Can you tell us about your involvement with the Windrush Justice Clinic and its work around the Windrush Compensation Scheme?
Even before coming to Law School, I always knew that I wanted to join a legal clinic. This year, when I saw the opportunity to apply for a caseworker position at the Windrush Justice Clinic (WJC), I instantly applied. I wanted to join the WJC because I recognized how daunting and complex immigration law could be, particularly for those unfamiliar with the legal system. While researching the Windrush Scandal, I saw how the victims not only endured injustices stemming directly from the scandal but there were also lasting repercussions that affected their descendants as well. When joining, my aim was to help expedite the compensation process, provide much-needed comfort to clients, and help them regain trust in the system.
Upon joining the WJC, my team and I were tasked with a case involving an entire family. This case was distinctive amidst the usual single-applicant cases. Though I was not involved in the initial application process that commenced last year, this showcased the extensive effort and time needed to navigate the application process effectively.
My responsibilities as a caseworker encompasses a diverse range of tasks, including liaising with Van Ferguson (a solicitor at Southwark Law Center), conducting research on the WJC, participating in client consultations, reviewing documents, and verifying client history. In February, during one of our meetings, Van mentioned that there would be an opportunity to attend a two-day judicial review hearing for one of the clients from the WJC. As I had never been to a hearing in the U.K. and wanted to broaden my legal exposure, I volunteered immediately and provided support by taking notes during the hearing.
As of right now, I am in the process of preparing to draft a witness statement for my client.
How did this hearing come about, and why is it so important?
In 2022, the Legal Aid Agency denied legal aid to victims of the Windrush Scandal. In response, Southwark Law Centre submitted an application for judicial review on behalf of the client, who was unjustly denied legal aid to assist with her WCS application. The main claim was that failing to provide legal aid would breach our client’s Right to a fair trial (Article 6) and Right to respect for private and family life (Article 8) of the European Convention on Human Rights (ECHR). This case is of wider importance as many Windrush victims are unable to obtain proper compensation from the WCS without legal assistance.
Currently, the WCS has a complicated and extensive application, where even a minor error in identifying which category the applicant falls into could significantly diminish or nullify potential compensation. Not only is filling in the application complicated, but so is gathering the required documents for the application, a task exacerbated due to the Home Office’s error of destroying their landing cards and other records in 2010. These documents can be as old as 30 years old, adding another layer of difficulty to an already demanding task. Applicants are forced to navigate through various governmental departments, often requiring extensive knowledge of the departments, something that many everyday individuals might lack. Research carried out by King’s Legal Clinic found that comparable compensation schemes took a more victim centred approach and were fairer to victims when assessing compensation claims. The Home Office run the WCS and their competency to deliver fair compensation has been criticised for many years. Many victims distrust the Home Office as they were responsible for the original harm caused.
Furthermore, if this application for judicial review is rejected and legal aid remains unobtainable, this would set troubling precedent for other Windrush victims. This would prevent them from accessing the necessary support needed to obtain compensation from to the WCS, further exacerbating the injustices they have already endured. These applicants need guidance through the WCS process, and they should not be further punished for the Home Office mistakes.
What were your most striking observations from the hearing?
Though I had not worked on the exact documents being presented in the hearing, I had been working with similar documents in my assigned case. Witnessing the seamless integration of these documents at the hearing was extremely interesting. Whenever I read these documents individually, it would be hard for me to grasp their significance, but when it was being brought up in an argument at the hearing, their importance became vividly apparent. This was a great reminder for me to handle each document with the utmost care as the documents that I handled could also end up in court cases.
This experience also highlighted the practical applications of what I had learned in class. For example, in my first year, there was heavy emphasis on the ECHR in European Law. While learning about them, they remained a foreign concept to me. At this hearing I saw how those legal principles I had only discussed in tutorials or seen in my textbook, unfolding in front me in the form of a real-life case. I got excited every time I recognised a legal principle and overall, it also showed me a glimpse of what my future career could look like as well.
Equally as compelling was the dynamic interaction among the claimant lawyers, defendant lawyers, and judge. Unlike the hostile theatrics often depicted in legal shows like “Suits”, all three parties demonstrated mutual respect and collaboration. It was remarkable to observe how, when faced with questions about one's argument, they engaged in constructive dialogue to clarify the arguments that were being brought forth. This collaborative atmosphere seemed like the teamwork I experienced in tutorials, where we collectively strived to achieve the best solution.
How do you think the Windrush compensation scheme differs from other compensation schemes?
The WCS differs from other compensation schemes firstly due to its multi-generational impact. As mentioned above, unlike conventional schemes, the repercussions of the Windrush Scandal extend beyond the immediate victims. For example, many children arrived in the UK on their parents’ passport, meaning that they could not prove their arrival. Their grandchildren would also suffer a similar fate. This is extremely disheartening considering that many immigrants came to the UK with a dream of improving their daily lives, yet they and their descendants have had to face an issue that should have been resolved when they first arrived in the UK.
Another difference is the complexity of the application. Due to the wide range of heads of loss and complex initial eligibility requirements, if this application is not filled out correctly, one's application could get denied even if they are eligible for compensation. While the thoroughness of the 44 paged application may be commendable, its exhaustive nature presents a significant challenge for the average person to navigate and accurately complete alone. Compared to other compensation schemes, this application is way longer in length.
The Clinic has carried out research on the WCS and other compensation schemes involving state harm. The research found that compared to other compensation schemes, including the Horizon Shortfall Scheme and Lambeth Children’s Home Redress Scheme, the WCS faces a notable disparity in terms of applicant numbers and success rates. Despite the WCS having the highest volume of applicants, they have the lowest number of successful claims and highest refusal rate. This disparity could also be due to the fact that these compensation schemes benefit from access to legal aid while WCS applicants cannot. Although the Windrush Lessons Learned Review, commissioned by the government identified the failures of the Home Office in terms of the Windrush Scandal, these flaws still persist in the WCS and much more needs to be done to overcome them.
What outcome would you like from the judgment?
I would like to see judicial review being allowed so that our client is able to obtain legal aid. The ramifications of this outcome extend far beyond our client’s case; it paves the way for countless other applicants. Currently, the complexities of the WCS dissuade many from pursuing their rightful claims. This process can be a discouraging process without aid, especially due to the low success rate, time-consuming process, and confusing procedures. Legal aid would serve as support, instilling confidence in applicants and affirming that they are not the only one battling the injustices. By providing legal aid, it further supports the government's commitment to rectifying past wrongs and offering actual assistance to those affected. In many cases, even if the government provides resources to help applicants, many might not be aware of it without legal guidance. Unfortunately, even the approval for legal aid does not remove the delays of the WCS and complexity of the application. However, it is a step in the right direction. Hopefully, future compensation schemes can learn from the flaws in the WCS, striving to create a more accessible scheme.
Chloe discusses her experience as a caseworker at the Windrush Justice Clinic and the Windrush Compensation Scheme