The Windrush scandal was produced by the unforgiving grind of one department's official machine. As Brexit looms will EU nationals fall victim too?by Amelia Gentleman / October 7, 2019 / Leave a comment
At the height of Theresa May’s mission to create a hostile environment for illegal immigration, the Home Office set up a sub-department within its immigration enforcement team, known ominously as the Interventions and Sanctions Directorate, charged with “encouraging greater compliance with immigration rules.”
There was no publicity about the new unit and so when ambulance driver Winston Robinson received a letter from the Directorate in 2016, he was puzzled. “According to our records, you have no lawful basis to be in the UK,” it read. “You should take steps to leave the UK immediately.”
This instruction to leave the country seemed unbelievable: Robinson had arrived in Britain from Jamaica in 1966 at the age of nine, and he had never once returned to the country of his birth. But neither had he applied to become a UK citizen—it would have seemed superfluous.
And yet an alert from the Interventions and Sanctions Directorate was sent to his employers, a private company providing ambulance services to London hospitals, and he was called in to see the head of HR. Apologetically, she told him that if she didn’t sack him, the company would face a £20,000 fine. He tried repeatedly to explain both to her and the Home Office that a mistake had been made, but to no avail.
Robinson, an experienced ambulance driver who loved his job, was fired. Left without a salary, and told as a non-national that he was ineligible for benefits (despite decades paying taxes), he couldn’t pay his rent and lost his flat. He was forced to sleep on friends’ and relatives’ sofas. In the years that followed, as he tried to untangle his situation, he was pushed into debt. “I was a normal guy with a normal life until the system betrayed me. I was doing a useful job. I was good at it; I served a purpose in society and all of a sudden that was ripped up.”
The question of how on earth this happened to Robinson and others is given new urgency by the approach of Brexit—and especially a potential No Deal. No politician is suggesting that they want to turf out the three million-plus EU nationals living here—any more than anyone openly suggested forcing out immigrants who had settled from the Caribbean in the post-war era. But as stories emerge of the difficulties that EU applicants are experiencing trying to secure their status, are we about to see Windrush, the sequel? There’s no answering that question without first untangling the causes of the original scandal.
One machine, many cogs
The hostile environment was instigated by May and David Cameron to fulfill the promise to reduce net migration to “tens of thousands”—a never realistic and never hit target that Cameron had made to counter the rising popularity of Nigel Farage’s Ukip in 2010.
This was the dawn of the austerity era, and a cash-strapped Home Office was bound to struggle with gripping the numbers alone. So Cameron and May began to co-opt other departments into targeting people who were believed not to have the legal right to be in the UK. More than that, they wanted to enlist the help of people who had never thought of themselves as working in immigration enforcement before. If people were here without proper legal permission, then—and here was the big idea—they would no longer have to run and hide from uniformed Border Force guards, but all sorts of others who would now be tasked with sharing their responsibilities. For an “illegal” immigrant—and legal ones, too—their boss, their landlord, even their doctor or nurse would become Home Office proxies.
New Labour had already laid some of the practical foundations, by imposing civil penalties on employers who failed to check the papers of their staff, and criminalising those who knowingly employed anyone without permission to work. But this approach was now stepped up, and the Cameron government eventually widened the definition of the crime and introduced new, stiffer punishments including shutting down premises such as restaurants and shops. Even before that, they had added new fines, too, for landlords who failed to check their tenants were lawfully in the country. NHS staff were also under heightened pressure to check patient eligibility; banks and the Driver and Vehicle Licensing Agency increased their checks.
The private firm Capita was contracted to track down 174,000 people who were on a Home Office database of people suspected of being illegal immigrants. The firm started sending alarming texts: “Message from the UK Border Agency. You are required to leave the UK as you no longer have right to remain.” But the database was full of errors. Many Windrush people, living here legally, were terrified when they received these texts. It turned out that the Home Office wasn’t very reliable at identifying who was here legally, and who wasn’t. The institutional memory was faulty: records were incomplete, some having been deliberately destroyed.
Ex-Cabinet Office minister Oliver Letwin was amazed at the Home Office’s uncertainty, telling me that: “We assumed that the one thing that the Home Office would know is whether someone was here lawfully.” But when the Windrush scandal broke, it transpired that determining exactly who is an “illegal immigrant” was not a precise science.
