Briefing on the Windrush Lessons Learned Review

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Overview 

The Windrush Lessons Learned Review provides an excoriating critique of the culture and policy making systems of the Home Office, over several decades. It describes how the political impetus to reduce and impose greater control on immigration spiralled through increasingly draconian legislation and rules, with no institutional memory, while the impact on individuals was ignored and concerns dismissed. 

“Because of the pressure felt on targets, there was an unquestioning attitude towards Hostile Environment measures, as everything that put pressure on migrants was seen as a good thing.” – Former Immigration Enforcement employee, WLLR, p. 105 

The review calls for a period of profound reflection in the Home Office to address failures that are deeply embedded in the department’s structure, policies and culture. It makes the following demands, all of which JCWI strongly supports: 

• A full review and evaluation of Hostile Environment Policies, emphasising how warnings and evidence about their discriminatory effect were ignored by policy makers at all stages. 
• Continued and increased efforts at reconciliation and redress with members of the Windrush generation impacted by this scandal, including looking beyond those who came from the Caribbean, to include people from all the Commonwealth countries. 
• Better systems to monitor and evaluate all immigration policies from design to delivery, with a greater emphasis on adherence to equalities and human rights legislation. 
• Collect and publish better data, especially on race and ethnicity. 
• Review and expand the role of the Independent Inspector of Borders and Immigration (ICIBI) and create a Migrants’ Commissioner to be a voice for migrants and help to identify systematic risks and failures. 
• Reform the culture of the department currently driven by targets and disbelief. Address this through comprehensive training and robust mechanisms to assess systemic risks and failures at all levels. 
• Review barriers to access to status and proof of status for all applicants, with an emphasis on reducing the high evidentiary burden and high fees without access to Legal Aid that exclude many from the status they are entitled to. 
• Simplify the immigration rules and legal framework. 

The Hostile Environment  

• Recommendation 7 – The Home Secretary should commission officials to undertake a full review and evaluation of the Hostile/Compliant Environment policy and measures – individually and cumulatively. This should include assessing whether they are effective and proportionate in meeting their stated aim, given the risks inherent in the policy set out in this report, and its impact on British citizens and migrants with status, with reference to equality law and particularly the Public Sector Equality Duty. This review must be carried out scrupulously, designed in partnership with external experts and published in a timely way. 

The policies that make up the Hostile Environment have been developed over time through numerous pieces of legislation and changes to the immigration rules. At no point, however, has sufficient attention been paid to the impact these policies are bound to have on vulnerable groups within our society, including members of the Windrush generation and other marginalised and minority populations. This is emphasised throughout the WLLR, including numerous occasions where warnings from experts, civil society and members of parliament were ignored. 

“While the Windrush scandal began to become public in late 2017, its roots lie much deeper. Successive rounds of legislation and policy effectively set traps for the Windrush generation… 
Over decades, legislation progressively eroded the rights of the Windrush generation… 
The Hostile Environment was another step on the long road towards a more restrictive immigration regime, but it was also a departure in terms of the scale and seriousness of the effects which would be directly felt by individuals… 
The department developed immigration policy at speed, impelled by ministerial pressure, with too little consideration of the possible impact of the measures.” WLLR, p. 118 

The evidence from our monitoring of the impacts of one of the key measures of the Hostile Environment, the Right to Rent scheme, is that it produces discrimination on nationality and racial grounds where it would otherwise not occur. This conclusion was supported by the courts in March 2019. Many of the Hostile Environment policies operate on the exact same logic of outsourcing immigration enforcement to members of our communities – healthcare workers, bank workers, employers – and thus logically carry the same risk.  

We do not believe policies that outsource the enforcement of immigration control to untrained members of the public can be adequately reformed to avoid discrimination – discrimination is their very point. 

Given the Home Office’s failure to evidence the effectiveness of its Hostile Environment or to monitor its impacts on vulnerable groups, all these policies must be scrapped. 

