“Although an Act of Parliament entitled people from the Commonwealth who arrived before 1973 and who were in the UK to the ‘right of abode’ or ‘deemed leave’ to remain in the UK, it hadn’t automatically given them the documentation to prove it. Nor had the Home Office kept records confirming their status. So, unless they made a further application and paid a fee, they had no way of showing that the UK was their rightful home, even though in most cases they had known no other. Some of the Windrush generation retained British status under changes to legislation in the 1980s. Others had a right to register, but that was time-limited and not widely publicised. As successive governments introduced measures to discourage migrants from entering the UK illegally, they increasingly focused on requiring people to provide documentary proof of status to access public services and other essentials, such as work, driving licences, housing and healthcare. Subsequently, cases started to emerge where members of the Windrush generation couldn’t access public services as they were unable to prove their status. When they took steps to establish their status, the Home Office had no record of them, and in some cases triggered enforcement action and either removal from the UK or refusal of re-entry. This is how the tragedy unfolded.”
“Recommendation 3 - In consultation with those affected and building on the engagement and outreach that has already taken place, the department should run a programme of reconciliation events with members of the Windrush generation. These would enable people who have been affected to articulate the impact of the scandal on their lives, in the presence of trained facilitators and/or specialist services and senior Home Office staff and ministers so that they can listen and reflect on their stories. Where necessary, the department would agree to work with other departments to identify follow-up support, in addition to financial compensation.”
“Recommendation 8 – The Home Office should take steps to understand the groups and communities that its policies affect through improved engagement, social research, and by involving service users in designing its services. In doing this, ministers should make clear that they expect officials to seek out a diverse range of voices and prioritise community-focused policy by engaging with communities, civil society and the public. The Windrush volunteer programme should provide a model to develop how the department engages with communities in future…”
“Recommendation 9 – The Home Secretary should introduce a Migrants’ Commissioner responsible for speaking up for migrants and those affected by the system directly or indirectly. The commissioner would have a responsibility to engage with migrants and communities, and be an advocate for individuals as a means of identifying any systemic concerns and working with the government and the ICIBI to address them. Recommendation 10 – The government should review the remit and role of the ICIBI to include consideration of giving the ICIBI more powers with regard to publishing reports. Ministers should have a duty to publish clearly articulated and justified reasons when they do not agree to implement ICIBI recommendations. The ICIBI should work closely with the Migrants’ Commissioner to make sure that systemic issues highlighted by the commissioner inform the inspectorate’s programme of work.”
“1. The Windrush Scandal was caused by a failure to recognise that changes in immigration and citizenship law in Britain since 1948 had affected black people in the UK differently than they had other racial and ethnic groups. As a result, the experiences of Britain’s black communities of the Home Office, of the law, and of life in the UK have been fundamentally different from those of white communities. 2. Major immigration legislation in 1962, 1968 and 1971 was designed to reduce the proportion of people living in the United Kingdom who did not have white skin. 3. The relationship between the Home Office and organisations set up to deal with race relations was dysfunctional in the second half of the twentieth century…”
“41. We are hosting a series of events to allow members of the Windrush generation and their wider community to share their experiences. By engaging with their stories, the Home Office can acknowledge, continue to learn from the past and take the necessary measures to improve the culture in the department. We also want to celebrate the contribution of members of the Windrush generation to the UK, as a form of cultural commemoration, rebalance the Home Office’s relationship with communities and look to the future. 42. We have discussed our approach to this recommendation with a wide range of stakeholders, including community and faith leaders and the Home Office network of Windrush volunteers. We are working closely with the Windrush Cross-Government Working Group to design and develop the events with an implementation time period for early 2021. Where necessary, the Home Office will work with other departments and the membership of the Working Group to identify follow up support, in addition to financial compensation.” (Emphasis in original.)
“162. We are taking steps to ensure we consistently involve communities and stakeholders in policy development and service design by building the department’s skills and confidence in conducting meaningful engagement…We will systematically identify who the stakeholders or impacted groups are across different business areas, assessing the degree of current engagement and developing a strategy to improve this…To lead the way on community and stakeholder engagement we are forming a Community and Stakeholder Engagement Hub that will sit at the very centre of the department.”
