42.The Home Secretary announced on 2 May 2018 that a lessons learned review was already underway in the Home Office, intended to draw out “how members of the Windrush generation came to be entangled in measures designed for illegal immigrants, why that was not spotted sooner and whether the right corrective measures are now in place”. It aimed to complete its work by the summer recess (24 July 2018). On 21 June 2018 it was announced that Wendy Williams, one of Her Majesty’s Inspectors of Constabulary, will have oversight of the review. The terms of reference and methodology have yet to be announced; the Home Office states that they “will be laid in the House before summer recess”. The HM Inspector of Constabulary (HMIC) states in a letter that Ms Williams’ secondment to the Home Office will last until 31 March 2019 and that she will lead a team of Home Office civil servants. The letter also provides more detail about the terms of the review, stating that it will cover:
a)what were the principal policy and operational decisions which led to members of the Windrush generation becoming entangled in measures designed for illegal immigrants;
b)what other factors played a part;
c)why these issues were not identified sooner;
d)what lessons the organisation [Home Office] can learn to ensure it does things differently in future; and
e)whether the right corrective measures are now in place.
43.The lessons learned review announced by the Home Secretary is crucial. In order to rebuild trust, it must be substantially independent; we are therefore concerned that the review began several weeks before the person tasked with bringing independent oversight and challenge was identified. This damages the credibility of the exercise.
44.The review must consider the responsibility the government has to public accountability and transparency by publishing its findings and proactively engaging with people who have been affected. We are very concerned that the terms of reference and methodology have not yet been published by the Home Office. If the contents of the HMIC letter are indeed the terms of reference then that should be clarified immediately. Nor is it clear whether Ms Williams is to lead the review or whether she is simply expected to provide oversight for an internal Home Office led review in the way that David Anderson, the former Independent Reviewer of Terrorism Legislation, did for a lessons learned process following the terrorist attacks in 2017. We believe it should be the former rather than the latter and that it should lead to a published report. Whilst the David Anderson oversight model made sense for a review involving secret intelligence work, we believe that the Windrush review needs the credibility of being externally driven from the start. Whatever is produced from the Windrush lessons learned review should be made public, without redactions, and available for all to see.
45.The Windrush generation has been caught up by a series of changes in Home Office policy, culture and organisation. These include the removal of Home Office caseworker discretion, the use of targets, restrictions on independent checks and appeals, and stronger controls at the border. They were also caught up by a raft of laws collectively known as the ‘hostile’ or, more recently, the ‘compliant’ environment, which includes checks on access to employment, healthcare, bank accounts and rental accommodation, as well as other measures, and which have been introduced in stages over many years.
46.During our inquiry we heard evidence that the culture had changed within the Home Office. Lucy Moreton told us that loss of caseworker discretion in recent years was representative of a “culture change” that was “a shift over a period of time”. Adrian Berry related the change to the introduction of the net migration target. This non-evidence-based target was set by the Government in 2010, and aims to reduce net migration to the “tens of thousands”. He told us:
by giving the steer through the net migration target to reducing net migration, there has been a scepticism—and indeed sometimes a cynicism—about people trying to prove their status, which has led to, “Prove that you are lawful”. The presumption is that you are unlawful in decision-making. In the past there may have been processes for people to prove the status that they have and they were dealt with relatively benignly. [ … ] But why should somebody’s testimony automatically be deemed to be incredible, a person who has lived here for 30 or 40 years?
47.A former caseworker explained to The Guardian that from 2013 onwards staff were “given no leeway to make a judgment call”. He said:
The changed atmosphere combined with staff cuts made it a more unpleasant place to work and many experienced staff took redundancy. The people who remained were told: “these are the rules, stick to them.”
48.One long-term former employee, who worked for the Home Office for many years in Liverpool, told The Guardian that the change in approach had directly affected Commonwealth migrants:
before we’d been a lot more lenient towards the Commonwealth immigrants. We had no problem about going after everyone else, but the Commonwealth immigrants had always been a different kettle of fish.
That changed about five or six years ago with the hostile environment. Some of the immigration people welcomed it. There was a ’gotcha attitude’—some people enjoyed it; I didn’t like that.
49.The change in culture, combined with an increase in the evidential burden and a rigidity in interpretation, has clearly impacted on members of the Windrush generation. Many of the testimonies of Windrush migrants reveal attempts to clarify their status with the Home Office only to be faced with scepticism and unrealistic demands for information. Glyn Williams, Director General for Borders, Immigration and Citizenship at the Home Office, accepted that the Home Office had let people down:
It is probably true to say that our interpretation and application of this guidance [UKVI guidance to caseworkers] became rigid over the years. When applied in particular to Windrush people who have been here for 30, 40, 50 years, if you apply that rigidly over that time period, it becomes almost impossible. That is the mistake that has been made.
But it is more than just a rigid application of policy. There is a sense that in some cases decision-makers were looking for a reason not to grant an application.
A non-Windrush case that has recently been reported sets out how a spouse was denied a visa on the sole basis of an unpaid healthcare bill while on holiday in the UK. No bill had been raised until the Home Office requested the hospital to do so—a day after refusing the application on the basis on an unpaid bill. Closer examination of the legislation showed that the hospital was correct in its initial decision not to charge for the care provided.
In February 2018, The Guardian described the experiences of a man from the Windrush generation who had been homeless for the last year. “Although he has lived in the UK for almost 50 years [arriving from Jamaica in 1968 at age 14], and spent 35 years working and paying taxes he has been told that he is not British, and consequently is neither permitted to work nor eligible for any government support. In 2014, a routine request from his final employers to update paperwork revealed that he didn’t have a passport and had never naturalised in the UK. He was sacked. Unable to find new work without papers, he became depressed, and then homeless. Dudley council said he was not eligible for emergency housing because he had no right to be in the country. Similarly, he has been told he cannot sign on for benefits. He has gathered together paperwork showing 35 years of National Insurance contributions, with the support of the Refugee and Migrant Centre in Wolverhampton, but the Home Office has returned the application, requesting further evidence.”
50.The Government has belatedly recognised the difficulties that the cultural shift within the Home Office has caused. The Minister for Immigration repeatedly told us that there was a need for “culture change” in the Home Office: “It’s not about using rules to have a ‘computer says no’ mentality.” The then Home Secretary told the House on 16 April 2018:
I need to ensure that the Home Office is more focused on individuals than on policy, so that individuals do not receive the type of treatment that we have seen over the past few weeks, but instead have a Home Office that leans in and tries to assist them.
