Home Office

4. Mr A complains about the WCS’ refusal to award compensation under several categories, in particular; Loss of access to employment, and Impact on life.

5. He complains about the way WCS considered his evidence. He says it was under the mistaken impression that he should have been aware he did not have British Citizenship when he applied for a British Passport in 1985 and 2005. He believes he was not in a position to have known this, and it is not right for WCS to make a decision based on the belief that he should have known about his status and the citizenship process.

6. He also complains about WCS’ consideration of his ‘loss of employment’ claim, and says that it did not consider the evidence properly. He says that his employment was impacted as a result of not having a British passport.

7. Mr A would like the WCS to recognise the impact of its error and award him compensation under the scheme.

Complaint background

8. Mr A was born in a commonwealth country in 1949, and he says he came to the UK to join his mother in 1964. At this point, the commonwealth county he came from was part of the British Commonwealth, meaning it was under British rule, and Mr A and his mother would have been Citizens of the UK and Colonies. There is no record of his passport.

9. Mr A says he got a British passport in 1974. The balance of probabilities is that he did not get a British passport, as there is no evidence he applied for British citizenship during this period, and he would still have had citizenship in the commonwealth country he originally came from. It is likely he is referring to a ‘Citizens of the United Kingdom and Colonies’ (CUKC) passport. This is a passport held by people who were born in UK colony countries.

10. The commonwealth country in question gained independence in the 1970s, and it was at this point when Mr A became a citizen of that country rather than a CUKC citizen. He would have had settled status in the UK from this point onwards, which is a right to permanently live and work in the UK without the privileges of citizenship.

11. Mr A lost his passport in the 1980s, although we do not know from the available records what kind of passport he had (e.g. was it a CUKC passport?). He tried to apply for a British passport in 1986 but had to get a passport from the commonwealth country after the HO informed him the commonwealth country was independent. There is no detailed record of the passport application in 1986, whether he had a face-to-face meeting, or what was discussed.

12. Mr A worked. However, he has had employment gaps where he was unemployed, and he used his national insurance card to claim benefits. He told WCS he had not had a job since 2002. In 2002, Mr A says he was unemployed and had to claim benefits up until he claimed Windrush compensation in 2018. However, we have viewed WCS’ records and can see his wage slips and HMRC records which indicate he worked between 2000 to 2002, 2003 to 2004, and 2006 to 2009.

13. In 2005, Mr A applied for a British Passport. The Passport Office (HMPO) advised him he was a national of the commonwealth country, and it wrote to him on 22 September 2005 to explain this in writing. It told Mr A he would need to apply for British Citizenship if he still wished to obtain a British Passport, however there is no evidence to indicate he pursued this until 2018.

Right to work checks 14. The Immigration, Asylum and Nationality Act was introduced in 2006, and Mr A says this impacted his ability to work, as he did not have a British passport. This act forced ‘right to work’ checks and came into force on 29 February 2008.

15. According to this legislation and HO guidance, one of the documents a job applicant may use is a passport. However, there are other pieces of evidence they may use to demonstrate settled status (e.g. a residence card).

16. Mr A mentions a specific incident following 2009 when he interviewed for a job at an airport to work on a Terminal. He said the employer refused him a job because he did not have a British passport.

WCS application 17. In 2018, Mr A gained British citizenship under the ‘Windrush Scheme’. The scheme provides eligible people with free documentation to prove their right to live and work in the UK.

18. Mr A made a claim to the WCS in 2020. The WCS is a compensation scheme designed to compensate those who have been negatively impacted as a result of not being able to demonstrate their legal status in the UK. Mr A claimed his legal status issues had impacted his employment and his life.

19. Mr A told WCS he could not get a British passport which in turn impacted his ability to work. He felt he was a British citizen and should have had a British passport.

20. He referred to the fact that Border Force and DWP had records which allowed him to claim benefits and re-enter the UK after travel. He felt this was evidence he was a British Citizen. However, he explained that despite this, he was refused work due to the fact he did not have a British passport.

21. We can see that WCS spoke to Mr A twice over the phone on 26 August and 9 December 2020.

22. WCS made the decision not to compensate Mr A in December 2021.

23. In WCS’ claim consideration record, it provides more detail regarding its consideration of his issues around his citizenship and British passport. It said that on the balance of probabilities, HMPO most likely advised Mr A to resolve his status when he applied for a British Passport (this is likely in reference to his passport application in 1986, as the records for his 2005 application are explicitly clear that it advised him to apply for British Citizenship before applying for a British passport). However, WCS observed he did not make any enquires with any outside agencies for assistance in resolving his status until the Windrush scandal broke.

24. WCS appreciated he experienced some level of worry as a result of his inability to access a British passport. However, it judged the passport office had correctly refused him a British passport as he was not a British Citizen. He also held a passport for his commonwealth country demonstrating he was a citizen there and as such was aware of his citizenship status.

25. Regarding his ‘Loss of employment’ claim, the WCS said in its decision letter that it was not satisfied Mr A was in employment or had an offer of employment that was terminated or lost earnings. This is because it said there is no information showing any employment was terminated. It said it tried to get details of possible agencies or employers but was unsuccessful.

