The Windrush scandal shows the need for immigration legal aid
Ionespoke to Sam on the phone this week for the first time in a while. “I’ve been trying to absorb the news; all these ‘Windrush’ stories,” he said.
I first met Sam (not his real name) in 2014. He was
of a dozen long-term migrants interviewed by the charity Legal Action Group for its Chasing Status research, which catalogued the impact of Theresa May’s “hostile environment” on people who had previously thought of themselves as British.
Sam had previously run his own business, but ended up destitute and street homeless, as a result of losing his passport with its precious “leave to remain” stamp. The Home Office said it could find no record of him. By that point, Sam, who had arrived from Sierra Leone aged 12, had lived in UK for 41 years; he had been married to (and separated from) a British woman, with whom he had had six British children. A problem-solver by nature, Sam had been driven to despair by his inability to break through Home Office intransigence: “The Home Office rejected and rejected and rejected.”
Four years ago, he had talked candidly about the toll on his mental health (“Shame, sadness, dejection”). Since then, things had got worse: “I entered a phase of total depression,” he said. That lasted many, many months, but his spirits had started to lift more recently, to the point where he has been able to take on voluntary work. In the last week or so, Sam’s mood had been buoyed even further by seeing the issue finally get the amount of media and political attention he had been hoping for. “We told them all this in 2014! Why didn’t they listen?” he said.
That is the question Amelia Gentleman, the Guardian journalist whose tenacity finally forced the issue on to the political agenda, was also asking this week. Why had the Home Office responded to six months’ of heartbreaking stories with only “dry statements for quotation”, with no indication anyone in the department found the issue troubling (or even interesting). Why did the prime minister initially decline to meet Commonwealth leaders to even discuss the issue?
In 2014 Chasing Status not only highlighted the problems facing long-term lawful migrants but suggested a series of solutions, including a specialist Home Office unit to deal with these cases, exactly along the lines now being implemented. The home secretary, Amber Rudd, said this week that the new team would actively assist applicants in getting their status sorted. If so, it will make a nice change from what one Home Office whistleblower describes as its staff’s more usual “gotcha” attitude towards people struggling to negotiate their way through the process.
People need expert help to be sure that their applications provide all the evidence needed to meet the Home Office’s exacting standards. As immigration solicitor Phillip Turpin says, the Home Office gives little guidance on what it is looking for, but “you can be refused for failing to produce a document you were never asked for in the first place”.
The difficulties of those whose stories the Guardian has been telling will have been made immeasurably worse by the fact that legal aid was scrapped for immigration cases in April 2013. People were left with nowhere to go for help, just at the time the Home Office application process was being made more onerous and the penalties for failing to be able to prove status were becoming more severe.
Many of the “surprised Brits” I interviewed were lucky enough to have had help from a legal-aid lawyer, as their cases had started before funding was axed. They included Anne Marie, a 56-year-old with learning difficulties who cannot read or write, and was relying on handouts from her 83-year-old mother, Violet, a retired changingroom attendant. After 40 years in the UK, Anne Marie’s benefits were cut off and at one point she was threatened with having to repay thousands of pounds to the Department for Work and Pensions. Her solicitor, Roopa Tanna from Islington Law Centre, had spent many, many hours trying to resolve her situation with only limited success in the face of a wall of indifference from the Home Office. “Their attitude is, you lost the passport. It’s your fault. We can’t find any record of you, but that’s not our fault,” says Tanna.
Although Tanna eventually managed to persuade the Home Office that Anne Marie had been in the UK since 1974, they still refused to grant her a permanent right to be here. Instead, Anne Marie is having to apply for what’s called “limited leave to remain” every 30 months for 10 years, paying thousands of pounds in application fees each time. Only after that will she be eligible to be recognised as a citizen of the only country she has known for 50 years.
Tanna says: “I honestly don’t know what would have happened to her if she hadn’t been able to come to Islington Law Centre.”
Before immigration legal aid was scrapped by the Legal Aid and Sentencing of Offenders Act 2012, solicitors used to be paid a flat fee of £234 to advise on such cases, which seems a minuscule amount in the light of recent revelations. Amber Rudd’s specialist Home Office unit may help the Windrush families, but that still leaves every other applicant having to struggle on alone. With a review of the act under way, and in order to avoid future scandals over heartless treatment of other longterm migrants, surely the time has come for immigration cases such as these to be brought back into the scope of legal aid.
• Fiona Bawdon is a freelance journalist. She writes on criminal and civil justice issues for the national and specialist legal press. She is the deputy chair of Women in Journalism and worked on the Reading the Riots project