“Right to Rent underlines the deficiencies in Home Office policy-making… The Department didn’t consider the risks to ethnic minorities appropriately as it developed the policy. And it carried on with implementing the scheme after others pointed out the risks and after evidence had arisen that those risks had materialised. The policy also exemplifies… the department’s unwillingness to listen to others’ perspective or take on board external scrutiny, which stemmed from an absolute conviction, rather than evidence.” WLLR, p.112 

Rebuilding Trust  

• Recommendation 4 – The Home Secretary should continue the Windrush Scheme and not disband it without first agreeing a set of clear criteria. It should carry on its outreach work, building on the consultation events and other efforts it has made to sustain the relationships it has developed with civil society and community representatives. This will encourage people to resolve their situations, while recognising that, for some, a great deal of effort will be required to build trust. 

“Some people have still not come forward to the Home Office to document their status… Some have not approached the Taskforce because they are scared it could put them at risk of immigration enforcement action… This means that people are still vulnerable, in particular to Compliant Environment measures.” WLLR, p.139 

The Windrush Compensation Scheme should not be subject to an arbitrary deadline, especially as progress in reaching victims has been abysmally slow. While it is positive that the scheme is open to non-Caribbean Commonwealth members of the Windrush generation and their descendants, this only serves to highlight how illogical and discriminatory it is to exclude those who are not from the Caribbean in the Historical Case Review. 

The burden of proof in order to actually obtain compensation is much too high and will exclude a huge proportion of potential claimants. Those who can demonstrate their eligibility will be scarcely better-off, however, given the inadequate sums in question and the unacceptably slow administration of the scheme. 

In the first 10 months of the scheme’s operation, only 36 people have successfully received payments out of 1,100 applicants. Barely over £60,000 has been distributed out of a potential budget of £570m. Funds must be allocated through Legal Aid to providing support and advice to applicants. 

• Recommendation 5 – The Home Secretary should accept and implement the NAO’s recommendation that “The department should be more proactive in identifying people affected and put right any detriment detected. It should consider reviewing data on other Commonwealth cases as well Caribbean nations”. In doing this work, the department should reassure itself that no-one from the Windrush generation has been wrongly caught up in the enforcement of laws intended to apply to foreign offenders. The department should also take steps to publicly reassure the Windrush generation that this is the case. 

The Windrush Historic Case Review is far too limited in scope and many of those affected by the scandal may be missed unless it is expanded to cover all cases of injustice, not just those most reported in the press. British citizens cannot be deported, no matter what crime they may have committed. The Government’s refusal to review all cases, regardless of criminality means that we risk missing cases of British citizens who were wrongly deported because of their race. 

There can be no justification for the arbitrary decision to limit cases for review to people from Caribbean Commonwealth countries, excluding all other Commonwealth nationalities. Under the current scheme, 15,000 cases were reviewed. By the Government’s own estimation, the exclusion of non-Caribbean cases that otherwise meet the exact same criteria means a further 300,000 people whose case they have chosen to leave out of the review. This is irrational. There are more Commonwealth nationals from countries like India and Pakistan than there are from the Caribbean, and the Migration Observatory’s analysis shows that they do not hold British passports at a similar rate to Caribbean nationals. There is no reason to suspect that they were less affected by the Windrush scandal. And indeed, while less reported in the press, we are aware of many cases of Commonwealth nationals from non-Caribbean countries who faced the same injustice as Caribbean Commonwealth nationals. This exclusion seems designed to prevent cases of injustice coming to light, rather than to be based on a rational assessment of who is likely to have been affected.  

“The presentation of the Windrush scandal as an issue predominantly for the Caribbean-born community may have left other nationalities unaware that they should also contact the Windrush Taskforce, or that they could still be vulnerable to immigration enforcement measures.” WLLR, p.139 

Furthermore, it is JCWI’s view that nobody who has lived in this country since childhood should face deportation under any circumstances. A person who has grown up in our country is a member of our community and a product of our society, as much as any of the people they went to school with. At the moment, two schoolfriends who were born in the same hospital, who have grown up together can commit a crime and serve the same sentence and emerge rehabilitated. One is allowed to re-enter society, while the other faces exile for life to a country he has never known, just because his parents were foreign. 

This is wrong. If a person grows up in the UK, their behaviour is an issue for our own criminal justice system. It is our responsibility. Not only is it wrong to impose a double punishment on people who are to all intents and purposes British, it also utterly undermines the core principle that our criminal justice system is one which rehabilitates those who go through it. Boris Johnson has spoken about the importance he wishes to accord under his administration to rehabilitation of ex-offenders. We must have faith in that principle and demonstrate it by ending the deportation of those who grew up here. 

