Shaila Pal, Director of King's Legal Clinic, reflects on the outcome of the judgment, why there is a clear need of reform of the Windrush Compensation Scheme and what happens next after the High Court's decision.
In R (Joyce Oji) v Director of Legal Aid Casework [2024] EWHC 1281 (Admin) the court accepted that the process for applying for compensation is ‘complex’, the non-legal support provided by the government had ‘not…served the Claimant well’ and that the Claimant would likely ‘find the process emotionally difficult ‘as the WCS is administered by the Home Office ‘the perpetrator of the acts she has just cause to complain about’. Despite these findings, the Court ruled that the Claimant’s WCS claim did not engage Article 6 of the European Convention of Human rights (ECHR) (Right to a fair Trial) or Article 8 EHCR (Right to respect for private and family life). In essence, the ruling finds that victims of the Windrush scandal do not need legal assistance to prepare a WCS claim or engage in the process.
The Court’s core findings were that the nature of WCS claims did not give rise to the type of civil right protected by Article 6. In respect of Article 8 ‘the grant or refusal of compensation would not have a sufficiently significant impact on the essence of the Claimant’s private and family life to engage Art.8’ and that ‘the outcome of her claim does not dictate if the Claimant would continue to enjoy a family life or a private life’. Additionally, the court found that there is no wide or general discretion to grant legal aid where there is a risk of a breach of a Convention right and where a decision is made that no Convention right is in play, no discretion arises to grant legal aid.
The decision will be another blow to victims and campaigners for access to justice. Refusal rates for the WCS continue to rise, currently standing at 4,791 (68%) out of 7,041 final decisions according to recent Home Office data. Comparative research carried out by King’s Legal Clinic highlighted the continued failure by the WCS to deliver fair and accessible compensation to victims. The research found that the WCS stood out as the only contemporary compensation scheme analysed which made no provision for government funded legal advice.
Background
Joyce Oji arrived in the UK from Nigeria aged three in 1988 to join her parents and siblings who were settled in the UK. As Joyce grew up, she faced extensive problems due to her inability to prove that she was lawfully settled in the UK. The court accepted these difficulties included not being able ‘to secure work, being forced to live through domestic violence because she was unable to secure homelessness assistance and an inability to leave the country with the confidence that she could return.’ Joyce sought to engage with the required process to confirm or regularise her stay on multiple occasions, but even when her stay was initially regularised in 2007, she continued to face significant hardship. In 2019 her settled status was confirmed by the Windrush Scheme and in May 2020 she was naturalised as a British citizen under the same scheme. As a victim of the Windrush scandal, Joyce tried to claim compensation and sought the assistance of We Are Digital, who were funded by the Home Office, to provide non-legal support for those seeking compensation. Joyce was unhappy with the support she received, was distrustful of the service in light of its close connection with the Home Office and felt she was being ‘set up to fail’. Thereafter she instructed the Windrush Justice Clinic at Southwark Law Centre (SLC) in 2022 who advised her pro bono.