Unlawful Detention: Learning From the Windrush Scandal

The current furore around Windrush-era arrivals from Commonwealth countries who are now struggling to prove their UK residency rights is distressing. Many of the affected individuals arrived as children and have never returned to their country of origin even for a short visit. They have made their lives in the UK, working and raising families, and, until recently, had no idea that the rug was about to be pulled from under their feet.

Practical obstacles (the fact that many Commonwealth arrivals travelled to the UK on the passports of parents or siblings, and never applied for their own, and inadequate record-keeping by immigration officials) appear to underpin the problem. However, arguably it need not have become a problem at all was it not for the government’s heavy-handed immigration policy.

This is a policy that has seen a number of previously settled and well-integrated individuals detained in one of nine immigration centres. Although the law permits detention in these centres in several circumstances, including when their application to remain in the UK is being processed, there is also a right to bail. Unfortunately, current statistics suggest that only one in nine bail applicants are successful. Many are refused bail in spite of following instructions from the Home Office and the courts to the letter.

Andrew Holness, the Jamaican Prime Minister and the MP David Lammy are calling for compensation for individuals who have been denied health services, refused jobs and benefits, precluded from renting homes, wrongfully detained and, in some instances, even deported.

Andrew Holness argued that anyone who has been deported must “get access to a process that gets them back” while David Lammy said: “ … compensation must be applied retrospectively to all of those Windrush children who have spent money on legal fees and legal advice, documentation fees, lost their jobs and been denied access to benefits and public services, including our national health service.”

Even if affected individuals are compensated or (if they want) repatriated to the UK, and even though the Home Office has now announced plans to assist affected individuals to confirm their right to residency, there are growing fears that the government has no plans to soften its hard-line approach to immigration. Some are already pointing to the “3 million” – the estimated number of EU citizens currently living in the UK – and questioning what will happen to them after Brexit. Guy Verhofstadt, the European parliament’s Brexit coordinator, has stated that he expects the UK government to reassure the European parliament that the scandal will not be repeated in relation to EU citizens.

Although some government voices suggest that the digital footprint left by most EU citizens living and working in the UK should be sufficient evidence of their life and work in the UK, other interested parties have voiced doubts. The elderly, the computer illiterate and care leavers are among groups identified as most likely to face immigration problems post-Brexit. In a worst-case scenario, they could face deportation for failing to register for settled status prior to Brexit.

If nothing else, the Windrush scandal suggests that the only reasonable approach is to take nothing for granted when it comes to official approaches to immigration. Pressure groups, such as the 3 million campaign group, are gearing up to provide legal support to affected individuals. However, it is likely that some may also need specialist legal advice, which is something that the 3 million campaign group is careful to distinguish from legal support.

Awais Ahmed is a student, blogger and digital marketer who helps small entrepreneurs to improve their online presence. He has a range of interests including technology, apps and small business.