“167. We agree that this would be a valuable role, to engage with migrant communities directly and facilitate their feedback into the Home Office to be considered in our policy development and operational activity. 168. We are consulting with the Windrush Cross-Government Working Group to recommend how best to advance this recommendation, including which external voices to engage with. 169. The success of this recommendation is likely to be judged by the quality of the feedback and its impact on the work of the department. We may also survey migrants to assess the effectiveness of our approach.”
“170. We will seek to appoint an independent reviewer this year and plan to carry out a full review of the ICIBI in the first quarter of 2021 with a view to making the ICIBI more independent, effective and efficient. The review will consider the capabilities, organisational structure, role and remit of the ICIBI, as well as considering whether to establish a duty on the Home Office to explain why it is not accepting recommendations. 171. Through the review we will look at how other independent inspectorates are funded, their way of working and how other Home Office assurance functions operate. We have discussed the issues raised in the report and the specifics of this recommendation with the incumbent Independent Chief Inspector to gain insight from his experience. 172. We will then use the findings of the review to consult on changes to the ICIBI. Where formal scrutiny is not working, we will not hesitate to make further changes. 173. We expect to judge whether the changes to the role and remit of the ICIBI have been successful by the percentage of responses to reports completed within expected time frames, and the number of recommendations implemented.”
“The Working Group continue to feel quite strongly about the sensitivities of this rec and engaging the Windrush Generation and encouraging them to share what might be painful stories, without being clear of the final outcome. They are keen to understand what difference would this make to the lives of the people who have shared their stories? What does the department hope to achieve from running these events? They are concerned the implementation of this recommendation could lead to some backlash in the media and from affected communities if there is not a clear outcome to hosting them.”
“8.1 The Facilitator recommends proceeding with the events to ensure that this unresolved situation is prevented from becoming a weeping sore…. 8.2 …more consultation on the design state is required to ensure that a more diverse range of participants are involved… 8.3 The 4 hour… events should be offered as a series of opportunities to be shared in a non-judgmental and empathetic listening environment. 8.6 These series of events will allow frustration to be fully ventilated by the contributors in the presence of Home Office representatives as well as officials representing other agencies such as Social Services, Mental Health, Primary Care… 8.7 If officials are able to walk towards anger, prejudice and suspicions in an empathetic non-judgmental way to prove their openness to accepting accountability, transformation of the current narratives will occur…”
“The Home Office accepted all 30 recommendations and published a… [CIP]…which set out how it would implement my recommendations”
“14.1 The Reconciliation Events provide an ideal, albeit challenging, opportunity to rebuild trust between senior officials and community members… 14.2 To withdraw this opportunity after having accepted Recommendation 3 would become a huge impediment to any efforts to build trust in the future. If these events do not take place, the voices of doubt about transparency and accountability in government would undoubtedly be amplified. These voices would damage fragile community relations because of a compounded sense of not being valued for the multiple facets of their identities.”
“There are risks of not delivering on this commitment. We are likely to face criticism from stakeholders, including those that participated in the consultation exercise and it could damage trust within fragile relationships. That said, we have already conducted more than 200 engagement events, and have made a number of changes to the compensation scheme to improve its operation and to encourage more to apply. And we will continue to do more in both of these areas. Given this, and the amount of time that has elapsed since the recommendation was made, we recommend you do not proceed. Do you agree?” (Emphasis in the original text.)
“34. Each recommendation has considered the Public Sector Equality Duty. Officials note that progressing with the recommendation in this submission will improve community relationships. 35. Not proceeding with recommendations 3 and 9 are likely to have adverse impact on the protected characteristic of Race (those predominantly impacted by Windrush are from the black Caribbean community) and Age (majority of the WLLR victims are aged 50-70). However, officials, believe any adverse impacts can be justified as a proportionate means of achieving a legitimate aim, as set out in paragraphs 23 – 30 above.” (Emphasis in the original text.)
