Could the Windrush Scheme be open to legal challenge?
29 May 2018
On 24th May 2018 a new scheme to process citizenship applications for the Windrush generation was announced, after the Government’s apologies last month. The Windrush Scheme guidance explains how this will work in detail.
It is notable that applicants who are refused will have no right of appeal against this decision. The chair of the Home Affairs Select Committee, Yvette Cooper MP, has tweeted to express her concern about this.
This author suggests that it is arguable that the denial of a right of appeal is open to legal challenge.
How the scheme works
Citizens of Commonwealth countries who were living in the UK before 1 January 1973, plus their children and certain non-Commonwealth citizens will be assessed and issued with proof of British citizenship if they already are British in law, or will be considered for naturalisation if they are not. Those who do not qualify for British citizenship will be assessed to see if they have the right of abode and those who do not qualify for that will be considered for a permit confirming their right to be in the UK under the no time limit biometric residence permit scheme.
This is all explained in detail in this article on Free Movement.
But what about if the Home Office is not satisfied that an applicant meets the scheme?
The guidance states on p. 13 as follows:
Where a person is determined not to be issued with a document under the Windrush Scheme in accordance with this guidance, the decision will not attract a right of appeal or an administrative review.
So a person who is refused will not be able to appeal to the First-tier Tribunal. They will only be able to challenge the decision by way of judicial review.
The difference between an appeal and a judicial review
Why does this matter? The basic answer is that it is much harder for a claimant to succeed in a judicial review than in an appeal. In an appeal, the judge will make the decision afresh following oral and written evidence. Statistics in March showed that about half of all immigration appeals are successful.
In judicial review, on the other hand, the judge does not step into the shoes of the decision-maker and is tasked instead with evaluating whether the decision was lawful and rational. There is always the possibility that the judge will conclude that whilst the decision is tough, it is still legally watertight. In addition, an applicant must apply for permission before they can get a substantive hearing and an unsuccessful applicant usually pays the Secretary of State’s costs.
So, there is a fair amount riding on the issue of whether a claimant gets an appeal or not.
When is there a right of appeal?
The place to start is section 82 of the Nationality, Immigration and Asylum Act 2002 (as amended in 2014):
(1) A person (“P”) may appeal to the Tribunal where—
(a) the Secretary of State has decided to refuse a protection claim made by P,
(b) the Secretary of State has decided to refuse a human rights claim made by P, or
(c) the Secretary of State has decided to revoke P’s protection status.
A protection claim refers to a claim for asylum so is not relevant here. But an application under the scheme could well qualify as a human rights claim.
The meaning of this is explained in s. 113 as follows:
“human rights claim” means a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or require him to leave the United Kingdom or to refuse him entry into the United Kingdom 3 would be unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Convention)
Latest case law
The concept of a human rights claim has been explored by the courts recently.
On 5th February 2018 the Upper Tribunal decided Baihinga (r. 22; human rights appeal: requirements)  UKUT 90 (IAC). The appellant (a citizen of Sierra Leone) applied for entry clearance as a returning resident with indefinite leave to remain. This was refused without a right of appeal as she had been absent from the UK for over two years.
However, it was held that as she had stated that she wished to re-enter the UK to join her family and finish her education and had provided a letter of support from her father, this was enough to constitute a human rights claim. This case has been explored by Free Movement here.
Then on 15th May 2018 the Court of Appeal decided Joshi v Secretary of State for the Home Department  EWCA Civ 1108. The appellants, a married couple, were Indian nationals. The first had entry clearance as a student and the second was her student dependent. The first appellant’s leave to remain was due to expire but her college’s sponsor licence was revoked. She applied to extend her leave to remain to find a sponsor and cited her right to a private and family life.
The Court of Appeal held that this was a human rights claim. Looking at her application in substance rather than form, she had been asking for time to secure a new visa on the basis of her Article 8 rights in the knowledge that once that time expired she could be removed from the UK. Therefore, it was a human rights (though the Secretary of State had been entitled on the evidence to consider it “clearly unfounded”).
What about a Windrush refusal?
A Windrush application may well be a human rights claim too. Imagine if an applicant raised human rights considerations in their application form, stating that their removal would have a significant effect on their relationships with family members and life in the UK.
The Home Secretary might argue that a refusal does not constitute an immigration decision, perhaps drawing an analogy to an application for a no time limit biometric residence permit. That scheme concerns the process by which a person with indefinite leave to enter or indefinite leave to remain can apply for confirmation of their status and the guidance for that scheme (p. 31) states that there is no right of appeal because a decision is not an immigration decision.
But it need not follow that a Windrush refusal is similar.
The new s. 82 of the 2002 Act (in force since October 2014) does not circumscribe the concept of an immigration decision as the old s. 82 did.
The Windrush guidance is vague as what the effect of a refusal would be, but given that applicants will be applying to clarify whether they have the right to be in the UK, a refusal would seem to clarify that they do not. This looks like an immigration decision.
Also, it is worth noting that the guidance does not justify the lack of a right of appeal on the basis that Windrush decisions are not immigration decisions. It remains silent on the matter.
The Home Secretary might also argue that refusals are not refusals of human rights claims, as they are decisions concerned with factual questions of whether a person had citizenship or settled status in the UK without documentation.
However, a refusal is very likely to have an effect on the applicant’s rights under Article 8.
Furthermore, the guidance states that when considering applicants who wish to apply for indefinite leave to remain, the decision-maker must decide whether they meet the criteria of close and continuing ties to the UK. This is explained on p. 28 as follows:
When considering whether a person has close and continuing ties to the UK you will want to consider similar factors to returning residence – for example strength of ties, family ties, property and business ties and length of residence. However, given that the person is in the UK, you need not consider factors relating to their departure from the UK and their reason for wanting to return.
Therefore, in some applications the Secretary of State will be considering matters very similar to those considered in an ordinary Article 8 application for leave to remain. A refusal would suggest that the Secretary of State is not satisfied that the ties are strong enough.
Perhaps the Secretary of State would argue that a refusal under the Windrush scheme would not prevent the applicant from preparing a further application for leave to remain on human rights grounds.
But if – as seems likely – a refusal would clarify that an applicant has no lawful basis to remain in the UK, and was made despite consideration of the applicant’s personal circumstances and family ties to the UK, it looks a lot like a decision that the applicant’s removal would not be unlawful under the Human Rights Act. This fits the definition of a human rights refusal under s. 113 of the 2002 Act.
The matter will become a bit clearer once we can see what these refusal decisions look like. But for now, lawyers should keep a close watch. There will be many who succeed under the scheme. But some will not. Their rights to private and family life might well require that they receive the opportunity to appeal these refusals to a judge of the First-tier Tribunal.
Jonathan Metzer is a barrister at One Crown Office Row. He is the commissioning editor of the UK Human Rights Blog.