Author: Isabelle Standen

On October 5th, 2022, King’s Legal Clinic, in collaboration with Southwark Law Centre and the Windrush Justice Clinic, hosted a panel of legal experts to explore whether the Windrush Compensation Scheme (WCS) is delivering on its promises of justice to the victims of the Windrush scandal.

The panel comprised of Martin Forde KC (the independent Advisor to the Windrush Compensation Scheme 2018 – 2021), Grace Brown (Barrister at Garden Court Chambers), Jeremy Bloom (Duncan Lewis Solicitor), Anna Steiner (Supervising Solicitor & Lecturer, King’s Legal Clinic, King’s College London), and Glenda Caesar (Windrush campaigner and survivor).

The first half of the event explored the key deficiencies of the WCS, the strategic legal challenges being made, and the critical areas of reform needed. The second half focused on the ongoing impact on claimants and the barriers they face in obtaining to access to justice.

Deficiencies of the Windrush Compensation Scheme and Reforms Needed

While the WCS is functional in terms of policy design, its ineffective implementation renders it toothless for victims seeking compensation for government wrongdoing. The panel identified two main issues with the scheme:

(1) Narrow interpretation of the scheme

The Home Office has consistently adopted a narrow interpretation of the scheme, especially in relation to the power to award discretionary payments. Indeed, while the scheme covers a range of losses (e.g. loss of access to employment; homelessness; impact on life), it also gives decision-makers the power to exercise discretion where established categories do not cover specific fact patterns. In practice, however, the power to award discretionary payments is rarely used – out of 1095 claims for discretionary payments, only 86 payments have been made, meaning that the success rate for these claims is less than 8 percent.

The reluctance of the Home Office to engage with the power to award discretionary payments constitutes one of the main obstacles towards the effective operation of the scheme. The mechanical approach adopted by decision-makers is inadequate for complex cases that do not fall under neatly delineated categories. In fact, cases often spill over multiple heads of loss at varying degrees. The latter means that the exercise of discretion by the decision makers is vital to reflect victims’ experiences adequately.

(2) Restrictive approach to evidence

The Home Office’s restrictive approach to evidence bars victims from seeking their entitled compensation. Indeed, the approach places unreasonably high standards of proof and attaches significant weight to certain types of evidence. Furthermore, the decision-makers’ devaluation of testimonies and hyperfocus on rigid evidence negates the scheme’s effectiveness. This is especially true when considering the circumstances of Windrush victims, who often don’t have access to the type of documents that they are being asked to produce.

The Home Office’s evidentiary approach becomes particularly paradoxical once one understands the government’s role in the evidentiary gap and the lived realities of claimants. Indeed, the Home Office itself has consistently failed to preserve records that would have accelerated the processing of compensation claims. Beyond mere omissions, reports have demonstrated the Home Office’s active role, such as the destruction of thousands of landing cards recording the arrival dates of the Windrush generation in the UK, during Theresa May’s tenure as Home Secretary. Furthermore, the burden of proof imposed on victims is onerous and does not take into account the fact that most people would have seen no need to hold on to such documents from many years ago as they had no need for them at the time and did not foresee the fact that the introduction of the hostile environment would mean they would be required to verify their legal right to live and work in the UK, when this had not been questioned previously. In addition, some claimants suffer harsh living conditions and psychological and physical trauma induced because of government wrongdoing itself.

Impact on Victims and Access to Justice

The impact of the Windrush scandal on victims is beyond measure. The audience was fortunate enough to hear the testimony of Windrush campaigner and survivor Glenda Caesar. Glenda arrived with her mother in the UK in 1961 from Dominica “as a babe in arms.” She first found out she wasn’t British and could not get a passport after trying to visit her dying mother in the Caribbean in 1998. In 2009, Glenda was sacked from her part-time job as a GP practice administrator because she wasn’t considered “British.” She became a victim of the government’s hostile environment policy. Unable to work or claim benefits for the following ten years, she was forced to rely on her children for support. These living conditions heavily impacted Glenda’s mental health and that of her family members, breaking family bonds and pushing individuals to contemplate suicide.

After filing a compensation claim under the scheme, the Home Office offered Glenda a mere £22,000 for over ten years of unemployment without benefits due to government wrongdoing. Glenda refused the compensation offer, considering it an additional insult to her humanity. After experiencing the dysfunctionalities of the scheme, she started campaigning for Windrush victims and their claims for justice. She says the scheme does not operate for the victims and puts them through additional trauma.

