Home Office Windrush decision was irrational, holds High Court

26 April 2021 by

The Empire Windrush arrives at the Port of Tilbury on the River Thames on 22 June 1948. Image: The Guardian

R (On the Application of Hubert Howard (deceased, substituted by Maresha Howard Rose pursuant to CPR 19.2(4) and PD 19A)) v Secretary of State for the Home Department [2021] EWHC 1023 (Admin) read judgment

Hubert Howard was born in 1956 and came to the United Kingdom in 1960, aged almost 4 from Jamaica. He was part of the Windrush Generation. No doubt like all West Indians of that time, including my parents, he thought he was a British Citizen.

In fact, he was a Citizen of the United Kingdom and Colonies on arrival, and, by sleight of hand, in the author’s view, he lost that status upon Jamaica gaining independence in 1962 and he became a Commonwealth citizen.

The same reduction in status happened to my father in 1966, when Barbados gained independence. Having arrived in 1953, believing he was fully British and having been conscripted for two years’ National Service, he had nobody write telling him that his status had changed and that he effectively became Barbadian, thirteen years after his arrival here.

Hubert should have applied to be registered to be a British citizen before 1 January 1988, when that right lapsed, but like many Commonwealth citizens, particularly from the Caribbean, he did not.

Hubert did apply for a British passport in 2007 and 2010 but on each occasion, he was told that his application failed because he was not a British citizen. In February 2012 he was told by the Home Office that he would first need to apply for indefinite leave to remain, 52 years after he had been resident, and could then, if granted ILTR, obtain a passport after the required period of lawful residence.

In 2012 Hubert lost his job with the Peabody Trust, a job that he had held since 2003, and whose Director of Human Resources was to describe him, in 2018, as “reliable, hardworking and diligent in carrying out his duties”. But due to “an inspection from Immigration Services in 2012 … [he] was unable to produce a passport and we had to let him go”.

In June 2014, Hubert’s solicitors made an application for a No Time Limit status granted to those who have ILTR so that they can be granted a biometric card, which at the time cost £1,300.

The Home Office then required, as was the case with many Windrush applicants, one piece of evidence demonstrating residence from 1960 within 14 days. His application fee was retained when he did not furnish the information.

In April 2018, the then Home Secretary, Amber Rudd made a Windrush Statement, which included the phrase

They are British in all but legal status, and this should never have been allowed to happen.

That sentence was to prove vital to the outcome of the case.

Following that statement made in the House of Commons, Hubert was granted ILTR by a letter dated 10 May 2018, with the Home Office accepting that he had acquired that status, through operation of law, on 1 January 1973, the date the 1971 Immigration Act came into force.

Understandably, Hubert then applied for his British naturalisation. He was refused on 5 November 2018 and again on 3 December 2018 on review and once again on May 2019.

Hubert was refused upon good character grounds because of criminal convictions mainly of some antiquity but, it has to be acknowledged, in respect of the final occasion some 59 years after he had entered this country.

Hubert had been convicted between 1974 and 1977 of burglary and theft, resulting in a Probation Order, for possession of a class B drug between 1984 and 1988 resulting in fines, for using threatening and abusive language in May 2000, resulting in a Probation Order and, most importantly, of common assault in June 2018, which resulted in a sentence of 12 months imprisonment suspended for 12 months.

As, at the time of his application Hubert had received a non-custodial sentence within 3 years of his application for naturalisation and the Home Office, on review, refused his application upon the basis of his criminality. Hubert had argued that he considered himself to be British at the time of his offending but that argument was rejected.

On 16 October 2019, the Home Office granted Hubert’s application for naturalisation on compassionate grounds, as by then he was seriously ill with leukaemia – he died tragically on 12 November 2019 and his daughter was substituted as Claimant.

The first ground of claim was that the failure to disapply the good character requirement when deciding the application for naturalisation amounted to unlawful discrimination contrary to Article 14 with Article 8 on the basis of a relevant “other status” – i.e., that Mr Howard was one of the Windrush generation, or alternatively the relevant status of race. This issue is considered at paras 19-25. The claim was dismissed on this ground.

However, the second ground of claim was that the decision that existing good character guidance should continue to apply without modification to Windrush generation applications fell outside the range of options available to the SSHD acting reasonably. This issue is considered at paras 26-39. The claim was upheld on this ground. The court stated that:

… In the context of what had been said in the Windrush statement this reliance on minor offences committed some 40 years, 30 years and 18 years, respectively before Mr Howard’s application for naturalisation as a British citizen was irrational. An approach based on the premise that such matters are relevant is in flat contradiction of any notion that long-residence and integration into British society demanded a different approach to applications coming from the Windrush generation, the notion which had been the central feature of the Windrush statement … (para 36)

Comment

The fact that ancient criminality and even more recent criminality, should not be a basis for denying full citizenship to those that have lived here for many years, and whose status was changed via complex legislation, is very welcome.

During my time as adviser to the Home Office upon the Windrush Compensation Scheme, although, strictly speaking, outside my remit, I raised concerns about this policy.

Its existence impacted upon the willingness of the affected cohort to apply for naturalisation and compensation, so fearful were they of deportation – and this remains the case.

Interestingly, when designing the Scheme, I advised against criminality being a basis for refusing or reducing compensation, as is the case with the CICA. I advised that effectively tortious compensation in respect of damage caused by government policy, could not rationally be reduced by reason of criminality. My advice was ignored by the then Home Secretary, Sajid Javid, and we agreed that a condition of my continuing in post would be that I could put his rejection of my advice into the public domain.

I therefore feel vindicated by this judgment. I hope the Home Office do not appeal, as to do so would undermine the relations they are trying to foster with the affected communities. Somebody who arrives in this country at the age of almost 4 and commits criminal acts in adulthood is a British criminal and citizen.

The judgment has the potential to allow many others to gain naturalisation and then access the compensation scheme if, for instance, they were dismissed from their employment like Hubert Howard.

Martin Forde QC is a barrister at 1 Crown Office Row. He was the Independent Advisor to the Windrush Compensation Scheme from May 2018 until April 2021.

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