Windrush generation and the Home Office Contents

1Systemic problems within the Department

1.Based on a report by the Comptroller and Auditor General, we took evidence from the Home Office (the Department).1 We also took evidence from the Immigration Law Practitioners’ Association, Joint Council for the Welfare of Immigrants, and from Vernon Vanriel and his representative Jon Feld (Mr Vanriel is a member of the Windrush generation who was denied re-entry to the UK after a visit to Jamaica). The Home Office and its agencies (UK Visas and Immigration, Immigration Enforcement and Border Force) manage the UK immigration system, setting immigration policy, deciding who has the right to stay and encouraging and enforcing the removal of illegal migrants.2

2.Between 1948 and 1973, many Commonwealth citizens came to live and work in the UK and had the right to remain in the UK indefinitely. Some of these individuals, particularly those from Caribbean nations, have become known as the Windrush generation, named after the hundreds of people who travelled from the Caribbean to England on HMT Empire Windrush in 1948. From 1973, changes to immigration legislation meant that people arriving from Commonwealth countries could no longer stay in the UK indefinitely and were granted temporary residence instead. Many Commonwealth citizens who had arrived before 1973 were not issued with any documentation, and the Home Office kept no records to confirm these individuals’ immigration status.3

3.The ‘compliant environment’, known pre-2010 as the ‘hostile environment’, is a cross-government policy designed to reduce the impact of migration on public services, emphasising the need for individuals to prove their immigration status. The 2014 and 2016 Immigration Acts introduced stricter controls around migrants’ access to services including housing, welfare benefits, driving licences and bank accounts.4 For example, the 2014 Immigration Act introduced Right to Rent, requiring private landlords to check the immigration status of prospective tenants, and giving them powers to evict existing tenants who are in the UK illegally with the risk of financial penalties or criminal sanctions if they are found to be renting to illegal migrants.5

4.From late 2017, media reports began to grow about members of the Windrush generation being denied access to public services, detained in the UK or at the border, or removed from, or refused re-entry to, the UK.6 In April 2018, the government acknowledged that the Windrush generation had been treated unfairly. The Department has set up a taskforce to help resolve the Windrush generation’s immigration status. It is also in the process of setting up a compensation scheme. It has reviewed 11,800 cases of Caribbean Commonwealth people who were born before 1 January 1973 and were detained and/or removed from the UK since 2002. From this it found 164 people who may have been in the UK before 1973, and of those, 18 people it is most likely to have treated wrongly.7 The Department has reported that it is trying to contact these 164 people via its taskforce, and as of December 2018 had traced 124.8 It is also carrying out a separate review of around 2,000 cases to find people who may have had a compliant environment sanction wrongfully applied. It has committed to sharing its findings in the first quarter of 2019.9

Failing to protect the legal rights of the Windrush generation

5.The Immigration Law Practitioners’ Association (ILPA) noted that public administration in the UK is based on a culture of rights rather than permissions, and the notion that people do not have to prove their identity at various points. This meant that people from the Windrush generation, who had statutory leave to remain under the 1971 Immigration Act, did not have formal permission or documentation to remain in the UK from the Home Office, but still had the right to do so. It told us that the compliant environment policy, however, had brought about a requirement for documentation without having a documentary system in place, and that this, combined with a net migration target and the removal of legal aid from immigration cases and first-tier tribunal appeal rights had created a system that manufactured ‘precarious lives’ and led to people being excluded.10 In its December 2018 report, the National Audit Office concluded that the Department had not adequately considered its duty of care and ensured that people’s rights and entitlements were recognised when it introduced its immigration policies.11

6.The Department has accepted that it should have understood the potential adverse effect of its policies on the Windrush generation, and that this information should have featured in its impact assessments. The Department told us that the impact assessments were not done to the standard required, and rather than being at the heart of the policy making process, were most likely to have been completed as a tick box exercise towards the end of it. The Permanent Secretary stated to us: “It will have been a failing, to be honest, of understanding the context, of not understanding enough about the populations that were affected…” The Department observed that the approach taken meant the assessments did not identify all the issues, and that it was awaiting the findings of the Wendy Williams Independent Lessons Learned review, due to report in Spring 2019, for a definitive account of what happened and when, and who knew what.12 The Department said its experience of what had gone wrong with Windrush had influenced its approach to leaving the European Union and related immigration policy. It claimed that following the publication of its immigration White paper it would be engaging in a significant process of assessments and testing submissions for the risks of inadvertent consequences and other factors before it set new rules for the immigration system.13

7.The Department also agreed that it should have ‘properly considered’ concerns raised by third sector and other parties about the adverse effect of its policies on people. It accepted it did not gather relevant evidence to ensure it had a good understanding of the issues, and did not properly consider representations made to it.14 In written evidence, the previous Permanent Secretary of the Department, who was in the role from 2013 to 2017, told us that two documents were not brought to his attention: the 2014 Chasing Status report by the Legal Action Group, which raised concerns about the adverse impact of compliant environment policy on certain groups, including Jamaican migrants who arrived in the UK before 1973, and a 2016 diplomatic telegram sent by the Foreign Office to the Home Office that referred to warnings from Caribbean Commonwealth Ministers about Windrush cases.15 The Department took no action following the 2014 report or 2016 diplomatic telegram.16 The Committee will be taking evidence from the former Permanent Secretary later this year.

