Windrush victims challenging the Home Office over inadequate or missing compensation are being denied justice because they can’t get help with legal bills, openDemocracy can reveal.

As well as being ineligible for legal aid under new rules introduced in 2012, Windrush victims are being rejected from the separate safety net scheme of ‘exceptional case’ funding. The Legal Aid Agency says Windrush claimants do not qualify for exceptional case funding because compensation is not a human rights issue.

Van Ferguson of Southwark Law Centre told openDemocracy: “You have, on one hand, an admission of responsibility and liability [by the government] for the way it caused havoc and destroyed a group of people’s lives.

“But on the other hand, it’s not giving them any legal representation or legal help to bring their cases forward.”

Thursday marked 75 years since HMT Empire Windrush docked at Tilbury, Essex. Among its passengers were people arriving from the Caribbean to help fill labour shortages after the Second World War. People on board were granted the right to settle indefinitely in the UK without restrictions or documents on arrival.

A scandal broke out in 2018 when it was revealed that people of African and Caribbean descent who had arrived in the UK before the end of 1988 were being wrongfully detained, threatened with deportation from the UK, and denied access to crucial services like housing and healthcare.

It was part of the fallout from ‘hostile environment’ legislation introduced under Theresa May’s premiership at the Home Office in the early 2010s, where public services, including banks and the NHS, began cutting people off from essential services by policing their immigration status.

For much of the Windrush generation – many of whom were children when they arrived in the UK – the Home Office’s failure to keep any record or documentation of those granted leave to remain meant it was difficult to prove their legal status, despite living and working in the UK for much of their lives. Victims lost jobs, access to bank accounts, housing, healthcare, and driving licences. Many were also placed in immigration detention or deported.

The Windrush compensation scheme followed in 2019, along with apologies from the government and pledges that lessons would be learned.

But years on from the announcement of the scheme, Windrush victims and other Commonwealth citizens who are trying to challenge the Home Office over a refusal of compensation or the amount awarded are being denied access to legal help.

Layla* came to the UK to join her parents in 1988 when she was three, after her parents arrived and settled from Nigeria in the early 1960s. At the age of 17, there was a domestic violence incident in her home and she was kicked out while pregnant.

Her application for emergency accommodation was denied by her local authority on the basis that she wasn’t able to prove her lawful status in the country. Pregnant and homeless, she was forced to go back to the home where domestic violence had taken place.

Layla applied for settled status in 2002 but it took the Home Office five years to grant her indefinite leave to remain. Those five years were spent in the home where domestic violence would occur before she was finally able to move out.

Ferguson, currently working on her case at cost, applied for compensation on her behalf. He also applied for exceptional case funding on the basis that: “Were it not for legal help or legal representation, she may not be able to put the case together properly. She also found it a very traumatic experience.”

While the Legal Aid Agency accepted the lack of settled status was an issue, and that Layla had continued problems finding work as a result of this, it refused her application for exceptional case funding.

Instead, Layla was directed to a Home Office-funded service called ‘We Are Digital’, ‘assisted digital’ support designed to help her fill online Home Office application forms.

Ferguson said: “They make it very clear that they are not a legal service, they are not legally qualified. And they only offer up to three hours of assistance. It's only there to fill out the boxes on the compensation claim form. It’s not there to make legal arguments, or analyse whether a decision should be challenged.”

With hundreds of pages’ worth of submissions and supporting evidence, Ferguson told openDemocracy it takes him and his team 50 to 60 hours to put a case together. For him, the idea that compensation claimants are given up to three hours with a non-legally qualified digital adviser is a “joke”.

“We’re not talking about an inconvenience here – we’re talking about people whose lives have been destroyed,” he said.

Marcus* and his partner Evelyn* were living in the UK after arriving from St Lucia in the 1960s. They settled into their new home – Marcus worked, studied, and even bought a house in 1974. When he went to renew his passport in 1984, he was told that since St Lucia had become independent in 1979, he was no longer entitled to a British one.

Marcus lost his job after his employer asked for proof of ID and status in the UK. He wasn’t able to provide this because his passport renewal had been denied. He could no longer afford to keep up with mortgage repayments and was forced to sell his house. He moved with his three children back to St Lucia. His wife, Evelyn, followed shortly afterwards.

As their children were born in the UK, this made them British citizens. In the 1990s, they returned so they could attend university. At various points, both parents tried to join their children in the UK, but were only granted tourist visas. Marcus and Evelyn weren’t given permanent status until 2018, when the Windrush crisis broke.

“That’s just an example of how the harm manifests itself in terms of separation, where families have had to move, and then when trying to move back to the UK, they’ve also been denied their settled status,” Ferguson added.

Despite being stripped of the life that they knew, the couple still has no access to legal aid to bring their Windrush compensation cases forward.

A government spokesperson said: “The Windrush compensation scheme was designed to be as clear and simple as possible, so people do not need legal assistance to make a claim. However, for those who want or need support to make a claim the Home Office provides free assistance in making applications through our independent claims assistance provider – We Are Digital.

“Applications for exceptional case funding are considered on an individual basis against the unique circumstances of each individual claim.”

But Ferguson told openDemocracy: “It’s been recognised that UK nationality laws have been inherently discriminatory against people, especially from the Windrush cohort… Unfortunately, with this government, we’re not optimistic. But this is why legal representation is needed.

“It’s about holding these decision-makers to account and also calling them out when they’re making wrong decisions or unlawful decisions, and we have avenues in which to take them to court.

“If you don’t have legal aid available, then how can these people be held accountable by lawyers or by the legal system?”

Earlier this week, UK home secretary Suella Braverman defended the government’s handling of the compensation scheme despite figures revealing that just 26% of 6,348 (one in four) claims had been successful.

It comes after the unit responsible for reforming the Home Office after the scandal was quietly disbanded, with Braverman claiming it was time to “move on”.

“It was always going to be the case, where they're going to try and minimise the amount of compensation they pay out,” said Ferguson.

“It’s basically lip service that they’re giving to the Windrush victims… And I think that's why they massively don’t want legal representation for anyone who’s making compensation claims.”

* Names have been changed.