51.On 23 April 2018 she further set out her intentions to the House:
This is absolutely about a change of culture, which I will be trying to ensure trickles down the Department. Let me be quite clear that I am not blaming anybody else. I am saying that I want to ensure that there is more time, focus and resources so that there can be more engagement with individuals, rather than just numbers.
Glyn Williams explained, “I think what the Home Secretary is saying is that she wants us to [ … ] introduce more face-to-face, more subjectivity, more judgment into the process, as opposed to only looking at evidence.” The Home Secretary told us he shared his predecessor’s ambition and pledged a “fair and humane” immigration policy.
52.We recognise that immigration caseworkers have a challenging job and face making difficult decisions on a daily basis. There is no doubt, however, that a change in culture in the Home Office over recent years, as a consequence of political decisions and political leadership, has led to an environment in which applicants are automatically treated with suspicion and scepticism and have been forced to follow processes that appear designed to set them up to fail.
53.We welcome the pledges made by the Minister for Immigration and the previous and current Home Secretaries that Home Office culture will change. Whether the Home Office achieves this aim will be the crucial demonstration that lessons have been learned from the Windrush scandal. We support a policy which will give the Home Office a more human face, a return to face-to-face interviews which allow for the use of discretion and judgement, and a system in which processes, requirements and decisions are more clearly explained. These changes are overdue and they should be implemented as a priority. We expect to focus on progress in this area as part of our regular work scrutinising the effectiveness of UKVI.
54.Until the current financial year the Home Office has set targets for the number of removals. We questioned the previous Home Secretary over concerns that these internal enforcement targets might have contributed to some of the poor decisions made by the Home Office, particularly around the detention and potential removal of members of the Windrush generation. It is disappointing that neither she nor her officials were able to provide the reassurance we were seeking or even able to set out basic background information on the use of targets. Inaccurate information was provided by the Home Office to us. The Home Secretary told us, “We do not have targets for removal,” while Glyn Williams said “I am not in charge of enforcement but not as far as I know, no. [ … ] I do not think they do exist. There are no published removals targets and there is nothing broken down by region as far as I know.” When asked specifically about whether the 12,000 enforced removals in 2017–18 were above or below a target Mr Williams reiterated that “there is not a target”.
55.As has since become clear, targets for removals teams had been set in the years 2015–16, 2016–17 and 2017–18 and it was commonplace for those targets to be apportioned to individual teams, “reflecting their roles or areas of geographic coverage.” No targets have been put in place in the current financial year. We have only been provided with limited information about removals for years prior to 2015. Mr Williams explained on 15 May 2018:
I did not know when I gave you that evidence [on 25 April 2018 that] in 2017–18 the senior management team in Immigration Enforcement had set a national target of 12,800 for enforced removals, nor did I know that they subsequently changed that to a target of 230 to 250 removals a week in October of that year, and I did not know they had also dropped that target towards the end of 2017–18.
56.The Permanent Secretary admitted that the evidence we had previously heard was “regrettably confused”. However, when we asked the Permanent Secretary whether there were targets for removals he told us, “Quite a lot, in fact, turns on the semantics of what “target” means” before proceeding to talk instead about ‘performance goals’. He further elaborated:
The regime that is in place now has been in place since the start of 2018–19 and does not have a target in it. There is no use, as I understand it, within immigration enforcement—certainly not at national level—of the word “target”. Instead the word that is used, I understand from Mr Ind [then Director General of Immigration Enforcement], is “expectation”. I think Mr Ind referred to an ambition or aim.
57.The Permanent Secretary explained that “There were goals that were described as targets in the previous two financial years, set not by Ministers, but by the immigration senior officials in immigration enforcement.” However, the confusion over targets led to the Home Secretary resigning her position and two senior officials moving roles. The Permanent Secretary ordered an urgent review “into the facts so far as the support provided by the Civil Service to the Home Secretary before, during and after [the Home Affairs Committee evidence session of 25 April 2018] is concerned.”
58.The “thorough, factual and independent” review, carried out by Sir Alex Allan, the Prime Minister’s adviser on Ministers’ interests, was intended to provide the Permanent Secretary with “authoritative advice on what happened and also, as necessary, recommendations for what further action should be taken.” The Permanent Secretary committed to reporting to this Committee once that work was completed.
59.We are concerned that the previous Home Secretary and her officials could not give us straightforward answers to questions about enforcement targets. It is clear that in the past there were targets for removals. Given that this subject was raised during the panel of witnesses immediately preceding the then Home Secretary, it is regrettable that neither she nor her officials were better prepared to answer our questions. We are disappointed that one Director General was unable to answer with confidence questions about key operational issues in another directorate; this calls into question information sharing at the top of the Home Office. The Home Office also took far too long to correct the record once it became clear that we had not been given an accurate account.
60.We welcome the decision to commission a review into the advice provided to Ministers. We have been provided, in confidence, with the Executive Summary of that review and have been advised that the Home Office does not intend to publish the executive summary or provide us with the full report. We do not believe this to be acceptable. The previous Home Secretary resigned as a result of these series of events and there remains serious concerns about advice given at the top of the Home Office. Having seen the executive summary we recommend it be published swiftly in the interests of transparency and accountability. Our expectation is that the full report should be published and, as a first step, we call on the Home Office to provide us with a copy without further delay.
61.Hugh Ind, then Director General of Immigration Enforcement, insisted that removals targets had not driven decision-making. He explained that thorough preparation was undertaken by casework teams to make sure that there was no doubt that cases passed over to be moved to detention were correct. The previous Home Secretary, while disputing the existence of enforcement targets, also disputed the suggestion that targets led immigration enforcement teams to pursue the ‘easiest to remove’. However, it remains the case that removals teams were given targets to meet. We asked the Home Office the extent to which targets for returns were agreed by Ministers, reported to Ministers, or just set by officials and for information relating to years previous to 2015–16. We also sought information on whether staff were assessed and/or rewarded on their ability to meet those targets. That information remains incomplete and unsatisfactory. The Home Secretary was clear that he does not believe in “these kinds of targets”.