Poor quality systems and data

8.This Committee, our predecessor, and other commentators have raised concerns about the quality of the Department’s systems and data. In 2014, the Department committed to implementing by Spring 2015, the previous Committee of Public Accounts’ recommendation to immediately take steps to improve the quality and clarity of the data it collects and holds.17 In 2016, the Independent Chief Inspector of Borders and Immigration found the Department had wrongly identified some people as being ‘disqualified’ from having a driving license or a bank account, but the Department rejected the recommendation to cleanse its disqualified persons list of people who should not be on it.18 The historical review on compliant sanctions is ongoing: the Department accepted that it was likely to find a small number of people from the Windrush generation whose data was wrongly shared and could, therefore, have been given incorrect compliant environment sanctions. It added that it was reasonable to expect this could be scaled to a larger number of people from other Commonwealth nationalities.19

9.The Department told us that it has reduced or paused active data sharing since the Windrush scandal broke, to reduce the risk of unreliable data being used and is manually checking and putting safeguards around the data it holds. It told us that it was more confident that it was not taking unfair action against people due to these changes.20 The Department did not know whether issues with its data and incorrect sanctions on the Windrush generation could apply to other aspects of its immigration application cases.21

10.The Department told us that its policy under successive governments has been to receive and process applications according to a set of rules, rather than trying to help people navigate the system. The Department has been aware for some time that people struggle to use its systems and following the Windrush scandal it is now trying to change this approach.22 It admitted that it had not tested its Windrush ‘urgent and exceptional need’ support programme with staff or members of the public before going live to see whether it was user-friendly and understandable.23 The Department’s quality assurance systems are also process focused, looking at speed and volumes and not the complexity or impact of its decisions.24

11.The Department told us that its Casework Information Database (CID), dates back to 1998 and acknowledged that there are defects both in the system and the data within it. It says that ‘Atlas’, its new case management system, will resolve existing problems by providing a customer focussed view and allowing more automated updating, reducing the amount of manual entry by staff.25 The Department also said it has begun to process some new applications on Atlas. The project is due to be complete by 2021. It did not have specific dates for when all applications involving immigration processes will be using the system and for when movement of all stock will be complete.26 It says work is ongoing to ensure it adopts the optimum approach to data migration, including finalising its approach to assuring data quality using management information, business activity monitoring and data comparison.27

12.The Department told us that it is taking steps to ensure EU citizens do not face the same issues as the Windrush generation when the UK leaves the EU in March 2019. The Department says it is making the system EU citizens will use to confirm their status as easy and simple to use as possible. At the time of our evidence session the Department told us that the system was still in its ‘private beta’ stage and being tested with some EU citizens, and would be open to all EU citizens in 2019.28 It has since confirmed the scheme will be fully open by 30 March 2019.29

Failing to monitor the impact of compliant environment measures

13.During the evidence session we raised the risk that lawfully British citizens, mostly ethnic minorities, have been discriminated against in their access to important services including housing and employment.30 ILPA told us that compliant environment measures regarding private renting and employment checks had effectively forced employers and private landlords to become local immigration enforcement officers. ILPA also stated that the risk of penalties for non-compliance – £3,000 for a landlord and up to £20,000 for an employer - mean landlords and employers are less likely to go through the process of awaiting confirmation of identity, increasing the risk of discrimination against certain groups. It noted that ethnic minorities in particular, including those who are British citizens, are being filtered out of housing and employment processes because it is easier to do this than perform a series of checks.31

14.The Department has accepted that its pre-Windrush monitoring of the compliant environment was limited, and that it should have been doing more to evaluate whether its policies were leading to discrimination in the housing and employer market. It told us it had conducted some analysis regarding Right to Rent in 2015 to see whether the policy was leading to discrimination, but did not have specifics on the information it had received back from partners in advance of the Windrush scandal.32 The National Audit Office’s report noted that the Department had decided from its 2015 pilot of Right to Rent that the scheme was having a positive effect, but the Joint Council for the Welfare of Immigrants claimed it had led to discrimination. The Chief Inspector later concluded the Department’s evaluation of the Right to Rent scheme had dismissed concerns about negative effects including discrimination.33

1 C&AG’s Report, Handling of the Windrush situation, Session 2017–19, HC 1622, 5 December 2018

2 C&AG’s report, paras 3, 1.8

3 C&AG’s report, para 1

4 C&AG’s report, paras 2, 1.7

5 C&AG’s report, paras 1.1, 1.9, Figure 1

6 Q 89; C&AG’s report, para 5

7 C&AG’s report, paras 5, 18, 2.4

8 Update to HASC on Windrush: 17 December 2018, page 10

9 Qq 98, 164–167; C&AG’s report, para 9

10 Q 22

11 C&AG’s report, para 20

12 Qq 78, 81- 85, 88-89; C&AG’s report para 4.9