“Whilst the Home Secretary stated that all 30 of the WLLR recommendations were accepted, the multiple delays faced by recommendation 9, and arguably 10, puts the department at risk of failing to do so in practice. We are concerned communicating publicly that the department has accepted all 30 and is progressing recommendation 9 is no longer factual and would go against the Civil Service value of ‘honesty’ should we continue to do so. We have therefore assessed the need to remove references to officials progressing recommendation 9 and/or amending to say this work has been paused in line with recommendation 10, from our lines, as well as removing references to accepting all 30 recommendations when not referring retrospectively, unless there is a clear steer from the Home Secretary. There is of course still a large amount of positive work happening on Windrush which we will continue to point to. We believe it is also now appropriate to officially pause work on implementing recommendation 9 until the Home Secretary has made a decision on how it should progress.” (Emphasis in the original text.)
“There are reputational risks attached to not proceeding with this recommendation given the importance attached to it by Wendy Williams and other stakeholders. That said, we do not consider that a new group will meet the expectation of stakeholders and, in the absence of creating a statutory commissioner, believe that there are other opportunities to fulfil the spirit of this recommendation more effectively. This includes reforming the ICIBI (see recommendation 10 above) and/or the continued work of our Community and Stakeholder Engagement Hub (improving how the department engages with stakeholders). We therefore recommend that you do not proceed with this recommendation. Do you agree?” (Emphasis in the original text.)
“This review presents an opportunity to reset the relationship with the ICIBI and to identify some constructive lessons from other Inspectorates, as well as demonstrating our commitment to opening ourselves up to scrutiny. We therefore recommend that you proceed with this recommendation, reopening the adverts for a short period before progressing with appointment. Do you agree?” (Emphasis in the original text.)
“Extensive consideration has been given to how to deliver these recommendations in appropriate and meaningful ways: ensuring that individuals have opportunities to tell their stories; amplifying the voices of individuals engaging with the immigration system; and driving scrutiny of the department. On reconciliation events specifically, on the balance of expert advice received on how to approach this incredibly sensitive subject, I am persuaded that there are more effective ways of engaging with those impacted. The department has undertaken a significant programme of face-to-face engagement with the communities impacted by the Windrush scandal since 2018. Surgeries were held in community halls and places such as churches, mosques and care homes…The engagement events were held in most major cities across the UK…The events were hosted by senior members of the Windrush Programme and provided individuals with the opportunity to speak to them about the impact the scandal had had on their and their family’s lives. Over 3,000 people were reached through these events…Regular dialogue hosted by senior officials are held in forums with external stakeholders from Windrush communities who provide feedback and scrutiny of our engagement and communication efforts. This type of engagement will remain an important part of our work… Recommendations 9 and 10 relate to the establishment of a Migrants’ Commissioner and a review of the ICIBI. As Home Secretary, I remain committed to the importance of scrutiny, both internal and external. There are a number of ways in which we are inviting this challenge and scrutiny in a more efficient way. In October 2022, the department established the Independent Examiner for Complaints…This office will ensure that customers who are not satisfied with the final response to their complaints have an opportunity to have their case reviewed independently…helping the Home Office to identity learning and wider lessons from complaints to improve its service. …Beyond this, I remain committed to the importance of scrutiny. I welcome the insight and challenge that I and the wider department have received from our colleagues in the Windrush Working Group… External bodies are not the only source of scrutiny. As Wendy Williams identified the very culture of the department needed a fundamental shift, bringing policy development and service delivery into contact with those who are impacted by it, including those who might not agree with it. This is how we shift culture and subject ourselves to scrutiny and this is how we are changing.”
“The Home Secretary is not required to give reasons for her decision to the Home Office and I cannot therefore state what the precise reasons for the decision might have been. The Home Secretary is accountable to Parliament for her decision. It would be inappropriate for me to explain the reasons for the Home Secretary’s decision and I do not therefore do so.”