26. Mr A requested a tier 1 review. He believed WCS could have contacted one of his previous employers for additional information, such as a Telecoms company he used to work for. WCS maintained its original decision on 11 April 2022.

27. Mr A then took his case to the Adjudicators Office (AO) and it issued a report on 2 September 2022. It decided WCS’ decision was in line with its rules, but it should have provided more of an explanation about the impact of independence on his citizenship and its consideration of mitigation of loss.

28. It said WCS considered if his attempts to apply for a British passport satisfied the requirements of 4.4 of the WCS rules. This says:

‘Mitigation of loss 4.4 The Home Office may reduce or decline to make an award under the Scheme if it considers:

(a) a primary claimant or (in the case of an estate) the deceased has failed to take reasonable steps to resolve their lawful status’

29. The AO noted that while Mr A applied for a British passport, based on the information provided, he did not seek any assistance from outside agencies such as citizens advice and the Home Office. Neither did he try to make any applications to confirm his settled status such as applying for indefinite leave to remain.

30. Based on the information passed to the AO by WCS, it could not see that Mr A had submitted an application for British Citizenship following his commonwealth country gaining independence. It said the Passport Office’s decision to refuse him a British passport was consistent with the fact that he held citizenship at his commonwealth country at the time of the applications.

31. Regarding his claim for ‘loss of employment’, the AO said Mr A had settled status (right to remain), this would have allowed him to re-enter the UK and claim benefits.

32. From reviewing the Home Office’s records, the AO could not see WCS had made any additional enquires to the telecoms company as Mr A requested in his Tier 1 review request. It considered if WCS should have attempted to make enquires to prospective employers and agencies regarding this. To try to ascertain the likelihood of information being available to WCS from these companies, the AO reviewed the list of previous employers and agencies HMRC have a record of Mr A working for. From this review the AO noted that the majority of employers and agencies, including the telecoms company Mr A referred to, had either been dissolved or entered into administration in the UK.

Administrative background 33. The WCS was established in April 2019. It is designed to compensate individuals who have suffered loss in connection with being unable to demonstrate their lawful status in the United Kingdom.

34. There is no single or consistent picture of the loss suffered by those affected. The scheme has been designed to address potential losses under a range of categories and to take into account the impact of the losses in each case, as far as possible.

35. Mr A claimed for Immigration and legal fees, Loss of access to employment, Loss of access to benefits, Impact on life, and Discretionary. However, the ‘Loss of access to employment’ and ‘Impact on life’ claims are key to his complaint.

36. When it comes to compensation for ‘Loss of access to employment’, the WCS’ criteria are set out in Annex D of the WCS rules.

37. An actual earnings award for loss of access to employment may be made to a primary claimant if they were: • in employment, which was terminated, and they can demonstrate what their earnings had been, • not in employment, but had accepted an offer of employment which was rescinded and can demonstrate what their earnings would have been, and, • if the reason for termination of employment/rescinding of an offer for the primary claimant was due to their inability to demonstrate their lawful status in the UK.

38. When it comes to compensation for ‘Impact on life’, the WCS’ criteria are set out in Annex H. Under the rules, compensation can be considered for primary claimants who experienced detrimental impacts as a direct consequence of being unable to demonstrate lawful status in the UK.

39. ‘Detrimental impact’ is defined as the non-financial impacts that fit the following descriptions: • inconvenience • injury to feelings (e.g. anxiety, distress, reputations damage) • family separation • immigration difficulties when trying to return to the UK • inability to attend significant family occasions • impacts relating to a deterioration in physical or mental health

The WCS’ consideration that Mr A should have been aware he did not have British Citizenship

42. Mr A is not happy with the way the WCS considered his evidence. As we can see from the background, the WCS is of the view that it could not link the experiences Mr A described with an inability to demonstrate his lawful status. It said Mr A’s difficulties were caused by his failure to make further enquiries into his legal status in the UK following his unsuccessful British passport applications in 1986 and 2005. He believes its consideration that he should have known, or found out, about his legal status is not fair and has prevented him from claiming compensation.

43. Mr A told our office on 5 November 2024 that nobody told him he could not get a British passport because of his citizenship at the commonwealth country.

44. As we have covered in the background, the commonwealth county gained independence in the 1970s. Its constitution said the onus was on commonwealth citizens living in the UK to apply for citizenship in the UK following the Order coming into force in the 1970s.

45. The next key event in this timeline was Mr A’s application for a British passport in 1986, which is evidenced in the HO’s BRP records. He was unsuccessful and ended up applying for a passport for his commonwealth country instead, which is supported by his passport records.

46. Due to the time that passed, there is no HO record of what the UK passport service communicated to Mr A when he unsuccessfully applied for a British passport in 1986. However, Mr A’s WCS claim form sheds some light on what his understanding was of his legal status in the 1980s:

‘When my passport was lost in the 1980s, I had no choice but to apply for a [commonwealth country] passport. I was advised in the 1980s that [commonwealth country] was an independent island, and I was now a [commonwealth country] citizen.’

