Windrush Compensation Scheme (Expenditure) Bill — House of Commons, 2020-02-10
Topic: Immigration
Stuart Campbell McDonald (Scottish National Party, Centre-left): As I said at the outset, I welcome all the consultation that is happening. I also welcome the role that Martin Forde has played, but we do not have to simply take every chapter and verse of the design that he comes up with. Ultimately, we are the politicians and this is the Government, and we can do things slightly differently if we wish to. The Immigration Minister has already made some changes to the scheme. All I am saying is that there are changes that can make the scheme fairer and more generous, and I will continue to make that case. I absolutely respect the role that Martin Forde has played and I do not mean to diminish it in any way at all As we speak just now, lots of folk are having to be helped through the system by pro bono lawyers, volunteers and even students. Not only are difficult concepts of immigration and nationality law involved, but the process of documenting losses and damages is often not easy. Given the significance of these applications to the people making them, as we heard from my hon. Friend the Member for Glasgow North West (Carol Monaghan), it is only right that legal aid funding be made available. Ultimately, is it not a bit rich for the Home Office, an institution that completely failed to understand its own immigration rules and laws despite employing an army of policy experts and lawyers, then to turn round and tell victims of those failures that they do not need legal advice? The Home Secretary herself referred in her speech to applications being complicated. That is why legal aid funding should be made available to all the victims The fourth issue is the time limit. We welcome the Minister putting the deadline back—the original might even have been capable of legal challenge—but we suspect that there may need to be a further rethink in future. We are also concerned that if a deadline remains, there must be generous provision for those who miss it and a very low threshold for considering reasonable excuses. That is necessary, given the vulnerabilities and isolation that many victims will have suffered. It is also necessary because the Home Office has limited its proactive search for victims to Caribbean countries, despite being told by the NAO that its reasons for not proactively searching for victims elsewhere do not add up. That must be revisited Fifthly, we share concerns that many of the limits, tariffs and caps in the scheme are wholly inappropriate. The range of immigration application fees that are recoverable is unduly restrictive, and so too are limits placed on legal fees related to those applications. Some of the lump sums seem surprisingly low. Right across access to social security benefits, housing, employment and education, we cannot accept restrictions on possible total awards. Why is the scheme not aiming to come closer to providing restitution for actual losses, rather than very limited broadbrush payments Sixthly, we are concerned about provisions that allow for compensation to be restricted for what essentially seems to be a form of contributory negligence, as well as for serious criminality. On the first point, how can it be right for the Home Office to say, "If only you’d contacted us, things would have been sorted," and use that as a reason to reduce compensation? For many, simply looking at the eye-watering application fees would have been sufficient to think that fixing the situation was impossible. Others who did try to contact the Home Office to remedy their status ended up the subject of enforcement action and in immigration detention It seems that unsuccessful applicants were automatically placed in the migration refusal pool and therefore were at risk of removal, so who can blame people for not attempting the dangerous and seemingly insurmountable task of proving status and contacting the Home Office? After all, this Department was sending out "Go home" vans, but now we are saying in retrospect that at that same time, people suspected of being here illegally should have got on the phone to the Home Office to rectify their situation. That seems wholly unrealistic. The insistence that people would usually have contacted the Home Office within 30 days bears little resemblance to reality and could have severe implications for significant loss of earnings claims. We welcome the Minister’s announcement that the range of actions that the Home Office will accept as attempted mitigation is to be broadened, but we seriously question whether any such deductions are appropriate at all On criminality, we are unconvinced by the appropriateness of the provisions. Part of the guidance on this has been redacted from public view, and another section refers to situations where the "offending was of such a nature that makes it inappropriate to make an award in whole or in part", which is vague and lacks clarity. As a point of principle, the fact that someone has a criminal record surely does not mean that the person is not owed compensation when they are wronged by the Government Finally, there is a huge issue over what caseworker guidance says about the standard of proof in certain cases. As a general rule, the guidance states that caseworkers should "take a holistic view of the claim where there is a lack of supporting evidence and decide the claim on a balance of probability." That is welcome and as it should be, but a list of exceptions is then provided, including claims for loss of earnings, reimbursement of private medical fees, reimbursement of international student fees and loss of access to banking. The guidance demands that caseworkers "must be satisfied beyond reasonable doubt before making an award in these cases." That is the criminal standard of proof. I cannot for the life of me see why a loss of earnings claim for a Windrush victim should require to be proved to the criminal standard of proof, rather than the usual civil standard. That seems pretty outrageous, and I look forward to hearing why that is in the guidance. Members have raised various other issues with the scheme, and I look forward to exploring those in Committee.