“a substantive legitimate expectation arises where the Court allows a claim to enforce the continued enjoyment of the content – the substance – of an existing practice or policy, in the face of the decision-maker’s ambition to change or abolish it”
“These cases illustrate the pressing and focussed nature of the kind of assurance required if a substantive legitimate expectation is to be upheld and enforced. I should add this. Though in theory there may be no limit to the number of beneficiaries of a promise for the purposes of such an expectation, in reality it is likely to be small, if the court is to make the expectation good. There are two reasons for this, and they march together. First, it is difficult to imagine a case in which government will be held legally bound by a representation made generally or to a diverse class. As Lord Woolf MR said in Ex p Coughlan (paragraph 71) ‘May it be… that, when a promise is made to a category of individuals who have the same interest it is more likely to be considered to have binding effect than a promise which is made generally or to a diverse class, when the interests of those to whom the promise is made may differ, or, indeed, may be in conflict?’ The second reason is that the broader the class claiming the expectation’s benefit, the more likely it is that a supervening public interest will be held to justify the change of position complained of. In Ex p Begbie (1130G – 1131B): ‘In some cases a change of tack by a public authority, though unfair from the applicant’s stance, may involve questions of general policy affecting the public at large or a significant section of it (including interests not represented before the court); here the judges may well be in no position to adjudicate save at most on a bare Wednesbury basis, without themselves donning the garb of policy-maker, which they cannot wear… In other cases the act or omission complained of may take place on a much smaller stage, with far fewer players… There may be no wide-ranging issues of general policy, or none with multi-layered effects, upon whose merits the court is asked to embark…’”
“… a public authority will not often be bound by the law to maintain in being a policy which on reasonable grounds it has chosen to alter or abandon… Public authorities typically, and central government par excellence, enjoy wide discretions which it is their duty to exercise in the public interest. They have to decide the content and the pace of change. Often they must balance different, indeed opposing, interests across a wide spectrum. Generally they must be the masters of procedure as well as substance; and as such are generally entitled to keep their own counsel. All this is involved in what Sedley LJ described (BAPIO[2007] EWCA Civ 1139 paragraph 43) as the entitlement of central government to formulate and re-formulate policy.”
“The more the decision challenged lies in what may inelegantly be called the macro-political field, the less intrusive will be the court’s supervision, More than this: in that field, true abuse of power is less likely to be found, since within it change of policy, fuelled by broad conceptions of the public interest, may more readily be accepted as taking precedence over the interests of groups which enjoyed expectations generated by an earlier policy.”
“Where political issues overtake a promise or undertaking given by government, and where contemporary considerations impel a different course, provided a bona fide decision is taken on genuine policy grounds not to adhere to the original undertaking, it will be difficult for a person who holds a legitimate expectation to enforce compliance with it.”
“I apprehend that the secondary case of legitimate expectation will not often be established. Where there has been no assurance either of consultation (the paradigm case of procedural expectation) or as to the continuance of the policy (substantive expectation), there will generally be nothing in the case save a decision by the authority in question to effect a change in its approach to one or more of its functions. And generally, there can be no objection to that, for it involves no abuse of power… Accordingly for this secondary case of procedural expectation to run, the impact of the authority’s past conduct on potentially affected persons must, again, be pressing and focussed. One would expect at least to find an individual or group who in reason have substantial grounds to expect that the substance of the relevant policy will continue to enure for their particular benefit: not necessarily for ever, but at least for a reasonable period to provide a cushion against the change. In such a case the change cannot lawfully be made, certainly not made abruptly, unless the authority notify and consult.”
