The Home Office did not deliberately deny the Windrush generation of their legal rights to be in the UK, but it failed to protect their needs when it designed and implemented its immigration policies. This has led to serious consequences for people affected, according to the National Audit Office (NAO).
In its report, published today, the NAO provides transparency about what happened and what is being done now to help those affected and to prevent a similar situation happening again.
The NAO has found that when designing and implementing compliant environment policies – previously known as the ‘hostile environment’ – the department did not sufficiently consider the potential implications this would have on those who might find it harder to prove their settled status in the UK, including Windrush migrants who came to the UK between 1948 and 1973 and were given indefinite leave to remain. Many were not given documentation and the department kept no records. The department itself identified in 2014 that there were around 500,000 settled migrants who would find it harder to prove their status though it has issued biometric residence permits to some 90,000 of this group since June 2014. The department also failed to act on evidence provided in a number of reports and by Caribbean ministers that members of the Windrush generation and others could be adversely impacted by its policies.
Poor use of data within the department increased the risk of wrongful removals, detentions and sanctions on public services for the Windrush generation. Both the NAO and the Independent Chief Inspector of Borders and Immigration raised concerns, several times, since 2014, about the quality of the department’s data and controls underpinning its immigration system. The department also ignored the Chief Inspector’s recommendation in 2016 to cleanse its database of individuals who were wrongly flagged as being in the UK illegally.
UK Visas & Immigration makes decisions about whether people should stay in the country. Its application system is complex and performance is geared towards prioritising decisions within agreed timeframes rather than the outcome or impact of the decision, which may have contributed to incorrect decisions. While there is insufficient information to know whether overall removal targets for illegal immigrants contributed to the Windrush situation, these targets would have influenced how enforcement staff carried out their work, in a way that may have increased the risk of wrongful removals.
To date, the department does not know how many members of the Windrush generation have been wrongly impacted by policies designed to target illegal migrants, and the extent of the problems they have faced. It has set up a taskforce to help people resolve their immigration status which, at September, had received 6,589 calls from the Windrush generation and other eligible groups. At the end of September, the Home Office had issued documents to 2,658 people to confirm their status, 73% of whom were from Caribbean Commonwealth countries, 25% were from other Commonwealth countries, and 2% were from countries outside the Commonwealth.
The department has made some attempt to identify how many people have been affected, but has not established the full extent of the problems, and it is showing a lack of curiosity about individuals who are not of Caribbean heritage. So far, it has identified 164 people who were removed or detained and might have been resident in the UK before 1973, just over half of whom (51%) left the UK following enforcement action. The department has apologised to the 18 people in whose cases it considers it is most likely to have acted wrongfully.
To identify people affected, the department has narrowly focused on the files of 11,800 people from twelve Caribbean countries, based on the numbers of individuals who were granted status in the first month of its taskforce.
The department has no plans to review the files of around 160,000 Commonwealth nationals born before 1973, who may have also been wrongfully detained or removed. The department believes this would be disproportionate, but the NAO says the department has insufficient evidence to come to the conclusion that other nationalities would not have been affected and its own Windrush taskforce is open to people from countries outside the Caribbean. The department has also not conducted any analysis to support its assertion about the amount of effort required to review these files. Established principles that set out how government departments should act in cases where people’s legal entitlements have been affected also place an onus on the department to be proactive in identifying people affected.
The department is separately reviewing around 2,000 cases to establish how many people might have been incorrectly sanctioned under ‘proactive’ hostile environment policies, such as having a driving licence revoked. It believes at least 25 people could be identified. However, it is unlikely to ever know how many people were incorrectly denied a job or a home to rent, because it does not have the necessary data.
The department is setting up a compensation scheme. It expects to pay people from a wide range of countries for loss of employment or benefits, wrongful detention and removal, denial of access to public services, and the impact on mental wellbeing. At this stage, the cost of the scheme is unknown due to the uncertainty around the potential number of applications, the complexity of the claims, and how many will be successful.
The NAO has made a number of recommendations to the department to reduce the risk of a similar situation happening again. This includes the department considering its responsibility to be more proactive in identifying people affected, and developing a strategy to support potentially vulnerable people across the immigration system as a whole. It must also improve its approach to assessing risks to individuals and groups, before implementing policies.
“The treatment of people who had a legitimate right to remain in the UK, raises grave questions about how the Home Office discharged its duty of care towards people who were made vulnerable because of lack of documentation. It failed to protect their rights to live, work and access services in the UK, and many have suffered distress and material loss as a result. This was both predictable and forewarned. The department is taking steps to put things right for the Caribbean community, but it has shown a surprising lack of urgency to identify other groups that may have been affected.”
Amyas Morse, head of the NAO, 5 December 2018