Improve Data Collection, Monitoring, Training and Institutional Culture 

• Recommendation 12 – The department should embark on a structured programme of learning and development for all immigration and policy officials and senior civil servants in relation to the Equality Act 2010 and the department’s public sector equality duty and obligations under the Human Rights Act 1998. Every year, the department should publish details of training courses attended, and how many people have completed them. 

“An assumption by policy officials seems to have taken root that these exemptions to the Equality Act 2010 are broader than they, in fact, are. Knowledge of equality law and discrimination analysis generally was poor in the interviews I conducted. Monitoring of the impact of policies or decisions on racial groups was barely carried out. Ethnicity and colour are not tracked.” WLLR, P. 142 

Invest in learning and development on diversity and inclusion for all staff, including understanding responsibilities under the Public Sector Equality Duty (PSED) and a consideration of close links between race, nationality & immigration policy. 

Complying with subject access requests should not be considered to fall under the Data Protection Act 2018 exemption for immigration control. Numbers and reasoning for rejections of such requests, made only exceptional circumstances, should be published annually. 

Having accurate data and making use of that data is central to identifying and tackling disparities wherever they arise in the immigration system. Improvements in the collection and publication of data and using this data to identify and tackle disparities across the system are needed. The ICIBI and immigration teams must work closely with the government’s Race Disparity Unit and continue to add and update metrics on the Ethnicity Facts and Figures website as part of a commitment to transparency. 

Provide the Home Office with the resources it needs to ensure it has a well-trained, well-qualified workforce making high quality immigration decisions. This should never be funded by a hike on visa or naturalisation application fees, but be funded, as are other departments, through general tax revenue. 

• Recommendation 13 – Ministers should ensure that all policies and proposals for legislation on immigration and nationality are subject to rigorous impact assessments in line with Treasury guidelines. Officials should avoid putting forward options on the binary “do this or do nothing” basis, but instead should consider a range of options. The assessments must always consider whether there is a risk of an adverse impact on racial groups who are legitimately in the country. And consultations on these effects should be meaningful, offering informed proposals and openly seeking advice and challenge. 

Stakeholder forums are currently too often treated as a tick-box exercise by the Home Office and do not include clear routes for feedback and issues raised to be incorporated into the formation of policy. Too often, consultation is carried out in a perfunctory manner, after key decisions have already been made. Often schemes are simply rolled out without any specific consultation at all, which is unacceptable. 

“In May 2015, Prime Minister David Cameron said the scheme would [be expanded to] operate nationwide, though at that stage it was only six months into phase 1. A new Immigration Bill went to Parliament later that year, before the Home Office had published its evaluation… 
“In June, the Home Affairs Select Committee… considered it was irresponsible to carry on relying on a scheme without knowing whether the Hostile Environment was meeting its objectives or causing injustice. The Home Office acknowledged it wasn’t possible to know the full impact.” WLLR, p.110 

If pilots are to be introduced with little consultation, as occurred with the Right to Rent scheme among others, then the pilot element must be meaningful. This means that full, independent and transparent reviews must be published before such schemes are expanded or made permanent. This review process must include meaningful opportunities for civil society to feed in, as well as consultation with individuals impacted by or participating on the scheme in its pilot phase.  

• Recommendation 22 – The Home Office should invest in improving data quality, management information and performance measures which focus on results as well as throughput. Leaders in the department should promote the best use of this data and improve the capability to anticipate, monitor and identify trends, as well as collate casework data which links performance data to Parliamentary questions, complaints and other information, including feedback from external agencies, departments and the public (with the facility to escalate local issues). The Home Office should also invest in improving its knowledge management and record keeping. 

The Home Office should standardly collect race and ethnicity data in order to enable its policy impact on populations with these protected characteristics to be adequately assessed and monitored. Impact assessments should be carried out in consultation with civil society during the policy design phase. We know that a one-size-fits-all approach to barriers and charging for regularising immigration status is excluding the most vulnerable, but the data is hard to come by to demonstrate and rectify this systemic issue. 

