Securing access to justice: reviewing the Windrush compensation, EU Settlement Scheme, and Afghan Resettlement Schemes

On 15 November 2021, JUSTICE published our Reforming the Windrush Compensation Scheme report.

This report made 27 recommendations to improve the administrative and procedural aspects of the Compensation Scheme. The aim of the Working Party, which included those with lived experience and lawyers who acted for Windrush victims, was to make the Windrush Compensation Scheme more accessible, fair and efficient for those who need it and to improve trust amongst those who suffered loss and hardship.

Key recommendations in the report included the need for greater independence and accountability, the availability of funded legal representation, training for caseworkers, improved communication with applicants, a targeted publicity campaign to raise awareness and an improved appeals system.

Following the publication of our report, JUSTICE has been engaging with the Home Office on these recommendations and advising the Independent Person with the assistance of Dechert LLP and Bryan Cave Leighton Paisner LLP.

Many of the issues we identified with the Windrush Compensation Scheme are also applicable to other recent bespoke Home Office schemes. This new project is using our Windrush report as a starting point to identify problems with, and potential solutions in respect of, the Afghanistan relocation schemes (the Afghan Relocations and Assistance Policy (ARAP) and the Afghan Citizens Resettlement Scheme (ACRS)) and the EU Settlement Scheme.

We have set up working groups to examine these schemes. These groups are comprised of experts, those with lived experience of these schemes, and those who represent and support them. The working groups will identify the issues with these schemes and make recommendations for reform, drawing on our recommendations from the Windrush Compensation Scheme Report. We hope to identify common issues and solutions to improve the existing schemes, and ensure that lessons are learnt for any future Home Office schemes.

The Working Groups

Afghan Settlement Schemes Working Group

- Chair: Sonali Naik KC (Garden Court Chambers)
- Erin Alcock (Lawyer, Leigh Day)
- Zoe Bantleman (Legal Director, ILPA)
- Daniel Carey, (Partner, Deighton, Pierce and Glynn;
- Olivia Clarke (Senior Associate, DLA Piper)
- Emma Daykin (One Pump Court)
- Dr Sara De Jong (Senior Lecturer Politics, University of York & Co-Founder of the Sulha Alliance CIO)
- Laure-Hèléne Piron (UK Afghanistan Diplomacy and Development Alliance, and Director, The Policy Practice)
- Rafi Hottak (Lead Interpreter, Formerly British Council)
- Sarah Magill (Managing Director and Founder, Freedom from Fear)
- Joe Tomlinson (University of York)

The Working Group is supported by Dechert LLP.
Read the full report here.

EU Settlement Scheme Working Group

- Chair: Paul Bowen KC, Barrister at Brick Court Chambers and s.9(4) Deputy High Court Judge
- Dr Elena Basheska, Research Affiliate, Central European University
- Heidi Bancroft, Administrative Justice Policy Lead, JUSTICE
- Şefki Bayram, Senior Fellow, JUSTICE (Rapporteur)
- Eva Doerr, Barrister, Garden Court Chambers
- Denisa Gannon, Solicitor,
- Professor Elspeth Guild, Professor of Law, Queen Mary University of London
- Monique Hawkins, Interim Co-CEO and Policy & Research Officer, the3million
- Samina Iqbal, Barrister, Goldsmith Chambers
- Lydia Martin, Deputy Head of Projects, New Europeans
- Toni Petkova, EUSS Service Manager, Settled
- Luke Piper, Solicitor and Head of Immigration, Work Rights Centre, Stephens Scown LLP
- Florence Powell, Solicitor and Legal Project Manager, AIRE Centre
- Eleanor Sibley, Barrister, Field Court Chambers
- Kezia Tobin, Head of Policy and Advocacy, the3million
- Bianca Valperga, EUSS Caseworker and Legal Policy Officer, Here for Good

The Reports

Afghan Settlement Schemes Report

Recommendations in the report include:

Reducing delays: Processing times should be improved and clear timelines provided. Government departments should also set out what the next steps will be and acknowledge when there are problems, such as delays, in the system.  

Improving consistency in decision-making: The Government should ensure there is consistent interpretation of the criteria, with a clear understanding of the breadth of the application, the criteria and the discretion open to decision-makers. There must be greater clarity and detail in decision letters which set out the grounds on which applications are refused.

Clarifying how the schemes work: The Home Office must clarify the way it calculates the limit of the number of individuals who can qualify for ACRS, the internal processes used by referral partners, and the criteria and/or method of assessment by which those, whom have already been determined as eligible, are determined as being of ‘priority’.    

Improving communication with individuals: the Government must provide regular, formalised processes for communication with applicants, and ensure there is clear communication regarding individual cases within government departments, reflecting the urgency and high levels of risk. Primary caseworkers should be assigned to provide a direct line of communication and to provide updates on applications.

Enhancing transparency through published data: All relevant departments, should publish more detailed and specific data on the Afghan Schemes.  

Reviewing the Unsafe Journey’s Policy: The Home Office should revise the Unsafe Journey Policy, which sets out the standard of proof applicants must meet in their application and consider a lower threshold for unsafe journeys.  

Reviewing the Biometric Policy: The Home Office should revise its policy on the submission of biometrics, including further discretion and flexibility, clarity as to the specific process for applicants under ACRS and ARAP biometric waivers, and consideration of whether Ministerial approval should be needed for excusing an applicant from biometrics.  

Expediting relocation times: The relocation of eligible and ‘suitable’ Afghans waiting to leave Afghanistan should be prioritised, expedited, and improved.

Read the full report here.

EU Settlement Scheme Report

This report was published on 13 March 2024. Recommendations included:

The Home Office should conduct an internal review of the effectiveness of the mechanisms implemented to comply with its duties under Article 18 (especially with regard to Art. 18(1)(o)) and assess what more could be done to comply with these duties, and therefore avoid refusing applications from eligible applicants.

The Home Office must find a way to convert pre-settled status to settled status for those entitled, without requiring them to reapply.

The Home Office should review its caseworker training with regard to evidential flexibility, ensuring that applicants who do not have access to more formal evidence are provided with greater caseworker support.

The Home Office must provide for a process of administrative review, with clearly published guidance for caseworkers and applicants. The reinstitution of administrative review must be supported with greater resources. This includes increased staffing and improved training in order to deal with delays

The Home Office should undertake a specific review in relation to decision-making of applications from dependent family members and durable partners, identify particular systemic patterns that result in incorrect decision making, and provide additional training to caseworkers to ensure that decisions are consistent and in line with published Guidance.

The Home Office should, in addition to its current publicity campaign, communicate to long-term residents currently outside the UK policy changes affecting their applications.

The Home Office must disseminate information on the EUSS as widely as possible in its external communications and ensure that it provides clear updates on policy and legal changes. The Home Office must also make efforts to actively counteract misinformation about the scheme.

The Home Office should provide greater clarity and detail in communications with applicants whilst their applications are pending. In addition, the Home Office should provide greater clarity and detail in decision letters to applicant, which set out the grounds on which the Home Office has refused applications.

The Home Office must commit to providing a 24-hour service, free phone also accessible from abroad and accessible to status holders themselves, that will confirm status when required in urgent situations, such as access to housing and benefits, boarding flights, and proving the right to work / rent.

Read the full report here.

(Photo by Global Residence Index on Unsplash)