More on the Windrush Scheme
By: Malcolm Johnson
February 3, 2019
This article follows on from the article that I wrote on my Linked In page on the 8th December 2018. In that article I looked at the compensation scheme, which is proposed by the government for people who have suffered injustice and loss because of mistakes made by the Home Office in judging their right as citizens of this country to remain in this country. At the time of writing, we are still awaiting the publication of that compensation scheme.
As I pointed out in my earlier article, 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.
However, compensation is only one part of a wider Scheme. The government has already instituted other measures to help people in this unfortunate situation. Since the 30th May 2018, there has been a scheme in place to help people who have been affected by the Windrush scandal.
The Commonwealth Taskforce Scheme or Windrush Scheme
The government began by addressing the immediate problem faced by people – namely to sort out their immigration status. These people suddenly found themselves unable to work, draw benefits, in some cases actually detained and deported or if they had left the UK, they found that they could not return home.
On the 16th April 2018, the Home Secretary established a “Commonwealth Taskforce Scheme” also known as the “Windrush Scheme” to make immediate arrangements to help those who needed it. This included setting up a helpline to get in touch with the Home Office. Affected people can make an application under the Scheme to obtain that help.
The idea behind the Taskforce was to try and resolve the immigration problems being experienced by people who qualified under the Scheme. The government said: -
“Those applying under this Scheme will benefit from the services of the Taskforce which will help people to navigate the immigration system and will continue to take a sympathetic and proactive approach when resolving applications. “
https://www.gov.uk/government/publications/undocumented-commonwealth-citizens-resident-in-the-uk
Practical measures taken by the Taskforce include: -
There is an application form for applicants to be found on the above website page.
Guidance is also available for landlords, employers and the NHS about their rights to check undocumented Commonwealth citizens.
The Guardian reported in November 2018 that the Taskforce had taken more than 8,000 calls, more than 2,000 Windrush people had already been given papers confirming their right to remain in the UK and over 2000 had been granted British citizenship.
The Emergency Windrush Scheme
In December 2018, the government published an emergency Scheme to support people who would qualify under the Windrush Scheme, under “urgent and exceptional circumstances.
Very briefly, the criteria for getting help are: -
Other factors to be considered are: -
Finally, the cost of support under the Emergency Windrush Scheme should normally be less than £5,000 and once the compensation scheme is up and running, it will fall away.
Details of the Emergency Windrush Scheme can be found at: -
https://www.gov.uk/government/publications/windrush-scheme-support-in-urgent-and-exceptional-circumstances
Who qualifies for help under the Windrush Scheme?
Very briefly, the Windrush Scheme covers the following five categories of people. The following is a very rough summary and should not be taken as definitive immigration advice :
What is “Right of Abode”?
Right of Abode is key to an understanding of the Windrush Scheme, because Commonwealth citizens who were able to establish this right prior to 1983 could obtain British citizenship.
Section 1(1) of the Immigration Act 1971 confers complete exemption from UK immigration control on persons with the right of abode, subject to proof of that right. With very few exceptions, citizens of the UK and Colonies (“CUKC)” who had right of abode on 31 December 1982 became British citizens under the British Nationality Act 1981.
The right of abode provisions changed on 1 January 1983. After that date, right of abode was very much restricted. The only way to acquire right of abode since 1 January 1983 has been by becoming a British citizen.
The following individuals had right of abode before 1983:
What kind of compensation will be paid under the Scheme?
As yet, the final details of the compensation scheme have yet to be announced. The consultation period only ended in November of last year, and it is expected that the full scheme will be published in March or April of 2019.
The lawyer charged with creating a compensation system, Martin Forde QC has spoken about the challenges ahead in a Guardian article.
https://www.theguardian.com/uk-news/2018/jun/01/windrush-victims-should-be-compensated-for-psychological-impact
In my last article, I outlined what kinds of losses the Scheme anticipates paying. These includes fees and legal costs incurred, to secure immigration status, as well as lost benefits. These should be relatively straightforward to set out. However, compensation will be paid for losses that cannot be precisely valued in pounds, shillings and pence. These are: -
I suspect that the Windrush Scheme will follow the same approach.
