UK Visas and Immigration (UKVI)

4. Mr A complains on behalf of his client, Mr B, about the Home Office’s Windrush Compensation Scheme (WCS), and the way it has considered Mr B’s ‘Impact on Life’ claim. Mr A complains that it has repeatedly failed to properly consider the evidence in support of the claim, because it has made factual and legal errors. Specifically, Mr A says WCS assumed section 161 of the Immigration and Asylum Act 1999 was in force at the time that a church minister (the minister) asked Mr B for his birth certificate in order for him to get married. However, this act did not come into force until 1 January 2001, after the date Mr B was asked for his birth certificate. Mr A believes the minister asked Mr B for his birth certificate to evidence his legal status, and this means he is entitled to compensation under WCS.

5. Mr A says when the Adjudicator’s Office (AO) recommended WCS reconsider the evidence, it again failed to consider the evidence properly. He says WCS made date errors and failed to recognise that Mr B’s marriage issues occurred before 1 January 2001, when the Immigration and Asylum Act 1999 was not in force. Mr A says WCS also falsely said the Home Office had accepted Mr B’s legal status when he made a citizenship application.

6. Mr A believes that as a result of WCS’ actions, it has not properly considered Mr B’s claim, and he may have been denied compensation owed to him upon proper application of the relevant standards. Mr B has a history of mental health issues, and the process has caused him stress and exacerbated his symptoms.

7. As an outcome of this complaint, Mr A and Mr B would like the WCS to consider Mr B’s application properly and provide compensation in line with the relevant standards.

Key events before Mr B’s WCS claim

8. Mr B was born in Jamaica on 15 October 1958. He came to the UK in 1961 or 1962. Jamaica was not an independent country at that point in time and was still under British rule. As such, he was a British subject at the point of entering the UK. Further, British subjects were able to come and go to the UK without being subject to immigration control.

9. On 6 August 1962, Jamaica gained independence, which would have meant Mr B was a Jamaican citizen after this date.

10. Following the Immigration Act 1971, Mr B, and other people from newly independent commonwealth countries, would have had ‘Indefinite Leave to Remain’ (ILR) status in the UK from 1 January 1973. This is an immigration status that allows people to settle permanently in the UK.

11. In 1999, Mr B wished to marry for a second time. However, he says the minister at his church requested to see a copy of his birth certificate before the marriage ceremony could proceed. We have very little detail about this interaction, which is understandable due to the gap between this event and Mr B’s claim.

12. Mr B’s partner went to the Birmingham Registry Office, hoping to get a copy of his previous marriage certificate from his first marriage, but there was no available record. He also asked the Jamaican authorities for a copy of his birth certificate but had no success. We also note he says he had no passport at this point in time.

13. At some point, following the minister’s request, Mr B says the Home Office (HO) threatened him with deportation. He suspects this was as a result of his enquiries about his marriage certificate and birth certificate. In order to resolve this, he made an application for British Citizenship on 6 October 2000.

14. However, we note that in his supporting letter for his citizenship application, he said he was applying for citizenship because of his difficulties getting married and made no reference to deportation threats. We have seen no record of HO threatening Mr B with deportation.

15. On 16 November 2000, HO wrote to Mr B to ask for his “passport(s) or travel document(s)” to cover the period from “10/10/95 to present date”, and “The passport in which indefinite leave to remain in (or indefinite leave to enter) the United Kingdom was granted”.

16. Mr B enlisted the help of his local MP who assisted him with his citizenship application and acquired evidence from the Benefits Agency (now known as the Department of Work and Pensions) about Mr B’s benefit claims. This information supported the application.

17. The HO eventually granted Mr B citizenship on 15 May 2001, seven months after he applied, and he got married on 20 April 2002.

The WCS claim timeline

18. On 14 April 2021, Mr B submitted a claim to WCS for compensation. At this point in time, he was not represented and made the application on his own. He claimed for loss of immigration fees (the money he paid for his citizenship application), loss of employment, and the impact on his life.

19. Mr B’s complaint to us is focused around his ‘Impact on life’ claim, so this is where we will focus our attention.

20. In his application form, he mentioned issues he had encountered with his attempts to get married prior to getting citizenship.

21. On 28 October 2022, WCS refused Mr B’s application. Regarding his ‘Impact on life’ claim, it said it was unable to confirm whether his marriage was delayed due to him not being able to prove his lawful status.

