R Hubert Howard (deceased, substituted by Maresha Howard Rose pursuant to CPR 19.2(4) and PD19A) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Swift |
| Judgment Date | 23 April 2021 |
| Neutral Citation | [2021] EWHC 1023 (Admin) |
| Date | 23 April 2021 |
| Docket Number | Case No: CO/979/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 1023 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Swift
Case No: CO/979/2019
Phillippa Kaufmann QC & Grace Brown (instructed by Deighton Pierce Glynn) for the Claimant
Sir James Eadie QC & David Blundell QC (instructed by Government Legal Department) for the Defendant
Hearing dates: 10 and 17 December 2020
Approved Judgment
A. Introduction
Hubert Howard was born in Jamaica in December 1956. In November 1960 he arrived in the United Kingdom. He lived here until his death in November 2019. By virtue of provisions in the British Nationality Act 1948, when Mr Howard was born he was a citizen of the United Kingdom and Colonies. With effect from 5 August 1962 when Jamaica gained independence, he became a Jamaican national. This was in consequence of section 3 of the 1962 Jamaica Constitution 1. At the same time, and by virtue of section 2 of the Jamaica Independence Act 1962, Mr Howard ceased to be a citizen of the United Kingdom and Colonies and became instead a “Commonwealth citizen”. (Under section 1 of the British Nationality Act 1948 the terms “Commonwealth citizen” and “British subject” had the same meaning). By virtue of being a Commonwealth citizen, Mr Howard came within the scope of section 6 of the British Nationality Act 1948. This permitted him to apply to be registered as a citizen of the United Kingdom and Colonies. Such an application would succeed if the Home Secretary was satisfied that the applicant was ordinarily resident in the United Kingdom and had been ordinarily resident continually for twelve months. No such application was made either by Mr Howard or on his behalf.
The next relevant piece of legislation is the Immigration Act 1971 (“the 1971 Act”). Section 1(1) of the 1971Act distinguishes between persons who have a right of abode in the United Kingdom and those who do not. Persons having the right of abode:
“…shall be free to live in, and to come and go into and from, the United Kingdom without let or hindrance except such as may be required under and in accordance with this Act to enable their right to be established or as maybe otherwise lawfully imposed on any person.”
Persons without the right of abode are allowed to “live, work and settle in the United Kingdom” only with permission and always subject to regulation and control imposed under 1971 Act. Two further parts of section 1 of the 1971 Act are material. Section 1(2) refers to indefinite leave to remain stating
“(2) Those not having that right may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by this Act; and indefinite leave to enter or remain in the United Kingdom shall, by virtue of this provision, be treated as having been given under this Act to those in the United Kingdom at its coming into force, if they are then settled there (and not exempt under this Act from the provisions relating to leave to enter or remain).”
Section 1(5) (in force until repealed by the Immigration Act 1988) required rules to be made specifically for Commonwealth citizens
“(5) The rules shall be so framed that Commonwealth citizens settled in the United Kingdom at the coming into force of this Act and their wives and children are not, by virtue of anything in the rules, any less free to come into and go from the United Kingdom than if this Act had not been passed.”
Thus, although Mr Howard did not have a right of abode in the United Kingdom he had a right to remain in the United Kingdom.
The 1971 Act modified the right for Commonwealth citizens to apply to be registered as citizens of the United Kingdom and Colonies. Following the 1971 Act, the Home Secretary had to be satisfied that such an applicant had been ordinarily resident in the United Kingdom at the date of his application “…throughout the last five years or, if it is more than five years, throughout the period since the coming into force of [the 1971 Act] without being subject, by virtue of any law relating to immigration or any restriction on the period for which [the applicant] might remain”: see paragraph 2 of Schedule 1 to the 1971 Act. Mr Howard did not make an application for registration as a citizen of the United Kingdom and Colonies under the provisions of the 1971 Act.
The legislative arrangements for registration changed again with the British Nationality Act 1981. Paragraph 2 of Schedule 1 to the 1971 Act was repealed. However, by section 7(1) of the 1981 Act applications that met the paragraph 2 Schedule 1 requirements could still be made within 5 years of 1 January 1983. If such an application succeeded the person would be registered as a British citizen. Mr Howard did not make an application during the permitted period.
With effect from 1 January 1988 when this right of application lapsed, Mr Howard and others whose circumstances were similar lost the opportunity to gain British citizenship by application. From this time the route to British citizenship was by application for naturalisation as a British citizen under section 6 of the 1981 Act.
The focus of these proceedings is the Home Secretary's decision in November 2018 to refuse Mr Howard's application for naturalisation as a British citizen. That application post-dated the statement by the Home Secretary (Ms Amber Rudd) in the House of Commons on 23 April 2018 (“the Windrush statement”). In that statement the Home Secretary accepted that some of the ways in which the Home Office had applied immigration rules aimed at combating illegal immigration had disadvantaged the “Windrush generation”, the generation of Commonwealth immigrants who had come to the United Kingdom from the late 1940's to the early 1970's, many of whom had not thought it necessary to obtain formal documentation to record the right to remain in the United Kingdom they had under section 1(2) of the 1971 Act.
That being so, this case is directed to the legality of arrangements put in place following the Windrush statement. Nevertheless, the evidence advanced for Mr Howard in this case includes evidence that he too had difficulty when prior to 2018, he sought obtain to obtain formal documentation that evidenced his right to remain and right to work in the United Kingdom, and had suffered disadvantage in consequence. In 2007 and 2010 Mr Howard made applications to obtain a United Kingdom passport. Each application failed because Mr Howard was not a British citizen. In February 2012 he was told that if he wished to obtain British citizenship he would first need to apply for indefinite leave to remain in the United Kingdom and if successful in that application could then apply under section 6 of the 1981 Act once he could demonstrate the required period of lawful residence in the United Kingdom. In 2012 Mr Howard lost his job as a caretaker with the Peabody Trust. He had been employed by the Trust since 2003. In a letter dated 28 November 2018 the Trust's Director of Human Resources, Alison Henderson described Mr Howard as “reliable, hardworking and diligent in carrying out his duties” but explained that “following an inspection by the Immigration Services in 2012 … [he] was unable to produce a passport and we had to let him go”.
In June 2014 solicitors acting for Mr Howard made what is referred to as a “No Time Limit Application”. This is an application by which persons who already have indefinite leave to remain can obtain a biometric resident permit. The application was supported by copies of various documents going back to 1965 which evidenced Mr Howard's presence in the United Kingdom. In August 2014 Mr Howard was asked to provide the original versions of the documents submitted with the application and to provide additional information. The letter explained that for each year of residence in the United Kingdom he had to provide at least one piece of evidence demonstrating that residence. Thus, for Mr Howard, this meant that he had to have documentary evidence of his residence in the United Kingdom in each year since 1960. He was asked to provide the information within 14 days. On 26 October 2014 the Home Office wrote noting it had not received the evidence requested. The letter continued as follows:
“As we have not received this evidence from you, your client's application has been considered on the evidence provided with the original application.
Your client is unable to demonstrate that they have been continuously resident in the UK, since being granted settled status and as a result, the Secretary of State is not satisfied that your client is entitled to NTL endorsement and therefore their application has been refused.
As fully explained on page 2 of the guidance notes for the NTL form your client's application fee has been retained by UKVI as we do not refund the fee paid for a refused NTL application.
Your client should note that a fresh application can be made at any time but an application received without the above evidence is unlikely to be successful.”
Following the Windrush statement in the House of Commons in April 2018, Mr Howard applied again to establish his right to remain in the United Kingdom. By letter dated 10 May 2018 he was informed that his application had been successful and that the Home...
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