Windrush’s 75th anniversary: “my client’s stories about the scandal must be heard while they’re still alive”

2023 marks 75 years since the HMT Empire Windrush brought migrants from Caribbean British colonies to Tilbury Docks in Essex.

These passengers were the first of the Windrush generation: migrants who would soon create communities, bringing the richness of their cultures with them.

It’s also been five years since the ‘Windrush scandal’ made headlines, where the adverse impact of ill-conceived laws on this community began to be publicly aired.

The start of a scandal

Windrush’s effects did not start in the last five years. Many of my clients have spent decades fighting these battles with the Home Office, sometimes without representation, asking for confirmation of status.

I have been working in immigration and asylum-related law for 23 years, and witnessed Windrush become a part of the British political consciousness in real-time.

When the Guardian started reporting Windrush victims' stories in 2018, requests for recognition of status that had been repeatedly denied suddenly began to be granted.

My client Hubert Howard was last refused confirmation of status in February 2018, effectively being advised that unless he was able to prove that he had continuously resided in the UK since 1960 as he claimed, he did not qualify for confirmation.

After the scandal broke, the Home Office wrote to him, following an article about him in the Guardian, to advise that they had been able to confirm that he had been in the UK since at least 1 January 1973.

Astonishingly, his records showed that in March 2015 the Home Office had recorded that he had indefinite leave to enter and that an email would be sent to him to confirm this. Effectively they continued to deny him in public what they knew internally was his entitlement. That is misfeasance.

However, equally transgressional is the fact that Windrush victims fought for years alone, but their ordeal having broken out in the media, coerced the Government into acting.

Effectively no weight was placed on the community’s plight when they raised it themselves, but action was taken when entities considered to have value picked it up.

A hostile environment

The Windrush scandal is often attributed to the ‘hostile environment’ policies enacted in the early years of the 2010 Government.

However, the environment for the Windrush generation did not become hostile overnight.

The British Nationality Act 1948 made everyone in a British territory, including colonies, a British subject or a Commonwealth citizen. This was most likely in response to India’s recent independence and UK’s need to preserve its empire.

Plus, British subjects from the colonies were to play an important part in Britain’s reconstruction following the Second World War.

Britain’s position was thus: because we need you, if we make you believe you are one of us, you will not want to leave.

Let us not forget that the colonial project, pursued deceptively under terra nullius, had been hostile. Colonisation is after all subjugation, which is predicated on hostility.

It was therefore no surprise that the place where those laws were conceived would be hostile to the people those laws were intended to oppress, who arrived in the UK.

Racism and xenophobia stoked by various factions resulted in attempts to reduce the number of black migrants through the Commonwealth Immigrants Acts 1962 and 1968, the Immigration Act 1971; and Enoch Powell’s infamous speech.

Later, the British Nationality Act 1981 gave the Windrush community a time-limit in which to register and pay for citizenship.

Wendy Williams’ Windrush: Lessons Learned review identified that people were misinformed by the Home Office in the 1980s about their status and the entitlements that British citizenship would bring: some were told it was no different to their indefinite leave status.

The Home Office also failed to properly notify people they had a time limit by which to register as a citizen.

There was a dereliction of the duty to properly notify the community of the effect of independence of their countries of birth, leading to British subjects losing their UK Commonwealth citizenship without them knowing.

The impact of legal aid cuts

A major blow to the Windrush community was the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

It changed the legal aid landscape: immigration advice was taken out of scope. This meant members of the community, unless able to pay privately for legal services, could not have legal representation.

Many of them were not able to pay privately because like Mr Howard, his employment had been stopped as his lawful status was not accepted.

Further, Immigration Acts 2014 and 2016, with all their limitations, including denial of benefits, would have meant people just did not have the funds to obtain legal advice and representation.

The human cost

One of my other clients arrived in the UK in 1967. Various applications to obtain confirmation of his indefinite leave status were refused despite him never having left the UK.

The first time he left was in 2010 to attend his mother’s funeral. He was denied re-entry and was homeless in Jamaica for nine years. A Home Office apology was sent in 2018 after the scandal became public knowledge, confirmation of his status was given and he was permitted back into the UK.

He was later denied British citizenship on the basis that he did not satisfy the requirement to be present in the UK five years preceding the application: clearly not his fault. He is now British following a judicial review.

Mr Hubert Howard, already mentioned, is another example. He arrived in the UK from Jamaica in 1960 when he was three years old.

Mr Howard realised his citizenship was uncertain from the mid-2000s, when he tried to apply for a passport to visit his dying mother in Jamaica.

He continually tried to obtain confirmation of his status, eventually losing his job as a caretaker after being unable to confirm.

Sadly, in 2019, after fighting for years, Mr Howard died of leukaemia at 63.

He died having only been granted citizenship a month before his death; and before receiving compensation.

Where are we now?

Throughout October, Black History Month events across the UK will commemorate the 75th anniversary of the Windrush generation.

Although the community’s cultural contributions to the UK should be celebrated, any festivity will no doubt be tinged by sadness or frustration at the glacial pace at which the community is receiving justice.

Only one tenth of those eligible for compensation from the Windrush scheme have received any, and at least 26 people have died waiting to be paid.

However, no level of compensation would have redressed the crushing of Mr Howard’s or my other clients’ sense of belonging in this country.

We have people in their late 60s, 70s or 80s questioning whether, in light of their treatment, the UK has ever been or can ever be their home.

Reconciliation events – a recommendation from Williams’ report – would go some way to help my clients repair their relationship with the UK and the Government.

They want to talk to policy-makers to tell them the effect of law-making on them: so when those in power create policy and law, they will remember what those affected looked like and hopefully think carefully about the damage hostile laws can have.

But earlier this year, Home Secretary Suella Braverman announced that reconciliation events would not go ahead.

In my opinion, the Government’s message to those who have received compensation is clear: “You’ve received your money, now keep quiet. This is no longer a priority.”

But how will we learn if we do not actually listen? After an individual has made a compensation claim, where does their account of pain, deprivation and hostility go?

If there is no public record of this, how will those who come after us know not to repeat the mistakes of the past? If less than three years since the Windrush recommendations, the Government has made a dramatic volte-face on some of these, what has it really learnt?

This is why I believe it is essential there is a proper inquiry into the Windrush scandal.

The Windrush generations should be able to share their stories and feelings while they are still alive. Their history is, after all, British history.