22. Mr B then approached a legal representative, Mr A, for support, and they applied for a Tier 1 review on Mr B’s behalf on 26 February 2024. The Tier 1 application contained more evidence, such as witness statements from Mr B and his daughter, as well as documentary and medical evidence.

23. In a supporting statement, Mr A said that Mr B was entitled to compensation on the basis that, on the balance of probabilities, he experienced detrimental impacts to life because he could not prove his status. These included delays to his marriage, the threat of deportation, and increased evidential hurdles when applying for citizenship. Mr A also highlighted that, as Mr B had a long history of mental health difficulties (in relation to which contemporary medical evidence was provided), these setbacks would have had an increased detrimental effect on him as compared with someone who did not suffer from those conditions.

24. WCS refused the Tier 1 application on 21 March 2024. It said Mr B’s citizenship should not have been a factor when he wished to marry in 1999, as the Marriage Act 1949 only required him to evidence his age, name, marital status, and nationality. As such, had the priest requested a birth certificate, WCS suggested it was simply required as a form of ID to show his nationality.

25. Regarding Mr B’s citizenship application, it said it had accepted he had ILR status when he applied.

26. On 3 April 2024, Mr A submitted a Tier 2 review application.

27. He said it was likely incorrect that the priest had requested Mr B’s birth certificate to fulfil the Marriage Act’s ID requirement. They said this was because the reference to nationality in a notice of marriage under section 27 of the Marriage Act 1949 was only required from 1 January 2001 (it was inserted by section 161(2) of the Immigration and Asylum Act 1999).

28. He also argued Mr B would have had many cheaper and alternative forms of identification he could have provided, other than a birth certificate. However, he did not list any alternatives.

29. Mr A argued it was much more likely the priest had asked for the birth certificate due to the publicity around section 24 of the Immigration and Asylum Act 1999 (IAA). This required registrars to report ‘sham marriages’, which he says are marriages entered into by a person who is not a British or European Economic Area (EEA) citizen in order to evade UK immigration law.

30. On the balance of probabilities, he said it was unlikely the priest asked Mr B for his birth certificate to evidence his nationality or for identification, and it was much more likely they were trying to establish his lawful status in the UK.

31. Mr A’s second point of disagreement with the WCS was over its comment the HO had accepted, during Mr B’s citizenship application, that he had ILR and only requested proof of residence. He said this comment did not stand up to scrutiny, as the HO asked Mr B for proof of residence and his Jamaican passport on 16 November 2000 He said this is evidence the HO did not accept Mr B had ILR. Also, Mr A said Mr B never held a Jamaican passport, as he had arrived using his sister’s Jamaican passport, which meant the HO’s request put Mr B in a difficult situation.

32. Mr A said this was corroborated by a HO record for 16 November 2000, where the HO staff member wrote a note saying Mr B had entered the UK prior to 1971 and it could therefore be assumed he had ILR. We can see 16 November 2000 was the date when HO requested Mr B provide evidence of his ILR, and that it was of the view he had ILR in a later note it completed on 15 May 2001.

33. The Tier 2 review response was handled by the Adjudicator’s Office (AO), and it shared its decision on 29 May 2024.

34. The AO considered WCS had not considered the following when assessing Mr B’s claim: • The impact of section 161 of the IAA (see paragraph 27), • HO’s letter, dated 16 November 2000, when it asked Mr B for proof of residence in the UK and his passport containing evidence of ILR • Whether there was a period when the HO questioned Mr B’s ILR status

35. Without consideration of this evidence, the AO believed it was unclear whether WCS’ decision was reasonable.

36. WCS accepted the AO’s recommendations and wrote to Mr A on 30 July 2024 in an attempt to comply with the AO. It stood by its original decision not to award Mr B compensation.

37. After considering section 24 of the IAA (following the AO’s report and recommendations), it found this had no bearing on Mr B’s marriage issues. If a sham marriage is suspected, it said the concerned individual would be required to refer this matter to the HO for further investigation. After reviewing the HO records, WCS said it was unable to identify any such referrals or notification of suspicion from the registrar’s office or other suitably described official regarding Mr B’s intention to marry. It also said there is no evidence to suggest this was the case based on the balance of probabilities.

38. It also found it was unlikely to be the case the registrar requested the birth certificate due to publicity around the IAA. This is because it believed birth certificates could not alone indicate or support a suspected sham marriage conclusion. It only shows a person’s place of birth, which does not conclusively confirm a person’s citizenship status in the UK.

39. Therefore, WCS concluded it was more likely than not the registrar requested Mr B’s birth certificate for the purposes of identification and nationality as required by subsection 2 of section 161 of the IAA and not because of an inability to demonstrate lawful status or prove the intent to enter into a sham marriage.

