By: Martin Forde QC

Home Office Windrush decision was irrational, holds High Court

26 April 2021 by Martin Forde QC

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.