Wrongful detention
So how much do people receive for wrongful detention by the immigration authorities?
There are three basic principles: -
At the same time, a person who is wrongfully detained can have their damages increased because of “aggravating” factors, such as the high-handed way in which they are detained.
Here are some examples: -
In R (Belfken) v Secretary of State for the Home Department [2017] EWHC 1834 (Admin), the judge awarded the sum of £40,000 for unlawful detention for a period of 295 days.
In AXD v Home Office [2016] EWHC 1617 (QB), the trial judge indicated that for a period of 11 months and 5 days' false imprisonment he would have awarded £58,000.
A person on curfew will generally get less damages. In the Court of Appeal decision in R (on the application of Jollah) v Secretary of State for the Home Department [2018] EWCA Civ 1260, the Claimant was made subject to a curfew restriction between the hours of 23.00 and 07.00 for a period between 3 February 2014 and 14 July 2016, pending potential deportation. He claimed successfully for false imprisonment, and the trial judge gave him £4,000 compensation, which was upheld by the Court of Appeal.
Other types of claims
False imprisonment or detention is a recognised “tort” that is a wrong established under the “common law” – a set of principles used by courts to work out the value of a claim. It should also be relatively straightforward to calculate the financial impact of that imprisonment, or removal from the jurisdiction, or denial of access to state benefits.
What about the mental distress caused by this disruption? One migrant said that the experience of finding his citizenship in doubt thus - "My whole life sunk down to my feet”.
The common law says that claims based on injury (i.e. psychiatric harm) caused by negligence, must establish some “recognisable psychiatric disorder” which could flow from detention, removal from the jurisdiction or denial of access to normal services or interference with a person’s day to day life. There are plenty of cases on that issue and we have Judicial Studies Board Guidelines to help us. So, for instance in a severe case of psychiatric injury, a person might be awarded around £48,000 to £101,500. In a minor case, it might only be around £1,500 to £5,000.
Claims brought for tort, i.e. a wrong, work on the basis of restoring the Claimant back to the position that he/she would have been, absent the tort/wrong. Whilst there are plenty of examples of people claiming for loss of earnings, or earning capacity, examples of claims for the other losses contemplated under the Windrush Scheme are far more difficult to find. These claims are described in the Windrush Scheme consultation paper as Denial of Access to Public, Private and other Services and compensation for Impact on Normal Daily Life.
Removal from the jurisdiction
There are cases where people wrongfully removed from a country have brought claims under Article 8 of the European Convention on Human Rights, and they have received damages. The awards by the European Court of Human Right are very small.
In Grabchak v Bulgaria [2017] ECHR 497 (01 June 2017) the Claimant was a Ukrainian who had settled in Bulgaria, and had a relationship with a Bulgarian woman with whom he had a son. He was expelled from Bulgaria on the grounds that he had been involved in acts of extortion, smuggling, arms deals and money laundering. The European Court of Human Rights found that this action was a breach of Article 8 and Article 13 (his right to a remedy) and awarded him 7,500 euros (about £6,500).
How do other Schemes work?
The Lambeth Children’s Home Redress Scheme works on a “tariff” of injuries which reflects the seriousness of the abuse suffered in the home and can include a claim for loss of education and earnings. Each award is assessed on a points system and results in a total award ranging from £1,000 to £125,000.
The Criminal Injuries Compensation Authority has a similar system, which makes an award for a particular type of injury. The Authority allows a claim for loss of earnings and treatment but only on a very limited basis. There is a limit of £500,000 on a total award under the Scheme.
Both schemes “cap” or limit the total award paid.