40. Regarding the HO’s request for Mr B’s passport and proof of residence on 16 November 2000 and 17 March 2001, it said these were standard requests in order to demonstrate the applicant met the standard residency requirements, which are: • the applicant has been continuously resident in the UK exactly five years prior to the date of their application and that no absences from the UK have exceeded 450 days in that five-year period • the applicant has not spent more than 90 days outside the UK in the last 12 months • the applicant has not broken any UK immigration laws

41. It said ILR could be lost if an individual has spent more than two years outside of the UK.

42. Overall, it said there is no evidence that, on the balance of probabilities, the HO questioned Mr B’s lawful status.

43. However, the following issues were identified by Mr A in WCS’s final response: • WCS incorrectly said on page three that Mr B’s marriage issues commenced in 2001, when they commenced in 1999.

• WCS implied the registrar requested Mr B’s birth certificate in part to evidence his nationality, but there was no requirement to evidence nationality until the following year when the IAA came into force.

Administrative background

44. 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.

45. The WCS guidance, ‘Windrush Compensation Scheme: full rules’, explains that for those most affected, their lawful right to stay in the United Kingdom stems from arriving and settling in the United Kingdom, mainly but not exclusively from Commonwealth countries, before 1 January 1973. In these cases, the right to stay in the United Kingdom derives directly from the Immigration Act 1971 without the need for any documentation. In certain cases, individuals based overseas may also be able to claim.

46. 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.

47. When it comes to compensation for ‘Impact on life’, the WCS’ criteria are set out in Annex H.

48. ‘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

49. It will make a determination under this Annex on the balance of probabilities.

52. Mr A complains about the way WCS considered Mr B’s ‘Impact on life’ claim. When the AO recommended WCS reconsider its decision, Mr A says it again failed to consider the evidence properly.

53. He says WCS made both factual and legal errors: • It referred to section 27 of the Marriage Act, saying this supported its view the priest requested the birth certificate to evidence Mr B’s nationality. However, Mr A said this legislation did not come into force until 1 January 2001, as it was inserted by section 161(2) of the IAA.

• It made date errors by failing to recognise the marriage issues occurred in 1999, and not 2001.

• It did not properly consider section 24 of the IAA, which required registrars to report ‘sham marriages’. While Mr A acknowledges this legislation did not come into force until 1 January 2000, he says there was ‘considerable’ media coverage around the issue during 1999.

• It failed to recognise that Mr B’s Jamaican birth certificate could not feasibly be used as an identity document, as he did not have a birth certificate to hand.

• It did not properly consider its own records, specifically its letter to Mr B from 16 November 2000, where it requested a copy of his passport. Mr A says this demonstrates the HO did not accept Mr B had ILR.

54. When making a decision on a WCS claim, we expect WCS to comply with the WCS rules, which we have covered in the administrative background, and our ‘Principles of Good Administration’, specifically our principle for ‘Getting it right’.

55. Under our principle of ‘Getting it right’, we expect all public bodies to comply with the law and have regard for the rights of those concerned. When making decisions, we expect them to: • have regard to the relevant legislation, • to take account of all relevant considerations, while ignoring irrelevant ones, • balance the evidence appropriately.

WCS’ consideration of the Marriage Act and IAA.

56. Section 27(3) of the Marriage Act 1949 says:

‘A notice of marriage shall state the name and surname, the date of birth, marital status, occupation, place of residence and nationality of each of the persons to be married the name and surname, occupation, place of residence and nationality of each of the persons to be married, whether either of them has previously been married or formed a civil partnership and, if so, how the marriage or civil partnership ended and in the case of a marriage intended to be solemnized at a person’s residence in pursuance of section 26(1)(dd) of this Act, which residence is to be the place of solemnization of the marriage and, in any other case, the church or other building or premises in or on which the marriage is to be solemnized and—

(a). . . shall state the period, not being less than seven days, during which each of the persons to be married has resided in his or her place of residence’

57. WCS made reference to this piece of legislation in its decision when it said Mr B was only required to evidence his age, name, marital status, and nationality.

58. As highlighted by Mr A, there is a footnote (F8) that demonstrates that some of the requirements in section 27(3) were added by Section 161 of the IAA. This means those requirements did not come into force until 1 January 2001. Mr A argues the registrar was under no obligation to request identification to prove nationality during 1999, as such it was more likely they wanted it for other purposes.

