Glimmer of hope for Windrush victims in Court of Appeal judgment

On the morning of 10 December 2025, we gathered outside the Royal Courts of Justice alongside our fellow students, the King’s Legal Clinic team, and the Oji legal team. We felt a sense of anticipation and solidarity. Not just as observers, but as students who had spent the semester immersed in the human cost of the Home Office-Windrush scandal as part of our Human Rights in Practice with Clinical Legal Education module. Through this module, we were taught about the systemic failures of the Home Office: how British citizens of the Windrush generation had been wrongly detained, deported, and denied rights they were entitled to. Standing in front of this imposing building, the weight of what we had learned felt very real, as this was not just a case study, but a living injustice unfolding before us. What struck us most was the barrier that access to justice continues to present for victims. Despite the Windrush Compensation Scheme (WCS) being established in 2018, claimants have faced high refusal rates, bureaucratic complexity, and an almost total absence of legal aid funding, leaving the very people the scheme was designed to help to face it alone.

In the end the Court of appeal rejected the appeal in R (Oji) v The Director of Legal Aid (LAA) Casework [2026[ EWCA Civ 11, where the claimant challenged the refusal by the LAA to grant exceptional case funding to help prepare a compensation claim. However, in a glimmer of hope for Windrush victims seeking exceptional case funding, the Court of Appeal (obiter) indicated that a genuine dispute over eligibility under the WCS could constitute a civil right under Article 6 ECHR.

Background

The WCS was introduced to provide redress for individuals who suffered harm because they were unable to prove their lawful status in the UK. It covers losses such as homelessness, employment disruption, barriers to public services, and impacts on family life. While the scheme’s purpose is clear, it is non statutory and numerous reports have found it is complex, and difficult to navigate without legal assistance. Joyce Oji, a victim of the Home Office – Windrush scandal, experienced these challenges firsthand.

Joyce Oji was three years old when she came to the UK from Nigeria in 1988 to join her parents and siblings. They had settled before 1973 and therefore were legally resident under the Immigration Act 1971. Although she was lawfully resident as the child of settled parents, she faced difficulties proving her status. This affected her ability to secure work, to travel, and critically her ability to access homelessness support. As a result of being refused homelessness support, she was forced to live in accommodation where she was exposed to domestic violence. In 2019 her settled status was finally confirmed and in 2020 she became a British citizen under the Windrush Scheme. As a victim of the Home Office-Windrush scandal, she wanted to claim compensation. Joyce tried to navigate the application process herself and even sought the help of We are Digital (now known as We Are Group), none of this helped. Recognising the complexity of the scheme, Joyce sought assistance from the Windrush Justice Clinic (WJC) at Southwark Law Centre, who work in partnership with King’s Legal Clinic and several other community partners. Southwark Law Centre & the WJC assisted her pro bono and applied for exceptional case funding (EFC) under section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). The scope of cases that qualify for legal aid funding is exceptionally narrow in English law. EFC allows legal aid in cases where failure to provide support would risk breaching a person’s rights under the ECHR. Joyce argued that her compensation claim engaged Article 6 (the right to a fair hearing) and, initially, also the procedural aspect of Article 8 (the right to respect for private and family life).

The Legal Aid Agency refused her application on 13 September 2022. It concluded that at the stage of applying to the scheme there was no “dispute” over a civil right requiring legal aid. Joyce challenged that refusal through judicial review, lodging her claim on 31 January 2023. The High Court dismissed her claim in a judgment handed down on 24 May 2024, holding that neither Article 6 nor Article 8 applied. Joyce then applied for permission to appeal to the Court of Appeal. Her appeal was heard in December 2025 and recently decided in January 2026, with the court giving important comments on when WCS claims could, in principle, engage Article 6.

The Court’s key findings

Pursuant to s. 10 of LASPO (2012), ECF should be made available where the absence of legal aid would breach, or risk breaching, an applicant’s human rights or assimilated enforceable rights. The legal test requires that i) civil rights and obligations are being determined, ii) there must be a genuine and serious dispute, and iii) legal aid must be deemed necessary to enable the unrepresented person to present their case effectively and without obvious unfairness.

The appellant argued that she should be eligible for exceptional funding, as an arguable claim for compensation under the WCS engages Article 6 and the procedural aspect of Article 8 ECHR. Ground 2 of the appeal concerning a breach of Article 8 rights was withdrawn.

The appellant accepted that there was no dispute as to the right to compensation when legal aid was initially refused. At the time ECF was applied for the appellant had not received a decision on a claim for compensation, though had subsequently been refused. While the absence of a technical dispute in this case was fatal to the appeal, the appellant requested the Court issue a finding that claims for compensation were civil rights within the meaning of Article 6.

The Court acknowledged that this case is of particular importance as the decision on legal aid eligibility will have a wider impact on the thousands of WCS cases. The Court rejected the appeal, but in obiter, expressed its view on the meaning of a civil right in the context of the compensation scheme.

The Court found that if there had been a genuine dispute about a decision regarding eligibility under the Scheme, it would have been a determination of a civil right within the meaning of Article 6 of the Convention. Despite the rules of the scheme not being statutory, that does not preclude the rules from giving rise to a civil right. The court found that the Scheme was established by the Government, it set out precise, defined conditions which, if they are met, entitled the applicant to an award of monetary compensation in an amount specified by, or determined in accordance with, the rules. Money from public funds is provided to pay such awards. Therefore, claims for compensation under such a scheme are capable of constituting civil rights within the meaning of article 6 of ECHR (paragraph 95) . However, the Court noted that denial of ECF for compensation claims would not automatically give rise to a breach of Article 6, and any consideration of this issue would require a careful assessment of the necessity test, which the court did not make findings on.

Outcome and wider impact 

This outcome should have a positive impact on the many people applying to the WCS, in particular those who have been received a nil award or found ineligible under the scheme. The decision means that the Legal Aid Agency is no longer able to refuse ECF applications for WCS applicants on a blanket basis. They must now consider each ECF application on a case-by-case basis and assess whether the applicant can effectively present their case without legal representation due to their personal circumstances.

As a notoriously difficult scheme to navigate, legal representation is often essential for success in achieving the fairest outcome for victims of the scandal. Whilst the ruling is a step in the right direction, a great deal still needs to change. The government currently funds legal representation for victims of other compensation schemes such as the Post Office and Infected Blood scandal. Unlike the ECF regime, the Post Office and Infected Blood schemes do not require victims to satisfy an income threshold to receive funded legal advice. As a matter of fairness, funded representation  is an important way to allow Windrush Victims to get some level of restitution from a systemic wrong that impacted thousands of lawfully present people in the UK.