The HIV and Hepatitis Scheme make annual payments of between £3,500 and £36,500 depending on the disease and its progression, with the possibility of additional one-off payments up to £50,000. It’s unlikely that the Windrush compensation scheme will follow that model, but rather it will make lump sum one-off payments.
We know already from the consultation document that this is what the Windrush Scheme will do, so there are no surprises there. We also know that 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.” It’s not clear how this calculation will operate, but it seems to allow the government a wide range of discretion under the Scheme.
The creators of the Windrush Scheme have an extremely difficult task. They will be guided to some extent by the many actual examples of injustice that they have already heard, and so they will already have a very good idea of what the common kinds of loss are going to be. This, I think, will help them set the parameters of the Scheme.
However, the Home Office will be wanting to make an assessment of how much the total compensation bill is likely to be, and that assessment will feed into the setting of an upper limit or cap.
As I pointed out in my earlier article, 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.
However, compensation is only one part of a wider Scheme. The government has already instituted other measures to help people in this unfortunate situation. Since the 30th May 2018, there has been a scheme in place to help people who have been affected by the Windrush scandal.
The Commonwealth Taskforce Scheme or Windrush Scheme
The government began by addressing the immediate problem faced by people – namely to sort out their immigration status. These people suddenly found themselves unable to work, draw benefits, in some cases actually detained and deported or if they had left the UK, they found that they could not return home.
On the 16th April 2018, the Home Secretary established a “Commonwealth Taskforce Scheme” also known as the “Windrush Scheme” to make immediate arrangements to help those who needed it. This included setting up a helpline to get in touch with the Home Office. Affected people can make an application under the Scheme to obtain that help.
The idea behind the Taskforce was to try and resolve the immigration problems being experienced by people who qualified under the Scheme. The government said: -
“Those applying under this Scheme will benefit from the services of the Taskforce which will help people to navigate the immigration system and will continue to take a sympathetic and proactive approach when resolving applications. “
https://www.gov.uk/government/publications/undocumented-commonwealth-citizens-resident-in-the-uk
Practical measures taken by the Taskforce include: -
- Implementing a fast-track service with the Department for Work and Pensions to confirm status and residence, enabling access to benefits and back-payment of any previously withdrawn;
- Securing access to free NHS treatment;
- Working closely with local authorities to secure temporary accommodation for those who are homeless;
There is an application form for applicants to be found on the above website page.
Guidance is also available for landlords, employers and the NHS about their rights to check undocumented Commonwealth citizens.
The Guardian reported in November 2018 that the Taskforce had taken more than 8,000 calls, more than 2,000 Windrush people had already been given papers confirming their right to remain in the UK and over 2000 had been granted British citizenship.
The Emergency Windrush Scheme
In December 2018, the government published an emergency Scheme to support people who would qualify under the Windrush Scheme, under “urgent and exceptional circumstances.
Very briefly, the criteria for getting help are: -
- The person is part of the Windrush cohort (as defined in the Commonwealth Taskforce Scheme)
- There is a compelling reason why this cannot wait for the full compensation scheme; and
- The circumstances of the claim are exceptional – (the issue is one of the claimant’s life, dignity or ability to return to the UK in an urgent circumstance).
Other factors to be considered are: -
- Whether the claimant has previously been denied entry to the UK
- Whether the claimant has access to alternative funds or there are other exceptional circumstances
Finally, the cost of support under the Emergency Windrush Scheme should normally be less than £5,000 and once the compensation scheme is up and running, it will fall away.
Details of the Emergency Windrush Scheme can be found at: -
https://www.gov.uk/government/publications/windrush-scheme-support-in-urgent-and-exceptional-circumstances
Who qualifies for help under the Windrush Scheme?
Very briefly, the Windrush Scheme covers the following five categories of people. The following is a very rough summary and should not be taken as definitive immigration advice :
- A Commonwealth citizen who was either settled in the UK before 1 January 1973 and has been continuously resident in the UK since their arrival or has the Right of Abode – this would cover someone who came over from a Commonwealth country in say the 1960’s, but who never obtained documentation.
