Written Evidence

1.      I am a Doctor of Law who primarily focusses on State surveillance and human rights, however, some of my writings concern matters of immigration. I have written on key aspects of immigration for well-respected journals[1] and blogs,[2] that have also focused on racism.[3] Thus, I am well equipped to raise a few points in this call for evidence.

2.      The first thing to note with regards to why the implementation of several recommendations from reviews and reports have not occurred, the answer is simple. Systemic racism. Systemic racism is the reason why these reports and reviews took place in the first instance, and it is that very same systemic racism that will deny, delay or frustrate the implementation of those recommendations.

3.      The problem is not necessarily addressed only by changes in organisations that are charged with monitoring equality and human rights issues. Although, change is clearly apparent, for e.g. when the Equality and Human Rights Commission (EHRC) equated anti-English prejudice with racism faced by Black students/staff and other ethnic minorities. This is dangerous in that it is a false equivalence and it distracts from the high levels of racism suffered by those minorities. Furthermore, the EHRC has consistently undergone a process of defunding and currently has no Black or Muslim Commissioners. Additionally, administrative reforms to the EHRC has had the effect of undermining operation independence and potentially has problematic consequences for human rights protection which is exasperated by increased governmental oversight.

4.      The change has to come from Britain itself as a whole. Britain is systemically racist, and it has never taken ownership of it. That is the genesis of everything that follows. Racism infiltrates society at every level, and the denial of it, or the position that “Britain is the least racist/most tolerant country” only serves to cement racism further whilst also re-traumatising Black and other ethnic minorities. Who determines the level of racism in Britain in comparison to others? Why is this somehow considered a positive? To “tolerate” demonstrates the insidious racism at play as it does not shy away from the dislike (of Black and other ethnic minorities), just that it is belligerently put up with. For e.g., it is clear that the Windrush scandal had systemic racism embedded within the Home Office and immigration enforcement. Yet, those victims of racism in many walks of life, whether it be their liberty, healthcare, access to education, deportation etc, have to prove these loses to the Home Office beyond reasonable doubt. This is the same standard of proof used in criminal law. Many will not qualify for compensation based on having to prove losses that may not apply to them. Thus, not only are those who were victims of racism at the hands of the State, they have to prove to the State on a criminal law threshold (with evidence that spans decades), that the State itself did indeed do what they are accused of. Add to the fact that the State already knows who these victims are. This is clearly a disproportionate interference with Article 8 ECHR (this does not include the initial destitution, mental and physical harm caused by the Home Office) because it not only acts as a deterrent for victims of racism, it also re-traumatises the victims by asking them to produce evidence that will undoubtedly force them to relive events. It is a very slow process (only 3% have received compensation (now fewer than 8% as of July 2020), at least two people (now a least five, as of August 2020) have died before they could “get any kind of payment or compensation or any redress for the injustices that they faced”. Even when evidence has been provided, 75 pieces, in the case of Joycelyn John, compensation has not been provided. This is also disproportionate in terms of Article 14 ECHR, because it is clear who the victims of the Windrush scandal were, yet similar compensation schemes only require a “balance of probabilities” approach, the civil burden of proof, which is a significantly lower threshold. Given that the compensation scheme is an arguable right to compensation (Vilho Eskelinen and Others v Finland, [41]), this triggers the application of the civil limb of Article 6 ECHR. Article 6 requires independent decision makers, yet it is the Home Office’s case workers who are the decision makers, and are clearly not independent and thus therefore cannot be compatible with Article 6. The process, and those who are tasked with decision making, are not fair.

5.      The build-up to the Windrush scandal was many decades in the making, with successive immigration laws. The scandal itself was only the logical conclusion of racist laws with the aim of excluding Black people that span decades. The Government were repeatedly warned in 2013 and 2014 about what these laws could do. The Government even removed a key clause in the Immigration Act 2014 which protected against enforced removal, of which at least 83 victims were deported. According to The Times, the initial Windrush Lessons Learned Review (the Windrush Review) had initially described the Home Office as “institutionally racist” but this was removed in the final version. Instead, the report described the Home Office as institutionally ignorant and thoughtless. This has been criticised because the Windrush scandal was a result of institutional racism, and it cannot be tackled if it is not even addressed. Furthermore, ignorance, is still racism because it:

[I]s an active epistemic practice, meaning it does not result from merely a lack of knowing but a substantive effort to not know, to misunderstand, misrepresent, and deceive. It is an embedded moral and cognitive phenomenon that was essential to carry out the horrors of conquest and colonisation and it continues to uphold the pillars of white supremacy.

6.      The Macpherson report described institutional racism as:

[T]he collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness, and racist stereotyping which disadvantage minority ethnic people.

7.      It is clear that ignorance and thoughtlessness forms part of the definition of institutional racism. Thus, it makes little sense to acknowledge some elements of institutional racism without calling it as such. This only serves to minimise the actions of the Home Office and immigration enforcement. The Windrush Review noted that not all the elements of institutional racism were satisfied thus it was not called institutional racism (the Windrush Review, 117), however, Macpherson himself did not set this definition in stone (Macpherson, 6.6). Thus, even if we are to accept it was only ignorance and thoughtlessness by the Home Office, this should have sufficed. If an entire organisation is unwittingly racist (of which ignorance can form a part (Macpherson, 6.17), then it is institutionally racist, because the outcome of their decisions, processes and attitudes are still manifestations of racism.

8.      It is also difficult to conclude this was down to pure ignorance and thoughtlessness when former Home Officer employees highlighted how the hostile environment changed attitudes of staff to the point where they enjoyed catching out Windrush individuals who had no evidence. Such evidence that Home Office itself had destroyed, breaching data protection laws and the ECHR.

9.      One of the most worrying aspects is not only that the Windrush Review was delayed, repeatedly, but the change in phraseology only serves to support racism, by denying it.

10.  Even after the Windrush Review, the Court of Appeal halted deportations of detainees to Jamaica when it was discovered that they had been unable to access legal advice because they had been issues with non-functioning sim cards, violating their own guarantees.

11.  The Home Office also recently scrapped its racist visa algorithm amidst a legal challenge from the Joint Council for the Welfare of Immigrants. Thus, the idea that the Home Office is merely institutionally ignorant and thoughtless is superfluous (I accept it was not the remit of the Windrush Review to consider all aspects of Home Office actions, but the fact remains, the social context is evidently clear).

12.  Another problematic aspect of racism and its maintenance, is another element of the hostile environment, in the right to rent case. Initially, the High Court ruled this measure racist and unlawful as it enabled landlords to discriminate on grounds of nationality and race. On appeal, the Court of Appeal agreed by a majority ([66] and [156]) that the scheme does cause racial discrimination, yet they did not find the scheme unlawful (155-157). A full critique of this unsatisfactory judgment is beyond the scope of this submission, but the basic question becomes, how racist does a measure have to be, to be considered unlawful? When a system is set in place to protect those who are most vulnerable, particularly from a populist Government, are not satisfied that a law is not racist enough to be deemed unlawful, perhaps that system and decision makers needs to look inwards.

13.  This Government is not serious about racism (it is a unique selling point), or tackling it (it revels in it), when it seeks to appoint Munira Mirza to head a commission on racial inequalities, who firmly denies the existence of institutional racism.

14.  Unless the structures of racism are dismantled, nothing will ever begin to change.