Seema Malhotra MP

Labour and Cooperative Member of Parliament for Feltham and Heston

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Letter to PM: Enshrine the Legal Rights for Windrush Generation

A letter to the Prime Minister, led by David Lammy MP, signed by Seema Malhotra MP and supported by over 200 MP's from 6 parties called for the rights of the Windrush Generation to be enshrined into law.

The letter in full, to Rt. Hon Theresa May.

 

Prime Minister
10 Downing Street
London
SW1A 2AA

28th April 2018

Dear Prime Minister

We are writing to you regarding the situation facing the children of the Windrush generation. We are grateful for the update that the Home Secretary provided in her Oral Statement on 23rd April and further clarifications that you made at Prime Minister’s Questions on 25th April. However, there are a number of issues raised by the statements made by yourself and the Home Secretary that require urgent and immediate attention. We are writing to seek clarification on these matters.

Firstly, the issue of compensation and redress is of vital importance to all those affected and their families. There are questions of administration that must be addressed – including how much money will be set aside, when will it be made available, and how will it be distributed?

Will this compensation be retrospectively applied to all those affected and will it cover compensation for the trauma, pain and suffering caused in addition to legal fees, application fees, loss of employment, denial of access to benefits, public services and healthcare? If so, how will this compensation be quantified? If an individual held a job with the public sector, will you commit to them being reinstated in their role? If an individual was evicted from social housing, will they be rehoused?

 

What provision will be made in light of the separation of family members, and to compensate family members of those who have died, for the loss of the time that would have had with their loved ones, and the trauma experienced by those unable to visit their dying loved ones or attend funerals?

Secondly, the issue of the burden of proof and ‘threshold’ that must be met remains unconfirmed. Windrush citizens are not ‘applying’ for anything – they have the right to citizenship, as you have confirmed. We do not believe that the Home Office should treat Windrush citizens as applicants required to meet a certain threshold – this process should seek to confirm applicants’ status. If the Home Office has no grounds to disbelieve that a Windrush citizen tells them, they should issue confirmation of status without delay. The Home Secretary has said that:

“Previously the burden of proof on some of the Windrush generation to evidence their legal rights was too much on the individual. And now we are working with this group in a much more proactive and personable way in order to help them”.

The Home Secretary has promised that officials will take a “generous approach” so those affected can “easily establish their rights”. The Windrush children urgently need proper and formal confirmation of the burden of proof that will be required to evidence their residence and to pass the Home Office’s requirements in order to gain the citizenship that is rightfully theirs.

We call on you to set out in detail what exactly is meant by a “judgement based on all the circumstances of the cases and on the balance of probabilities” so that those affected can come forward to the Home Office with confidence that they will be supported and assisted in establishing their rights. Applicants and their lawyers urgently need written guidance and the publication of internal guidance given to caseworkers within the taskforce. Will affected individuals have the right to appeal decisions made by the taskforce, and will legal aid be available? If not, why not?

Thirdly, and closely related to this point, is the issue of enforcement. Windrush children need to know what the exact burden of proof is and they also need assurances about what will happen in cases where Home Office officials judge that the evidence provided does not reach the as yet undefined threshold set by the Home Office.

The Home Secretary told the House on 23rd April that the Home Office will not target action “against someone who is part of the Windrush generation”. At Prime Minister’s Questions on 25th April, you said: “The hotline is there to help people to be able to get the documents they need to be able to clarify their status… there is no question of taking enforcement action” against those that contact the Home Office.

This is a promise that cannot possibly be kept without further clarification. A statement in the House of Commons cannot rewrite the entire structure and purpose of the Border Force or protect these individuals indefinitely. If the Home Office has an individual’s details on file, rejects an individual’s claim and then that individual subsequently encounters immigration enforcement then immigration enforcement would have a duty to take action.

The Joint Council for the Welfare of Immigrations have stated that they were informed by a Home Office official working on the Windrush helpline that decisions regarding enforcement action would be made on a case by case basis. It would be an egregious injustice if individuals contacting the Home Office were to be caught up in immigration enforcement action. We urge you to clarify this point urgently and unambiguously.

Finally, we are concerned that the fact that immigration policy made on the hoof, as has been the case over the last two weeks in the wake of the Windrush crisis, risks creating further problems and is not a suitable manner in which to make significant changes to our immigration policy. For example, the Home Secretary announced what amounts to substantial changes to our immigration policy for individuals who arrived into this country from any Commonwealth nation after 1948 in an Oral Statement, with no accompanying regulatory framework or legislation. Furthermore, verbal promises that individuals will not be subject to immigration enforcement without backing from legislation, formal guidance and changes to immigration rules represent a rewriting of immigration policy from the despatch box, not the statute book.

Given the gravity of these issues, it is important that the Government enshrines the changes that have been announced in response to the Windrush crisis into law without delay. We are calling on you to do this by bringing a Statutory Instrument before Parliament to ensure that that the measures are implemented as quickly as possible. Following what so many have endured, there is an understandable lack of trust within the Windrush and wider Commonwealth community. Proper legislative means are the only acceptable manner in which to protect and uphold the rights of Commonwealth citizens. Pronouncements from Ministers with no statutory or legal backing are simply not good enough. If you fully intend to comply with the assurances you have made to Commonwealth citizens we believe that you will take no issue with meeting our simple and reasonable request.

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