“The department had no effective plans in place to monitor whether the policy caused or contributed to discrimination, or even achieved its aims. 
“Officials emphasized to the review team how hard it was to predict the effects of tightening immigration controls or the Hostile Environment, and how surprised the department was by the Windrush scandal.” WLLR, p. 89 

• Recommendation 9 – The Home Secretary should introduce a Migrants’ Commissioner responsible for speaking up for migrants and those affected by the system directly or indirectly. The Commissioner would have a responsibility to engage with migrants and communities, and be an advocate for individuals as a means of identifying any systemic concerns and working with the government and the ICIBI to address them. 
• Recommendation 10 – The government should review the remit and role of the ICIBI to include consideration of giving the ICIBI more powers with regard to publishing reports. Ministers should have a duty to publish clearly articulated and justified reasons when they do not agree to implement ICIBI recommendations. The ICIBI should work closely with the Migrants’ Commissioner to make sure that systemic issues highlighted by the Commissioner inform the inspectorate’s programme of work. 

The Home Office should have a duty to publish independent reports as soon as they are finalised and implement recommendations unless there is a clear reason not to. Issues picked up by the Migrants Commissioner should be fed into the ICIBI’s programme of work. 

Make race and discrimination a core theme within the ICIBI’s remit with a view to ensuring the effective monitoring of race and ethnicity discrimination throughout the visa, immigration and enforcement system. For the immigration system to be viewed as effective and fair, it needs the trust, confidence and engagement of members of all our communities. The existence – or even the perception – of bias in how people are treated erodes that trust and confidence. 

Following the Lammy Review into racial discrimination in the Criminal Justice system, wide-ranging changes were made to improve both monitoring and responding to ethnic discrimination. A similarly comprehensive response is required here. As in the Criminal Justice system, dedicated teams must be established throughout immigration work areas to identify key points where disproportionality and discrimination are likely to occur in policy making. 

“The case files show evidence of poor record-keeping, decisions made by relying inappropriately on checklists, little use of discretion and lengthy and confusing decision letters… with few safeguards to check that the right decisions were being made in the cases referred for enforcement measures.” WLLR, P. 146 

Remove Arbitrary Barriers for Applicants 

• Recommendation 18 – The Home Office should establish more and clearer guidance on the burden and standard of proof particularly for the information of applicants, indicating more clearly than previously how it operates and what the practical requirements are on them for different application routes. The decision-making framework should include at least guidelines on when the burden of proof lies with the applicant, what standard of proof applies, the parameters for using discretion and when to provide supervision or ask for a second opinion. This should produce more transparent and more consistent decision making. 

“When some members of the Windrush generation attempted to make applications… they were met with a system that was difficult to navigate and distant and put barrier upon barrier in front of them.” WLLR, P. 145 

• Recommendation 21 – Building on the Law Commission’s review of the Immigration Rules the Home Secretary should request the Law Commission extend the remit of its simplification programme to include work to consolidate statute law. This will make sure the law is much more accessible for the public, enforcement officers, caseworkers, advisers, judges and Home Office policy makers. 

The current complexity of the immigration system as a whole makes it virtually impossible to navigate without the assistance of lawyer. Legal Aid should be restored for all aspects of immigration advice and representation in order to ensure that nobody is priced out of competent assistance when faced with such a labyrinthine system. 

Another way in which people, and especially members of marginalized groups such as members of the Windrush generation, are excluded and priced out from accessing their rights is through the visa and application fees charged by the Home Office. These must reduced to cost price and the criteria for fee waivers expanded and loosened significantly to avoid the all-too-common situation of people being forced into destitution in order to keep up with a secure immigration status. We know that under the current system of extremely high and rising fees in all parts of the immigration system, families are forced to make impossibly decisions around securing the status of only some family members. Where parents cannot afford the fees and costs implied in regularising the whole family’s situation, they may have to choose to only undergo the process for some of their children. 

“What we’ve also done is put up all the fees for what we used to call permanent migration products, citizenship settlement, and that has failed to recognise that those are very different groups… you’ve got [a] business man that’s decided, well, actually I really like it here so I’m going to live here, and £1,500 I don’t really have to think about very much, versus a Windrush generation person for whom even the £220 for the No Time Limit fee was a lot of money, let alone a four-figure sum for citizenship.” Senior Home Office Official, WLLR, p.101 

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For more information please contact: 

Chai Patel 
Legal Policy Director, JCWI 
[email protected] - 07928 862 954

 
Zoe Gardner 
Policy Advisor, JCWI 
[email protected]