Has the British Government Learnt from The Windrush Scandal

It has been reported in the Times that an official report into the Windrush scandal, entitled Windrush Lessons Learned Review which stated that the Home Office was "institutionally racist" over its policy towards migrants, has been toned down.

"The Times reports that the phrase "institutionally racist", which was included in an early draft of the report, does not appear in more recent versions. Previous leaked extracts found that the Home Office was "reckless" and had developed a "defensive culture" over immigration policy."

The Windrush scandal was one of the most shameful incidents in modern British history and exposed many inconvenient truths about the Home Office's culture. However, the recent Court of Appeal order relating to the deportation of 50 people with criminal convictions to Jamaica illustrated that attitudes in Whitehall have not changed much when it comes to immigration.

What was the Windrush scandal?

Following the Second World War, Britain was in a sorry state (despite being victorious) and desperately needed labour to begin the massive task of rebuilding the country. Calls went out across the Commonwealth for people to come to the UK to live and work. The ship MV Empire Windrush, which arrived at Tilbury Docks, Essex, on 22 June 1948, brought workers from Jamaica, Trinidad and Tobago and other islands. This is how the Windrush generation, those arriving in the UK between 1948 and 1971 from Caribbean countries, came to be named.

The influx of Caribbean migrants ended with the 1971 Immigration Act when Commonwealth citizens already living in the UK were given Indefinite Leave to Remain.

After this, a British passport-holder born overseas could only settle in the UK if they firstly had a work permit and, secondly, could prove that a parent or grandparent had been born in the UK.

The Home Office failed to keep records or provide paperwork to people of the Windrush generation to prove they had obtained Settlement. In the last few years, as people have been required to provide proof of Settlement before working, renting a home, or getting NHS treatment, many members of the Windrush generation have been deported or threatened with deportation, despite having lived in the UK since childhood.

Following a national outcry, the Home Office issued an apology to those affected by the scandal and provided them with Indefinite Leave to Remain status. However, this has not helped those that have already been deported to Jamaica, some of whom have since died.

Criminal deportations to Jamaica

In February 2020, fresh controversy erupted over the deportation of criminals convicted of serious offences.

Under the UK Borders Act 2007, section 32 (5), "automatic" deportation applies to any foreign national convicted of a crime and sentenced to more than 12 months. The only exception to this is if the removal would breach human rights.

However, former Home Secretary and Prime Minister, Theresa May, tightened up the law so if a person is convicted of a very serious offence such as rape or murder, they will be deported back to their country of birth unless very compelling circumstances apply.

On 11 February 2020, a chartered flight bound for Jamaica was scheduled to depart with several convicted criminals on board who have served sentences for serious crimes. One of the people on board had lived in the UK since he was five years old.

In a late-night appeal, the Court of Appeal stated that certain deportees could not be sent to Jamaica as they may have been prevented from getting legal advice due to a faulty O2 cell phone mast.

"The defendant's [Home Office] own policy provides that "detainees being removed by charter flight subject to special arrangements must be given a minimum of five working days' notice of removal so that he or she may seek legal advice".

Evidence suggested that due to the problems with the O2 mast, at best, some detainees had access to a mobile phone for three days, at worst, some still had no way of speaking with their lawyer right up until the case was heard.

The flight did leave the UK, but with far fewer deportees on board.

In a statement following the decision, the Home Office said: "The planned charter flight to Jamaica is specifically for deporting foreign national offenders.

"Those detained for removal include people convicted of manslaughter, rape, violent crime and dealing Class-A drugs.

"We are urgently asking the judge to reconsider their ruling and it would be inappropriate to comment further whilst legal proceedings are ongoing."

Why the controversy?

A leaked draft of the Windrush Lessons Learned Review revealed that the government had recommended that people who have lived in the UK since childhood should not be deported under the UK Borders Act 2007.

Controversy over deporting foreign criminals is not confined to the UK. At the beginning of March, New Zealand Prime Minister, Jacinda Ardern told Australian Prime Minister, Scott Morrison that the Australian policy of deporting NZ born criminals to NZ was "corrosive" to the relationship between the two nations.

Ms Ardern said while many of those deported might have been born in New Zealand, they had spent their lives in Australia and were, for all intents and purposes, Australian.

She told Mr Morrison: "Do not deport your people and your problems."

On 21 February 2020, The Jamaican High Commissioner called for a suspension of deportations to Jamaica until the Home Office published its investigation into the Windrush scandal.

The High Commissioner said he was concerned about the "dignity and the human rights of the individuals earmarked for deportation".

"If these are people who have lived here since they were children, they have no connection, no relatives, no one to take care of them in Jamaica, then this for me is a human rights matter. "It is not just the people who are being deported, it is their children, it is their families. Are we acting intelligently, are we creating another set of problems when we do that?"

Every country should be able to deport violent criminals. However, by sending them 'home' to a country where they have no social or economic connections, nations are deporting their problems, expecting another country to deal with it. Furthermore, as we have seen, ripping people from their families and communities has a devastating effect, not only on the deportee but the children/partners/parents/siblings they leave behind.

Now that Britain has voted to leave the EU/EEA, any flaws in the Settled Status scheme will become apparent over the coming years. Judging from the Court of Appeal decision and the Home Office's refusal to back down on its insistence that foreign criminals can be deported, regardless of how long they have lived in the UK, it seems as though few lessons have been learned from the Windrush scandal.

We can only hope that EU/EEA citizens and their families will not suffer from the same harshness in the future. If you have been deported and want to return to the UK, contact our experienced immigration solicitors as soon as possible.