- A Commonwealth citizen who was settled in the UK before 1 January 1973, whose settled status has lapsed because they left the UK for a period of more than 2 years, and who is now lawfully in the UK and who has strong ties to the UK.
- A child of a Commonwealth citizen parent, where the child was born in the UK or arrived in the UK before the age of 18, and has been continuously resident in the UK since their birth or arrival, and the parent was settled before 1 January 1973 or has the Right of Abode (or met these criteria but is now a British Citizen).
- A person of any nationality, who arrived in the UK before 31 December 1988 and is settled in the UK.
- A Commonwealth citizen* who was settled in the UK before 1 January 1973 but who does not have a document confirming their Right of Abode or settled status, or whose settled status has lapsed because they left the UK for a period of more than 2 years.
What is “Right of Abode”?
Right of Abode is key to an understanding of the Windrush Scheme, because Commonwealth citizens who were able to establish this right prior to 1983 could obtain British citizenship.
Section 1(1) of the Immigration Act 1971 confers complete exemption from UK immigration control on persons with the right of abode, subject to proof of that right. With very few exceptions, citizens of the UK and Colonies (“CUKC)” who had right of abode on 31 December 1982 became British citizens under the British Nationality Act 1981.
The right of abode provisions changed on 1 January 1983. After that date, right of abode was very much restricted. The only way to acquire right of abode since 1 January 1983 has been by becoming a British citizen.
The following individuals had right of abode before 1983:
- a CUKC who was born, adopted, naturalised or registered in the UK
- a CUKC born to or adopted by a parent who at the time of the person’s birth or adoption had right of abode
- a CUKC born to or adopted by a parent who, at the time of the person’s birth, had right of abode
- a CUKC who was ordinarily resident in the UK for any continuous period of 5 years before 31 December 1982
- a Commonwealth citizen with a parent or adoptive parent who, at the time of birth or adoption, was a CUKC by birth in the UK
- a female Commonwealth citizen who is, or has been, married to a man with right of abode at any time before 31 December 1982
- a CUKC woman who is, or has been, married to a man with right of abode at any time before 31 December 1982
What kind of compensation will be paid under the Scheme?
As yet, the final details of the compensation scheme have yet to be announced. The consultation period only ended in November of last year, and it is expected that the full scheme will be published in March or April of 2019.
The lawyer charged with creating a compensation system, Martin Forde QC has spoken about the challenges ahead in a Guardian article.
https://www.theguardian.com/uk-news/2018/jun/01/windrush-victims-should-be-compensated-for-psychological-impact
In my last article, I outlined what kinds of losses the Scheme anticipates paying. These includes fees and legal costs incurred, to secure immigration status, as well as lost benefits. These should be relatively straightforward to set out. However, compensation will be paid for losses that cannot be precisely valued in pounds, shillings and pence. These are: -
- 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
I suspect that the Windrush Scheme will follow the same approach.
Wrongful detention
So how much do people receive for wrongful detention by the immigration authorities?
There are three basic principles: -
- The court should make its assessment by looking very closely at the facts and the particular case and the degree of harm suffered by the particular Claimant.
- Damages should not be assessed by simply taking a figure for each day of detention. One needs to look at the Claimant’s experience in the round.
- Obviously the longer someone is detained, the worse their experience but the amount broadly attributable to the increasing passage of time should be reduced. On the other hand, the initial shock of being detained will generally get a higher rate of compensation than the continuance of the detention day by day.
At the same time, a person who is wrongfully detained can have their damages increased because of “aggravating” factors, such as the high-handed way in which they are detained.
Here are some examples: -
In R (Belfken) v Secretary of State for the Home Department [2017] EWHC 1834 (Admin), the judge awarded the sum of £40,000 for unlawful detention for a period of 295 days.
In AXD v Home Office [2016] EWHC 1617 (QB), the trial judge indicated that for a period of 11 months and 5 days' false imprisonment he would have awarded £58,000.