At the same time, the rhetoric continued to ratchet up. The Home Office started tweeting menacing messages: “Roses are red, violets are blue, if your marriage is a sham, we’ll be on to you. #happyvalentinesday.” Notoriously, vans were driven around six London boroughs with high levels of immigration that warned “Go Home or Face Arrest.” But officials also started painting immigration enforcement logos on all Home Office vans. The department hoped to persuade people to self-deport by reminding them to be nervous about their immigration status.
Lucy Moreton, Secretary General of the Immigration Service Union, said such gimmicks were a response to a substantive failure to hit the targets: “There was a recognition that we couldn’t do anything about immigration, so if we couldn’t do anything about it, all we could do was to convince the voting public that we are doing something. So we painted all the vans.”
Failure is nothing new in the Home Office: 13 years have passed since one home secretary, John Reid, damned his department as “not fit for purpose,” and ordered that it be split up, with justice hived off into a separate ministry. And yet in crucial respects it remains unreformed especially in its culture, whose response to something going awry is not to take stock and reset, but instead to panic and double down.
And indeed, such was the corporate determination to somehow inch towards the hopeless “tens of thousands” target that for Home Office staff, each person removed represented a positive contribution. Regional targets encouraged staff to work vigorously to keep on kicking people out. A culture of refusal became embedded. The end of legal aid for most immigration cases and the withdrawal of a number of appeal routes redoubled the difficulties of anyone trying to resist wrongful removal.
From the Home Office’s perspective, then, the harassment of Winston Robinson and people like him was simply the necessary working of the new hostile climate. The fact that they had wrongly hounded a hard-working, well-respected man out of his job, instructing him to get out of the country, was a mere detail.
Running on empty
Budget cuts also meant that there were fewer opportunities for targeted individuals to talk to case workers—which further dehumanised the machine, and notched it up a Kafkaesque gear. Moreton of the Immigration Service Union explains that, owing to retrenchment, many previously in-person applications became paper-based processes. For her, “the root cause of Windrush” was not the hostile environment alone but just as much “staffing cuts and the loss of expertise.” As well as cutting overall staff numbers by about 25 per cent between 2012 and 2015, seniority was squeezed. With Windrush type cases, “they moved the first instance decision-maker down a grade, from an experienced executive officer who understood the immigration rules, who saw someone face to face, who spoke to them, to an administrative officer—largely agency staff at the time. They were given a bundle of application papers, and a checklist, one of which includes asking for three proofs of residence for every year,” Moreton said.
Staff were almost never able to display discretion. “That human interaction was removed and that had been a key part of making the decision more robust. These two things together combined to produce an environment where, if you didn’t have the right bits of paper nobody intervened and you were simply rejected,” she said. The system began to be dehumanised.
On top of that, the Home Office’s own destruction of records, and its knee-jerk refusal to believe people’s life stories made it very hard for anyone to prove they had the right to remain. Sheer official ineptitude—meaning around 50 per cent of decisions were overturned on appeal—made things worse. Even if the politicians had wanted to put any of this right, they were never around for long enough to get a grip: the government had six immigration ministers in eight years.
Meanwhile, local newspapers that might have highlighted the plight of the victims were seeing their offices close and reporters dismissed. The network of grassroots race equality campaign groups that once flourished were underfunded and disappearing. No one picked up on the silently unfolding catastrophe. Those directly affected were often marginalised and unable to attract wider attention, and so the scandal dragged on for years before anyone noticed.
Both in reporting on the original story, and then—over the last year—while researching a book on the Home Office’s failures, I have been contacted by hundreds of people with life-scarring experiences at the hands of immigration officials. Many of them hoped that if their cases were highlighted in the Guardian, the Home Office would rethink its decision to threaten them with removal. And it was true that many cases did get resolved with mysterious speed as soon as I called its press office. The Guardian’s reporting forced the government to fly people back from the Caribbean after years of exile; it saw people get biometric residency cards couriered to their homes, months after they had been applied for; people got their jobs back, were allowed to travel abroad, and found themselves declared eligible for NHS healthcare for which they had always been eligible. It was amazing to see the power of journalism in action—but it was clearly a terrible way to respond to a systemic problem.
Slamming on the brakes?
