Gloria Noren v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Margaret Obi |
| Judgment Date | 21 November 2022 |
| Neutral Citation | [2022] EWHC 2942 (Admin) |
| Docket Number | Case No: CO/1934/2022 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 2942 (Admin)
Margaret Obi
(sitting as a Deputy High Court Judge)
Case No: CO/1934/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Jonathan Martin (instructed by Juris Matrix Solicitors Limited) for the Claimant
William Hansen (instructed by Government Legal Department) for the Defendant
Hearing date: 22 September 2022
APPROVED JUDGMENT
This judgment will be handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10.00 AM on Monday 21 November 2022.
Introduction
This is an application for judicial review. Permission to seek judicial review was granted on 29 June 2022 by HHJ Auerbach (sitting as a Judge of the High Court).
Ms Noren (‘the Claimant’) challenges the Secretary of State for the Home Department's (‘the Defendant's’) decision:
i. to refuse her application which sought recognition as a British citizen or the grant of Indefinite Leave to Remain (ILR); and
ii. to determine that she was ineligible for all products under the Windrush Scheme.
The ‘Windrush generation’ is a term used to refer to those who, from the late 1940s to the early 1970s, came from various Commonwealth countries to make their lives in Britain and to help rebuild it after the war. The Windrush generation who were settled in the UK on 1 January 1973, were granted ILR by virtue of the Immigration Act 1971 (‘the 1971 Act’). Although this meant that they were lawfully entitled to live in the UK they were not provided with documentation confirming their right to enter or remain.
On 23 April 2018, the then Secretary of State for the Home Department declared in a ministerial statement that:
“… steps intended to combat illegal migration have had an unintended, and sometimes devastating, impact on people from the Windrush generation, who are here legally, but have struggled to get the documentation to prove their status.”
The Windrush Scheme, which was launched on 30 May 2018, was intended to put right these wrongs.
The relevant version of the Windrush Scheme, dated 24 January 2022, sets out four categories of person who qualify for settlement or leave to remain in the UK, or to have either status recognised. The four categories are as follows:
i. Commonwealth citizens who were either settled in the UK before 1 January 1973 or who have the right of abode;
ii. A Commonwealth citizen who was settled in the UK before 1 January 1973, whose settled status lapsed because they left the UK for a period of more than 2 years, and who is now lawfully in the UK and who has strong ties to the UK;
iii. A child of a Commonwealth citizen parent, where the child was born in the UK or arrived in the UK before the age of 18, and has been continuously resident in the UK since their birth or arrival, and the parent was settled before 1 January 1973 or has the Right of Abode;
iv. A person of any nationality, who arrived in the UK before 31 December 1988 and is settled in the UK.
The Claim
The Claimant asserts in the Statement of Grounds that the Defendant:
i. acted unfairly by failing to properly consider her application on the basis on which it was submitted ( Ground 1); and/or
ii. acted irrationally by failing to grant the application ( Ground 2).
The Claimant invites the Court to quash the decision made on 25 February 2022 (‘the Decision letter’), grant a mandatory order requiring the Defendant to make a lawful decision, make any other order the Court sees fit and grant a costs order in the Claimant's favour.
The application for judicial review fails on both grounds. This judgment explains why.
Background
The background to this claim including the immigration and procedural history is not materially in dispute and can be summarised as follows.
The Claimant's father was born in Nigeria on 8 November 1941 and first entered the UK on 10 December 1964. Her mother was born in Nigeria on 22 December 1943 and first entered the UK in December 1960. The Claimant's parents were married in the UK in 1967. The Claimant was born in Nigeria on 16 April 1973. She is a Nigerian national.
A Brief History of British and Nigerian Nationality
Prior to the commencement of the British Nationality Act 1948 (BNA 1948), the principal form of nationality was British subject status, which was obtained by virtue of a connection with a place within the Crown's dominions. The BNA 1948 came into effect on 1 January 1949. For the first time it established the status of Citizen of UK and Colonies (CUKC). The Nigeria Colony came within the UK and Colonies for the purposes of the BNA 1948. In accordance with section 4, a person born within the UK and Colonies on or after 1 January 1949, became a CUKC. By virtue of section 12, a person who was a British subject immediately before the date of commencement of the BNA 1948 became a CUKC if he had been born within the territories of the UK and Colonies and would have been a CUKC if section 4 had been in force at the time of his birth.
