Administrative Court; Bourne J,  EWHC 3415 (Admin), 16 December 2021
The claimants relied, inter alia, on Articles 14 and 8 in challenging decisions to deny them citizenship. Both were wrongfully prevented from entering the UK at a time when they had or were entitled to indefinite leave to remain in the UK (“ILR”), subsequently applied under the Windrush Scheme and were granted ILR before applying for British citizenship. These applications were denied on the basis that they failed to satisfy Schedule 1 para 1(2)(a) of the British Nationality Act 1981, which requires that a citizenship applicant has been physically present in the UK five years prior to the application (“the 5 year rule”). The question for the Court was whether the 5 year rule could be challenged by reason of the HRA. Bourne J ruled that the absence of discretion or flexibility within the five year rule amounted to Thlimmenos discrimination against the claimants contrary to Article 14 in conjunction with Article 8, but that a Convention compatible reading was possible under section 3 HRA by permitting the defendant to deem that an individual had complied with the 5 year rule..
The first claimant was born in Jamaica in 1956 and came to the UK in 1962 with his mother to join his father who was already working here. As a Commonwealth citizen settled in the UK before 1 January 1973 he was a member of the first of four categories of person to whom the Windrush Scheme applies. He lived in the UK between 1962 and 2005, visiting Jamaica regularly from 1998 after fathering a son there. He travelled on his Jamaican passport which showed that he had ILR until 2003 when a replacement passport omitted the ILR stamp. The first claimant did not appreciate the significance of this until, having visited Jamaica in 2004 for the funeral of his father who had returned to live there after the death of the claimant’s mother, he was refused leave to enter as a returning resident. That decision was overturned on appeal in January 2005 and the first claimant returned to Jamaica later that year to spend an extended period with his third child, applying for leave to return in early 2007 and again in late 2008. He remained in Jamaica until 2018, experiencing significant hardship there, and made a new application in 2018 after the Windrush scandal occurred. He was granted a visa as a returning resident in August 2018 and returned to the UK the following month, being granted ILR in November but denied citizenship in February 2021 in a letter which expressed “‘deep regret’ for the fact that ‘we are constrained by the parameters of the existing legislation’”, stated that “the Government was urgently considering the scope for changing the law for cases of this kind and concluded that ‘We will continue to work with you to ensure you can obtain citizenship at the earliest possible point, with no fees applied’” (§14).
The second claimant had come to the UK from Ghana as a baby in 1964, remained until 1972 and then from 1980 until 1984 (during which time she had a child who remained in the UK with the second claimant’s mother) before moving to the US with her husband and being refused re-entry in 1986, then remaining in the USA until 2002 before returning to Ghana until 2018 when she applied for a visit visa which was initially refused then granted after an intervention from the Windrush Taskforce helpline. She was granted ILR the following month but her application for citizenship was refused in 2020.
At §§34-36 Bourne J noted that the Nationality and Borders Bill, introduced in the House of Commons in July 2021, would permit waivers of the 5 year rule but that the “Defendant does not suggest that this makes the claims academic. Nor, it seems to me, does it mean that the claims have legal merit.” Having recorded at §38 the parties’ agreement that the “natural and unambiguous meaning of paragraph 2(1)(a), as opposed to any different reading which might be required under HRA section 3, is that there is no relevant discretion to disapply the 5 year rule” Bourne J went on to accept that this challenge was not “to the validity of the provisions of the BNA … but to its application in the Claimants’ individual cases”, declaring it “quite clear that a human rights challenge can be mounted to the application of a rule in an individual case” (§§40-41). At §43 he identified the discrimination in issue as being “of the kind identified in Thlimmenos v Greece [Application no. 34369/97] (2001) 31 EHRR 411 … a form of indirect discrimination consisting of a failure to treat different situations differently”.
The parties agreed that the discrimination in issue fell within Article 8 (§45) and the Defendant conceded (following R (Howard) v SSHD  EWHC 1023 (Admin),  1 WLR 4651) that the first claimant had a relevant status for Article 14 purposes of having “a right to remain in the United Kingdom by virtue of section 1 (2) of the 1971 Act [and having been entitled], prior to 1 January 1988, [to] obtain British nationality by registration. That, Sir James [Eadie, for the respondent] submits, would cover Mr Vanriel but not Ms Tumi because she emigrated from the UK to Ghana before the commencement date of the 1971 Act (1 January 1973)”.
