Today the UK Parliament’s Joint Committee on Human Rights publishes a damning report on the Home Office’s treatment of two members of the Windrush generation who were wrongfully detained and whose cases reflect, in the views of the Committee, what was ‘in all likelihood a systemic failure’.
By Margaret Doyle
The Joint Committee on Human Rights has been carrying out an inquiry, announced in May 2018, into the Windrush scandal and notes that it is unusual to report before their inquiry has concluded. However, the scale of the problem and its significant impact led the Committee to conclude that ‘a quite exceptional situation’ required publication of its findings on the evidence in these two cases.
The ‘Windrush generation’ broadly refers to Commonwealth citizens who settled in the UK before 1973. The Committee notes that ‘[l]egislative and policy changes since the post-war period have involved progressive changes to their status and documents requirements. Most of the people who have faced recent wrongful detentions were Commonwealth citizens who had a right to remain in the UK on the basis of having been settled in the UK before 1973 and having not left the UK for more than two years since 1988.’
The report, Windrush Generation Detention, details the Committee’s analysis of the Home Office case files of Anthony Bryan and Paulette Wilson, who arrived in the UK lawfully as children – Mr Bryan from Jamaica in 1965, and Ms Wilson from Jamaica in 1968. The report notes that Mr Bryan and Ms Wilson ‘had a legal right to be in the country and yet were deprived of their liberty and detained’. Their experiences demonstrate that ‘legal and policy safeguards to prevent wrongful detention had not worked’. The report also notes that the Home Office has identified 63 Windrush deportation cases; because many of these individuals will have been detained before deportation, the Select Committee has asked to see all these case files of wrongful detention.
Catalogue of errors
The case file analysis identified common features, including evidence that Home Office officials:
- showed a lack of awareness of the rights conferred upon various categories of individuals;
- ignored evidence on file that supported the individual’s account including representations from family members, lawyers and MPs and letters from Government bodies like HMRC;
- placed the entire burden of proof on those investigated even when critical information could have been easily obtained from another department by Home Office officials. Those being investigated were expected to prove their immigration entitlement to a standard even beyond the Home Office’s own guidance and seemingly required them to prove that they should not be detained;
- did not adequately satisfy themselves that they had a power to detain (and deport) individuals even when evidence on the case files strongly suggested that there was no lawful power to detain these individuals;
- made flawed assessments of risk of absconding, resulting in detention powers being used wrongfully; and
- demonstrated a general culture that was hostile—failing to treat individuals as deserving of respect and basic dignity.
Each of these features is examined in detail in the report. The cumulative effect of ignoring evidence and representations, making unduly onerous demands for evidence, making ‘gross errors of judgement’ and showing little or no compassion for individuals ‘led to officials making perverse and arbitrary decisions leading to their detention’.
‘The Home Office’s approach to Windrush cases has been shocking. …If Home Office immigration work regularly results in successive poor decisions and successive gross errors of judgement then this implies a problem with the system itself, and therefore requires more fundamental changes to policy, culture and training.’
The power to detain
The report highlights that detention and deprivation of liberty are enormous powers and should not be used without appropriate safeguards. Even if Mr Bryan and Ms Wilson had not had the right to remain, the Committee notes,
‘detention powers should only be used if it is necessary and proportionate. Both Ms Wilson and Mr Bryan had settled family lives in the UK. They posed no absconding risk. Therefore, it is very difficult to understand why it was considered lawful, necessary and proportionate to detain such individuals, given that detention is such a severe restriction on an individual’s basic rights.’
The experience of detention is traumatising and is exacerbated by the fact that there is no time limit on detention (an issue explored here and here). Mr Bryan was in detention for three weeks in September 2016 but was re-detained for a further two weeks in November 2017, during which time he was told he would be deported to Jamaica.
‘The Verne was frightening, terrifying really. I’m 60, and I thought I’d experienced a lot of things. But that was something new. It’s right by the sea. You get locked up every day. There were a lot of fights, and people fought over nothing because they have nothing to do and so much anxiety about what might happen to them. You’re locked up around people in authority, who at any time can put you in handcuffs and put you on a plane. They come to deport people in the night—it’s really terrifying. The people in the centre have done nothing wrong. They’ve committed no crimes, but they’re locked up, in detention, and they don’t know for how long. When you’re locked up but you don’t have a sentence and you’re not being punished it’s hard to keep your sanity.’
Ms Wilson was also detained twice, in August and October 2017. She told the Committee that upon her release, she was left alone, with no support and no communication from officials.
‘The day I was released, they put me outside the airport. The man who let me out said, “A cab is going to pick you up and take you to the station”. I was outside the airport. I was in tears, crying, because the planes were just taking off over my head. I had to stand and squeeze my head. I was praying for this taxi man to come and pick me up. They shoved me out. No one stayed with me. I waited for the cab. The cab man came. He said, “Are you Paulette Wilson?” I said, “Yes”. He put in the cab and took me to the station. From the station, they gave me a travel warrant to get from here back to Wolverhampton, and that was it. I was on the Underground. Then I got to Euston and I was put on the fastest train back to Wolverhampton. They have not said anything to me ever since.’
Signs of systemic failure
The Home Office’s explanation that the wrongful detention of Mr Bryan and Ms Wilson was due to ‘a series of mistakes’ was firmly dismissed by the Committee as not being sufficient or credible. The two cases were ones ‘in which information was repeatedly assessed and a series of decisions were taken by different people within the Home Office over a long period of time’ – hardly likely to be a series of mistakes but rather systemic failure for which the Home Office must be accountable:
‘When an organisation comes across a serious mistake, they take steps to address it—by identifying the staff involved, arranging extra training, extra supervision, or even disciplinary action. Yet the Home Office has not reported taking any action in respect of any of the individuals who played a part in wrongly depriving these two people of their liberty. Other than one senior civil servant being moved out of the Home Office to the Cabinet Office, there have been no reports of staffing changes or disciplinary action against staff at the Home Office.
In our view this suggests that in these cases the Home Office has an inadequate regard for the human rights of those who might wrongly be subject to their immigration procedures and that there is neither sufficient internal or external challenge to prevent the system depriving individuals of the fundamental right not to be detained.’
The Home Office has not provided the Select Committee with ‘a satisfactory account of why this has happened or how systems have been reviewed and altered to ensure such incidents never happen again’.
A research imperative
One issue highlighted in the report is the guidance given to decision-makers within the Home Office, who, the report states, ‘appear to have considerable discretion in their decision-making, without a need to adequately reason and justify their decisions when deciding to deprive a person of their liberty’. This is an area that UKAJI and others have identified as needing research – the work of decision-makers across administrative justice, including initial decision-makers within government departments, those who undertake administrative or internal review of decisions, and tribunal members who make decisions on appeals to these initial decisions and reviews.
In his response to UKAJI’s research roadmap consultation, Michael Adler of the University of Edinburgh noted:
‘There has been an almost complete absence of research on administrative (and judicial) decision makers and, in spite of the obvious difficulties associated with this…I don’t think that we should give up on that.’
The experiences of Mr Bryan and Ms Wilson, and likely many others, suggest that in addition to the overall scrutiny called for by the Joint Committee on Human Rights, there is a need to examine, through empirical research, the work of those whose decisions have such a significant impact on individuals, the guidance they are asked to follow, and the culture within which such decisions are made.
About the author:
Margaret Doyle is Senior Research Fellow with the UK Administrative Justice Institute, based at the University of Essex.