It has been 18 months since May’s government apologised for the “appalling” mistakes it made over the Windrush scandal that ripped up lives like Robinson’s. Some positive changes have been made. A compensation scheme has been announced, which could pay out around £300m to those who lost their jobs, homes and access to free healthcare, or who found themselves detained in immigration removal centres or wrongly forced out of the UK. There has been a 41 per cent drop in the number of people held in immigration detention centres and an 18 per cent drop in the number of enforced “returns,” both of which are attributed by the Home Office to post-Windrush changes. More than 6,000 people affected have finally been given documents proving that they have the right to live and work here.
May announced a symbolic half-million pounds for an annual Windrush Day in celebration of the contributions made by arrivals from the Caribbean, and she was followed at the Home Office by two home secretaries who both promised comprehensive reform: Amber Rudd urged her staff not to be so concerned by policy and strategy that they lose sight of the individual, and Sajid Javid said he would introduce a “fairer, more compassionate” system. The old target of reducing net migration to mere “tens of thousands” has gone with May, and a decision to scrap restrictions on student visas suggests this is carrying over into at least some specific targets.
And yet, the Interventions and Sanctions Directorate is still quietly operating. So far the promised reform hasn’t come. The then Home Secretary Sajid Javid told me in February that there was no point instigating the overhaul ahead of the formal “lessons learned review,” which he had commissioned Wendy Williams (previously an independent inspector of the fire services) to start work on eight months earlier. While you can see traces of logic in his argument, it allowed him to kick the difficult process of change into the long grass. We still haven’t seen the Williams report, although it was completed in the early summer, partially leaked to Channel 4 and was due to be submitted to the new Home Secretary Priti Patel in September. When—and whether—it will be published is, as I write, unknown.
Despite the apologies, and the decision to rebrand the hostile environment as the “compliant environment,” the core legislation underpinning the policy has never been repealed. There has been no clear instruction sent down from the top requiring Home Office employees to adopt a more consistently humane approach.
There is profound uncertainty both about the new prime minister’s policy and indeed his actual views on immigration. The Brexit vote sprang in part from anti-immigration sentiment. And yet there’s no real clarity about what sort of system the government will run after the promised ending of freedom of movement. Johnson has promised at different times an immigration amnesty and the “Australian-style” points-based system he talked about during the referendum, but no clear details about either have been published. Meanwhile any hint that the new administration may be less tough on immigration than anticipated is contradicted by Patel’s initial declaration that she planned to end free movement abruptly—on 31st October, if there’s a no-deal Brexit. This, however, turned out to be impossible—not only a recipe for administrative chaos, since officials wouldn’t have had time to be trained in any new rules, but actually unlawful without new legislation that there is no time to pass.
In sum, no one knows where immigration policy is headed, but we do know that this lack of clarity is not going to make life easier for anyone who comes into contact with theHome Office.
Cranking back up?
In recent months my email inbox has been filling up with messages from another (much larger) group—the 3.2 million or more EU nationals who now have to apply for “settled status.” Some of them, like Winston Robinson, are people who work directly or indirectly for the NHS; others are students and academics, some run their own businesses—all are feeling hugely worried about their futures in the chaotic race towards Brexit.
Once again, the Home Office has responded by swiftly resolving cases that attract media attention, while offering a chilling lack of certainty to less high-profile applicants. Labour has already warned this process has the potential to become “Windrush on steroids.” Ministers like Jacob Rees-Mogg and Michael Gove dismiss this as politically-motivated scaremongering. So where does the reality lie?
It is true that Home Office has invested people and money into trying to make sure that applying for settled or pre-settled status is easier than any other Home Office application, and has waived the fee. The Home Office whispers sweet reason, pointing out that 1.4m people had been given some sort of status since March, and telling me at the end of the summer that “not a single person had been refused the status for which they applied. Nobody has been granted pre-settled status without first being offered, and declining, the opportunity to submit evidence that they qualify for settled status.”
But there is unease from campaigners and many citizens too at the decision to make people apply for status (rather than opting for a system that simply registered them)—and especially about the rising numbers of people getting that temporary “pre-settled” status, which will need to be upgraded to permanent in the future.
