The Windrush generation Contents

Conclusions and recommendations

Government response

1.It is vital that the country understands how many members of the Windrush generation and their children and grandchildren have been, or continue to be, wrongfully subject to immigration enforcement action. The Home Office must tell us how many people have been unlawfully subject to deportation, detention and reporting requirements. Given concerns that incorrect decisions may have been made due to incomplete information, the Home Office should provide more details of what evidence is being searched for in the files and more information on the independent audit promised by the Permanent Secretary. The Home Office should not limit its checks only to those who may have arrived in the UK before 1973. It should include those who arrived later or who were born here and may also be similarly protected. (Paragraph 18)

2.Those wrongly affected must receive the apology and compensation they deserve. No-one with a legal right to be in the UK should still be subject to enforcement procedures and have to endure the anxiety of having to report regularly to the Home Office under threat of removal. We ask the Home Office again to guarantee immediately that no-one from the Windrush generation or their children or grandchildren are currently subject to reporting requirements. (Paragraph 19)

3.The Home Office should set out whether the 32 individuals removed as foreign national offenders whom it has identified as potential Windrush cases were legally deported. We need to know whether any were in fact British—and so illegally deported—and the grounds for the decision to deport. Whilst the Home Office rightly has provisions in place to deport foreign national offenders, we do not believe that the Home Office can dismiss those Windrush cases where people have a criminal record without further investigation into the circumstances of their removal. (Paragraph 20)

4.It would be unacceptable if members of the Windrush generation found that they were subject to further bureaucratic obstacles after being promised an expedited resolution to applications for documentation. As part of its monthly update to this Committee, the Government must set out how many Windrush cases have not received decisions on their cases within the two weeks promised by the Home Secretary and the reasons for any delays. (Paragraph 23)

5.The burden of proof demanded by the Home Office for people wishing to evidence their right to be in the UK has become too high over a number of years. We welcome the change to a more common-sense and proactive approach for the Windrush generation, who are long-term residents with a deep commitment and connection to the UK, who have done nothing wrong and who the state has a moral obligation to help. We also agree that the Windrush taskforce should exercise greater sensitivity and give proper credence to people’s primary evidence. It is disappointing that the Home Office has only adopted such an approach, which we called for in our report ‘Home Office delivery of Brexit: immigration’, after the Windrush scandal and only for those specific cases. We call for the Home Office to change their approach to include routine gathering of supporting evidence from HM Revenue and Customs and the Department for Work and Pensions, across the full range of UKVI caseworking. The balance of probabilities should also be reaffirmed as the standard of proof across UKVI. (Paragraph 28)

6.We welcome the Government’s statement that no information provided to the Windrush taskforce will be used for immigration enforcement purposes. However, the Government should clearly and urgently set out what will happen to the data, for example, if it will be retained or destroyed. (Paragraph 29)

7.The unredacted version of the guidance provides a useful summary of those who will and will not be covered by the taskforce. At the time of producing this report we have not yet had a chance to review the approach proposed for each category of case, and we believe the guidance should be made public so that we and others can scrutinise it further. We recognise that government should be allowed space to advise its staff in confidence but we see no reason why the unredacted Windrush Scheme Guidance that we have seen should fall into that category. In fact, we argue its publication would be actively helpful both to members of the Windrush generation and their advisers and as an aid to transparency and accountability. We recommend the Government publish the Windrush Scheme Guidance in full, as soon as possible. (Paragraph 31)

8.We welcome the steps the Government has taken to make it easier for people to apply for the documentation they need to evidence their lawful status in the UK. However, it is not acceptable that members of the Windrush generation—some of whom have been made destitute—are still expected to pay fees for passports which may be crucial to them being able to access services to which they are entitled. The Windrush generation often do not have documents which might otherwise prove their right to work, rent or hold bank accounts in this country; therefore they have an even greater need for a passport to prove their rights. Waiving fees for passports for members of the Windrush generation and their children is also an obvious gesture of goodwill which the Government should make immediately. (Paragraph 35)

