Home Office blames Windrush victim, 87, for not appealing his ban from UK

An elderly Windrush victim has to raise thousands of pounds to challenge his ban from the UK – even though the Home Office accepts it “may have been the result of an error” by a border official 36 years ago.

Reynold Simon-Thompson, 87, arrived in the UK from Trinidad in June 1959. He worked in Borehamwood, Hertfordshire, for six years and was given settled status. He even travelled to France in 1964 and was let back into the UK with no issues or restrictions.

In May 1965 he went back to Trinidad to take up a new job, believing that he had indefinite leave to enter the UK, and that he would be able to return without restriction in the future.

But when he tried to move back to the UK in 1988 with his wife and three children, his indefinite leave status was not acknowledged, and they were only granted six-month visitors’ visas. The family stayed for two weeks and went back to Trinidad when Reynold couldn’t secure indefinite leave to remain.

Despite the Home Office’s admission that it may have made a mistake in refusing his reentry, Reynold has been told the problem is his fault for not challenging it.

His son Rafer Simon-Thompson, who also lives in Trinidad, said: “They have essentially admitted that an error was made by the entry clearance clerk. But then they… put the blame on him for not pursuing it, rather than saying: ‘Well, an error was made – let’s try and fix it now.’”

With Rafer’s help, Reynold applied to be able to move back to the UK under the Windrush scheme in January 2023 but his application was denied in September. The Home Office told him he did not qualify under the scheme as his indefinite leave status had lapsed and that he no longer had connections to the UK, despite still having nieces and nephews here.

People who have indefinite leave to remain are subject to a ‘two-year rule’ meaning that they lose the right to live permanently in the UK if they have been out of the country for two years or more. Indefinite leave to enter is different, meaning there is no time limit on entering and living in the UK.

But Rafer points to the fact that a significant element of the Windrush scandal involved the confusion around immigration law as it changed throughout the years, as well as a lack of understanding of its correct application by officials and lawyers.

In its response, the Home Office accepted that it was apparent that Reynold was anticipating indefinite leave when he returned in 1988, and that he expected to be able to move back to the UK as he believed “was the practice at the time”.

It said that “at worst”, based on Reynold’s account, failing to recognise his leave to enter status in 1988 “might have been the result of an error by a border official”. However, the Home Office then went on to blame Reynold for not “taking the matter… any further”.

Maureen Mitchell, co-founder of the Windrush Legal Advice Clinic in Wolverhampton, added: “They put the responsibility on the victim who didn’t, and wouldn’t, have understood the intricacies of that legislation at that time. How would [Reynold] have had the wherewithal or the understanding to fight an immigration authority back in 1988?

“They definitely take advantage of the fact that many people won't fight against authority. The immigration service is just like the police force to a certain degree. So if they say: ‘You’re not getting entry in here,’ how are you going to argue that?”

They definitely take advantage of the fact that many people won't fight against authority

With support from the Windrush Legal Advice Clinic, Rafer has filed an application for a judicial review to challenge the Home Office decision, and to secure indefinite leave for his father. He argues that the Home Office acted unlawfully in refusing to recognise that Reynold did have indefinite leave to enter the UK in 1988.

Rafer is also arguing that he, his mother and siblings should not have been subjected to any conditions when they landed in the UK in 1988 with Reynold, due to rights given to them under the Immigration Act 1971.

He told openDemocracy that in its response to him, the Home Office completely ignored a law that could have proved his father had indefinite leave to enter. He said his interpretation of it is that it doesn’t matter where he lived as long as he had been admitted to the UK without conditions between July 1962 and December 1972, and that he was not subject to any conditions on 31 December 1972. He believes both these requirements were met.

Rafer and the Windrush Legal Advice Clinic believe that if they can get this heard in front of a judge, the interpretation of this law (known as section 34 of the Immigration Act) will be made clear and Reynold will know whether he’ll have any recourse.

“Unless I take [the Home Office] to court, they’re not going to read or acknowledge the section as applicable to me. But to take them to court, I have to spend thousands of pounds to force them to just do their job,” he said.

Mitchell added: “Unfortunately, it happens a lot... pieces of legislation that can actually help claimants win their cases or at least, support what they’re saying, are overlooked by legislators or people representing them.”

But challenging Home Office decisions costs a lot of time and money, which often places a barrier on access to justice for Windrush victims.

“The pre-action protocol letter isn’t cheap,” she said. “It has to be drafted by a lawyer… Even getting to the stage where Rafer has managed to issue the pre-action protocol letter is only because of the GoFundMe page, so if you can imagine the stages in which he has to go through to get to judicial review – this is why it racks up into the thousands in the end…

“You would never imagine that it would cost so much… This is why so many people go through life not being able to exercise their rights.” She added: “No real, deep thought went into [the Windrush compensation scheme] because it isn’t fit for purpose.”

Mitchell drew parallels with the Post Office scandal that destroyed hundreds of people’s lives. “Many of those people were imprisoned, many of them died before they could even get the outcome, they lost their livelihoods. This is a way in which the government is dealing with people, Black, white and Asian.

“If you look at the government’s approach to those people, let alone their approach to Black people, we already know that on a sliding scale, Black people are at the bottom… I don’t believe that there is a priority, really, to right the wrongs against the people of the Windrush generation.”

The Home Office said it does not routinely comment on individual cases and added that “the government remains absolutely committed to righting the wrongs of the Windrush scandal and making sure those affected receive the compensation they rightly deserve”.

Rafer told openDemocracy that while his father lives his days in Trinidad taking care of his wife, who now has dementia, he still wonders what could have been. Beyond missing family weddings, graduations, funerals and holidays, Rafer and his father still have questions about what opportunities they’ve missed out on.

“It's also the generational impact to us and to our children, to my children,” he said. “What choices have been taken away from us?”

Mitchell said that if Rafer and Reynold can’t raise the funds to get the application before a judge by the deadline of 12 February, then this case “won’t get off the ground”.

“It means that the section 34 interpretation stays the way it has been for many years without clarification… So it’s not just Rafer’s family that suffers, it’s all those people who were in the Commonwealth countries who were stuck abroad, that suffer as a result of not getting the clarification needed for the interpretation of section 34.”