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Windrush lessons learned review: McGill & Co response

23 October 2018 Iain Halliday News & Announcements

 

Earlier this year various media outlets reported on the Home Office’s dreadful treatment of several Commonwealth citizens who arrived in the UK in the 1940s, 1950s and 1960s. This group of migrants, given the moniker “the Windrush generation” after the name of a ship which arrived in the UK from Jamaica in 1948, have a legal right to reside in the UK permanently. However, many do not have documentation to prove this right.

They were therefore caught up in the “hostile environment” created by the Home Office: deprived of medical treatment, dismissed from their employment, evicted by their landlords, and even (in some instances) unlawfully detained and removed from the UK by the Home Office. For further background information, see Nick Nason’s excellent post on the Free Movement blog.

On the 2 May 2018, in response to the public scandal, the new Home Secretary Sajid Javid announced a ‘lessons learned review’ to make sure crucial lessons were identified and learned as quickly as possible, to prevent something like this happening again. A call for evidence was issued on 20 August 2018 inviting submissions from NGOs, immigration lawyers, employers, landlords, local authorities, and other interested organisations. Below is McGill & Co’s response to this call for evidence:

McGill & Co is a specialist UK immigration law firm based in Glasgow and Edinburgh. We serve clients throughout the UK and abroad and have an established reputation for expertly handling the most complex, novel and labour-intense immigration cases.

We welcome the opportunity to respond to the UK Government’s call for evidence on the lessons that can be learned from the ‘Windrush scandal’. As early as February 2014 our firm raised the issue of the Home Office’s unnecessarily restrictive approach to the burden and standard of proof applied to Commonwealth citizens who entered the UK prior to 1973 and who subsequently seek documentation confirming their status in the UK (now colloquially referred to as the Windrush generation). This was done through an application submitted on behalf of one of our clients (Home Office reference: M1646386).

The application was refused in October 2014 on the basis that our client was unable to provide documentary evidence to vouch for his residency in the UK between 1976 and 1971 and between 1991 and 2001 (it was later conceded by the Home Office in pre-action correspondence that a requirement to provide evidence of residence prior to 1 August 1988 could not be lawfully imposed as, prior to this date, section 1(5) of the Immigration Act 1971 permitted Commonwealth citizens settled in the UK at the coming in to force of the 1971 Act to freely enter and exit the UK without restriction).

The refusal dated October 2014 was maintained in response to pre-action protocol correspondence and it became necessary to commence judicial review proceedings at the Court of Session. On 27 May 2016, Lord Turnbull granted decree of reduction of the decision dated October 2014 on the basis that:

“...the petitioner is a person who already has acquired a particular status, he has acquired leave which shall remain in force indefinitely. He is not a person who is seeking a status. Neither is he someone who is seeking to establish an exemption. Why then, one might ask, should the burden of proving a negative, namely that he has not stayed out of the country for the requisite period, fall on the petitioner? There is nothing in the language of the Order which suggests the existence of a burden on the beneficiary of leave to establish that his leave has not lapsed.

Whilst the trigger for the respondent’s interest in the petitioner was his application for an endorsement on his new passport, there is no connection in the Order, or anywhere else, between lapse of leave and this sort of application. If the respondent’s contention is correct, it would therefore appear that anyone who has acquired indefinite leave to remain could be called upon at any time to establish that their leave has not lapsed, with, presumably, similar consequences to those which befell the petitioner if they cannot do so in the manner required by the respondent.” [42]-[43]

The Secretary of State’s approach to the litigation was criticised by the court, with the judge noting that:

“The respondent’s regularly changing requirements are not apt to instil confidence that those making the decisions have properly informed themselves as to the correct criteria. It is when one sees the unsatisfactory way in which the petitioner’s application has been dealt with that the interplay between onus of proof and consideration of the correct question becomes even important.” [62]

The Secretary of State had contended, through her Senior Counsel, that:

“...in the context of the application made by the petitioner, the onus was on him to establish that he was entitled to the grant of a No Time Limit endorsement. That meant that he required to establish that his leave had not lapsed.”[40]

This approach was deemed to be too restrictive by the court and, subsequently, the then Secretary of State herself who, in her statement to Parliament dated 23 April 2018, accepted that:

“Previously the burden of proof on some of the Windrush generation to evidence their legal rights was too much on the individual. And now we are working with this group in a much more proactive and personable way in order to help them.

We were too slow to realise there was a group of people that needed to be treated differently. And the system was too bureaucratic when these people were in touch.”

The recognition in April 2018 that the approach previously adopted was excessively restrictive was, of course, welcomed. However it is unclear why this was not recognised at an earlier stage, given the judicial judgement quoted above and the clear warning from the court, issued two years previously, that others in a similar position to our client would be likely to encounter difficulties if the Home Office continued with its current approach. It was only belatedly recognised in response to cases attracting media attention.[1]

In response to the specific questions asked in the call for evidence:

1. What, in your view, were the main legislative, policy and operational decisions which led to members of the Windrush generation becoming entangled in measures designed for illegal immigrants?