62.On 25 June 2018 the Permanent Secretary told us that targets to “remove failed asylum seekers from the UK were set by Ministers in the 2000 and 2002 Spending Reviews”, and that “In the Home Office Strategic Plan 2004–08 (Cm 6287), the target set by Ministers became to secure 75% more removals by 2004 than in 1998, with further increases by 2008.” However, we note that the Strategic Plan referenced by the Permanent Secretary does not in fact refer to the 75% as a target but instead as a description of what had been delivered in the previous six years. Sir Philip’s letter also states that UKBA’s business plan for 2011–2015 had an “unquantified ambition to, ‘[ … ] maintain our performance on the removal and voluntary return of those who are in the UK illegally.’” It remains unclear, however, how targets for removals—with a specific number, as was the case in 2015–16, 2016–17, and 2017–18—were implemented; how, if at all, Ministers engaged with those targets; and what the situation was in the two years following UKBA’s demise in 2013.
63.We are concerned that a target-led approach may have led immigration enforcement officers to focus on people like the Windrush generation, who may have been easier to detain and remove than those less vulnerable, for example by detaining individuals such as Paulette Wilson and Anthony Bryan who clearly presented no risk of absconding. We have not been able to get clarity about how targets were cascaded to individual teams or enforcement officers or their impact on operational decision-making. We remain concerned about the interaction between targets, bonuses and decision making, and about the potential for bonuses to create a disincentive for staff to refer back cases they come across which raise concerns or where mistakes may have been made. We welcome the decision to end the use of targets for removals.
64.During our inquiry we explored the influence of the net migration target—which includes arrivals and departures—on Home Office decision-making. In our previous report, Immigration policy: basis for building consensus, we warned that the net migration target “is not working to build confidence or consent” and recommended it be replaced. Adrian Berry told us that the net migration target had contributed to a presumption in decision-making that someone is in the country unlawfully. The Permanent Secretary confirmed that the Government’s net migration target is part of the context and framework within the Department takes forward activities:
however, it does not translate into a whole series of individual actions [ … ] It is rather part of the background and context that then clearly informs decisions being made by officials, but is even more relevant, I would say, for Ministers in terms of the way in which they are thinking about the development of policy.
65.We reiterate our previous recommendation for the net migration target to be replaced. It includes immigration and emigration, lawful and unlawful migration. The risk that the target may therefore encourage the Home Office to increase departures, and without adequate checks on whether a person is here lawfully, is an additional reason to seek its replacement—both to avoid any perverse incentives and to rebuild credibility.
66.It is welcome that the Home Office has committed to reviewing its practices as a result of the Windrush scandal, in the form of the lessons learned review and the factual review carried out by Sir Alex Allan, although we continue to have questions and concerns about the extent and nature of those reviews. In addition to recognising what went wrong and making internal recommendations for future action, it is vital that the Home Office engages externally in a spirit of transparency after the reviews are completed. The process of rebuilding trust in the Home Office after Windrush requires an ongoing commitment on the part of the Home Office to submit itself to public scrutiny for errors that have been made.
67.We know that a number of members of the Windrush generation have faced difficulties when trying to re-enter the country. According to Lucy Moreton, border security had previously been able to take an educated, reasonable, experienced view: “If someone told you that they had come to the UK on Windrush, or a similar vessel, that they had been here since the late 60s, or even just that they had been here pre the 1971 Act, you can talk to them a bit, you can understand if they’ve genuinely been here.” Lucy Moreton explained that the discretion of border officers to use their judgement was removed following the revelation in 2011 that officials at the border had relaxed passport checks to reduce queues. This change in approach may have led to individuals being stranded outside the UK, often for many years, and unable to prove their right to re-enter. However, some of the examples below suggest some of the problems predated the response to the 2011 scandal.
In April 2018, the BBC reported on the experiences of a man “who arrived in the UK from Jamaica at 15 months old, in 1958. ‘Sixty years, it’s a long time. I’m an Englishman,’ he told BBC Newsnight. In 2009, he tried to update his passport with the proper visa information, but was told by the Home Office he had to prove he had lived in the UK for each of the previous 10 years. His application was rejected twice. In March last year, he travelled to Jamaica to be with his dying mother, but when he tried to return to the UK in June, he was not allowed on the flight. ‘I was upset - virtually in tears. I couldn’t understand why,’ he said. Months passed and his mother was repatriated to the UK, but her son was unable to return to attend her funeral. He finally came back to the UK in September, after his local MP intervened.”
In April 2018, The Guardian described the case of a man, who visited Jamaica for his 50th birthday, his first visit since arriving in the UK aged six. On attempting to return he was told at the airport that he could not enter the UK on his Jamaican passport. He was forced to live in bedsits and hostels in Jamaica for 21 months. His family incurred an estimated £26,000 in legal bills and accommodation costs. On his return to the UK in 2011 he was told he owed £4,500 for unpaid rent and council tax during his absence. He was taken to court and evicted and, at the time the article was published, had been sofa-surfing since.
In the same month, The Daily Mail published an article about an elderly woman who arrived in the UK from Jamaica in 1960 aged 24. She received a stamp in her passport giving her indefinite leave to remain, but it was stolen in a 2006 burglary. She was denied re-entry when she tried to return to the UK from her sister’s funeral in 2010 in Jamaica. She was forced to remain in Jamaica for eight years, separated from her children and grandchildren, until finally being able to return home in May 2018.
68.Some of the most appalling stories from the Windrush scandal are those where people with a lawful right to live in the UK have been trapped overseas, away from their homes and families. The Home Office needs to determine the number of people affected, and explain why individuals—such as those we highlight in our report—endured such delays, were provided with so little assistance and incurred such cost in simply trying to return home.
69.Problems at the border have not been limited to individuals with non-British passports. We raised with the then Home Secretary a case in which an individual lawfully resident in the UK had been subject to a raid by immigration officers; she had subsequently obtained a British passport but was still stopped and questioned at the border. Satbir Singh, Chief Executive of the Joint Council for the Welfare of Immigrants, told us he had seen cases of people with British passports who had tried to re-enter the UK following a routine trip abroad but who were denied re-entry because they did not additionally carry their formal Citizen of the United Kingdom and Colonies passport with an NTL stamp, while others have been told by border officials they should not have been granted a British passport in the first place and had it revoked. This is not the first time concern has been raised with us about the approach of Border Force staff. In our previous inquiry we heard that international students arriving at the border had been given incorrect stamps which in some cases led them having to leave and re-enter at personal cost.