“The public body doing the consulting must put a consultee in a position properly to consider and respond to the consultation request, without which the consultation process would be defeated. Consultees must be told enough – and in sufficiently clear terms – to enable them to make an intelligent response”
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
“In other words, article 14 may impose a positive duty to treat individuals differently in certain situations”
“… it has to be shown by the claimant that a neutrally formulated measure affects a disproportionate number of members of a group of persons sharing a characteristic which is alleged to be the ground of discrimination, so as to give rise to a presumption of discrimination. Once a prima facie case of indirect discrimination has been established, the burden shifts to the state to show that the indirect difference in treatment is not discriminatory. The state can discharge that burden by establishing that the difference in the impact of the measure in question is the result of objective factors unrelated to any discrimination on the ground alleged. This requires the state to demonstrate that the measure in question has an objective and reasonable justification: in other words, that it pursues a legitimate aim by proportionate means…”
“In summary, therefore, the court’s approach to justification generally is a matter of some complexity, as a number of factors affecting the width of the margin of appreciation can arise from ‘the circumstances, the subject matter and its background’. Notwithstanding that complexity, some general points can be identified. (1) One is that the court distinguishes between differences of treatment on certain grounds… which for the reasons explained are regarded as especially serious and therefore call, in principle, for a strict test of justification (or, in the case of differences in treatment on the ground of race or ethnic origin, have been said to be incapable of justification), and differences in treatment on other grounds, which are in principle the subject of less intensive review. (2) Another, repeated in many of the judgments already cited, sometimes alongside a statement that ‘very weighty reasons’ must be shown, is that a wider margin is usually allowed to the state when it comes to general measures of economic or social strategy… In some of these cases, the width of the margin of appreciation available in principle was reflected in the statement that the court ‘will generally respect the legislature’s policy choice unless it is ‘manifestly without reasonable foundation’… (3) A third is that the width of the margin of appreciation can be affected to a considerable extent by the existence, or absence, of common standards among the contracting states… (4) A fourth, linked to the third, is that a wide margin of appreciation is in principle available, even where there is a differential treatment based on one of the so-called suspect grounds, where the state is taking steps to eliminate a historical inequality over a transitional period… (5) Finally, there may be a wide variety of other factors which bear on the width of the margin of appreciation in particular circumstances…”
“In summary, the European court has generally adopted a nuanced approach, which can be understood as applying certain general principles, but which enables account to be taken of a range of factors which may be relevant in particular circumstances, so that a balanced overall assessment can be reached. As I have explained, there is not a mechanical rule that the judgment of the domestic authorities will be respected unless it is ‘manifestly without reasonable foundation’. The general principle that the national authorities enjoy a wide margin of appreciation in the field of welfare benefits and pensions forms an important element of the court’s approach, but its application to particular facts can be greatly affected by other principles which may also be relevant, and of course by the facts of the particular case… In the context of article 14, the fact that a difference in treatment is based on a ‘suspect’ ground is particularly significant…”
“(1) The obligation upon the decision-maker is only to take such steps to inform himself as are reasonable. (2) Subject to a Wednesbury challenge… it is for the public body, and not the court to decide upon the manner and intensity of inquiry to be undertaken… (3) The court should not intervene merely because it considers that further inquiries would have been sensible or desirable. It should intervene only if no reasonable authority could have been satisfied on the basis of the inquiries made that it possessed the information necessary for its decision… (4) The court should establish what material was before the authority and should only strike down a decision by the authority not to make further inquiries if no reasonable council possessed of that material could suppose that the inquiries they had made were sufficient… (5) The principle that the decision-maker must call his own attention to considerations relevant to his decision, a duty which in practice may require him to consult outside bodies with a particular knowledge or involvement in the case, does not spring from a duty of procedural fairness to the applicant, but from the Secretary of State’s duty to inform himself so as to arrive at a rational conclusion… (6) The wider the discretion conferred on the Secretary of State, the more important it must be that he has all relevant material to enable him properly to exercise it…”
“(1) A public authority must, in the exercise of its function, have due regard to the need to – (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it; (3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to – (a) remove or minimise disadvantage suffered by persons who share a relevant protected characteristic that are connected to that characteristic; (b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it; (c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low. (5) Having due regard to the need foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to – (a) tackle prejudice, and (b) promote understanding.”
