What happened? When? To whom? and Why?

On 19 March, screened by the draft Corona: Defence of the Realm Bill, the long awaited  Windrush: Lessons Learned Report (hereafter Lessons Learned) was published. For those who have missed out on the considerable publicity generated by the Windrush Generation scandal, a short account is in order. The  Windrush Generation broadly comprises Commonwealth citizens who have indefinite leave to remain in the UK or “settled status” on the basis of having  settled in the UK before 1973 when the Commonwealth Immigration Act 1971 came into force, and not since 1988 having left the UK for more than two years. Many of these elderly British citizens were unable to prove their right to live here to the satisfaction of the Home Office (perhaps because they entered the country on a parent’s passport or had lost their papers in the ensuing forty-odd years since their arrival). These unfortunate “surprised Brits” were denied healthcare, welfare benefits, pensions, lost their settled housing and long-term jobs, were taken into detention and even deported. They had become victims of the so-called “hostile environment” policy, a set of measures introduced in 2012 by Theresa May when Home Secretary with a view to making life as difficult as possible in the UK for people with no legal status to encourage them to leave. The measures were defended at the time by Theresa May, then Home Secretary, and incorporated into the Immigration Act 2014.

We know that the Home Office was aware of the impact of these measures on the Windrush generation since well before 2018, when Lessons Learned was commissioned. In 2013, Caribbean leaders in London for a Commonwealth leaders conference drew the attention of the British Government to reports that some Commonwealth/British citizens were being treated as undocumented immigrants and the Home Office was given notice of the anomaly (G Hewitt, ’The Windrush Scandal’ (2020) 66 Caribbean Quarterly 108). In 2014, the Legal Action Group published a research study containing distressing case studies of nine victims (Chasing Status: if not British, then what am I?). Around 2017, the affair became a national scandal when The Guardian and its reporter, Amelia Gentleman, fronted up a national campaign and, inside the Home Office, e-mails started to circulate between the press office, ministerial private offices and UK Visas and Immigration (UKVI), the Home Office unit in charge. On 2 May 2018 the Home Office established the Windrush Lessons Learned Review and on 21 June the Home Secretary, then Sajid Javid, appointed Wendy Williams as Independent Adviser. Since then, there have been three parliamentary committee reports and a review by the NAO, all from their different perspectives highly critical of the Home Office, and two parliamentary debates.

The choice of Wendy Williams to supervise, later to lead, the Review, was in some ways an unusual one. Wendy Williams is a solicitor by training with a career background in the Crown Prosecution Service. She joined HM Inspectorate of Constabulary and Fire & Rescue Services (hereafter HMIC) in 2015 and is now Senior Responsible Officer for HMIC’s criminal justice and joint inspection portfolio with responsibility for the monitoring process in 13 forces covering the Midlands, Wales and South West areas. Her appointment can be read as a reversion from a public inquiry or ombudsman investigation, the current machinery of administrative justice, to an earlier constitutional tradition. HMIC (technically now HMICFRS with responsibility for fire services) was founded in 1856 to conduct annual inspections with a view to ensuring the efficiency and effectiveness of the relatively new and diffuse policing services. Today, it commits itself “to ask the questions that citizens would ask, and publish the answers in accessible form, using our expertise to interpret the evidence and make recommendations for improvement.” Like ombudsmen, inspectors make recommendations for reform and improvement but have no powers to give orders for change. The inspectorate is autonomous and independent. HM Inspectors are not employees of the police service, the fire services or the government; they are appointed by the Crown. No Minister, police or crime commissioner or local authority can interfere with the contents of an HMIC report or the judgment of an inspector. Over the years, HMIC has acquired a reputation for what Robert Reiner once called “neutral expertise.”

