Administrative Court: Tim Smith (sitting as a deputy judge of the High Court), [2021] EWHC 1177 (Admin), 6 May 2021

In this case the High Court accepted that measures put in place in response to the “Windrush scandal” breached the first claimant’s Article 8 rights and the Article 14 rights of the second to seventh claimants. The case is a useful reminder of the potential for Article 14 to succeed where a claim under the substantive right would not, though the reasoning on Article 14 is succinct to say the least. It is also an example of a case in which a successful application for judicial review resulted in an order for assessment of damages under s8 HRA.The first claimant was born in 1969 in Trinidad and Tobago and moved to the UK with her mother two months later to join her father who was already resident there. She remained in the UK until 1977 having become entitled to indefinite leave to remain (“ILR”) in 1973. Her parents divorced in 1977 and, despite a court order that she remain in her mother’s custody in the UK, the claimant was taken back to Trinidad by her father later that year. As a result of which she lost her ILR and, by reason of the repeal in 1988 of s1(5) of the Immigration Act 1971, her opportunity to regain it. This formed the basis of the first claimant’s Windrush claim.

The first claimant married the second claimant in Trinidad and had five children with him. Neither the second claimant nor any of the children ever resided in the United Kingdom except as set out below. In 2008 the first claimant was denied entry to the UK on the grounds that she had no right of abode. She was subsequently denied a student visa to allow entry clearance for her and also the second to sixth claimants (the seventh claimant not having been born by that point), which was refused. In October 2018 an entry clearance officer acting on behalf of the Defendant granted the first claimant a returning resident visa for six months to allow her to collect documentation confirming that her ILR had been restored (as it would have been had she returned to the UK prior to 1988) and she entered the United Kingdom alone. When she contacted the Windrush visa enquiry email about having her family join her in the UK she was advised that they would have to make (and pay for) applications in the ordinary way. Subsequent efforts on her part were no more successful though the sixth claimant was permitted to enter the UK in 2020 and subsequently granted limited leave to remain on Article 8 grounds.

The claimants’ case, so far as relevant for present purposes, was that the respondent had breached their Article 8 rights and their Article 14 rights read with Article 8. The Article 14 claim was put on the basis that the second to seventh claimants should not, as family members of a Windrush victim, have been subject to the same immigration regime as others (a Thlimmenos claim).  The direct discrimination claim was put on the basis that the respondent discriminated by levying significant fees on applications from Windrush family members outside the UK and so discriminated against them by comparison with Windrush family members who made in-country applications and who were not subject to immigration fees.

The judge accepted at §§148-149 that the first claimant was “a ‘paradigm’ type of [Windrush] victim” and that she was an intended beneficiary of the Windrush scheme, this by contrast with the position of the second to seventh claimants who were, as family members of Windrush victims, not intended beneficiaries of the scheme and were not entitled to “preferential treatment above anyone else applying for leave to enter from outside the country”. At §§158-159 the judge concluded that the first claimant had a “far stronger” case under Article 8 than did the other claimants in that, in order to avail herself of the “preferential treatment … designed to mitigate against the effects of the historic injustice which saw her lose her ILR status … she has been forced to separate from her family. Under the Defendant’s policies the family members do not enjoy any special dispensation and so, unable to afford the fee for an out-of-country application for leave to enter, they have had to remain in Trinidad. The result is that the family unit has been broken up”. The fees which would be entailed in making the necessary applications were unaffordable to the claimants and the defendant had no discretion to waive these fees (§160). As a consequence (§161), the claimant had either “to forego the remedies which the Defendant had put in place with the express intention of remedying the injustice suffered by her and others like her, or else she had to break up the family. She chose to do the latter – in the hope no doubt that it would be only temporary – but in the process she has suffered the “colossal interference” with her right to family life identified by Lord Wilson in R (Quila) v Secretary of State for the Home Department [2011] UKSC 45, [2012] 1 AC 621.” The judge went on to find that the first claimant’s article 8 rights had been breached (§162).

The claims of the second to seventh claimants were considered under Article 14 read with Article 8. The judge accepted at §173 that the matters in issue fell within the scope of Article 8 and at §174 that the claimants were differently situated from the non family members of Windrush victims because “Their ability to access the entry application process bears directly on the article 8 rights of the Windrush victim” which fact “is sufficient reason why the family members should be afforded a status over and above those of other applicants”. He concluded at §175 that “the failure of the Defendant to afford family members of a Windrush victim preferential treatment in the charging of fees, over and above other classes of applicant, is indirectly discriminatory against them and is unlawful”, this without any express consideration of justification, further accepting at §176 that “Distinguishing between applications made from outside the United Kingdom and those made from within, when calculating fees, seems to me to be an arbitrary distinction and one which the Defendant has not justified on the facts”.

The judge declared as follows:

1. The Defendant breached the First Claimant’s rights under Article 8 of the European Convention on Human Rights (“ECHR”) in that, by making it a precondition of an application by the Second to Seventh Claimants for leave to enter the UK that they pay a fee without consideration of affordability, she (a) failed to afford the First Claimant an effective way of asserting her substantive Article 8 ECHR rights and (b) disproportionately interfered with the First Claimant’s right to respect for family life.

2. The Defendant (a) breached the Second to Seventh Claimants’ rights under Article 14 ECHR by unjustifiably failing to treat them differently from the family members of non-Windrush victims and (b) breached the Third to Seventh Claimants’ rights under Article 14 ECHR by unjustifiably failing to treat them in the same way as the children of a Windrush victim who is resident in the UK.

He ordered that the matter be transferred to the Central London County Court for an assessment of damages pursuant to section 8 of the Human Rights Act 1998, including the question whether any award was necessary to afford just satisfaction to the claimants for the breaches of their Convention rights, following a two month period during which settlement might be reached.

Claimant: Chris Buttler QC and Ali Bandegani, instructed by Duncan Lewis solicitors

Defendant: James Eadie QC and Edward Brown, instructed by Government Legal Department