The way in which the scheme has been designed means individual payouts to affected persons could prove to be less than generous.
There are conflicting views about the manner in which the compensation to be paid to individuals as a result of the Windrush scandal will be calculated and also whether these amounts will provide proper restitution. The first hurdle to be crossed is the fact that the total number of people affected by the Home Office’s error is not known. The Windrush compensation policy impact assessment provides a range of possible total costs of the scheme, acknowledging that if approximately 30,000 people apply for compensation, the costs could amount to almost £600m, however the department predicts that a more likely number of claims would be about 15,000, in which case the total cost of compensating individuals for losses that arose as a result of difficulties proving that they were not illegal immigrants will be somewhere between £120m and £290m.
The Breakdown
The guidance to the government’s compensation scheme runs to 45 pages and details all the documents that those affected will have to present to apply for compensation. Different types of loss have been identified including hardship endured over many years due to the loss of jobs and income, debt, homelessness, stress, physical and mental health problems, detention and even deportation. There is growing concern from immigration lawyers and campaigners that despite this apparently generous hypothetical sum, and although the government is not introducing a cap on compensation payments, the amounts for specific losses within the scheme are capped at low individual maximum payments, which effectively limit the amount individuals will receive. For example:
- People who can show that they were wrongly classified as an illegal immigrant and that the error had a “profound” and likely irreversible impact on their life may be eligible to claim £10,000 or more.
- Persons who lost their job but are unable to provide detailed proof of their employment history will receive a maximum compensation payment of £1,147 a month, capped at a year’s worth of payments, £13,764, (approximately minimum wage). For any greater amount to be claimed, individuals will have to provide documentary evidence of their exact loss of earnings.
- Those who were wrongly deported have been offered a flat payment of £10,000
- £1,000 has been offered to people who were obliged to leave the country under a so-called “voluntary” return scheme because they were unable to prove their right to reside in the UK. Many of these persons took it upon themselves to leave the country after receiving threatening letters from the Home Office wrongly informing them that they were illegally in the UK. It has been suggested that £1,000 does not represent fair compensation in these cases.
- Persons who have been denied the chance to attend university in the UK will also have their claim capped at £500. This amount does not take into account the potential loss of earnings and other collateral effects this may have caused in terms of potential lost career, life experience, social status and earning potential.
- A maximum payment of £500 payment will be allowed for legal costs incurred by individuals trying to resolve their situation. This is likely to be far lower than many individuals paid as they attempted to solve the problems of the Home Office’s creation.
Adding insult to injury
As before, the onus of proof falls on those who claim to have been adversely affected to prove their case against the Home Office meaning the burden of proof is still disproportionately placed on the individual. No legal aid has been made available to provide support in completing the lengthy application form, or to help people quantify their losses or track down the evidence required. Lastly, there is no proper appeal process.
British member of parliament Caroline Nokes said the impact of Windrush on people’s lives overall would also be taken into account and compensated for and stressed that there were two routes to being compensated: those who were able to provide documentary evidence of a loss incurred would be reimbursed the full amount spent, while those who no longer had the documentary evidence would be paid a flat fee. David Lammy, the member of parliament for Tottenham has called for the caps to be scrapped and for those affected to be compensated properly for the wrongs that were done to them.
Martin Forde, the barrister who spent 11 months devising the scheme, advised that the individual sums cited in the rules as part of a package of compensation and the scheme were intended to be applied cumulatively. For example, a person who had been wrongfully deported would receive compensation and if the deportation caused them to lose access to employment, they would also be entitled to receive compensation for their loss of earnings for the whole period that they were out of the country as well as other payments reflecting an uncapped figure for the impact this decision may have had on their family life. Any money sent by family members in the UK to support them while they were out of the jurisdiction could also be reimbursed. Equally, if close family members experienced distress and anxiety, they would have a claim for compensation.