As an experienced inspector, Wendy Williams was in many ways well-fitted to her task, which was “to investigate: the key legislative, policy and operational decisions that led to members of the Windrush generation becoming entangled in measures designed for illegal immigrants.” This type of work is what inspectors do. She is familiar with the Home Office and understands its ways. She is not an insider, but she is at least semi-detached. In other ways, her appointment was less ideal. Doubts were expressed concerning independence and there must be questions too about her standing. She was not, like the chair of a public inquiry, a High Court judge with powers to subpoena witnesses etc, nor did she have the backing of a Select Committee like the Parliamentary Ombudsman. We shall need to return to this point.

The full remit of Lessons Learned was to investigate:

• the key legislative, policy and operational decisions that led to members of the Windrush generation becoming entangled in measures designed for illegal immigrants
• what other factors played a part?
• why these issues were not identified sooner?
• what lessons the organisation can learn to ensure it does things differently in future?
• whether corrective measures are now in place and, if so, an assessment of their initial impact?
• what (if any) further recommendations should be made for the future?

A racist culture?

Wendy Williams could have interpreted her brief narrowly and in an exculpatory fashion, as we have seen many Cabinet Secretaries do. Commendably, she did not do this. This is very much a “grass roots” inquiry, with access and participation as key themes. The Review team met and worked with a wide range of organisations, groups and people, including government officials, politicians and approximately 270 people affected by the scandal, through interviews, focus groups, open forums and roadshows around the country.

Much of the Lessons Learned Report deals with culture. It follows the trail back to the 1960s and passage of the first immigration control laws for Commonwealth citizens and looks at “the broader historical, social and political backdrop, the development and implementation of key policies and legislation.” In a manner reminiscent of recent revelations by the historian David Olusoga about the manoeuvres of early post-war governments, Lessons Learned exposes attitudes that underlay the “hostile environment” policy of the 1990s and 2000s and were made explicit in the “Go home or face arrest” advertising billboards and vans that caused a public outcry and split the Coalition Cabinet in 2013. As politicians help to set the tone of a department, it is depressing to learn that some former ministers as well as senior civil servants to whom Wendy Williams spoke appeared not to accept “the full extent of the injustice done to the Windrush generation” or took the view that the responsibility really lay with the Windrush generation themselves to sort out their status (Lessons Learned, p. 115).

Unlike Sir William Macpherson in the Stephen Lawrence Inquiry, however, Wendy Williams does not make a finding of institutional racism in the Home Office. Indeed, she expresses the view (or perhaps the hope) that attitudes are shifting, and changes are beginning to take place (Lessons Learned p.91).  But she is clearly unhappy with Home Office culture, as were the Home Affairs Committee (HAC) and the Joint Committee on Human Rights (JCHR), which called the Home Office approach to and handling of Windrush immigration detention cases “dehumanising and deeply problematic”. These attitudes, to which we shall return, linger on in today’s multi-cultural society.

Maladministration

What then were the root causes of the Windrush generation disaster? For one former minister they could be summarised succinctly as, “total lack of proper administrative competence basically” (Lessons Learned p.51). There is some support for this trenchant observation in an inspection in January 2018 by the Home Office Independent Chief Inspector of Borders and Immigration (ICIBI) whose remit is to “help improve the efficiency, effectiveness and consistency of the Home Office’s border and immigration functions through unfettered, impartial and evidence-based inspection.” Chief Inspector David Bolt recorded “persistent familiar concerns”: poor record keeping, gaps and errors in data collection and management information and, significantly, the failure of first-line Quality Assurance processes to identify and correct errors. While these “systemic weaknesses” remained, it would be hard “to satisfy the Inspectorate and others that misgivings about overall decision quality, and about senior management awareness of pressure points and “backlogs”, are misplaced” (ICIBI, p.11).