70.People who have been granted a British passport reasonably expect that it allows them entry to the UK. It is right that the border is robustly protected but that should not mean those with a right to be in the UK are prevented from crossing it. We are therefore concerned by reports that officers at the border are questioning people’s right to a British passport and, in some cases, preventing people who have been granted one by HM Passport Office from entering the UK. The Home Office should set out publicly and in guidance the circumstances under which Border Force officers can prevent a British passport holder from entering the UK.
71.Successive governments have introduced a raft of laws to prevent people who are illegally in the UK from receiving services to which they are not entitled. The aim is to deter people from entering the UK illegally and encourage those who have already done so to leave. The hostile environment is commonly taken to include policies which aim to make it difficult for illegal immigrants to work, access benefits or other public funds, rent a home, receive routine health treatment, obtain a driving licence or open a bank account. The Government depends on others, such as landlords, employers, police, doctors and banks, to check a person’s immigration status and in certain circumstances report to the Home Office.
72.Now called the ‘compliant environment’ by the Government, these laws have been progressively introduced over a period of many years. As the then Home Secretary told the House:
From the 1980s, successive Governments have introduced measures to combat illegal immigration. The first NHS treatment charges for overseas visitors and illegal migrants were introduced in 1982. Checks by employers on someone’s right to work here were first introduced in 1997, measures on access to benefits in 1999 and civil penalties for employing illegal migrants in 2008, and the most recent measures in the Immigration Acts of 2014 and 2016 introduced checks by landlords before property is rented and checks by banks on account holders.
73.While measures to make life difficult for people in the UK illegally have been introduced over many years and by successive governments, earlier iterations have been tightened in recent years and enforcement has been stepped up. For example, while NHS treatment charges were introduced in 1982, it was the Health and Social Care Act 2012 that obliged NHS workers to share patient data with the Home Office for enforcement purposes.
74.The extension of hostile environment measures and enforcement has led to people with a lawful right to be in the UK being unable to access services to which they are entitled. In our January 2018 report Immigration policy: basis for building consensus, we alerted the Government to the problem:
While the hostile environment is currently aimed at non-EU nationals without valid leave to be in the UK, there are regular reports of people with a lawful right to be here [ … ] being caught up in the system.
75.As has become clear, the Windrush generation are one such example of people with a lawful right to be here, caught up in the compliant environment, and who have suffered avoidable hardship and distress as a result. The outsourcing of enforcement to non-government actors has also meant the Home Office has become detached from the process; this has led to people being denied services but without any official advice on how to challenge or rectify a mistake.
76.Given the experiences of the Windrush generation it is right that we question the effectiveness of the hostile environment policies that have been partly responsible for causing them so much distress and injustice. For example, one of the aims of the hostile environment is to encourage people illegally present in the UK to leave; yet Glyn Williams told us that the number of voluntary returns had not increased following the introduction of more stringent measures. There were over 3,000 fewer voluntary returns in the year ending March 2017 than in the previous year.
77.Mr Williams explained that the hostile environment “is also about discouraging illegal migration coming into the country in the first place. If that is happening, there will be fewer people to leave as well.” The Independent Chief Inspector of Borders and Immigration (ICIBI) inspection of hostile environment measures found “no evidence that any work had been done or was planned in relation to measuring the deterrent effect of the ‘hostile environment’ on would-be illegal migrants.” When he gave evidence to us in November 2017, the Independent Chief Inspector told us that by then he would have expected to have seen some evidence that the hostile environment was working “so that there is some justification for the two pieces of legislation [Immigration Acts of 2014 and 2016] and for all of this effort that is being put into this by a whole variety of people.”
78.What the Independent Chief Inspector instead found was evidence of Home Office mistakes. In his inspection of hostile environment measures relating to bank accounts and driving licences, he found a 10% error rate in the information provided by the Home Office on which banks were relying to make decisions and a number of errors in people flagged to the Driver and Vehicle Licensing Agency as in the UK without leave. He reported “the Home Office did not appear to appreciate the seriousness of such errors for the individuals affected”. He told us “my concern was that that information needed to be right at the point of delivery to Cifas [the UK’s leading fraud prevention service] and, therefore, the Home Office needed to check its data before it sent it. That was rejected as a recommendation”. In his most recent report on the operation of the hostile environment—on the ‘right to rent’, the Independent Chief Inspector concluded:
Overall, I found that the Right to Rent scheme had yet to demonstrate its worth as a tool to encourage immigration compliance, with the Home Office failing to coordinate, maximise or even measure effectively its use, while at the same time doing little to address the concerns of stakeholders.
79.As the experiences of the Windrush generation and their children make clear, it is not just with regard to eligibility for bank accounts and driving licences where mistakes have been made, but we are not aware that the Home Office has undertaken any investigation into the number of people wrongly denied benefits or employment. Indeed, the Home Office told us they had no data on either of these matters. Prior to the wide press coverage of the Windrush scandal, we concluded in our report Immigration policy: basis for building consensus that:
The Government should not rely on its ‘hostile environment’ policy as a panacea for enforcement and building confidence, especially given the current concerns about accuracy and error. We are concerned that the policy is unclear and, in some instances, too open to interpretation and inadvertent error. Not only can these errors be deeply damaging and distressing to those involved, they also undermine the credibility of the whole system.
80.The experiences of the Windrush generation that have since come to light adds weight to our concerns. In our February 2018 report we also questioned “the appropriateness of a policy that discourages individuals from reporting a crime or seeking medical attention.” We called for this aspect of the hostile environment to be reviewed and recommended that sensitivity and discretion be used while that review is underway. Since the publication of that report, further cases have been reported. These include an incident in which it was reported that an individual was assaulted in the street; on reporting the assault to the police he was found to be an overstayer and taken to Harmondsworth Immigration Removal Centre without his injuries first being seen to. We also note continuing concerns from organisations such as the Residential Landlords’ Association that policies such as ‘right to rent’ are leading to discrimination against migrants irrespective of their legal status as well as British citizens who do not have a passport. This policy is currently subject to a legal challenge which is being opposed by the Home Secretary. The Independent Chief Inspector of Borders and Immigration has suggested that the absence of indicators against which to judge the impact of the hostile environment has made it harder for the Home Office “to answer concerns about the potential damage to communities and to individuals.”