59. At the point in time when Mr B was trying to get married in 1999, section 27(3) of the Marriage Act required someone getting married to evidence their name, surname, marital status, occupation and place of residence. Therefore, the requirement to evidence nationality was not relevant in 1999 when the registrar asked Mr B for his birth certificate.

60. Mr A also highlights a birth certificate would not have evidenced the criteria set out in Section 27(3) which WCS has not acknowledged.

61. As such, Mr A says WCS’ application of section 27(3) of the Marriage Act was not in line with our above principle, as it referred to a section that was not relevant at the time in question. Therefore, there are indications of maladministration with its consideration of the relevant standards.

62. Mr A says the impact is that WCS potentially made an incorrect decision on Mr B’s WCS claim. He also says the whole process caused Mr B a lot of stress, which has exasperated his mental health.

63. The Marriage Act does not require people to evidence their legal status in order to get married. While a birth certificate would evidence whether someone was born outside of the UK, it would not show whether the holder had legal status, such as ILR or citizenship.

64. During the period in question, Mr B would have needed to evidence his name, surname, and date of birth. A birth certificate would have evidenced this.

65. However, Mr A argues that, while there is no requirement under the Marriage Act 1999 to check legal status, the IAA did introduce a responsibility for registrars to report sham marriages. Even though this legislation did not come into force until 1 January 2000, after Mr B attempted to get married in 1999, the issue was in the public spotlight. This is evidenced by debates in Parliament that took place on 29 March, 29 June, 12 July, and 18 October 1999.

66. The Parliamentary debate on 29 March 1999 highlights that, prior to the IAA, registrars did have informal arrangements that allowed them to pass on suspicions to the Registrar General, rather than the Home Office.

67. Mr B did have legal status, as he had ILR, but Mr A said Mr B never had a passport when he came over to the UK and had no evidence to prove his legal status. Mr A explained it would have been difficult for Mr B to get a passport without his birth certificate, and he would have needed to apply for a birth certificate before he could apply for a Jamaican passport.

68. However, even if the registrar had suspected Mr B’s marriage to be a sham marriage, his birth certificate would not have satisfied the registrar’s check, they would not have been able to prevent the marriage from proceeding based on their suspicion at that point in time (following the Immigration Bill published on 10 October 2013, sham marriages were illegal, but the IAA in 1999 only required suspicions to be reported), and any ‘sham marriage’ check would not have resulted in a negative outcome for Mr B in light of him having ILR status.

69. We appreciate Mr B would not have been aware of all this, and he argues he was forced to apply for citizenship after the registrar’s request. We don’t agree this was the natural next step. He could have applied to get a copy of his birth certificate, which Mr B did when he applied for citizenship (he told WCS this on 25 September 2020). He also could have sought advice to better understand his legal status, for example, spoken to the Home Office or sought advice from the Citizens Advice Bureau (which was in place at that time).

70. So, while it appears WCS’s application of the Marriage Act in its decision contained an error, there are no indications that this made its overall position on Mr A’s ‘Impact on life’ claim unreasonable. There is not enough evidence to get to the bottom of what was discussed between Mr B and the registrar in 1999, reasonably so due to the time that has passed.

71. WCS award compensation for ‘Impact on life’ if the claimant has experienced a detrimental impact as a result of issues with their legal status, and they have the power to make these decisions using the ‘balance of probabilities’ (that it was more likely than not the registrar queried Mr B’s legal status) if there is limited evidence. We have not seen indications WCS was wrong to find, on the balance of probabilities, that there was insufficient evidence to show Mr B faced issues marrying as a result of difficulties evidencing his legal status in the UK. The information the registrar asked for (a birth certificate) would not have determined legal status in the UK.

WCS’ position on Mr B’s ILR

72. Mr A argues that the HO’s letter to Mr B, dated 16 November 2000, demonstrates it did not believe, or disputed, Mr B had ILR. He questions why the HO would have needed Mr B’s passport if it accepted his legal status.

73. Mr A said this was corroborated by a HO record for 16 November 2000, where the HO staff member wrote a note saying Mr B had entered the UK prior to 1971 and it could therefore be assumed he had ILR. We can see 16 November 2000 was the date when HO requested Mr B provide evidence of his ILR, and that it was of the view he had ILR in a later note it completed on 15 May 2001.