These strictures were picked up in a Report from the prestigious Public Accounts Committee (PAC), which emphasised the poor quality departmental data on individual cases. Internal management reports were based on poor quality data often stored in old, legacy IT systems; in 84% of removals, for example, the Home Office “did not hold the minimum necessary information, such as the person’s address or postcode”. This “long-standing issue”, which the Department had notably failed to address, inhibited the department from efficiently managing the overall workload backlogs and hindered effective oversight and accountability. And the department had failed to follow guidance on impact assessment; its impact assessments did not analyse sufficiently the risk that compliant environment policies might have unintended or unfair consequences, its quality assurance systems were not focused on outcomes or the impact of decisions and it did not have adequate feedback loops in place to identify any adverse or unintended consequences. This inadequacy was admitted by the Permanent Secretary in evidence:

I completely agree that we should have spotted this issue. It should have appeared in our impact assessments. We should have understood the potential adverse effect of these policies on this population. I completely agree with that.

Learning Lessons is in many ways less precise. It depicts the department as increasingly fragmented: “firmly chopped up into four, five different parts” (p.51) with decision-making divided between teams who operate in “silos” (p.13). Internal training has progressively become less thorough and less joined up and there is an absence of a “learning culture” in the organisation as a whole. This was especially true of UK Visas and Immigration (UKVI), where the Review found a “target-dominated” work environment and low-quality decision-making.  But the Report insists that responsibility for what went wrong must be shared between the three departmental levels – political (Secretary of State, special advisers and the ministerial team), managerial (Permanent Secretary and Senior Civil Service) and civil servants at junior grades.

That the direction of policy is set at the political level does not emerge very clearly from Lessons Learned, though Wendy Williams remarks that Ministers did not sufficiently question the unintended consequences of their policies and states too that she “found no evidence that officials were acting beyond ministerial direction at any time.”  But responsibility surely lies at the political level for the complexity of the immigration control system, based on a series of constantly amended Immigration Acts and Immigration Rules of uncertain legal status, which are continuously updated so that HAC found that “even the officials did not know which laws and rules to be applying.” Lessons Learned is firm that the complexity of immigration law should be reduced. The Law Commission should be asked to add consolidation of statute law to its recently completed programme for simplification of the Immigration Rules on which the Home Office is supposedly working with the Law Commission (Recommendation 21). This will – or would in the unlikely event that it is fully implemented -ensure that the law is much more accessible “for the public, enforcement officers, caseworkers, advisers, judges and Home Office policy makers.”

Several witnesses pointed to targets as a key element in helping to promote an “irrational and unreasonable approach to individuals” of which HAC complained. Targets put pressure on junior officials and encouraged oppressive ground level practices. It was these work styles, and especially the habit of making multiple demands for multiple documents as “proof” of presence in the UK over a lengthy period of years (Lessons Learned p.12) that had the most negative impact on individuals (Lessons Learned p.50). But junior officials do not set targets, they work to them. And target-setting was unlikely to be a ministerial policy. We know indeed that incorrect statements about targets made by Amber Rudd to HAC in her short spell as Home Secretary arose from the fact that she had not been properly briefed (Sir Alex Allan review, 23 May 2018). Setting targets is a standard part of a managerial style pinpointed by HAC as one of a series of different policy, cultural and organisational shifts within the Home Office – the removal of caseworker discretion, an increasingly rigid, rules-based culture, the use of targets, restrictions on independent checks and appeals, stronger controls at the border and a raft of laws collectively known as the “hostile” the “compliant environment”- that helped to create an environment in which people wishing to document their status appeared “to have been automatically treated with suspicion and scepticism” and had been made to follow processes that appeared “designed to set them up to fail”, while at the same time vital avenues for support such as legal aid and the right of appeal had been removed.

Lessons truly learned?

All this can happen only if the Home Office wants it to happen. The Review demands apologies, which have at the political level already been given. But as the Report puts it, the sincerity of the apology will be determined by “how far the Home Office demonstrates a commitment to learn from its mistakes by making fundamental changes to its culture and way of working, that are both systemic and sustainable” (Lessons Learned p.15).  In a statement to the House of Commons, the new Home Secretary Priti Patel promised to “review the recommendations Wendy Williams makes in relation to the way the Home Office operates as an organisation [and] continue to look closely at its leadership, culture, practices and the way it views the communities it serves” (col 1156).  

