Windrush – what are the administrative justice dimensions?

‘You would be surprised how often the just society, the good life, human happiness, call it what you will, is pushed out of our reach, not by the malevolence of some people, usually referred to as ” they,” who are consciously depriving us of it, or by the inertia of those to whom we entrust the duty of provision, but by some technical inadequacy. The meaning of the lines, apparently cynical if read out of context,

“How small, of all that human hearts endure,

That part which laws or kings can cause or cure,”

could be turned to this, that quite often what we really want would be readily attainable without calling for a revolutionary change, say, from Monarchy to Marxism, or from a feudal to a mercantile system: it is not so much a constitutional or moral upheaval that we are awaiting, as rather a little quiet reconsideration of our administrative machinery.’

Hon Lord Kilbrandon, ‘Other People’s Law’, Hamlyn Lectures, 18^th series, 1966

By Margaret Doyle

Technical inadequacy or malevolence? Revolution or quiet reconsideration? Questions about the causes and consequences of the ‘Windrush generation’ scandal will run on for some time, and meanwhile we learn more about the stories of those affected and the many ways their lives have been upturned. Although MPs may have been slow off the mark in responding to the crisis, individual cases were coming to light as long as four years ago. The crisis has brought to the public’s attention a number of key administrative justice dimensions that link in with human rights and other principles and with the research priorities identified by UKAJI in our Research Roadmap. It raises a number of questions, including about the notable absence of any mention of the Parliamentary Ombudsman in reports on the scandal, suggesting the ombud institution’s remoteness in people’s lives. It also highlights the urgency of reaching the ‘furthest’ – ie the most disadvantaged and most disenfranchised, who are the people likely to be among the most dependent on administrative justice.

Here we note several of these dimensions and draw on the 25 April 2018 evidence session with the Home Affairs Committee in Parliament [Home Affairs Committee, Oral evidence: Windrush Children, HC 990, 25 April 2018]. That session heard from the then Home Secretary Amber Rudd and Glyn Williams, Director General responsible for Border, Immigration and Citizenship, as well as from Adrian Berry, Chair of the Immigration Law Practitioners’ Association; Lucy Moreton, General Secretary of the trade union the ISU; and Satbir Singh, Chief Executive of the Joint Council for the Welfare of Immigrants.

The impacts of policy change – a lack of understanding of the impact of the policy change (ie the hostile environment) on particular groups of the population.

‘When the 2014 Act was in Parliament, there were briefings from JCWI and others that this will capture too wide a class of people, it will impact upon certain communities in different ways. That is exactly what has happened. It is not an accident that this has happened. It is built into the system and it was forewarned and foreshadowed when the Bill was in Parliament that brought in the main legislative measures that we now brand as the hostile environment.’ [Adrian Berry, Q19]

Decision-makers and how decisions are taken (right first time) – the role of first-instance decision-makers within an overall ‘network of accountability’; the setting of inappropriate targets; what guidance exists; the discretion afforded to decision-makers and their experiences of the system in which they operate.

‘The 100,000 target or the tens of thousands target when it comes to net migration is one that finds few champions in academia, in industry, in the labour movement, in our public services. There is, as a result of it, a tendency towards making a certain decision as opposed to the correct decision and that decision-making culture is one that is laden with … suspicion or an assumption of the lack of credibility of the individual.’ [Satbir Singh, Q2]

‘The criticism of the Home Office previously was that in carrying out subjective assessment methods, including interviews and that kind of thing, we were allowing caseworkers’ own prejudices to come into play and it would be better to rely on objective evidence so that caseworkers were not forming prejudiced judgments. Clearly, one has to look at whether that has gone too far as an approach, and I think what the Home Secretary is saying is that she wants us to come back, row back from that, and introduce more face-to-face, more subjectivity, more judgment into the process, as opposed to only looking at evidence.’ [Director General Glyn Williams, Q133]

Scrutiny, redress and rights to appeal – no independent scrutiny of decisions to check for accuracy; removal of appeal rights leading to no access to redress.

‘…we are talking about a Government Department that has levels of supervision and levels of accountability and feedback at different points, but evidently we have seen that those feedback mechanisms did not work.’ [Satbir Singh, Q12]

‘There would need to be an appeal route created afresh because, as you said, it is not a question of tying it into an existing appeal route. There is not one. They would need to create a fresh right of appeal or at the very least—probably slightly faster—a very clarified right of review for an adverse decision.’ [Lucy Moreton, Q55]

Astonishingly, the former Home Secretary appeared to be unaware that appeal rights for these immigration cases had been removed in 2014:

‘Douglas Ross: Do you think people who are unsuccessful should have the opportunity to appeal the decision?