A person on curfew will generally get less damages. In the Court of Appeal decision in R (on the application of Jollah) v Secretary of State for the Home Department [2018] EWCA Civ 1260, the Claimant was made subject to a curfew restriction between the hours of 23.00 and 07.00 for a period between 3 February 2014 and 14 July 2016, pending potential deportation. He claimed successfully for false imprisonment, and the trial judge gave him £4,000 compensation, which was upheld by the Court of Appeal.
Other types of claims
False imprisonment or detention is a recognised “tort” that is a wrong established under the “common law” – a set of principles used by courts to work out the value of a claim. It should also be relatively straightforward to calculate the financial impact of that imprisonment, or removal from the jurisdiction, or denial of access to state benefits.
What about the mental distress caused by this disruption? One migrant said that the experience of finding his citizenship in doubt thus - "My whole life sunk down to my feet”.
The common law says that claims based on injury (i.e. psychiatric harm) caused by negligence, must establish some “recognisable psychiatric disorder” which could flow from detention, removal from the jurisdiction or denial of access to normal services or interference with a person’s day to day life. There are plenty of cases on that issue and we have Judicial Studies Board Guidelines to help us. So, for instance in a severe case of psychiatric injury, a person might be awarded around £48,000 to £101,500. In a minor case, it might only be around £1,500 to £5,000.
Claims brought for tort, i.e. a wrong, work on the basis of restoring the Claimant back to the position that he/she would have been, absent the tort/wrong. Whilst there are plenty of examples of people claiming for loss of earnings, or earning capacity, examples of claims for the other losses contemplated under the Windrush Scheme are far more difficult to find. These claims are described in the Windrush Scheme consultation paper as Denial of Access to Public, Private and other Services and compensation for Impact on Normal Daily Life.
Removal from the jurisdiction
There are cases where people wrongfully removed from a country have brought claims under Article 8 of the European Convention on Human Rights, and they have received damages. The awards by the European Court of Human Right are very small.
In Grabchak v Bulgaria [2017] ECHR 497 (01 June 2017) the Claimant was a Ukrainian who had settled in Bulgaria, and had a relationship with a Bulgarian woman with whom he had a son. He was expelled from Bulgaria on the grounds that he had been involved in acts of extortion, smuggling, arms deals and money laundering. The European Court of Human Rights found that this action was a breach of Article 8 and Article 13 (his right to a remedy) and awarded him 7,500 euros (about £6,500).
How do other Schemes work?
The Lambeth Children’s Home Redress Scheme works on a “tariff” of injuries which reflects the seriousness of the abuse suffered in the home and can include a claim for loss of education and earnings. Each award is assessed on a points system and results in a total award ranging from £1,000 to £125,000.
The Criminal Injuries Compensation Authority has a similar system, which makes an award for a particular type of injury. The Authority allows a claim for loss of earnings and treatment but only on a very limited basis. There is a limit of £500,000 on a total award under the Scheme.
Both schemes “cap” or limit the total award paid.
The HIV and Hepatitis Scheme make annual payments of between £3,500 and £36,500 depending on the disease and its progression, with the possibility of additional one-off payments up to £50,000. It’s unlikely that the Windrush compensation scheme will follow that model, but rather it will make lump sum one-off payments.
We know already from the consultation document that this is what the Windrush Scheme will do, so there are no surprises there. We also know that 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.” It’s not clear how this calculation will operate, but it seems to allow the government a wide range of discretion under the Scheme.
The creators of the Windrush Scheme have an extremely difficult task. They will be guided to some extent by the many actual examples of injustice that they have already heard, and so they will already have a very good idea of what the common kinds of loss are going to be. This, I think, will help them set the parameters of the Scheme.
However, the Home Office will be wanting to make an assessment of how much the total compensation bill is likely to be, and that assessment will feed into the setting of an upper limit or cap.