81.In response to the Windrush scandal the Government has taken steps to moderate parts of the hostile environment. For example, the Government has:
i)updated the gov.uk website to give better advice to landlords and employers about the Windrush generation;
ii)sent out guidance to NHS England, Scotland and Wales about the Windrush generation;
iii)asked banks to delay closing bank accounts of named individuals “until I [Home Secretary] am more comfortable that we have it right”;
iv)refined data-sharing between the NHS Digital and Home Office, so National Health Service providers will no longer routinely give information about patients’ potential immigration status to the Home Office unless in the case of foreign national offenders.
82.We welcome the changes outlined by the Government, particularly with regard to the reduction in data-sharing between the NHS and immigration enforcement. However, we are unconvinced that the Government’s actions are sufficient to address the problems we have identified. That the Government has been unable to say how many members of the Windrush generation have been affected adversely by employment checks, loss of rental accommodation, checks on NHS treatment, driving licences or bank accounts, demonstrates a serious weakness in the policy. The Home Office has no way to assess the accuracy of the policy, the scale of errors being made or the number of people each year who may be losing their home, job or access to services unlawfully. It is irresponsible for the Government to rely on a policy when it lacks information on whether that policy is leading to injustice or abuse or even achieving its aims.
83.We are particularly concerned that the Government has not addressed our concerns in relation to data-sharing between the police and immigration enforcement. Victims of crime should not fear reporting that crime to the police. The obligation on police to share data of victims of crime with immigration enforcement should be removed immediately. We also remain unconvinced that improving guidance to landlords and employers will be enough to remove bias from the system in which migrants lawfully resident in the UK are clearly discriminated against. We note that the ‘right to rent’ policy is currently subject to legal review and will follow the case with interest.
84.The Home Office also needs to take a more robust approach to the accuracy of data that underpins the hostile/compliant environment. We welcome the Home Secretary suspending the freezing of bank accounts. He must fully satisfy himself that the data on which such orders are based are accurate. Given the high success rates of immigration appeals and ongoing concerns over the accuracy of Home Office decision-making, bank accounts should only be completely frozen once individuals have exhausted their limited appeal rights.
85.The hostile environment policy places a huge administrative burden and cost on many parts of society, without any clear evidence of its effectiveness but with numerous examples of mistakes made and significant distress caused. We question whether the hostile environment should in fact continue in anything like its current form. Simply rebranding it as the ‘compliant’ environment is a meaningless response to genuine concerns. The Home Secretary’s review of data relating to bank accounts should be broadened to include the accuracy of decision-making within the whole suite of hostile environment measures. As part of that review the Home Secretary must determine whether the policies are achieving their intended outcomes, whether the impact (both intended and unintended) can be justified and whether the policies represent value for money for the taxpayer.
86.While the problems faced by the Windrush generation rose to public attention in the last few months, largely thanks to reporting by The Guardian journalist Amelia Gentleman since November 2017, warning signs have existed for many years. At least nine years ago, people from this cohort were having difficulty re-entering the UK. In 2014, the Legal Action Group published a report Chasing Status which explained the impact of changes in immigration policy on a group of people “virtually invisible–and rarely acknowledged”, lawfully resident in the UK but without evidence of this status. The report showed clearly how these people were suffering as a result of the requirement for employers to check the immigration status of their employees and the need for people to verify their status in order to access the welfare system. It states:
the problem is more common in the longer-established immigrant communities. Many of the people [ … ] who now find they have status problems originally hailed from Caribbean countries, [ … ] although other long-established migrant groups, such as Bangladeshis, would be equally affected. When migrants from these countries first came to the UK four or five decades ago, their status was automatic, under the legislation of the time. They would have assumed it was permanent and irreversible.
The report called for a dedicated team at the Home Office with the understanding and expertise to deal with such cases appropriately. Four years later the Home Office has done exactly that.
87.The Legal Action Group report also warned:
Further changes introduced by the 2014 Immigration Act will only exacerbate their plight, by restricting access to essential services such as bank accounts and private sector housing. They are no longer able to access legal aid to help them resolve their situation, following the 2012 Legal Aid, Sentencing and Punishment of Offenders Act, which removed funding for all immigration cases.
The Government has said that it “didn’t envisage the unique set of circumstances for children that came with the Windrush generation”. Yet, as well as the Legal Action Group, organisations including Liberty, JCWI, ILPA, the Residential Landlords’ Association and the Coalition of Race Equality Organisations all raised concerns over the impact of the introduction of hostile environment measures such as restrictions on access to the NHS and the right to rent. Indeed, the Government’s own Policy Equality Assessment on access to services for the 2015 Immigration Bill stated:
The scheme [‘right to rent’] applies to older people regardless of their country of origin, but some non-UK born older people may have additional difficulties in providing original documentation. Some may have had their immigration records destroyed. Some will have originally come into the country under old legislation but may have difficulty in evidencing this. Some may be able to evidence it, but landlords might be unwilling to go to the trouble of verifying unfamiliar documentation.
88.There is also evidence that cases were raised with the then Immigration Minister as far back as May 2016. Satbir Singh, Chief Executive of the Joint Council for the Welfare of Immigrants, told us:
At the Home Office level, representations have been made on behalf of almost all of the cases that you have heard [ … ] there were representations made by lawyers, by organisations like ours and by the High Commissioners of those countries, the Commonwealth Caribbean countries, to higher levels of Government. Reports were sent in 2014 and 2015 to the Home Office and the Home Office did comment on those in the press.
89.We are concerned that despite many warnings over a number of years, the Home Office failed to acknowledge and address the risks the hostile environment policy posed to particular groups. In fact, the policies were extended. The Home Office must do much better to engage constructively and collaboratively with stakeholder organisations.
90.The warning signs, including the risks identified in the Department’s own Impact Assessment, should have made the Home Office alert to potential problems but instead it appears that such warnings were largely ignored or forgotten. Adrian Berry told us:
When the 2014 [Immigration] Act was in Parliament, there were briefings from JCWI and others that this will capture too wide a class of people, it will impact upon certain communities in different ways. That is exactly what has happened. It is not an accident that this has happened. It is built into the system and it was forewarned and foreshadowed when the Bill was in Parliament that brought in the main legislative measures that we now brand as the hostile environment.
