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Part 2 What impact has the hostile environment policy had on undocumented immigrants in the UK

By Christopher Kato Mpanga

Consequences of the hostile environment on the Windrush generation’s opportunities for settlement.

The Windrush generation are the people who moved to the UK from Caribbean countries between 1948 and 1973. They were named the Windrush generation due to the HMT Empire Windrush ship that brought one of the largest groups from the Caribbean in 1948. The Windrush generation moved to the UK to assist in filling labour shortages in the aftermath of the 2nd World War. It is important to note that in some cases, the descendants of these people in the UK are also deemed to be part of the Windrush generation.77 There is no clearly established number of people who belong to the Windrush generation. However, they are estimated to be in the thousands.

Consequently, the Immigration Act 1971 (the 1971 Act) gave people who arrived in the UK from Commonwealth countries before 1973 indefinite leave to remain. However, the Act did not automatically give them documents to prove their immigration status. Failing to automatically issue the Commonwealth citizens with proof of their indefinite leave to remain shows that the Home Office did not fully comply with their duties. It can be said that they did not adequately consider the consequences of their decision. From a legal practice perspective, this highlights the importance of carefully considering the consequences of any decision whilst making laws or dealing with clients.

As a result, the Commonwealth citizens could only obtain proof of their immigration status through applying and paying a fee to the Home Office. Consequently, people who were unable to make such applications, or who were ignorant of the need to do so were caught up by the introduction of the hostile environment policy. This was unfair to such members of the Windrush generation. This is because it was never their fault that the 1971 Act granted them an indefinite leave to remain without giving them the evidence to back it up.

The hostile environment led to the unlawful detention and deportation of some members of the Windrush generation. In 2018 and 2019, the Home Office identified 164 members of the Windrush generation who had moved to the UK before 1973, who had either been detained or deported, or both, since 2002. Of these, the Home Office estimated to have acted unlawfully in 18 cases owing to failing to recognise their right to stay in the UK.

Out of the 18 people, nine left the UK having received a refusal notice from the Home Office, in addition two people were removed. Seven were detained by the police or in immigration enforcement centres, after which they were released. Despite getting this information from the Home Office, it is doubtful that they only acted unlawfully in 18 cases of this type since 2002. It is arguable that the numbers could be more than that. Besides, if since 2002, only 18 members of the Windrush generation who had moved to the country before 1973 were affected, how many could have been affected since January 1973? This shows the extent of the impact of the Home Office’s unlawful actions towards the Windrush generation. Furthermore, this highlights the plight such members of the Windrush generation could have faced owing to the hostile environment. This demonstrates that the law is not always perfect, consequently, the decisions made owing to those laws ought to be questioned or challenged.

Owing to the consequences of the hostile environment on the Windrush generation as highlighted before, the government came under immense public pressure to correct its mistakes.92 Public figures such as David Lammy, a Member of Parliament for Tottenham and a descendant of the Windrush generation, and actress Joanna Lumley, were very vocal about the injustices revealed by the Windrush Scandal.94 This public pressure led to the resignation of Amber Rudd, the Home Secretary at the time.

Consequently, through the Windrush Scheme, the Home Office put in place measures to correct its past mistakes. A scheme was put in place to help members of the Windrush generation to obtain documents showing their right to live in the UK. This is important because it shows why government institutions ought to realise their past mistakes and correct them, despite their far-reaching effects. Likewise, this is an important lesson for lawyers in practice.

To apply to the Windrush Scheme, a member of the Windrush generation who needs to get a document showing their right to stay in the UK needs to do the following. Firstly, they need to search for the Windrush Scheme on the UK government website. Secondly, if one is in the UK, they need to make their application using the Windrush Scheme application form on the website.100 To complete the application process, one simply needs to follow through the guidance given on the website. As compared to the past when the members of the Windrush generation had to pay to obtain documents showing their right to remain, the government has made the Windrush scheme accessible by making if free of charge. In addition, the Home Office put in place a Windrush Helpline to respond to the inquiries of the members of the Windrush generation whilst making their applications to the scheme, among others. This shows the good will exhibited by the Home Office to resolve the Windrush scandal.

Furthermore, if a member of the Windrush generation suffered losses owing to not having documents showing their right to live in the UK, they could apply to the Windrush Compensation Scheme.109 The details of applying to the scheme are stated on the UK government website.110 The losses one could have faced might include being homeless owing to the right to rent scheme, not being able to work, among others. However, official estimates show that only 17% of the people who were affected by the Windrush Scandal have applied for compensation.112 By the end of February 2021, only £6m had been paid out to victims, as opposed to the original estimate of between £200 and £500 that the government had thought it would pay out to Windrush victims.

The slow pace of pay-outs in the Windrush compensation scheme has been blamed on victim’s struggle to fill out the forms and to provide the necessary evidence. Consequently, the Joint Council for the Welfare of Immigrants (JCWI) has put in place a free advice scheme to assist prospective claimants to fill in their applications. Windrush victims seeking help to fill out their compensation applications can contact JCWI through their website.

Nevertheless, the Windrush Scheme has been criticized for being slow in determining the applications made under the programme.117 According to the Home Office, by March 2020, more than 1000 applications that had lasted over a year were yet to be considered by the Windrush Taskforce. To be exact, there were 3720 outstanding cases with the Windrush Taskforce.119 Out of these, 151 were between six and twelve months, well as 35 cases had not been resolved after a year.

This lack of efficiency in the Home Office’s operation of the Windrush Scheme casts doubts on their commitment to resolve the Windrush problem. Failing to deal with the applications under the Windrush Scheme in time means that many applicants will continue to face challenges owing to the hostile environment policy. For example, difficulties in getting driving licences, finding accommodation, getting jobs, receiving National Health Service treatment, among others. Consequently, these issues could amount to various human rights breaches. For instance, the right to education under article 2 of the First Protocol of the Human Rights Act. This right can easily be denied to members of the Windrush generation who cannot access student finance funding for their university education owing to the lack of evidence to prove their immigration status.

The occurrence of the Windrush scandal raises questions whether similar challenges could be faced by European Union (EU) citizens post Brexit owing to having little documentation to prove their immigration status. In addition, EU citizens in the UK who are ignorant about, or who do not register under the EU settlement scheme before 30th June 2021 are likely to face similar challenges like the Windrush generation, especially if they want to live in the UK.

To avoid facing such challenges, a lawyer would advise EU citizens who have not yet registered under the Windrush settlement scheme to do so before 30 June 2021. The registration details can be found on the UK government website. Similarly, it would be advisable for an EU citizen with little documentation to prove their immigration status to consult an immigration lawyer to get tailored advice on how their situation can be resolved.

In the next Chapter, this dissertation will examine the wider policy implications of the hostile environment on the driving licence and private housing sector.


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