Amber Rudd: There was always going to be opportunities for people to appeal the decision, but I think—I hope—that people will see that there is a process in place where if they are Windrush generation they will be able to engage in a way where they will be able to demonstrate it.

Douglas Ross: The previous panel told us it was not possible to appeal…

Amber Rudd: Sorry, I was not aware of that.

Glyn Williams: That is true. There is no statutory route of appeal.

Douglas Ross: Do you believe, Home Secretary, there should be in this case?

Amber Rudd: I would like to consider that.

Douglas Ross: If you are considering that, you would also have to consider giving them the legal background of how to appeal. The concern is at the moment there is no written-down guidance as to how an assessor would come to their decision. Therefore, if they are to be successful in their appeal, they would require to have that information to know how to appeal. Could I ask that you come back to the Committee on both those points?

Amber Rudd: I will consider that.’

Cuts to legal aid – the non-availability of legal help and advice in these cases meant that individuals were not able to get their problems with the Home Office sorted out before suffering unnecessary distress and loss (of jobs, homes, even liberty).

‘You have had the removal of Legal Aid from most immigration cases outside of asylum, so these people are very often navigating them on their own. We are very grateful to journalists who have brought these cases to us, and then as an organisation that provides services and support to people, we have been able to help them, but that has almost been a question of luck for those individuals, because for the most part, they would have had to navigate that process on their own.’ [Satbir Singh, Q11]

‘If you want good decision-making without having to have legal remedies, then people need to know what their rights are and to be able to assert their rights in the correct way. It makes things easier for Home Office decision-makers to have simple and straightforward representations made; it means that a good decision is made at an early stage and a decision in which people can have confidence. If you take away legal aid, as the last Act did, and you couple that with the removal of tribunal remedies in the 2014 Act for people who are already lawfully here, who seek to rely not on being unlawfully here, but being lawfully here, so the 2014 Act takes away the legal remedy.’ [Adrian Berry, Q40]

Remedy – what is the appropriate mechanism for providing a remedy once the mistakes are corrected? Administrative justice impacts are difficult to quantify in that they affect an individual’s sense of well-being, their dignity and security, as well as quantifiable loss.

‘Cases we have seen include people who have lost their jobs and there is a clear loss of earnings there. Then you have people who have lost access to healthcare and there is some extent to which there has been emotional distress as a result. Cases in which it will be far more complex include those where people have died in the interim and the emotional distress of those around them.’ [Satbir Singh, Q58]

‘It is extremely difficult to codify that. What is this worth? If there is the loss of a job, you have loss of earnings. That is very clear. That is codifiable. With the loss of a loved one, prolonged isolation or the individual who was detained on two occasions, there is quite a challenge to get that codified as to exactly what that translates to in pounds, shillings and pence. I am not certain that there are any starting points for that.’ [Lucy Moreton, Q58]

Access to data – lost or destroyed records (entry documents), and the inability for the Home Office to readily identify the numbers of individuals affected and who those individuals are.

‘We have 8,000 records of people who could have been in a group should they have been deported. It is a fairly extensive process, some of it being checked by hand, and everybody has been working on it over the past eight or nine days. We have got through 7,000 and at the moment we have not found anybody who we believe has been removed because of that. I recognise that obviously we need to finish that process. When it is finished, I will be speaking to my Permanent Secretary about finding out about independent assurance.’ [Right Hon Amber Rudd MP, Q61]

Learning from mistakes – the response indicates that within the Home Office is a culture of not reflecting or examining how decision-making can be improved as a result of errors and complaints made and a total lack of communication (eg with ministers).

‘The last time I gave evidence before this Committee, there had recently been a report of 47% of decisions being overturned on appeal. That was asylum and visa decisions. That was identified as being because of a lack of training and feedback to the staff, that they were not being informed of the decisions of the courts and were not therefore able to take that into account. That has been rectified since I last gave evidence and I would hope to see an improvement in those figures particularly, but certainly the data quality that the staff have to work with is particularly poor. You cannot make a correct decision if the data on which you base that decision is inaccurate.’ [Lucy Moreton, Q22]

Principles – the values that are fundamental to the system and to people’s trust in the worth of the system and its ability to be fair and provide justice. This is an example of how trust in the system can be eroded by unfair policy initiatives and inhumane decision-making. It also illustrates the dangers (to those on the sharp end of the decision-making as well as to government and individual ministers) in not placing human rights at the centre of policy-making and administrative decision-making.