High Court determines that Windrush victims are not entitled to Legal Aid

The High Court has ruled that the decision by the Legal Aid Agency to refuse legal aid to a Windrush victim in order to make her claim to the Windrush Compensation Scheme (WCS) is lawful. The effect of the decision is that WCS claimants are not eligible for legal aid.

In R (Joyce Oji) v Director of Legal Aid Casework [2024] EWHC 1281 (Admin) the court accepted that the process for applying for compensation is ‘complex’, the non-legal support provided by the government had ‘not…served the Claimant well’ and that the Claimant would likely ‘find the process emotionally difficult ‘as the WCS is administered by the Home Office ‘the perpetrator of the acts she has just cause to complain about’.

Despite these findings, the Court ruled that the Claimant’s WCS claim did not engage Article 6 of the European Convention of Human rights (ECHR) (Right to a fair Trial) or Article 8 EHCR (Right to respect for private and family life). In essence, the ruling finds that victims of the Windrush scandal do not need legal assistance to prepare a WCS claim or engage in the process.

The Court’s core findings were that the nature of WCS claims did not give rise to the type of civil right protected by Article 6. In respect of Article 8 ‘the grant or refusal of compensation would not have a sufficiently significant impact on the essence of the Claimant’s private and family life to engage Art.8’ and that ‘the outcome of her claim does not dictate if the Claimant would continue to enjoy a family life or a private life’. Additionally, the court found that there is no wide or general discretion to grant legal aid where there is a risk of a breach of a Convention right and where a decision is made that no Convention right is in play, no discretion arises to grant legal aid. 

The decision will be another blow to victims and campaigners for access to justice. Refusal rates for the WCS continue to rise, currently standing at 4,791 (68%) out of 7,041 final decisions according to recent Home Office data. Comparative research carried out by King’s Legal Clinic highlighted the continued failure by the WCS to deliver fair and accessible compensation to victims. The research found that the WCS stood out as the only contemporary compensation scheme analysed which made no provision for government funded legal advice.

Background

Joyce Oji arrived in the UK from Nigeria aged three in 1988 to join her parents and siblings who were settled in the UK. As Joyce grew up, she faced extensive problems due to her inability to prove that she was lawfully settled in the UK. The court accepted these difficulties included not being able ‘to secure work, being forced to live through domestic violence because she was unable to secure homelessness assistance and an inability to leave the country with the confidence that she could return.’

Joyce sought to engage with the required process to confirm or regularise her stay on multiple occasions, but even when her stay was initially regularised in 2007, she continued to face significant hardship. In 2019 her settled status was confirmed by the Windrush Scheme and in May 2020 she was naturalised as a British citizen under the same scheme.

As a victim of the Windrush scandal, Joyce tried to claim compensation and sought the assistance of We Are Digital, who were funded by the Home Office, to provide non-legal support for those seeking compensation. Joyce was unhappy with the support she received, was distrustful of the service in light of its close connection with the Home Office and felt she was being ‘set up to fail’. Thereafter she instructed the Windrush Justice Clinic at Southwark Law Centre (SLC) in 2022 who advised her pro bono.

"I feel that I am being blocked and that they are taking away the real help that I needed to do the application properly. My experience with the Home Office We Are Group was awful and left me feeling helpless and traumatised. If I could have done it myself I would have, but when I went through the application pack, it was too much. I struggled to understand it and all the rules…If I did not get the help from Southwark Law Centre I would never have been able to bring my claim. I feel that the judge just does not get it, how difficult it is to apply, the lack of help there is out there for you, how traumatising it is to try and deal with the Home Office - the same people who I hold responsible for ruining my life. I find it hard get my head round how others have access to legal aid but if you are part of Windrush you are not, this is unfair." – Joyce Oji

SLC applied for exceptional case funding, and this was refused by the Legal Aid Agency on 13 September 2022. An exceptional case determination must be made where a failure to do so would breach, or risk breaching, an applicant’s human rights (section 10 Legal Aid Sentencing and Punishment of Offenders Act 2012). The Legal Aid Agency refused the application on the basis that compensation claims pursuant to the WCS do not engage the relevant human rights, namely Article 6 and 8, and that legal advice was not needed during the application process. SLC commenced judicial review proceedings in January 2023.

Van Ferguson, Solicitor at SLC, commented on the decision by the High Court:

"It is really disappointing that victims of the Windrush scandal continue to be denied justice, in particular that the court has failed to grasp the fundamental importance of receiving just compensation with the ability of victims to recover from the continuing trauma of the scandal and how central this is to the enjoyment of private and family life.– Van Ferguson, Solicitor Southwark Law Centre."

SLC will be seeking permission to appeal to the Court of Appeal.

Redress schemes & structural fairness

Shaila Pal, Director of King’s Legal Clinic and author of the research, ‘The Windrush Compensation Scheme: A comparative analysis’, considers the decision to be of wider relevance. She states:

"This case highlights the need for urgent reform of the WCS and wider systemic reform of Compensation Schemes to ensure equitable practices across all schemes. There is ample evidence of the deep problems with the WCS and that it cannot be effectively accessed without legal assistance. Unfortunately, this decision operates as yet another road block for Windrush victims to obtain the redress and justice they deserve." 

The research recommended a range of measures to improve the WCS and that the government develop compulsory guidelines for setting up compensation schemes. It also recommends that an arms-length body be set up to oversee and regulate schemes.

In light of the problems identified in all the compensation schemes explored in the research, King’s will be exploring the wider changes needed in a roundtable event 'Reforming Redress Schemes’ with a range of stakeholders from the WCS, Infected Blood Compensation Scheme, Post Office Schemes and the Lambeth Children’s Home Redress Scheme in summer 2024.

Notes to Editor

King’s Legal Clinic is part of the Windrush Justice Clinic (WJC) and has a specific partnership with Southwark Law Centre (SLC). King’s students provide casework support to Van Ferguson of SLC in the preparation of WCS claims and provided research support in the case.

The decision has been covered by Free Movement.

This press release is reproduced from KCL's press release, authored by Shaila Pal, Director of King’s Legal Clinic.