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United Kingdom: Compensation Extended to Generation of Immigrants Discriminated against in “Windrush Scandal”

(Feb. 11, 2021) In December 2020, the rules of the Windrush Compensation Scheme were amended to increase the amount of compensation available to individuals and their immediate family members who were affected by the “Windrush scandal”—those who suffered losses due to being unable to demonstrate their lawful immigration status and thus show that they had the right to live and work in the U.K., despite having these rights.

The “Windrush generation” refers to individuals who arrived in the U.K. between 1948 and 1971 from Caribbean countries to fill shortages in jobs in the postwar period. The Windrush scandal was a result of progressively stringent immigration laws and policies from the 1960s onward that were designed to make it difficult for individuals without lawful immigration status to live and work in the UK. The Windrush generation were not provided with documents to prove their lawful immigration status in the U.K. and records were not kept, creating further difficulties for these individuals to demonstrate their lawful presence in the U.K. to obtain employment, housing, and other services.

Losses covered by the compensation scheme include those incurred from being unable to obtain employment, find a place to reside, access healthcare or education, obtain a driver’s license or banking services, or attend major family events outside of the U.K. due to the inability to prove lawful immigration status upon return, as well as from being subject to immigration action, such as detention or removal.

The minimum award was raised from 250 to 10,000 pounds (£) (about US$340 to $13,650) for anyone who can demonstrate that not being able to show their lawful immigration status caused them detriment or inconvenience. The maximum compensation available was increased from £10,000 to £100,000 (about US$13,650 to $136,500) for individuals who suffered “profound impacts” on their lives, although the compensation may be higher if exceptional circumstances exist. All changes to the compensation scheme are being applied retroactively.

When a government inquiry found that a number of individuals had passed away prior to receiving compensation, and that the application process was complex and documentary proof requirements were unreasonable, the system of compensation was subsequently changed to provide for a preliminary payment when “someone applying on their own behalf or on behalf of a deceased relative can show any impact on their life under the terms of the scheme.”

To help relieve the documentary proof requirements, the standard of proof was changed in October 2020, and the compensation scheme now operates on the balance of probabilities, meaning that those who review claims consider that the evidence presented indicates that, more likely than not, the losses occurred. Before this date, caseworkers were required to be “satisfied so as to be sure” that losses were incurred, but after this approach was strongly criticized in a government report, the standard was lowered.

The operation of the compensation scheme has been severely criticized. In November 2020 a senior Home Office staff member resigned, claiming the scheme was “systematically racist and unfit for purpose.” Low numbers of payouts and of people applying, along with delays in individuals receiving compensation also led to concern over the operation of the compensation scheme, which started on April 3, 2019. By October 2020, after 18 months of operation, £1.6 million (about US$2.2 million) had been paid to 196 people, which was significantly lower than the £200 million the government reportedly estimated it would have to pay out.

The compensation scheme operates separately from the Windrush Scheme, which provides that certain individuals, or individuals whose parents are Commonwealth citizens and entered the U.K. from a Commonwealth country before January 1, 1973, or from any country before December 31, 1988, and settled in the U.K. can apply for a document to prove they can live and work in the U.K. In November 2020 it was reported that the Windrush Scheme had quickly provided documentation to 13,000 individuals who had been incorrectly designated as illegal immigrants.