Bourne J cited the decision in R (Mahabir) v Home Secretary,  EWHC 1177 (Admin),  1 WLR 5301 (see previous post) in concluding at §52 that there was “no legal impediment to allowing “status” to those in a recognisable legal situation referable to the Windrush Scheme” and at §53 that “a complaint under Article 14 can be raised by individuals on the ground that they (1) have been recognised (or are recognisable) as people to whom the Windrush Scheme applies because they were denied entry to the UK and (2) have been unable to satisfy the 5 year rule by reason of that denial of entry. The claimants had “plainly” been treated differently from other people who did not share that status (§55) so the question for the Court was whether the differential treatment was justified. At §58 Bourne J cited the test in Bank Mellat v HM Treasury (No. 2)  UKSC 38,  AC 700, §74, accepting that in a Thlimmenos case it was “measure itself, rather than its indirectly discriminatory impact, which must be justified’ (this by comparison with a direct discrimination case in which it “it would be the discriminatory impact which fell to be justified” (citing R (DA) v Work and Pensions Secretary  UKSC 21,  1 WLR 3289 per Baroness Hale at §134), but (§60) “regard must be had to the discriminatory impact when deciding whether the measure, i.e. a 5 year rule with no flexibility in favour those such as the Claimants, is justified”.
Bourne J accepted that the 5 year rule had “the legitimate aim of ensuring that an applicant for citizenship has a clear, strong connection with the UK evidenced by presence here” (§§60-62) and was “rationally connected to the objective”, identifying the questions for determination as being “whether a less intrusive measure could have been used and … whether the discriminatory effects of the measure outweigh the importance of the objective are more complex”. The judge accepted that a wide margin of appreciation applied to judgments made by Parliament in primary legislation in areas of social policy such as immigration (§§64-65, citing R (SC) v Secretary of State for Work and Pensions  UKSC 26,  3 WLR 428 (see previous blog) §§98-99, 115-116, 142, 158-162) but concluded at §81 that “even when the appropriate considerable weight is given to the judgment of Parliament, the interference with the Claimants’ rights … by the application of the 5 year rule in its unmodified form cannot be justified.” Bourne J cited Lord Reed in SC §159 to the effect that it was necessary to take into account “such other factors as are present”, stating that Parliament could not have anticipated the Windrush scandal to which it reacted by giving those affected preferential treatment in the field of immigration and nationality, and that “[t]he treatment complained of is a refusal to afford preferential treatment by making the 5 year rule discretionary”.
- Admittedly the preferential treatment anticipated by the Government when introducing the Windrush Scheme was to be of a procedural kind, enabling the recognition of existing rights rather than creating new substantive rights. In these cases, however, what was sought by the Claimants was not a relaxation of the substantive requirement that they prove a sufficient connection with the UK. Rather it was a relaxation of the requirement to prove that connection in a way which was impossible for them, by presence in the UK on a day when, through no fault of their own, they were prevented from being in the UK.
- It is clear that in cases such as these, the Government’s aim of requiring citizenship applicants to prove commitment and connection to the UK could equally as well have been achieved by a less intrusive means, i.e. by applying a discretionary requirement rather than a rigid one. That is all the more apparent in light of the fact that the detailed requirements other than the 5 year rule all contain some discretion or possibility of exception.
- In these circumstances I conclude that the severity of the effects of the treatment outweighed the importance of the Government’s objective, even when regard is had to positive measures for Windrush victims such as the payment of compensation.
- For these reasons, making the decisions in the Claimants’ cases by application of the 5 year rule with no discretion or flexibility was incompatible with their rights under Article 14 in conjunction with Article 8.
Bourne J went on to find at §97 that the inflexible nature of the 5 year rule rendered decision-making arbitrary and at §101 that it breached the claimants’ Article 8 rights. At §§112-114 he ruled that it was possible to achieve a Convention-compliant interpretation of paragraph 2(1)(a) such that it would allow the Secretary of State to deem that an individual had complied with the 5 year rule.
Claimants: Chris Buttler QC , Eleanor Mitchell and Grace Brown, instructed by Duncan Lewis
Defendant: James Eadie QC and Edward Brown, instructed by Government Legal Department