“The relevant duty is upon the Minister or other decision maker personally. What matters is what he or she took into account and what he or she knew. Thus, the Minister or decision maker cannot be taken to know what his or her officials know or what may have been in the mind of officials in proffering their advice …”
“Compliance with the PSED requires the decision-maker to be informed about what protected groups should be considered. That will involve a duty of inquiry, so that the decision-maker is properly informed before making a decision”
“We acknowledge that what is required by the PSED is dependent on the context and does not require the impossible. It requires the taking of reasonable steps to make enquiries about what may not yet be known to a public authority about the potential impact of a proposed decision or policy on people with the relevant characteristics…”
“First, Mr Lewis went so far as to submit that a case of legitimate expectation could not be founded on the Prime Minister’s statements to Parliament, because it would involve questioning what was said in Parliament, contrary to Article 9 of the Bill of Rights 1689 and the wider principle of Parliamentary privilege based on the need to avoid interfering with free speech in Parliament. We doubt whether that is right, and we note that the defendants as well as the claimant took issue with it. There are several cases where the courts have entertained claims of breach of legitimate expectation founded on ministerial statements in Parliament: see, for example, In re Findlay[1985] AC 318 , 326 -328; R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs[2002] EWCA Civ 1598 , [2003] UKHHR 76, para 91; and R (Association of British Civilian Internees: Far East Region) v Secretary of State for Defence[2003] QB 1397 , paras 2-3. In such cases the claimants are not questioning what has been said, but relying on it. The view that Parliamentary statements may be used for such a purpose also derives support from the judgment of the Privy Council in Toussaint v Attorney General of Saint Vincent and the Grenadines[2007] 1 WLR 2825 . We do not, however, need to decide the question because it is common ground that the promise to hold a referendum on the Constitutional Treaty was repeated to the media outside Parliament and that no question of Parliamentary privilege arises in relation to statements to the media.”
“(1) the courts may admit evidence of proceedings in Parliament to prove what was said or done in Parliament as a matter of historical fact where this is uncontentious: see Prebble v Television New Zealand Ltd… (2) Parliamentary material may be considered in determining whether legislation is compatible with the European Convention on Human Rights… (3) the courts may have regard to a clear ministerial statement as an aid to the construction of ambiguous legislation… (4) the court may have regard to Parliamentary proceedings to ensure that the requirements of a statutory process have been complied with… (5) the courts may have regard to Parliamentary proceedings in the context of the scope and effect of Parliamentary privilege… (6) an exception has also been identified for the use of ministerial statements in judicial review proceedings. The Speaker accepts that such an exception exists but contends that the scope and nature of this exception has not yet been the subject of detailed judicial analysis. It calls for careful consideration of the constitutional issues involved. We respectfully agree.”
“Although we do not have to decide the point, we see force in the submissions made on behalf of the Speaker. The fundamental difficulty in our view, is that, if the statements were held to be admissible and if there is a dispute as to their meaning, the court would be drawn into having to resolve whether what was said on behalf of the Secretary of State was accurate or not. That would bring the court into the territory which is forbidden by art.9 of the Bill of Rights.”
“104 This and subsequent cases where similar use of ministerial statements in Parliament has been used in judicial review proceedings have been taken to establish that a ‘minister’s statement [may be] relied upon to explain the conduct occurring outside Parliament, and the policy and motivation leading to it: Toussaint v Attorney General of Saint Vincent and the Grenadines[2007] 1 WLR 2825 , para 17… In Warsama v Foreign and Commonwealth Office[2020] QB 1076 , this court (Lord Burnett of Maldon CJ, Coulson and Rose LJJ) said at para 24 that: ‘The courts have also redrawn the boundaries of privilege to allow examination in judicial review proceedings of the reasons given by a Minister in Parliament for a particular decision under challenge’. 105 As it appears to me, this use of ministerial statements is permitted for the limited purpose of identifying the Government’s purposes and reasons for taking or proposing the action which is being challenged in the proceedings. Those are the purposes or reasons which have been formulated outside Parliament and explain action taken by the Government outside Parliament, either for example, by the Directive issued in Brind or by the decision to make subordinate legislation. Essentially, it is a convenient way of putting those purposes or reasons in evidence, which may be simpler than setting them out in a witness statement by the minister or an official.”
“We are hosting a series of events to allow members of the Windrush generation and their wider community to share their experiences. By engaging with their stories, the Home Office can acknowledge, continue to learn from the past…”
“We will also need to engage widely with external stakeholders, including Wendy Williams, to help challenge and inform our proposals as they are developed. As part of our work we will reach out to, listen to, and really hear the hard to reach voices that we have too often ignored in the past to build confidence that the department is committed to change. We are currently developing an external engagement plan, including the role we hope you and other ministers will play in it…” (Emphasis in the original text.)