There have been some positive reforms. A dedicated Home Office Taskforce and helpline to assist people who may be eligible for British citizenship reportedly works well. The Vulnerable Persons Team has provided support to nearly 1,400 people, with around 120 people still receiving support and has supported over 360 people to secure access to benefits. Members of the group do not have to pay for the documentation. A compensation scheme is finally in place, though it was over a year in the making thus necessitating interim hardship relief for people in acute financial difficulty in advance of the launch (see HAC, Windrush: the need for a hardship fund, HC 1200 (2018)). The 52-page document, with an 18-page application form and 45-page guidance booklet plus the documentary evidence demanded by the Home Office all require legal expertise which, needless to say, is not legally aided. But in the absence of adequate legal aid, a £500k fund for grass roots organisations to promote the Windrush compensation schemes and offer specialist advice services has been announced by Priti Patel. Other reforms are in the pipeline. An “expanded cross-Government Windrush working group” is to be launched to develop programmes to improve the lives of those affected.

Wendy Williams wants much, much more. Lessons Learned demands a programme of reconciliation events with members of the Windrush generation in the presence of trained facilitators and/or specialist services and senior Home Office staff and ministers, who would listen and reflect on the stories of those who have been affected (Lessons Learned, Recommendation 3, p.15). It asks (perhaps hopefully) for a more open and transparent Home Office in the future, which reaches out to the public and is willing to accept criticism. Building on positive examples of stakeholder engagement in other parts of the Department, UKVI should be more proactive. It should connect with interested parties and promote “a genuine dialogue about policy design” (p.93).  And more specifically, it should assess and limit the impact of the hostile environment on the Windrush generation.

The Review makes its own suggestions for oversight, including a Migrants’ Commissioner responsible for speaking up for migrants and those affected by the system directly or indirectly (Recommendation 9). The Commissioner would work together with the ICIBI, whose role should be reviewed and consideration given to granting the office more powers with regard to publishing reports. But Annual Reports confirm that the Home Office record with respect to implementation of inspectorial reports is not particularly encouraging. In 2017-18, only around 68% of ICIBI recommendations were accepted with 25% partially accepted, while Home Office records show that over 40% of accepted recommendations were still “open” at the end of 2017-18, meaning that the necessary action(s) had yet to be completed. The ICIBI had “written and spoken to the Home Office repeatedly about the need for SMART (Specific, Measurable, Attainable, Relevant, Timely) responses to recommendations”, while the report back had too often “left it unclear exactly what action will be taken and by when.” And directly relevant to our subject, in 2016, the Home Office rejected an ICIBI recommendation to cleanse its disqualified persons list of people wrongly identified some people as being ”disqualified” from having a driving license or a bank account, who should not be on it. There was, incidentally, no mention of Windrush in inspectorial reports before 2019, when caseworkers and managers deciding “right of abode” cases told ICIBI that since the Windrush scandal the culture surrounding decision making had changed significantly:

They were now more customer focused and the tone and content of correspondence was more helpful, even where the decision was a refusal. For example, where the applicant was likely to be entitled to RoA but the application had been refused due to insufficient evidence of entitlement, refusal letters advised them to make a further application providing additional evidence or signposted them to an approved immigration adviser

(A reinspection into failed right of abode applications and referral for consideration for enforcement action May – July 2019, emphasis mine).

Finally, in February, the Court of Appeal halted the deportation of detainees due to be put on a flight to Jamaica when it was told that they had been unable to access legal advice because they had not been issued with functioning non-O2 sim cards following a problem with the O2 network. This violated a guarantee from the Home Office.

Business as usual?

Carol Harlow is an Emeritus Professor of Law at LSE.

(Suggested citation: C. Harlow, ‘Windrush: Lessons learned or perhaps not?’, U.K. Const. L. Blog (6th April 2020) (available at https://ukconstitutionallaw.org/))