The son of a Windrush scandal victim has lost a fight to regularise his immigration status.
In the latest development, amid a series of legal battles over the government’s response to the Windrush scandal, Damian Gabrielle lost a High Court battle this month against the Home Office’s refusal to grant him leave to remain.
The 39-year-old could now face removal to St Lucia – a country he left in 2000, two months after his 18th birthday.
On Friday 14 January, a High Court judge accepted the government’s argument that he was ineligible for the Windrush scheme because of this two-month delay. The Windrush scheme was created to “right the wrongs” of the Windrush scandal by regularising the immigration status of those affected. However, children of Windrush victims who arrived in the UK after 1988 and after their 18th birthday are not included in the scheme.
Thompsons Solicitors argued that Gabrielle’s arrival in the UK had been delayed by his father Alexander Prospere’s persistent financial troubles and struggle to obtain stable accommodation: difficulties directly linked to being failed by the Home Office.
Prospere moved to the UK from St Lucia as a teenager in 1961. Decades later, like many others of the Windrush generation, he found himself wrongly declared an illegal immigrant. As a result, he lost his job and struggled to find somewhere to live – just as his son was due to join him from St Lucia.
Gabrielle’s move was delayed until Prospere found somewhere for them to live, eventually moving in with his sister. Gabrielle described his aunt’s flat as a “tight squeeze”, but said the family made it work.
By 2006, Prospere had secured a council flat in Kennington, south London, and Gabrielle had taken up a job as a youth worker with Lambeth Council, trying to “keep teenagers out of trouble” through sports and other activities.
“Coming here it was almost like a family reunion,” Gabrielle told the New Statesman. “I was getting to meet so many of my cousins that I’d never met before.”
Gabrielle turned silent, clearly emotional. He took a deep breath. “I’ve got one sister and two brothers, and a whole heap of nephews and nieces.” He laughed gently.
Kate, his partner, said: “Sometimes we joke that the whole of Tooting is related to Damian. We worked out that as far as close relatives are concerned, it’s definitely over 40. That’s brothers, sisters, aunts, cousins, uncles, nephews, nieces. To put it in perspective, one of his nephews has how many children?”
“He’s got about eight kids, I think,” replied Gabrielle.
They have been together for almost a decade. When they met in 2012, Gabrielle was at the tail end of a three-year mental health crisis that had cost him his job as a youth worker.
He said: “I was fearful and paranoid, always feeling like someone could come for me at any time. Because that’s part of the immigration rules, that you can just get picked up at any time.
“It made me push a lot of people away, and it meant I couldn’t call up the Home Office to sort out my case. I couldn’t focus enough to actually do that.”
Gabrielle had been granted discretionary leave to remain in 2010, under the right to family life, but this was due to expire in 2013. As the deadline approached, he realised he couldn’t locate his St Lucian passport.
The Home Office had taken his St Lucian passport as part of the initial application in 2008, sending him an ID card as an interim replacement. Gabrielle received the ID card, but said he never received the passport.
Kate continued: “The Home Office said two different things. First they said it had been sent to Damian’s solicitor, and then they said it had been sent to the St Lucian High Commission.”
She said the St Lucian High Commission denied ever having received it. The New Statesman has asked both the Home Office and the St Lucian High Commission what happened. It has yet to receive a response.
“I was suffering through a mental health crisis the whole time,” Gabrielle said. “I felt hopeless, but because I was trying to get myself back on track I tried very hard to get my focus back – I realised I had to do something.”
Having received discretionary leave to remain in 2010, Gabrielle had expected to receive his indefinite leave to remain by 2016 – rules at the time required such applicants to accumulate six years of continued residency before they could apply for indefinite leave to remain.
But without a passport with which to renew his visa, he was once again an illegal immigrant. He knew the Home Office could deport him at any moment.
By 2018, Gabrielle had fallen into a second nervous breakdown. Without a passport he had no right to work. He and Kate had been planning to start a family as foster parents, but without a job he couldn’t get the necessary DBS check.
In 2019, he decided to apply to the newly created Windrush scheme, which his father and brother had successfully used to regularise their own immigration statuses.
The Home Office rejected his application, arguing that he was ineligible because he had arrived two months after his 18th birthday. That decision has now been affirmed by the High Court.
Gabrielle said: “I completely understand their reasoning, but I feel like there should be a little bit of discretion. If my dad hadn’t been part of the Windrush scandal, if he’d had his passport already… Plus, I only came here just after my 18th birthday and I’ve got a lot of family here.”
He finally received a new St Lucian passport in 2020, so he can begin his application for settlement again. Having lived in the UK for over 20 years, Gabrielle can now apply for indefinite leave to remain as a long-term resident, with a qualifying period of ten years.
That means Gabrielle doesn’t expect to receive indefinite leave to remain until 2032 at the earliest – 16 years later than he had previously hoped. His plans to start a family with Kate have once again been put on hold.
Since he still has no right to remain in the UK, the threat of deportation continues to hang over him.
Richard Arthur, of Thompsons Solicitors, described the status of people like Gabrielle as a “glaring omission” of the government’s response to the Windrush scandal.
“Had his father been recognised as British before 2019, Mr Gabrielle would have been able to come and settle here,” he said.
“The government said it would right the wrongs of the Windrush scandal, but claimants who are trying to access the Windrush immigration scheme and the Windrush compensation scheme are facing hurdle after hurdle.”
As of October 2021, only 885 of the 3,139 claimants to the Windrush Compensation Scheme had received payment (28 per cent). Twenty-four claimants have died while awaiting compensation.