In our view, the two main (undoubtedly linked) policy decisions which led to the recent issues were:

  • The unrealistic aim, seemingly pursued at the expense of all else, to reduce net migration to the tens of thousands; and
  • The introduction of a hostile environment designed to encourage those in the UK without status to leave and to deter future migrants from coming.

As highlighted by Colin Yeo, editor of the Free Movement blog, in his response to this call for evidence, the conflation of the undocumented population with the unlawfully resident population when creating and implementing the “hostile environment” policy was a fundamental cause of the problems experienced by the Windrush generation.

In addition to this conflation, the hostile environment policy fails to recognise the ease with which it is possible to become an unlawful resident. It can be as simple as submitting the wrong type of application form (see Home Office reference: M1640451).

A small minority of the Windrush generation may have encountered minor difficulties, for instance when travelling, prior to the introduction of the hostile environment policy and the net migration target. However the more severe treatment which formed the focus of the recent media attention, such as unlawful detention, removal, dismissal from employment, deprivation of medical treatment, and deprivation of rented accommodation, were a direct result of the hostile environment policy and net migration target.

2. What other factors played a part?

The frequent use of template letters to refuse immigration cases discourages thoughtful and humane consideration of applications, which is likely to have played a part in the poor treatment of the Windrush generation. Often no real consideration is given to the issues raised by the applicant. This leads to decision which: defy common sense; fail to engage with the particular circumstances of the individual’s case; and fail to engage with the relevant case law on the subject. Instead of engaging with the relevant facts and law, a pro forma template is completed (often very poorly, with phrases such as “Dear Salutation” or “insert further details here” left in place. In one recent refusal certain requirements of the immigration rules were simultaneously accepted and rejected, as one of the two diametrically opposed alternatives provide within the template had not been deleted).

The lack of accountability and responsibility for decisions is also a contributing factor. Case workers do not need to defend their decision at the Tribunal or in court. This is dealt with by another department. If an appeal or judicial review is successful, the case does not appear to be returned to the original case worker. It is usually dealt with by a member of the Post-Decision Casework Team. As a result, case workers do not learn from their mistakes. There is no accountability or responsibility for mistakes. It is unclear whether a case worker who frequently makes poor decisions which are overturned will ever become aware of his or her failings.

3. Why were these issues not identified sooner?

Because the Home Office did not listen: did not listen to organisations such as the Immigration Law Practitioners’ Association and the Joint Committee for the Welfare of Migrants who highlighted issues with the right to rent scheme and access to NHS treatment during passage of the Immigration Acts 2014 and 2016; did not listen to the opposition MP who highlighted, during passage of the Immigration Act 2014, that the hostile environment policy would not just affect illegal immigrants but also “all of us of immigrant descent and our children”; did not listen to MPs who raised their constituent’s cases with the immigration minister; did not listen to members of Commonwealth Governments who raised the plight of their nationals with the Foreign Office; and did not even listen to judges who declared the approach being adopted when considering applications from members of the Windrush generation to be unlawful.

The Home Office, as an institution, appears to be ideologically opposed to accepting criticism. Had the Home Office listened to critics of the hostile environment policy, who repeatedly highlighted the problems the policy would cause during its implementation, the suffering of the Windrush generation could have been avoided.

4. What lessons can the Home Office learn to make sure it does things differently in future?

To respond and react to, rather than simply ignore, criticism. To improve the quality of decision making. To ensure case workers are held accountable for their decisions and learn from their mistakes.

5. Are corrective measures now in place? If so, please give an assessment of their initial impact. What (if any) further recommendations do you have for the future?

This firm has limited experience of the Commonwealth Taskforce created to resolve cases from members of the Windrush generation. However, from the experience of the one Windrush application which the firm has processed, the system does not appear to have improved.

The application was submitted on behalf of a client who submitted an application for naturalisation as a British citizen on 20 July 2017 (Home Office reference: S1811191). In May 2018, before the Windrush application form was published, an email was sent to the Commonwealth Taskforce highlighting that our client was a member of the Windrush generation and requesting that the Taskforce resolve her case given the lengthy (and completely unexplained) delay with her citizenship application. They responded indicating that the newly issued application form would need to be completed and submitted before the case could be considered (despite the assurance from the then Home Secretary that the system would become less bureaucratic).

An application was submitted on 10 August 2018. An email was sent on 12 September 2018 highlighting that no response to the application had been received. The Taskforce responded indicating that the email had been forwarded to the “appropriate case-working team for their attention” and that they would “endeavour” to provide an update as soon as possible. No response has been received. Our client continues to wait: unaware of why her application is taking so long to be processed; unable to go on holiday with her family; and unable to produce evidence of her status if called upon to do so. Despite the Government’s assurances, nothing has changed.

[1] For further background information regarding the Home Office’s approach to cases which attract media attention see: ‘The Home Office Has Created A Secret Process To Solve Immigration Cases That Generate Negative Headlines’, Emily Dugan, 31 August 2018, Buzzfeed News

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