91.The Government states that “All measures that could be considered to be part of the compliant environment are kept under regular review, as with all government policies, and will continue to be so in the future”. However, there is no doubt that many individuals with a lawful right to be in the UK have been adversely affected. People have lost jobs, homes and been refused healthcare and benefits, and yet the Home Office was unable to join the dots as concerning cases started to emerge and recognise the wider failure. The previous Home Secretary told us: “What I do regret is that I saw a certain small number of individuals who turn out to be part of a systemic risk, systemic problem. I look back with hindsight and I am surprised I did not see the shape of it sooner. Unfortunately, I did not.” However, despite this admission, the Home Office appears to deny that there has been a systemic failure. The Home Secretary told us “Let me be clear, I would not describe it as a systemic problem in the Home Office”, and repeated to the Joint Committee on Human Rights:
I do not just want to take a couple of cases and a few others that we are aware of where things have certainly gone wrong and say that that applies generally. To say that something is systemic you have to say that it is a general issue in the department [ … ] I have seen no evidence of a systemic problem. That said, I will be driven by the evidence and am happy to share that evidence.
92.The previous Home Secretary told us in April 2018 that she had only become aware of the problem of the Windrush generation “over the past few months”, from newspapers and anecdotes from MPs: “I deeply regret that I did not see it as more than individual cases that had gone wrong and that needed addressing. I did not see it as a systemic issue until very recently.” She promised that she had:
asked UKVI to learn from this and to make sure that they have a system in future that would pick up a group more effectively. Tragic though it has been, I want to make sure that we learn from it so that we have better systems and shaping of cases so that we are more likely to pick up anything similar in the future.
93.Witnesses to our inquiry cast doubt on the suggestion that senior figures in the Home Office were unaware of the problems being faced by the Windrush generation or that it would not have been raised at Ministerial level. Lucy Moreton told us that civil servants are risk-averse and would not have taken decisions that had consequences for large numbers of people without the safety net of first making a Minister aware. Satbir Singh gave us his view:
I would say that there was a decision taken that said, “The costs are not sufficiently high that we need to be concerned, that the individuals who are being affected here may be few in number and we do not necessarily care to look further into this, because we are very much wedded to this idea of the net migration target, of the hostile environment, and an admission that this is happening is an admission that there are problems”.
94.He further explained:
We have seen that when we tugged at this thread over the last two weeks. We have seen that open up very quickly, that problem of things having been foreseen and foreseeable and then happening demonstrates that that evidence is not taken seriously at the policy level.
95.At a senior level, oversight of the policies and problems facing the Windrush generation would have rested with the heads of UKVI and Immigration Enforcement, with the Second Permanent Secretary and Permanent Secretary and with the Minister for Immigration and ultimately the Home Secretary. Either people at a senior level in the Home Office were aware of the problems being caused but chose to ignore them or oversight mechanisms emphatically failed. Most likely there was an expectation that any problems expected to be caused by the hostile environment to groups identified by impact assessments and elsewhere would be caught and resolved by caseworkers. Given the spirit of scepticism and inflexibility that had been instilled into those teams in the pursuit of the net migration target, such an expectation would have been extremely naive.
96.We note that since we launched this inquiry, three of the most senior positions in the Home Office, Home Secretary, Second Permanent Secretary and Director General for Immigration Enforcement have, or are soon to have, new incumbents. However, we cannot be satisfied that responsibility for the scandal has been identified until a transparent review is completed.
97.We are further concerned that the problems which affected the Windrush generation and their children will happen again, for another group of people. The lessons learned review being carried out by the Home Office must get to the bottom of why warnings, both internal and external, were disregarded and how processes can be improved to surface systemic problems—which the Windrush case certainly was—so that another crisis can be more quickly spotted and averted.
98.The Home Office’s lessons learned review will need to get to the heart of why internal checks and balances failed. The previous Home Secretary told the House “We were too slow to realise that there was a group of people that needed to be treated differently, and the system was too bureaucratic when these people were in touch.” We heard from Lucy Moreton that the Home Office had changed the level at which decisions are made so that it became possible for early stage decisions to be made at a lower grade than was once the case. Perhaps recognising that this change had resulted in some poor decision making, the then Home Secretary told the House on 23 April 2018:
I will also be putting in place 50 senior caseworkers across the country to ensure that, where more junior members of staff are unsure about a decision, they can speak to someone with experience to ensure that discretion is properly exercised.
99.Some of the 50 senior caseworkers will form a Chief Caseworker Unit in UKVI while others will be “embedded in the business, to support colleagues in making complex case decisions.” The previous Home Secretary told us the Chief Caseworker Unit would be part of a system of checks being put in place to prevent a repeat of instances in which elderly individuals from the Windrush generation had been detained:
I have put in measures so that there are more checks in place so that individuals [like Paulette Wilson, a British citizen in her 60s detained in Yarl’s Wood] are not locked up in that way [ … ] We are putting in more senior caseworkers [ … ] to ensure that any decision of that type are referred higher up. I am also looking again at the type of profile of people. I do not think it is a good idea to lock up elderly people in that way. That is another change I am putting in place.”
100.The previous Home Secretary also told the Committee that she was looking at a proposal to introduce a new ‘minded to refuse’ category “so that we can have more of a human face for individuals who would otherwise go to appeals”. We support the previous Home Secretary’s proposal for a new ‘minded to refuse’ category in UKVI decision-making, which will prompt a discussion with the applicant before a final decision is made, but only if it is in addition to, and not an alternative to, existing appeal rights. We call on the Home Secretary to implement it as soon as possible as part of his broader changes to the approach of UKVI. Its introduction is also not a replacement for the restoration of broader appeal rights which we discuss later in this report.
101.Lucy Moreton drew our attention to systems by which frontline staff can raise matters of conscience. However, she told us that, “in practice, the contacts to do that were out of date, individuals had moved on and it was—and in fact to a large part still remains—all but impossible for the staff compelled to enact these policies to raise those concerns internally.” The Home Secretary should ensure that the Department’s whistleblowing policy is working effectively, so that caseworkers can easily raise ethical concerns outside of their immediate line management structure.
102.During successive immigration inquiries we have heard that the pressure facing caseworkers at UKVI had increased over recent years. Lucy Morton told us that “where the time has stayed stable, the number of decisions that you have to make within it have increased”. She also pointed specifically to the growing use of temporary contingency staff, “not to make decisions but to assist with the processing of them” which tended to “increase the error rate” in caseworking.