74. On 12 November 2025, we questioned Mr A whether this was corroborating evidence, as the note in question suggests the HO accepted Mr B had legal status. Mr A responded that while this may be the case, he questioned why it asked Mr B for his passport. Schedule 1, Section 1(1)(d), of the British Nationality Act 1981 says the HO requires evidence of a five-year residence period to evidence lawful status, which Mr A suggests is additional evidence the HO was attempting to evidence Mr B’s lawful status during the application process.

75. The relevant standard here is the British Nationality Act 1981, specifically the version that was amended on 1 February 1991 and applicable in 2000. Section 4, ‘Acquisition by registration: British Dependent Territories citizens etc’, says:

‘1) This section applies to any person who is a British Dependent Territories citizen, [F1a British National (Overseas),] a British Overseas citizen, a British subject under this Act or a British protected person.

(2)A person to whom this section applies shall be entitled, on an application for his registration as a British citizen, to be registered as such a citizen if the following requirements are satisfied in the case of that person, namely—

(a)subject to subsection (3), that he was in the United Kingdom at the beginning of the period of five years ending with the date of the application and that the number of days on which he was absent from the United Kingdom in that period does not exceed 450; and

(b)that the number of days on which he was absent from the United Kingdom in the period of twelve months so ending does not exceed 90; and

(c)that he was not at any time in the period of twelve months so ending subject under the immigration laws to any restriction on the period for which he might remain in the United Kingdom; and

(d)that he was not at any time in the period of five years so ending in the United Kingdom in breach of the immigration laws.’

76. This legislation supports WCS’ argument, in its letter dated 30 July 2024, that ILR does come with requirements that cannot be breached, such as the requirement for an ILR subject not to leave the country for two years. This suggests the HO’s investigation did not mean it disputed Mr B ever had ILR.

77. As such, there is not enough evidence here to reasonably presume HO requested Mr B’s passport to evidence his ILR.

Mr A’s argument regarding the impact

78. As highlighted in paragraph 41, WCS did make two errors in its final response, dated 30 July 2024. While we are not of the view these errors were material to WCS’ overall position, Mr A argues it should revisit the case to remedy the failings. He says these failings are not simply procedural or trivial.

79. Mr A referred to our website and principles. He argued that we should uphold complaints if we find organisations, like WCS, have got things wrong and the person affected has been negatively affected. He also referred to our principles of remedy, which says we should return complainants back to the position they were in before the failing/maladministration. This guidance also highlights that such remedies can include asking public bodes to review a decision and/or compensate for loss of opportunity and/or distress.

80. Mr A argues that the impact of WCS’ failings is that Mr B has suffered prejudice and injustice for more than four years since he submitted his initial application to WCS. He says this is because it has failed to grapple with the correct legal and evidential position.

81. By commenting on WCS’ process and handling of the decision, Mr A argues that our office is second guessing WCS and there is the possibility it could apply its discretion to award Mr B with compensation if we recommended it reconsider the case.

82. Mr A’s argument suggests WCS has made the wrong decision over four years and caused Mr B avoidable distress over this prolonged period, but we do not think the evidence shows it has. This is because, despite the issues identified in WCS’s final letter we have seen no indication this resulted in it making an incorrect decision on Mr B’s case.

83. We can appreciate that WCS’ final response did contain errors, which would have caused Mr B frustration. Section 3 of our Service Model Guidance provides detail regarding how we handle complaints where there are indicated failings. Section 3.8 says that we should assess whether the injustice is still unremedied, which also involves considering the complainant’s desired outcomes. Our principles of remedy are clear that any remedy we recommend should be ‘proportionate to the injustice or hardship suffered’.

84. If we requested WCS revisit the case, on the basis of the issues Mr A has identified with its final letter, there is no indication it would, or should, change its decision. This is because the WCS is designed to compensate individuals who have suffered loss in connection with being unable to demonstrate their lawful status in the United Kingdom. We have not seen any indication WCS’s decision was unreasonable for the reasons set out above. To suggest Mr B go through WCS’ process again, in light of no effective case for compensation being presented, would not be proportionate or fair to either Mr B or WCS. We appreciate the importance of this complaint to Mr B, and understand our decision is likely to be disappointing, but we hope our reasoning above is helpful in explaining our decision.

1. We are sorry to learn about the experiences Mr B has had in the UK. It is clear he had a negative experience with a church minister, which caused him distress and contributed to the issues he has sadly experienced with his mental health.

2. Having looked at his complaint, we have decided not to consider it further. This is because, while the Windrush Compensation Scheme (WCS) made errors in the way it considered Mr B’s claim, we cannot see that these errors meant it made the wrong decision and we are of the view its position is reasonable.

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