9.The full compensation scheme, which must recognise both financial loss and emotional distress, should be established as soon as possible and payments made by the end of the year. Where UKVI has charged fees wrongly these should be refunded. In the meantime we urge the Government to act on our previous report and immediately establish a hardship fund for those in acute financial difficulty. (Paragraph 39)

10.The Government should immediately clarify the scope of the compensation scheme, particularly with regard to Commonwealth citizens who arrived in the UK between 1973 and 1988; and children and grandchildren of the Windrush generation born in the UK. As a minimum the scheme should be open to Windrush children and grandchildren who, on the balance of probabilities, were admitted for settlement before the 1988 Immigration Act came into force, and who have had to reapply for it. (Paragraph 41)

Learning lessons for the future

11.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. (Paragraph 43)

12.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. (Paragraph 44)

13.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. (Paragraph 52)

14.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. (Paragraph 53)

15.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. (Paragraph 59)

16.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. (Paragraph 60)

17.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. (Paragraph 63)

18.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 (Paragraph 65)

19.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. (Paragraph 66)

20.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. (Paragraph 68)

21.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. (Paragraph 70)

22.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. (Paragraph 82)

23.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. (Paragraph 83)

24.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. (Paragraph 84)

25.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. (Paragraph 85)

26.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. (Paragraph 89)

27.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. (Paragraph 95)

28.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. (Paragraph 96)

29.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. (Paragraph 97)

30.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. (Paragraph 100)

31.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. (Paragraph 101)

32.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. (Paragraph 104)

33.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. (Paragraph 108)

34.It is clear that UKVI has been struggling with problems of under-resourcing for some time. We agree with the Immigration Minister that the Home Office requires more resources. The Home Secretary should take our concerns and those of his Immigration 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. (Paragraph 109)

35.The lessons learned review should look closely at the impact of the removal of legal aid and the right of appeal on the Windrush generation. (Paragraph 113)

36.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. (Paragraph 114)

37.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. (Paragraph 120)

38.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. (Paragraph 121)

Other groups

39.144,000 undocumented children is a problem the Government must solve. A failure to do so will leave many in a precarious position, unable to study, work or seek the support of social security as they transition into adulthood. There is no benefit to society in people being in this position, many of whom are likely to be British citizens or else entitled to be in the UK. A failure to act will also only serve to increase costs in the future. The Government needs to reduce the barriers to them regularising their status. The fees for children to establish their status are simply too high and the routes for doing so too long and too complex. The Home Office should reduce fees for children to cost-level, introduce waivers for those who are particularly vulnerable and reduce the number of regular applications that are required. The case for reintroducing legal aid for children is most pressing. (Paragraph 128)

40.We welcome statements in the Windrush Scheme Guidance that some of the children about which we raise concern, specifically those with links to the Windrush generation will be able seek assistance from the Taskforce and be issued with a certificate of registration as a British citizen. We also note that the Independent Chief Inspector of Borders and Immigration has launched a call for evidence on the Home Office’s approach to charging for its services. Fees for immigration services have increased considerably over recent years. The Home Office should not seek to recover the costs of the Windrush taskforce or compensation payments by further increases to fees. (Paragraph 129)

41.Chagossians are a unique case but there are parallels with the Windrush scandal in that they are yet another cohort of people whose descendants struggle to access British citizenship. The Government should support Henry Smith MP’s Private Member’s Bill and allow anyone who can prove that they are descended from a person born on the Chagos Islands to register as a British overseas territories citizen and thereby have a right to remain in the UK. (Paragraph 133)

42.In preparing for the registration of EU nationals but especially for the enforcement of that scheme in future years, the Government must be mindful of the fact that there will be some EU nationals who do not register through no fault of their own. This is likely to include children who believe, wrongly, that they are British. The Government will need to ensure that processes are in place to deal with such cases in a positive manner so that they do not find themselves locked out of living a lawful life in the UK as we have seen happen to members of the Windrush generation. (Paragraph 137)

Published: 3 July 2018