The deepest concern, though, is not with the application process. It is the question of what happens when that application process inevitably goes awry for tens of thousands of EU nationals who fail to get the correct status before the deadline—something the government has been notably quiet about.
Some EU nationals will mislay forms and documents, or make mistakes on forms and websites, and others will be unaware of the legal and political changes happening around them, not least because—until a Brexit deal is sealed, or a no-deal occurs—a lot is up in the air. Even the most basic question of the deadline will change—from 31st December 2020 in the event of no-deal to six months later, 30th June 2021, in the event of an agreement. If just 1 per cent of the total end up being incorrectly processed or not processed at all, that would equate to a huge number of people—over 30,000—who could suddenly become “illegal” aliens.
There is precedent for the breaking down of an earlier system of “free movement.” Some of the roots of the Windrush affair run all the way back to the empire. Over half a million people were, the official statistics say, born in Commonwealth countries and moved to the UK before 1973, when the foundation stone of modern immigration laws came into force. These people had often been allowed to move freely between former bits of the empire, with no need for a visa.
The vast majority went on to obtain UK passports but as many as 57,000 never applied for one, and these were the people who became vulnerable to attempts to cut net migration numbers. From 1948 until the 1990s, immigration laws and citizenship legislation changed dramatically, in order to restrict the numbers of people moving to the UK and staying. But the changes were complex and not always well advertised, and only inconsistently enforced. Many of those affected had no idea that their status had silently been transformed from legal residents to “illegal” immigrants. As the hostile environment measures came into force between 2012 and 2016, and the bureaucracy began to strain every last sinew to meet the political migration targets, many of these people suddenly found for the first time that they were going to need documents to function on a daily basis—and then realised that, under the tough new legislation, that they would struggle to get the necessary papers.
Today another group of people who arrived at a time when they didn’t need permission or documentation are suddenly set to require these things. Already, frontline lawyers and caseworkers helping those with immigration problems continue to highlight the difficulties their clients face with soaring fees—for example, the Home Office Select Committee reported last year that the cost of a settlement visa for a dependent relative has risen from £585 in 2008-9 to £3,250 in 2017-8, an increase of 450 per cent. On top of this, there are once again stories of inexplicable delays, inflexible decision-making, impossibly complex systems, life-changing bureaucratic errors, lost documents and catastrophic misspelling of names.
While over 1.4m people have been granted some form of status under the EU settlement scheme, the majority have not been yet been processed. Many have gone through the mill and emerged with “pre-settled” rather than “settled” status instead, implying there is more process to run, and not yet total security. What happens when they apply for a job, go to hospital or try to rent a home?
Policy is inconsistent, and the rhetoric on immigration has cooled, but the environment remains hostile. The system is still—at every level—designed to grind down people who don’t have clear evidence of the immigration status, until they reach the point where they give up and decide to leave. And the political mood is not one you would want to rely on to make the climate any more clement.
The coming crunch with EU nationals makes the Windrush story newly pertinent and especially urgent, but in future there could be other groups of immigrants whose status and need for paperwork changes for reasons beyond their control, and perhaps without them even realising anything had changed.
The Home Office machine almost systematically closes its ears to complaints. In the past year, I’ve spoken to numerous people who had been sent to detention centres or forced into “voluntary removal,” who had tried repeatedly to tell those in charge that something had gone wrong. No one listened. The wheels of detention and removal pressed on regardless. People were given phone numbers, but then found that they were never answered. Others were told to contact their caseworker—but were never told who that was. One person I met who was sent a letter telling her she was here unlawfully was advised to ring a number printed on the letter if she had any complaints. But there was no number printed on the letter.
Winston Robinson is in the process of applying for compensation; the government’s scheme has barely got going and many people are facing financial difficulties because of slow payments. He remains very hurt by what happened to him. If the government wants to avoid similarly hurting thousands more legal UK residents, it should heed the advice of Satbir Singh, the CEO of the Joint Council for the Welfare of Immigrants. Windrush came as a result of years of what he calls a “government policy explicitly designed to turn us into a hostile society, and which have made the Home Office into an island of inhumanity and incompetence.” He urged that department to treat “affected people with fairness, humanity and flexibility.” We will need to watch like hawks to make sure that it does.
Amelia Gentleman’s new book is “The Windrush Betrayal: Exposing the Hostile Environment” (Guardian/Faber)