Windrush Applicants’ Successful JR

Each claimant successfully applied under the Windrush Scheme and were granted indefinite leave to remain (ILR).

Their subsequent applications for British Citizenship were refused by the Home Secretary who considered that she was bound to do so by a provision of the British Nationality Act 1981 (BNA) which required that a citizenship applicant had been physically present in the UK five years before the application (the 5 year rule).

That being common ground between the parties, the question for the Administrative Court on judicial review was whether the Human Rights Act 1998 (HRA) nevertheless mandated a different outcome, and/or whether there should be a declaration of incompatibility in respect of the provision containing the 5 year rule: (1) Vanriel (2) Eunice Tumi v Secretary of State for the Home Department [2021] EWHC 3415 Admin: Bourne J

Under the HRA there was no discretion to disapply the 5 year rule.

A complaint under Article 14[1] could be raised by individuals on the ground that they had (1) been recognised (or were recognisable) as people to whom the Windrush Scheme applied because they were denied entry to the UK and (2) had been unable to satisfy the 5 year rule by reason of that denial of entry.

Both claimants fitted that description.  As the 5 year rule currently applied to all applicants for citizenship, they had been treated in the same way as other people whose situation was relevantly different from theirs because they did not share that status.

Even when the appropriate considerable weight was given to the judgment of Parliament, the interference with the claimants’ Article 14 rights (assuming those rights to arise in the case of Ms Tumi as well as Mr Vanriel) by the application of the 5 year rule in its unmodified form could not be justified.

The severity of the effects of the treatment outweighed the importance of the Government’s objective, even when regard was had to positive measure for Windrush victims such as the payment of compensation.

For those 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.

In respect of Article 8[2] rights, in the unusual circumstances of the Windrush scandal, decision making was rendered arbitrary by the inflexible nature of the 5 year rule.

That was not to say that national authorities could not apply bright-line rules when granting or refusing citizenship, even though bright-line rules may lead to unfairness in individual cases.

Whilst such rules would need to be justified, it would not necessarily be difficult to justify them in this field, not least because of the wide margin of appreciation to be given to national authorities in deciding how and when individuals may acquire citizenship.

There was discord in the present case between, on the one hand, requiring an individual to have been present in the UK on a particular date and, on the other, having wrongfully excluded the individual from the UK with the effect of preventing him or her from satisfying the requirement.

Respect for the legislative competence of Parliament was not a sufficient answer to that problem.

Section 3 HRA required legislation to be “read and given effect in a way which is compatible with the Convention rights” but only “so far as it is possible to do so.”

The boundaries of the interpretive technique were both linguistic and constitutional and the relevant principles could be derived from the authorities.[3]

Whilst Parliament may have foreseen that a hard-edged rule might give rise to some hard cases, it could not be taken to have foreseen that the Windrush scandal would give rise to cases, perhaps in significant numbers, in which applicants would be unable to comply with the 5 year rule because they had been wrongly refused entry to the UK.

Under HRA section 3, therefore, it was possible to read and interpret schedule 1 to the BNA as if it contained a discretion to disapply the 5 year rule in cases where, because the defendant’s default was (or may have been) the reason why the rule could not be satisfied, that reading was necessary to avoid an infringement of ECHR Article 14 and/or Article 8.

In view of the Court’s decision under section 3 HRA, there would be no declaration of incompatibility and it was not necessary to decide whether one would have been made had the Court decided that a section 3 interpretation was not possible.

Mr Vanriel’s claim clearly succeeded.  The application of paragraphs 1 and 2 of schedule 1 to the BNA in their unmodified form infringed his rights under Article 14 and/or Article 8, and therefore infringed section 6(1) HRA 1998[4].

Section 3 HRA enabled and required the legislation to be read and interpreted as if it conferred the necessary discretion to avoid that infringement.

There was no defence under section 6(2) and the Defendant erred in law when deciding that she had no discretion.

Although Ms Tumi’s case was less clear, on balance she too was entitled to have her application considered with reference to a discretion arising pursuant to the interpretive obligation under HRA section 3.

If the Defendant had adopted a section 3-compliant reading of schedule 1 as affording her a discretion in the category of cases identified in the judgment, she would at least have given consideration to the question whether that discretion covered Ms Tumi’s case (and, if it did, how to exercise it). Instead, she proceeded on the incorrect basis that the 5 year rule was immovable.

[1] ARTICLE 14: Prohibition of discrimination. The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

[2] ARTICLE 8: Right to respect for private and family life. 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

[3] R v Lambert [2001] UKHL 37, [2002] 2 AC 545, Lord Hope at [79]; Re S (Care Order: Implementation of Care Plan) [2002] UKHL 10, [2002] 2 AC 291, Lord Nicholls at [40]; Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557, Lord Nicholls [33]; R (Wilkinson) v Commissions of Inland Revenue [2005] UKHL 30, [2005] 1 WLR 1718, Lord Hoffmann at [17]

[4] Section 6 HRA: (1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.