47. This indicates Mr A was aware in the 1980s that he was a citizen at the commonwealth country following independence. It follows that in order to obtain a British passport; he would first have needed to apply for British Citizenship.

48. However, he did not apply for, or query, British citizenship following this experience, by his own admission and based on the records.

49. The next key event is when Mr A applied for a British passport again in 2005, which is again shown in the BRP records. He said in his WCS claim form he applied again because someone told him he needed to apply for one after he lost his commonwealth country passport.

50. We can see that HMPO wrote to him on 22 September 2005 after his unsuccessful British passport application to explain that he was a citizen at the commonwealth country, and he needed to apply for British citizenship in order to get a British passport. This is clear evidence that it communicated to him that he needed British citizenship if he wanted a British passport.

51. Mr A said he could not understand how he could be on HO’s system, yet he could not get citizenship nor a permanent job.

52. Overall, the evidence suggests that Mr A understood he had citizenship at the commonwealth country, but he did not understand the link between this and his inability to get a British passport.

53. However, it would have been reasonable for him to have explored his legal status with the HO or citizens advice bureau, as the AO explained in its report. There is no evidence to suggest he did this, and it appears he took no steps to aid his understanding in light of the fact that he renewed his commonwealth passport in 1990 and applied again for a UK passport in 2005 with the same legal status.

54. WCS’ decision was that it could not link the impacts Mr A described to an inability to demonstrate his lawful status. This appears to be in line with the rules of the scheme. It appears Mr A did have lawful status in the UK – and this is supported by his ability to re-enter the country after travelling abroad and by his ability to access benefits. While he was unsuccessful in his applications for a British passport, this was correct because following independence of the commonwealth country he was not a British citizen and needed to apply for British Citizenship first.

55. We take the view it is reasonable for WCS to say Mr A should have known enough to explore his legal status in 1986 and 2005. This was material to its decision not to award him compensation. This is because he removed an opportunity to mitigate the risk to his employment, as he could have put himself in a position to have applied for British citizenship had he made further enquiries.

56. Our principles of good administration, under our principle for ‘Getting it right’ says:

‘In their decision making, public bodies should have regard to the relevant legislation. Decision making should take account of all relevant considerations, ignore irrelevant ones and balance the evidence appropriately.’

57. We can see WCS did consider the material evidence, in line with our principles, and its position is consistent with the scheme rules.

WCS’ handling of Mr A’s ‘Loss of employment’ claim

58. Mr A also complains about the way the WCS handled his ‘Loss of employment’ claim, and he feels it has not considered all the evidence properly.

59. Mr A says he was unable to find work due to his legal status, which we know was ‘settled status’ up until 2018. We have also established that it was not the HO’s fault that he did not have citizenship up to 2018.

60. Mr A described to us how an employer at an airport refused him work because he did not have a British passport. He told us this encounter took place after 2009 and was understandably very distressing for him. He explained to the interviewer he had lived in the UK since before they were born.

61. The WCS’ consideration is that there is not enough evidence to reach the view that employers refused him employment because of an inability to demonstrate lawful status. It went as far as to try and get the details of the agencies he named as refusing him employment. It is not clear he explicitly mentioned who the employers were who refused him employment. When we spoke to Mr A over the phone on 13 May 2025, he could not remember their names, but said they no longer existed anyway.

62. If the events Mr A described are accurate, this suggests the employer, or employers, were at fault for this. The HO’s guidance covered in the background is clear that the purpose of the Immigration, Asylum and Nationality Act 2006 is to prevent applicants who do not have legal status from working in the UK. Mr A did have settled status. As he did not have a British passport, the employer should have requested another piece of evidence that demonstrated his settled status (e.g. a Biometric Residence Permit, immigration status document from the HO, etc). Based on what Mr A told us, they did not do this.

63. We can appreciate that based on what we know about the difficulties experienced by the Windrush generation, and the fact that Mr A says he experienced some issues around 2009 after the Act was released, he presents a believable case. However, WCS’s decision that there is not enough evidence to satisfy Annex D of the WCS rules appears to be reasonable and we can see it considered the evidence Mr A provided and tried to gather further evidence based on the information he gave them.

64. When it comes to considering evidence for a claim, we expect the WCS to act in accordance with our Principles of Good Administration. Under our principle, ‘Getting it right’, we expect public bodies to have regard to the relevant standards and evidence when making a decision. They should take account of all relevant considerations, ignore irrelevant ones, and balance the evidence appropriately.

65. In this case, WCS considered what Mr A told it about his experience and this is reflected in its decision, but we agree that the evidence is sadly not strong enough to show he lost out on employment due to an inability to demonstrate lawful status in the UK, as the rules require.

1. We are sorry to learn about the difficult experiences Mr A has had in the UK.

2. Having looked at Mr A’s case, we have decided not to consider it further. This is because we have not seen enough evidence to conclude it was unreasonable for the Windrush Compensation Scheme (WCS) to refuse him compensation based on the evidence it had available.

3. We appreciate why this complaint is important to Mr A and we will explain our decision in more detail below. We hope our explanation provides him with reassurance about how carefully we have considered his complaint before reaching our decision.