In depth: Call for action over Windrush compensation process

I’m meeting Pauline Campbell, a pro bono solicitor for Justice4Windrush, a fortnight after MPs marked Windrush Day with a debate in the House of Commons.

Seven years after the government set up a scheme to compensate people who suffered losses because they were unable to prove their right to remain in the UK, MPs heard that claimants continue to be wrongly refused compensation and that the scheme lacks equal footing with other such schemes in terms of funded legal support. The response of Nesil Caliskan, housing, communities and local government minister, gave little reason for optimism that anything would change.

Campbell says parliamentary debates are important, however, because they shine a light on injustice. And yet, ‘we’ve been here seven years… We still don’t have legal funding in place. We still don’t have a streamlined service. The debate did not change that. For me, I still feel we’re stagnant. People have good ideas and intentions, but we’re still not in line with other compensation schemes’.

Campbell is ‘all for solution-based ideas’. One solution she has campaigned for is the removal of an ‘MP filter’ that would enable victims who are distressed and frustrated by the compensation application process to complain directly to the Parliamentary and Health Service Ombudsman.

It was the ombudsman that ordered the Home Office to improve the compensation scheme after an investigation found that the department failed to properly consider a dying woman’s evidence and wrongly excluded her husband’s private pension loss.

Currently, an MP must refer a Windrush victim’s case to the ombudsman. ‘That in itself takes months, sometimes over a year. MPs are so busy,’ Campbell says. Anyone wanting to complain about NHS England can approach the ombudsman directly.

On funded legal support, the Home Office says the compensation scheme was designed to be as clear and simple as possible, so that applicants do not need legal assistance. However, a landmark report published by legal thinktank Justice, the University of Sussex and law firm Dechert revealed that a victim whose application for compensation was rejected was eventually awarded £295,000 with the help of a pro bono lawyer.

Campbell suggests that the government pay lawyers a fixed fee to determine if a person is eligible for compensation.

'I insisted on creating proper lines between the passport office and Windrush. The office were receptive. I told them this is about us working together; I’m not coming for you. Let’s find a way of getting your officers to have a better understanding of the human beings at the end of this'

Pauline Campbell, Justice4Windrush

 

She says those ineligible are more likely to believe and accept the news when a lawyer tells them. They would then avoid going through the stress of applying. It would also save the Home Office time.

Meanwhile, Campbell has been working with HM Passport Office on new training after one client, a woman in her 80s with cancer, was wrongly prevented from returning to the UK after visiting family in Ghana.

‘I insisted on creating proper lines between the passport office and Windrush. The passport office were receptive. I told them this is about us working together; I’m not coming for you. Let’s find a way of getting your officers to have a better understanding of the human beings at the end of this.’

Campbell tells me about another client’s application for compensation that suggests the Home Office could benefit from similar training.

The client, who had been homeless at one stage, worked as a surveyor but was let go because he did not have a British passport. ‘I did a subject access request and was able to go back 20 years to his previous employers and get all the documents from them.’ The employer confirmed that Campbell’s client had worked for them and had left, but was unable to confirm why. Campbell asked if they had immigration processes in place. They did.

Home Office casework guidance states that providing detailed documentary evidence to support every aspect of a claim can be challenging for claimants and that the scheme operates on the ‘balance of probabilities’.

In light of this, Campbell is baffled by the Home Office decision, which she has asked to be reviewed. She believes the offer made for impact on life is too low. Her client received nothing for loss of employment: ‘I’ve said in my review, “You have gone on the negative”. Even when you give them the best argument in the world, they always go to the negative.’

Campbell has put three solutions on the table: removing the MP filter; a fixed fee for lawyers to determine compensation eligibility; and caseworkers following the guidance. 

Three solutions that could easily be introduced before next year – the 10th anniversary of the Windrush scandal breaking.