windrush scandal offers an opportunity to set a new tone for immigration. Much needs to be done to reverse the impact of the hostile environment. Discriminatory practices which prevent access to basic services should be removed. Navigating the immigration routes should be made more accessible, not simply by way of a contact centre. Where an individual makes a mistake in an application or inadvertently misses a deadline, the imposition of punitive measures should not be the starting point.

Zeena Luchowa is a solicitor at Laura Devine Law