In listening to the experiences of the Windrush generation and their treatment by the UK Home Office, what stands out to many of us in the Commonwealth Caribbean is the indignity suffered by the persons affected. Upon the invitation of the UK government, they emigrated from the Caribbean to the UK between the late 1940s and early 1970s to address labour shortages after World War II. They were given a legal right to reside. Due to changes in immigration rules, they lost the legal protections that they had. Reports are that some have been deported, threatened with deportation or detained. Others are reported to have lost employment, housing, and denied access to essential services such as healthcare. Some have shared experiences of missing funerals of loved ones or of having been denied entry to the UK after leaving for vacation. For many, their life choices are hampered by stigma, humiliation, and fear of deportation.
Although these experiences are said to be an unintended consequence of the new immigration rules, they are tied to immigration status as well as to national origins. It is clear from Jordan v UK (2001), that where a general policy has disproportionately prejudicial effects on a particular group, this may be considered discriminatory even though it is not specifically directed at that group. Also relevant is the recent disclosure by the HM Treasury that up until 2015 British taxpayers were paying off the £20 million loan representing 40% of Britain’s national budget which was used to compensate slave-owners for loss of services in accordance with the 1833 Slavery Abolition Act. Windrush generation paying taxes in the UK would have therefore contributed to paying those who enslaved their forefathers. These developments raise concerns about human rights and the value of human dignity in lawmaking and public policy.
Dignity in law is a vague but useful concept. It is widely mentioned in human rights instruments and national constitutions. It is heavily invoked in different ways by courts across diverse jurisdictions. Christopher McCrudden suggests that at its very minimum, the concept of human dignity has three basic elements; that ‘each human being possesses an intrinsic worth that should be respected, that some forms of conduct are inconsistent with respect for this intrinsic worth, and that the state exists for the individual not vice versa.’ In the Commonwealth Caribbean, the concept of dignity is treated as an underlying value which is central to the fundamental rights and freedoms in our constitutions. Recently, the Supreme Court in Orozco v Attorney General of Belize (2016) recognized human dignity not only as a constitutional value but as a ‘free-standing’ enforceable constitutional right, a breach of which also operates to inform the other rights from which the concept of human dignity emanates.
Although there is no mention of ‘dignity’ in the text of the European Convention on Human Rights, the European Court of Human Rights has emphasized that respect for human dignity forms part of the very essence of the Convention: SW v UK (1995), Pretty v UK (2002) and Goodwin v UK (2002). The treatment of the Windrush generation implicates at the very minimum, the right to protection from inhuman or degrading treatment, right to private and family life, and protection from discrimination in their enjoyment of rights under the Convention. The concept of human dignity has informed the Court’s interpretation of the Convention rights, especially regarding treatment which may be inhuman or degrading. In Bouyid v Belgium (2015), the prohibition of inhuman or degrading treatment was described as a value of civilization that is closely bound up with respect for human dignity. While in Elberte v Latvia (2015), a case centered on the emotional suffering of close relatives, the Court explained that treatment is considered degrading when it humiliates an individual, showing lack of respect for human dignity. In Identoba and Others v Georgia (2015), the Court reiterated that treatment which arouses feelings of fear, anguish, and insecurity are incompatible with respect for human dignity and that discriminatory treatment can in principle amount to degrading treatment where it attains a level of severity such as to constitute an affront to human dignity.
Valuing the dignity of the Windrush generation requires prompt and effective remedies. Within the context of public policy, it requires a rethinking of the requirement that affected persons bear the entire burden of proving a right to live in the UK especially in light of the State’s in-depth knowledge of the unique circumstances of the Windrush generation, including the State’s admission of destroying landing cards. Valuing the dignity of the Windrush generation requires that there is a shift from the Windrush generation being at the periphery of the UK society to their inclusion and full participation in the society as equal citizens.