Administrative Court; Bourne J, [2021] 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..