A major law firm has signalled it may consider launching a Windrush group action compensation claim against the Home Office over potential breaches of the Human Rights Act.
The “likely underlying basis” of any compensation claim, a partner at law firm Leigh Day told HuffPost UK, would centre on the Home Office’s “failure” to exclude the Windrush generation from the Government’s “hostile environment” policy.
The Windrush generation has been living legally in the UK for over half a century, but have been treated as illegal immigrants under the policy because they can’t produce evidence of their right to remain - a problem compounded by the Home Office destroying thousands of their landing cards in 2010.
“The landing cards – which the Home Office appears to have negligently shredded – is one such crucial piece of evidence (to prove an immigrant’s right to remain),” Richard Meeran said of the scandal which has led to Caribbean people being denied health care, employment and accommodation.
He added: “Its destruction is a further indication of a lack of regard for the Windrush generation.”
Those who were “adversely affected” by the policy, Meeran said, could make claims for violation of the right to family life, “which is enshrined” in the Human Rights Act (article 8) and anyone wrongfully detained or deported could make a case under article 5 - the right to liberty.
As of Thursday, the Home Office said it was looking into 232 cases after setting up a hotline on Monday amid reports suggesting claimants could, in some cases, be entitled to six-figure payouts.
Meeran would not speculate on the level of compensation claimants might be entitled to, as it would vary greatly depending on the “nature of the harm and losses that were sustained by each individual”.
But, given the “common underlying thread (with Windrush cases)” and the potential for a claim under article 8 of the Human Rights Act, he suggested, “a collective group action may well be the appropriate vehicle” for damage claims.
Akima Paul Lambert, a representative of the Grenada Government, told HuffPost she believes the BritishGovernment should make a “good faith” payment to those affected, given many are pensioners or pre-pensioners who have suffered from government policy and who are without the means to launch legal action.
Lambert, who has spoken to the families of some of the people directly impacted, and in particular some of those who now reside in the Caribbean having been denied British passports, said there is a risk that many “may not have the means or the inclination” to seek legal redress or compensation.
Some are not in good health, she said, while others now felt “rejected” from Britain and preferred to “put the matter behind them... they don’t want or need the aggravation”.
Lambert suggested that the Government should also extend an offer of legal aid to the affected, as many of that generation would also require legal advice.
The Home Office is helping them resolve their immigration status which was never in question, Lambert said.
The Windrush Generation arrived in the UK shortly before the passing of British Nationality Act which made citizens of Commonwealth countries citizens of the UK and Colonies.
“Even now, why are they asked to prove a status to which they are entitled as of right?” she questioned.
Lambert urged the British Government to now take a “holistic look” at the ethos and implementation of its entire immigration policy, “because this is just the tip of the iceberg”.
David Barda, a group litigation lawyer at Slater and Gordon, agreed a group action was possible, adding that the action was both “cheaper and less stressful” for the clients, and more efficient for the courts.
Barda said a claim around the destruction of landing cards would be the most “straightforward” case to pursue and have the “best prospect” of success as it was a clear breach of data protection laws.
“In what world is burning evidence of a person’s arrival be appropriate,” he said, comparing the potential case to a group claim made against the Home Office in 2016.
The Home Office was ordered to pay damages ranging from £2,500 to £12,500 to persons named in a spreadsheet listing families returned to their country of origin after it mistakenly posted the document online.
Leigh Day has previously represented Windrush clients and is presently assessing at least one new case, Meeran said, adding that due to the volume of inquiries the firm receives he could not be specific on numbers.
Diana Baxter, a partner at Wesley Gryk Solicitors, told HuffPost she was currently advising a “handful of people” and while focusing on the “urgent position” of securing their right to remain in the UK, compensation claims were “inevitable”.
“Certainly there’s scope for compensation,” she said.
“The Home Office has told people’s employer’s they don’t have a right to be here and they’ve lost their jobs as a result... they’ve been detained... charged for NHS care they’re entitled to... and a lot of these people are elderly... it has had a significant impact.”
Group claims usually have “at least 10 people”, Meeran said, and he encouraged anyone affected by the controversy to contract Leigh Day as “this kind of work is consistent with the ethos of the firm”.
Compensation, he said, would likely be discussed with Windrush claimants within the coming days before the Home Office is approached for a response to individual claims and a case is built.
A case would be “unlikely” to be heard by a court before the end of the year, he added.
Chai Patel, legal officer at the Joint Council for the Welfare of Immigrants, suggested that a group action was unlikely, saying firms would probably represent a few clients each.
The Home Office said many of the calls to its hotline are “people with questions or concerns which may well turn out not to need any action taking, others do need our help in gathering evidence to confirm their status”.
So far, four people, whose cases had gone through a dedicated team of officials, have been given permanent status, the Home Office said.