Immigration Blog: Windrush - When is a Promise Not a Promise?

Monday 8 January 2024

This blog is by Grace Brown of the Garden Court Chambers Immigration & Public Law Teams.

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On 21 June 2018, Wendy Williams CBE, His Majesty’s Inspector of Constabulary and His Majesty’s Inspector of Fire & Rescue Services, was appointed by the then Home Secretary, Sajid Javid, as Independent Adviser to the Windrush Lessons Learned Review (the “WLLR”), which had been announced on 02 May 2018. The purpose of the WLLR was to provide an independent assessment of the events leading up to the Windrush scandal (particularly during the period between 2008 and March 2018) and to identify the key lessons for the Home Office. In her review, published in March 2020, Wendy Williams made 30 recommendations which addressed the way in which the Home Office “interacts with the communities it serves, with its own people and with ministers and governments.”

In September 2020, a response was published, the Comprehensive Improvement Plan (the “CIP”), on behalf of the then Home Secretary, Priti Patel, in which the recommendations of the WLLR were unreservedly accepted. Priti Patel observed that the WLLR had “exposed institutional failings at the heart of the Home Office” and that a “culmination of practices under successive governments allowed institutional ignorance and thoughtlessness towards the issue of race and the history of the Windrush generation to fester.”  It was stated that the “shameful findings” had been confronted head on and that “swift and decisive” action was being taken for amends to be made. Thus, to the ordinary observer, the CIP might appear to be a promise, or a form of promise, to the Windrush community and/to those affected by the Windrush scandal.

Not so, because then came along the next Home Secretary, Suella Braverman, who announced in January 2023 (though her legal representatives say December 2022) that she would not be proceeding with three of the recommendations. The recommendations in question are: Recommendation 3 – to run reconciliation events, Recommendation 9 – to introduce a Migrants’ Commissioner and Recommendation 10 – to review the remit and role of the Independent Chief of Borders and Immigration (the “ICIBI”). Key targets of these measures were to rebuild the trust that the Windrush community had lost with the Home Office and to improve external oversight and scrutiny of the Home Office. Thus, these three recommendations were critical in ensuring that the Home Office had learned lessons and that the factors that led to the scandal were fully understood.

The Claimant in R (on the application of Donald) v Secretary of State for the Home Department AC-2023-LON-001302 is an accepted Windrush victim. He considered that the CIP represented the Home Secretary’s unqualified acceptance of the WLLR recommendations i.e., a promise, and that the decision to not proceed with the three recommendations marks a change of policy and a breach of both a substantive and procedural legitimate expectation. In his claim, he further contended that: (i) the decision to not proceed with the three recommendations is in breach of his rights under Article 14 ECHR read with Article 8, (ii) the decision-maker’s duty to make adequate or appropriate inquiry before deciding not to proceed with the 3 recommendations was breached and (iii) resiling from the three recommendations represents a breach of the Public Sector Equality Duty under s.149 of the Equality Act 2010.

On 22 December 2023, the Honourable Mrs Justice Thornton granted permission to the Claimant to pursue a challenge to the Home Secretary’s departure from the CIP, finding it arguable that there was no adequate or otherwise justification for the Home Secretary’s U-turn, and arguable that the decision was made without consultation with either the Windrush community, or the various stakeholder groups and individuals representing their interests.

Of course, it may be that at the substantive hearing the conclusion is reached that, notwithstanding the unreserved acceptance of all the WLLR recommendations, the CIP is not a promise after all. Such an outcome would however fly in the face of law, logic, and morality, and open the door to a further weakening and undermining of the commitments made to the Windrush generation for the historic injustices they have unconscionably been exposed to.

In the words of Frances Webber, trustee of the Institute of Race Relations and former member of Garden Court Chambers: 

“The decision not to proceed with the recommendations is … a manifestation of the institutional racism which still pervades Home Office culture and decision-making. …The dismissal of these important reparatory and transformational measures on the ground that it is ‘no longer in the public interest’ to keep the promises made, made by a written statement to Parliament, without informing or consulting the author of the WLLR, the ICIBI, the HASC or other oversight bodies and despite their repeated warnings of the dangers of a closed culture, bodes ill for the Home Office and for those affected by its operations.”

Frances' expert report on the legal, historical and social context in which the Home Secretary’s decision came to be taken has been admitted as evidence in Mr Donald’s claim. Surely it must be more than arguable that far-reaching promises, made in the context of learning lessons following a very public scandal, must be honoured. Time will tell. No date has been set for the substantive hearing.

Counsel for Mr Donald is Grace Brown led by Phillippa Kaufmann KC, instructed by Dr Connie N Maina Sozi of Deighton Pierce Glynn, and three intervenors have been given permission to intervene. They are: (i) the Black Equity Organisation, whose counsel are Nicola Braganza KC and Bijan Hoshi of Garden Court, and Christian Davies, instructed by Neena Acharya of the Public Law Project, (ii) Unison, whose counsel are Karon Monaghan KC and Eleanor Mitchell instructed by Shantha David of Unison and (iii) the Speaker of the House of Commons. At the time of writing, it is not known whether the Speaker of the House of Commons will accept the invitation to intervene.

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