103.In our previous reports we have noted the high turnover of staff in the Department’s immigration directorates and problems with recruitment and retention. In response to our report Home Office delivery of Brexit: immigration the Government set out a number of steps it was taking to address this problem including improving development opportunities; improving recruitment processes, and undertaking a review of why staff join, stay and leave, to inform a strategy to maximise retention and minimise staff vacancies.
104.We have repeatedly raised concerns over the loss of experienced staff from and staff shortages within the Immigration Directorates of the Home Office. We welcome the steps the Department has set out in response to our most recent immigration report to address these concerns. Nonetheless, the lessons learned review should consider whether a loss of experienced staff and institutional knowledge contributed to the Windrush crisis. The presence of senior caseworkers in the Windrush taskforce is welcome, and that level of experience should be the norm for caseworking teams, reflecting the fact that caseworkers are making life-changing decisions.
105.As we set out in our report Home Office delivery of Brexit: immigration, it is our view that the delivery of immigration services by the Home Office has been under-resourced for some time. The Minister for Immigration shares our concerns. She told us:
it is a Department that needs more resources. It needs more people. It needs more experienced caseworkers who are in a position to be able to process claims accurately and effectively.
106.In response to our questions about resources the Home Secretary noted that “the operational teams within the Home Office must have the resources they need to run an efficient and effective migration system”. However, he made no assurances that he would be seeking additional resources for the Home Office outside of those required to run the registration system for resident EU nationals.
107.We saw for ourselves the dedication of the Home Office staff running the Windrush helpline, including weekend and evening working and people temporarily relocating from Liverpool to Croydon to meet staffing requirements. We approve of their use of personal interviews with applicants, as we heard that the Windrush generation previously experienced a very impersonal and bureaucratic service from the Home Office. We note that 53 staff have been redeployed from Citizenship casework operations to the Windrush taskforce.
108.We welcome the speed with which the Windrush taskforce was set up and its more personal approach, however, bringing in staff from other parts of the Home Office is unsustainable and risks diverting energies from ‘Business as usual’ immigration work, such as processing applications for citizenship. The Home Office should set out how it will prevent the redeployment of staff from impacting on other activities.
109.It is clear that UKVI has been struggling with problems of under-resourcing for some time. We agree with the Minister for Immigration that the Home Office requires more resources. The Home Secretary should take our concerns and those of his Minister seriously and seek additional funding from the Treasury to address this problem. The Home Office will be unable to implement the stated objective of becoming more focused on the individual until he does so. It takes time for caseworkers to acquire the experience necessary for their role. We therefore urge the Home Secretary to act now so that recruitment campaigns can begin at the earliest opportunity.
110.We have received evidence that people from the Windrush generation were affected by the removal of legal aid and the right to appeal. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 removed legal aid from most immigration routes leaving people to navigate complex immigration rules on their own. This has left many people either unable to apply for the correct documentation or submitting poorly prepared applications.
111.The Immigration Act 2014 placed further restrictions on access to justice by restricting rights of appeal in immigration routes to just asylum and human rights cases. In doing so it removed a valuable legal check on decision-making within the Home Office despite no obvious signs that the quality of decisions had improved. Since the introduction of the Immigration Act 2014 the number of cases being overturned at appeal has fallen—not due to better decisions being made but because access to justice has been restricted. The latest figures showed half of immigration appeals were successful. In response to concerns raised in our February 2018 report the Home Office explained that it recognised that “improvements are needed in the sustainability of decisions and the quality of engagement with applicants, and we are working to ensure that a customer focus sits at the centre of our approach.”
112.Adrian Berry told us that legal aid and routes to appeal were “absolutely critical” to providing access to justice and to help ensure good decision-making:
Put the two together, the withdrawal of legal aid and the ability just to get quick independent determination taken away from you, and you end up with a situation where you have decisions made that essentially are very difficult to challenge and they are often made on poorly-made applications.
We were surprised that the previous Home Secretary was unaware the statutory right to appeal had been removed. We note that the new guidance relating to Windrush generation cases states that adverse decisions “will not attract a right of appeal or an administrative review.” Tim Buley, a barrister at Landmark Chambers, has argued that a judicial review could give the same remedy as an appeal hearing, in terms of access to a court. He also points out that a judicial review has the benefit of legal aid support.
114.We have previously noted that around half of immigration appeals are successful. This provides us with little confidence in the accuracy of current Home Office decision-making. It is therefore unacceptable that decisions on Windrush cases do not attract a right of appeal. We recommend that the right of appeal be reintroduced to all immigration routes. The reintroduction of appeal rights should be accompanied by the restoration of legal aid arrangements for immigration matters in order to allow those with complex cases the access to legal advice they need.
115.As we discussed in our report Home Office delivery of Brexit: immigration, one of the most important steps the Government can take to improve the immigration system is to reduce the complexity of the rules and the frequency with which they change. We believe that the Windrush generation were disadvantaged by the complexity of the legislation, especially since they were ineligible for legal aid to help them to navigate it. There are examples of people filling in the wrong forms and applying for Right to Remain on the basis of human rights, instead of No Time Limit status.
116.Many members of the Windrush generation, rendered destitute by losing their job or access to social security, were forced to spend large sums on lawyers’ fees to help them to navigate the system. They were also subject to substantial fees for Indefinite Leave to Remain or Citizenship applications, albeit now waived for new applications. For example, Anthony Bryan, a painter and decorator who lost his job when he was wrongly told he was in the country illegally, estimated that he had spent £3,000 on legal fees and application fees.
117.The Home Office did not guide people on what route they should take. When we visited the Home Office, staff told us that nationality legislation was “fiendishly complicated”, especially in relation to countries who had achieved independence. It is therefore no surprise that mistakes were made on both sides.
118.The Home Secretary agreed with us that nationality legislation is “very complex”, made up of “successive laws and regulations under successive Governments”, but he would not commit to addressing it in the forthcoming Immigration Bill.
119.As well as the Windrush generation, we are particularly concerned about the way in which immigration legislation impacts on their children and grandchildren born in the UK. We have already discussed the case of a woman whose grandparents came to the UK from Barbados in 1956 and who was born here more than thirty years ago. The British Nationality Act 1981 effectively split her family, making her siblings automatically British (because they were born before 1983) but because she was born later she was not considered to be British and was left needing to apply for Indefinite Leave to Remain and citizenship, at significant cost. Yet unless she paid the fee, she was not allowed to work and lived in fear of removal.