Section 5 of the BNA 1948 provided that:
“( 1) Subject to the provisions of this section, a person born after the commencement of this Act shall be a citizen of the United Kingdom and Colonies by descent if his father [emphasis added] is a citizen of the United Kingdom and Colonies at the time of the birth…”
The discriminatory effect of being able to acquire CUKC status by descent from a father, but not a mother has been removed subject to certain conditions (see — section 4C of the BNA 1981 as introduced by section 45 of the Borders, Citizenship and Immigration Act 2009). However, these provisions are not relevant to this case.
On 1 October 1960, Nigeria became an independent Commonwealth state and ceased to be part of the UK and Colonies. Section 2(2) of the Nigeria Independence Act 1960 (NIA) provided that, as a general rule, any person who immediately prior to 1 October 1960 was a CUKC, would on that day cease to be a CUKC, if he became a citizen of Nigeria and, if he, his father or paternal grandfather was born in the Colony or Protectorate (the territories of modern Nigeria comprise the former Nigeria Colony, Nigeria Protectorate and the northern part of what used to be the British Cameroons). CHAPTER II of Nigeria's federal independence constitution, which was contained in Schedule 2 to the Nigeria (Constitution) Order in Council 1960/1652, set out the Nigerian citizenship provisions. Section 7(1) of the constitution provided that any person who immediately prior to 1 October 1960 was a CUKC by birth in the Colony or Protectorate, became a citizen of Nigeria on that day, unless neither of his parents and none of his grandparents was born in the Colony or Protectorate (see extracts from Fransman's British Nationality Law, B.154).
As stated above, the Windrush generation who were settled in the UK on 1 January 1973, were granted ILR by virtue of the 1971 Act. Further changes to the right of abode and British nationality were made with effect from 1 January 1983 by the British Nationality Act 1981 (‘BNA 1981’). The key provisions under the BNA 1981 for present purposes are sections 2 and 11:
Section 2 states that:
“A person born outside the United Kingdom … after commencement shall be a British citizen if at the time of the birth his father or mother—
(a) is a British citizen otherwise than by descent; …”
Section 11 provides as follows:
“ Citizens of U.K. and Colonies who are to become British citizens at commencement.
(1) Subject to subsection (2), a person who immediately before commencement—
(a) was a citizen of the United Kingdom and Colonies; and
(b) had the right of abode in the United Kingdom under the Immigration Act 1971 as then in force,
shall at commencement become a British citizen.”
Nationality and Immigration History of the Claimant's Parents
The Claimant's father became a CUKC when the BNA 1948 came into force on 1 January 1949. Both of his parents were born in Nigeria. Therefore, the Claimant's father was not a British citizen by descent. He became a Nigerian citizen on 1 January 1960 and lost his CUKC status in accordance with s.2(2) NIA.
The Claimant's parents were settled in the UK prior to 1 January 1973. According to the Case Information Database (CID) notes this was evidenced by educational records, college certificates, marriage and birth certificates (at least two of their children were born in the UK) and employment contracts. However, the Claimant's parents left the UK prior to her birth on 16 April 1973. Had the Claimant's father been recognised as a British citizen at the time of her birth she would have been a British citizen at birth. Both parents visited the UK on numerous occasions and claimed that they had never spent more than 2 years at any one time outside the UK. However, the Defendant was only able to confirm returns to the UK from 1998 onwards and therefore concluded that both parents had, on occasion, been absent for more than 2 years.
The Claimant's father obtained Leave to Remain as a Tier 1 (Entrepreneur) with his wife as his dependant partner in 2016 and subsequently made applications under the Windrush Scheme in 2018. The Claimant's parents' Windrush Scheme applications were considered at the same time. Both parents were granted ILR on 24 June 2019, pending consideration of their requests for British citizenship. The Claimant's parents were both granted British citizenship on 9 January 2020.
Immigration History of the Claimant
The Claimant first entered the UK as an adult on a visitor's visa in 2004. Thereafter, her immigration history is not relevant to this claim, until 30 April...
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