In her co-written report “The Windrush Compensation Scheme: Unmet Need for Legal Advice,” Anna Steiner explores issues of access to justice related to the scheme, with the objective of informing policy and campaigning for victims. The data indicates that the scheme is too complex to complete without legal advice and that the support provided by the Home Office is insufficient. Outside the Windrush Justice Clinic network, the report found very few sources of free and easily accessible legal advice for WCS claimants. Decades of legal aid cuts have exasperated access to justice issues and relegated victims to a subclass of human existence where the computer says “no,” and the government does not care.

One Windrush victim partaking in the research says it best: “From my experiences with the Windrush Compensation Scheme/Home Office, and their responses to my claim, it is almost like they are telling me the following: We are really, really, sorry for punching you in the face, however, we are sure you’ve recovered now, it wasn’t that bad of a punch, so here is another punch in the face, but don’t worry about that one, because you’ve already recovered, please accept some tape and cotton wool to make a plaster out of.”

By Laurent Sammouri

Politics, Philosophy and Law LLB (4th year) discusses the recent case of Guantanamo detainee Abd al-Rahim al-Nashiri in which King’s Legal Clinic students conducted research under the supervision of Sue Willman leading to an amicus brief drafted by Dr Philippa Webb and Rosana Garciandia of the Dickson Poon School of Law, which has been said to have a ‘global impact’.

Working at King’s Legal Clinic was a unique experience for me, in that it was my first time contributing to a real case in international human rights law and public international law. It was made clear to us from the very beginning that the task would be a challenging one. Tight deadlines, lots of material to go through, and no room for error. During the first week of research, I worked with other student researchers on secondary sources relating to the use of torture in pre-trial and interlocutory proceedings, going over more than 40 journal articles, legal blogs, and even Twitter threads, to identify trends on the use (or, rather, non-use) of torture evidence. For the second and third weeks, I turned to case law review, looking at common law jurisdictions, and their stance on torture tainted evidence. The collaboration with the rest of the Clinic members was exemplary. We worked methodically and efficiently, dividing jurisdictions between us, and looking at the relevant cases, whilst contributing to a common document to be submitted to our supervisors. I believe we rose to the challenge!

The final task I undertook was working on distinguishing torture evidence from hearsay evidence, and putting together an original argument, drawing from the research of the whole team. Together with Saras Sawhney, we drafted an argument with reference to the Military Commission’s judgement, outlining why torture evidence ought to be treated separately from hearsay, and consequently why the torture prohibition also applies in pre-trial. Overall, it was particularly rewarding to be able to contribute to such a pressing human rights concern, and to know that the work we all put into this experience could be a drive for positive change, and for upholding the rule of law. That is why the recent Court of Appeals decision is so important, both for the present case, but also for human rights law generally.

Is the outcome entirely satisfactory? What should the Department of Justice have done?

The decision of the Biden administration to reverse the approach previously taken by the U.S. Military Commission is certainly a big step in the right direction. The categorical prohibition of evidence obtained by means of torture or cruel, inhuman, or degrading treatment (CIDT) was upheld by the U.S. Government, reflecting international and domestic legal obligations. The biggest achievement of the recent decision is, in my opinion, the unequivocal pledge by the U.S. government that the prohibition of torture applies to all stages of judicial proceedings.

That being said, and without taking anything away from the importance of the Court of Appeals’ decision, there are a couple of vital questions that remain unanswered. The Al-Nashiri case is not the only case brought before a military commission involving the use of torture-tainted evidence. It is, therefore, particularly interesting to see how pending cases that raise the question of how statements obtained by torture will be treated by the commissions

and the government, and whether the Biden administration is ready and willing to conduct transparent, thorough reviews of torture claims, and adopt similarly brave yet necessary – under domestic and international law – decisions.

This, in turn, raises the bigger question surrounding military commissions as legal institutions. The statement issued by the U.S. government appears to recognize the problem of torture and CIDT facing military commission cases. The question that is necessarily generated, then, is that of reform; and it was unfortunately left unattended by the Court. Is torture bound to poison legal proceedings in future litigation, if no further steps are taken at an administrative level to make legal proceedings more transparent and less politically motivated? Does it safeguard the rights of future detainees? Although satisfactory on the facts of the present case, it seems like the Court could have looked at the bigger picture and seek to take positive steps to fortify the legal system, so as to not leave any room for torture evidence to sneak through the back door.

This is not to downplay the significance of the present judgement, as I believe it is a manifest endorsement of the fundamental human right of freedom from torture. It remains to be seen, however, whether this decision can be a drive for positive change in the U.S. legal system, so as to better safeguard the rights of prisoners and detainees in future.

By Stefanos Arvanitakis