Bad Apologies and the Windrush Scandal

Posted in: Immigration Law

For those of us in America, the focus on immigration has been on the Trump Administration’s potential overhaul, including the travel ban, the wall, the fate of dreamers, the emergence of sanctuary cities, and the consequences of stepped up ICE enforcement. But America is just one of many countries implementing hotly contested immigration policies and seeing the consequences on local populations. British Prime Minister Theresa May is currently facing a scandal relating to how her government has implemented its “hostile environment” immigration policies with devastating effects on discrete populations including not just undocumented migrants present unlawfully but also undocumented citizens present lawfully. This post explores the reasons for the scandal and identifies troubling shortcomings in the apology and remedy offered.

After World War II, Britain asked for other Commonwealth citizens to come and help rebuild the country. Over 550,000 West Indians answered the call to fill an acute labor shortage. Those Commonwealth citizens who arrived in the United Kingdom prior to 1973 were granted an automatic permanent right to remain. While many in the UK appreciated and celebrated their service, others proved very hostile to Commonwealth immigration. That hostility was articulated at very high levels of government such as Enoch Powell’s Rivers of Blood speech. This speech, given in opposition to a race relations bill, decried that in “15 or 20 years’ time the black man will have the whip hand over the white man” and called for the “maximum outflow” of Commonwealth immigrants.

For the most part, members of the Windrush generation were secure in their enjoyment of their citizenship rights until the 2012 initiation of the “hostile environment” immigration policy under then-Home Secretary Theresa May. This policy, among other things, changed the presumption of lawful presence and “require[d] people to proactively prove their status.” So, for instance, individuals were not able to keep or access employment, use medical care from the National Health Services, or acquire or maintain residencies without paper proof of status such as a biometric residence permit. In order to secure such a card, the Home Office required at least one, with a preference of four, pieces of documentary evidence for every year spent in the UK.

For as many as 50,000 Commonwealth persons who never regularized their residency status, getting the required documentation has proved near impossible with lost records or government agencies slow to produce needed papers. Windrush individuals unable to get the status confirmed by the home office have lost access to government benefits, including health care, and to jobs. Those travelling abroad have faced difficulties getting back in, and those wishing to travel have put off plans for fear of permanent exclusion. In human terms, this includes people like Renford McIntyre denied cancer treatment after 35 years paying taxes and Judy Griffith unable to keep employment or attend her mother’s funeral.

Over the last six months, the Guardian published a number of pieces on the mistreatment of the Windrush generation rendering the issue much more visible. Even so, Theresa May initially rejected a meeting to discuss the issue the Commonwealth Heads of Government Meetings. It wasn’t until 140 MPs signed a letter calling on the Prime Minister that the government began to act.

Over the next few days, a series of apologies were put forth. On April 16, 2018, Home Secretary Amber Rudd apologized for the “appalling” actions of her department, acknowledging that the Home Office had “lost sight of individuals” and become “too concerned with policy”. She announced a new team to guide the Windrush generation through the process with an “aim to resolve cases within two weeks and promised that Windrush individuals need not pay for documentation and that “there will be no removals or detention as part of any assistance to help these citizens get their proper documentation.” Yet the Minister of State for Immigration Caroline Nokes declined to publicly apologize when given the opportunity. It was only once the Guardian broke the news that the government had intentionally destroyed the landing slips of the Windrush generation that a more robust apology was in order.

As pressure continued to mount, Prime Minister Theresa May reversed course and provided an apology to Caribbean leaders during a Commonwealth Heads of Government Meeting. This relatively brief apology included May’s statement that:

I take this issue very seriously. The home secretary apologised in the House of Commons yesterday for any anxiety caused. And I want to apologise to you today. Because we are genuinely sorry for any anxiety that has been caused…. Those who arrived from the Caribbean before 1973 and lived here permanently without significant periods of time away in the last 30 years have the right to remain in the UK, as do the vast majority of long-term residents who arrived later. I don’t want anybody to be in any doubt about their right to remain here in the United Kingdom…. We would also like to reassure you that there will be no removals or detention as part of any assistance to help these citizens get their proper documentation in place.

The Prime Minister’s apology appears not to have been well received, prompting the resignation of Home Secretary Amber Rudd just a few days later. I identify several reasons why the apology failed and why this scandal may continue to haunt the May administration.

First, the government apologies from May and Rudd have failed to acknowledge the driving impetus for the difficulties faced by the Windrush generation. The crackdown by the home office is believed to be a feature of the hostile environment immigration policy, not a bug of a few rogue immigration officers. A former Conservative party chair has much more effectively articulated this underlying motivation than the government did, stating, “I think we were all responsible. . . I would hold myself responsible as part of the government” and identifying the focus on immigration targets as “policy working as intended. . . . not the result of bureaucratic ineptitude.” It certainly did not help matters that Home Secretary Amber Rudd testified that she had no awareness of removal targets, but such regional targets had been clearly documented. In addition, the government had received numerous warnings about the impact of the hostile environment policy on the Windrush generation long before the Guardian started its series. But most devastatingly, shortly after Rudd had testified and continued to blame bureaucratic ineptitude, the Guardian leaked a letter revealing that Rudd set targets in 2017 to increase enforced removals by 10% over the next few years. Looked at together, the Windrush generation and the public could well conclude that the government was not serious about acknowledging why the harms had occurred.

Second, without a clear acknowledgment of the reasons why the crackdown occurred and without more substantial legal standards to prevent a recurrence, the Windrush generation and others fear that the home office’s new hotline will be used to further detention and deportation to satisfy the hostile environment policy. Though Amber Rudd stated the data will not be used for those purposes, she articulated no specific protections. What will prevent that information from being shared? What happens if someone comes forward and is unable to satisfactorily establish his or her status? Relatedly, even if the home office relaxes some of its documentation requirements, they have not made clear what threshold of proof will be used to determine whether status has been satisfactorily proven. More broadly speaking, the May government has done little to satisfy the concern that a technocratic tweak cannot alter the greater institutional culture and policy preference of increased exclusion.

Third, the looming data protection bill includes an immigration exception that will hurt the Windrush generation and others like them. While the bill enshrines a default of a right to data protection, this right would be eliminated if it is likely to prejudice “effective immigration control” or the “investigation or detection of activities that would undermine the maintenance of effective immigration control.” While immigration applicants, including those of the Windrush generation, can currently make “subject access” requests to find files detailing rejections of status, the bill would eliminate this ability to use specific evidence about decisionmaking to contest unjust denials. At the same time it would become more difficult for individuals to access this data, the government would be permitted to destroy vital records such as landing cards.

Lastly, despite Home Secretary Rudd’s acknowledgement that the government lost sight of individuals and their plights, the government has not offered individualized apologies despite repeated requests to do so. Nor have the details of the compensation scheme been made clear, though the former home secretary Amber Rudd asserts that “those who had wrongly lost jobs, homes, or benefits would get recompense.” Those in the Windrush generation have legitimate worries that they will not be made whole despite the significant economic consequences of the government’s policies.

With Rudd’s resignation, it is possible that the public will be satiated. The new home secretary has promised to move toward a “complaint environment.” But many are skeptical. After calls for Theresa May to provide the accountability that was lacking in her apology and provide an “an immediate, full and honest account of how this inexcusable situation happened on her watch,” the government was able to defeat a Labour motion for “access to documents laying out the policies behind the Windrush crisis.” But in so doing, it promised independent oversight of an internal review with a focus on why the problem was not detected earlier and “whether the right corrective measures are now in place.” Given the public and Labour’s willingness to keep the heat on, we may be at the beginning, rather than the end of the Windrush scandal.

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