120.Given how complex British nationality law has become, we recommend the Home Secretary establish a review and options for reform. It should pay particular attention to the impact of the British Nationality Act 1981 on descendants of the Windrush generation.
121.In her statement on 23 April 2018 the then Home Secretary announced the establishment from July 2018 of a new customer contact centre:
recent events have shown that we need to give a human face to how we work and exercise greater judgment, where and when it is justified. That is why I will be establishing a new customer contact centre, so that anyone who is struggling to navigate the many different immigration routes can speak to a person and get appropriate advice. This will be staffed by experienced caseworkers who will offer expert advice and identify a systemic problem much more quickly in the future.
She told this Committee that the contact centre, to be staffed by 30 people, “is not about giving legal advice, but giving information about what sort of application might be appropriate”. The concept that people who are applying to UKVI should be guided through the process is one which we welcome and which, if instilled earlier, may have seen some of the current problems avoided.
59 HC Deb, , Col 350 [Rt Hon Savid Javid MP]
60 HC Deb, Col 350 [Rt Hon Savid Javid MP]
61 Home Office, , 21 June 2018
62 Qq 4- 5
63 Q 2
64 The Guardian, , 18 April 2018
65 Oral evidence taken before the Joint Committee on Human Rights on , HC (2017–19) 1034, Q 24
66 Free Movement, , 4 June 2018
67 The Guardian, , 21 February 2018
68 Oral evidence taken on Q 440 [Rt Hon Caroline Nokes MP]
69 HC Deb, , Col 34
70 HC Deb, , Col 629 [Rt Hon Amber Rudd MP]
71 Q 133
72 Q 222
73 Q 85
74 Q 88 and Q 197
75 Q 200
76 Letter from the Permanent Secretary to the Chair of the Committee,
77 Q 248
78 Oral evidence taken on Q 334
79 Oral evidence taken on Q 337
80 Oral evidence taken on Q 338
81 Oral evidence taken on Q 349
82 Oral evidence taken on Q 342
83 Oral evidence taken on Q 342
84 Oral evidence taken on Q 342
85 Oral evidence taken on Q 275
86 Q 92
87 Q 250
88 Letter from the Permanent Secretary to the Chair of the Committee,
89 Home Affairs Committee, Second Report of Session 2017–19, Immigration policy: basis for building consensus, para 17
90 Q 2
91 Oral evidence taken on Q 279 [Sir Philip Rutnam]
92 BBC Today programme, 20 April 2018
93 BBC news website, , 19 April 2018
94 The Guardian, , 19 April 2018
95 The Daily Mail, , 21 April 2018
96 Q 116 and Q 59
97 Written evidence submitted by King’s College London (IMM 0120) p6
98 HC Deb, , Col 619 [Rt Hon Amber Rudd MP]
99 Home Affairs Committee, Second Report of Session 2017–19, Immigration policy: basis for building consensus, para 54
100 Home Office, Immigration statistics,
101 Q 114
102 Independent Chief Inspector of Borders and Immigration, ‘An inspection of the ‘hostile environment’ measures relating to driving licences and bank accounts (January - July 2016)’, , para 7.7
103 Oral evidence taken on , HC (2017–19) 421, Q 300
104 Independent Chief Inspector of Borders and Immigration, ‘An inspection of the ‘hostile environment’ measures relating to driving licences and bank accounts (January - July 2016)’, , para 6.29
105 Ibid para 2.8
106 Ibid para 2.10
107 Oral evidence taken on , HC (2017–19) 421, Q 300
108 Independent Chief Inspector of Borders and Immigration, ‘An inspection of the ‘Right to Rent’ Scheme’, , Foreword
109 Home Affairs Committee, Second Report of Session 2017–19, , HC 500, para 57
110 Home Affairs Committee, Third Report of Session 2017–19, , HC 421, para 121
111 Bail for Immigration Detainees (BiD) tweet, @BIDdetention, 31 May 2018
112 Financial Times, , 6 June 2018
113 Independent Chief Inspector of Borders and Immigration, ‘An inspection of the ‘hostile environment’ measures relating to driving licenses and bank accounts (January - July 2016)’, , para 2.24
114 Q 67
115 Q 234
116 HC Deb, , Col 756 [Margot James MP]
117 See for example Daily Mail, , 21 April 2018
118 Legal Action Group, Chasing Status: If not British then what am I? ( ) P3
119 Legal Action Group, Chasing Status: If not British then what am I? ( ) P3
120 BBC, Daily Politics, [James Cleverly MP]
121 JCWI and Liberty, Dossier of failure- Windrush and the hostile environment,
122 Home Office Policy Equality Statement, Immigration Bill 2015- Access to services,
123 The Guardian, , 23 April 2018
124 Q 11, Q12
125 Q 19
126 Home Affairs Committee, HC 1075
127 Q 108
128 Q 221
129 Oral evidence taken before the Joint Committee on Human Rights on , HC (2017–19) 1034, Q 21
130 Q 68
131 Q 112
132 Q 14
133 Q 17
134 HC Deb 639, , Col 620 [Rt Hon Amber Rudd MP]
135 Q 21
136 HC Deb 639, , Col 621
137 Letter from Home Secretary to the Chair,
138 Q 81-82
139 Q 185
140 Q 13
141 Q 23
142 Q 21–22
143 Home Affairs Committee, HC 1075, Response to recommendations 19 and 20
144 Oral evidence taken on Q 355 [Rt Hon Caroline Nokes MP]
145 Letter from Home Secretary to the Chair,
146 PQ 146870
147 Q 40 [Adrian Berry]
148 Ministry of Justice, Tribunals and gender recognition certificate statistics quarterly: October 2017 to December 2017, published . Half of the 12,395 cases determined by the First-tier Tribunal Immigration and Asylum Chamber were allowed/ granted.
149 Home Affairs Committee, HC 1075, Response to recommendations 19 and 20
150 Q 40
151 Q 155
152 Home Office and UKVI, , 24 May 2018, p 13
153 Free Movement, , 30 May 2018
154 Home Affairs Committee, Third Report of Session 2017–19, , HC 421, para 73
155 Oral evidence taken before the Joint Committee on Human Rights on , HC (2017–19) 1034, Q21
156 The Guardian, , 15 April 2018
157 Q 275
158 HC Deb, , Col 620- 621 [Rt Hon Amber Rudd MP]
159 Q 138
Published: 3 July 2018