The Windrush Scandal: Who will be entitled to c...

Tue 23 October 2018 The Windrush Scandal: Who will be entitled to compensation?

MARK QUINN >

Consultant Solicitor

The year 2018 has seen many a political crises in the UK. It would be difficult, however, to dispute that the Windrush Scandal might just sit at the top of the tree: an ugly reminder that the use of anti-immigration sentiment for political capital remains rife.

The Home Office’s controversial (and now politically toxic) policy of a “hostile environment” towards illegal immigrants created a climate whereby British citizens, with roots in the Caribbean, were treated with suspicion. This designed culture of suspicion led to wrongful detainment, denial of legal rights and medical care, along with loss of earnings. In some cases, it resulted in the wrongful deportation of British citizens who had arrived (or parents had arrived) in the UK prior to 1973.

Those Caribbean migrants who arrived in Britain (at the behest of the British government) in the years between 1948 and 1971 are labelled the “Windrush Generation” – a reference to the ship MV Empire Windrush, which brought Caribbean islanders to these shores in June 1948, due to a shortage in labour. Despite, in many cases, literally helping to build this country, the Home Office failed to keep an adequate record of those granted leave to remain. As a result, many citizens struggled to evidence their citizenship, resulting in the present-day scandal.

As one Home Office minister lost their job, another has entered the fray with promises of adequate compensation. This leads us to the question: what will this compensation scheme look like and who will be eligible?

The compensation scheme

On 19 July 2018, the Home Secretary launched a consultation on the design of a future Windrush compensation scheme. The consultation (which was meant to close on 11th October 2018 and has since been extended until 16 November 2018) covers three core elements:-

Who should be eligible for compensation;
What losses should be compensated for;
How the process should work.

This initial blog explores who might be deemed eligible for Windrush compensation.

Eligibility

The eligibility criteria for Windrush compensation will likely directly mirror the criteria for the Windrush scheme (which was set up to assist people in establishing their lawful immigration status).

The present consultation further provides a non-exhaustive list of examples of people who would be eligible for compensation. We will, of course, know more when the consultation period expires.

Example 1: Anyone of any nationality who arrived in the UK before 31 December 1988 and is lawfully settled in the UK is eligible for help under the Windrush Scheme and would therefore be eligible to make a claim for compensation under the scheme.
Example 2: Certain children of the Windrush generation are eligible for help under the Windrush Scheme, for example, children born in the UK. Some will automatically be a British citizen (those born before 1983 and those born to a British citizen or a parent settled in the UK) and some will be eligible to register as a British citizen. In addition, a child of a Commonwealth citizen who was settled in the UK before 1 January 1973, who was born outside the UK and who came to the UK before they were 18 is eligible for help under the Windrush Scheme. Children who are not eligible for help under the Windrush Scheme would not be eligible to make a compensation claim.
Example 3: In terms of eligibility for help under the Windrush Scheme for people who are outside the UK, this applies, predominantly, to Commonwealth citizens who were settled in the UK before 1st January 1973 but who left the UK and whose right to be in the UK has since lapsed. Those who can establish close and continuing ties with the UK are eligible for help under the Windrush Scheme and so would be eligible to make a compensation claim. Those who are outside the UK and do not fulfil this criteria will not be eligible under the Windrush Scheme and would therefore not be eligible to make a claim for compensation.

Mark Quinn is a consultant solicitor with Taylor Rose TTKW specialising in civil litigation and dispute resolution. Should you wish to discuss any of the issues within this article or require his advice, do not hesitate to contact him on 01733 865 136 or mark.quinn@taylor-rose.co.uk