The King (on the application of Vernon Vanriel) v The Adjudicator's Office
| Jurisdiction | England & Wales |
| Judge | Mr Justice Griffiths |
| Judgment Date | 28 April 2023 |
| Neutral Citation | [2023] EWHC 925 (Admin) |
| Docket Number | Case No: CO/4247/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2023] EWHC 925 (Admin)
Mr Justice Griffiths
Case No: CO/4247/2021
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Chris Buttler KC and Raza Halim (instructed by Duncan Lewis Solicitors) for the Claimant
The First Defendant was not represented
Edward Brown KC and Kathryn Howarth (instructed by Government Legal Department) for the Second Defendant
Hearing dates: 22 & 23 February 2023
Further written submissions: 24 February 2023
Approved Judgment
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Introduction
The Claimant was born in Jamaica in 1956. He was brought to the UK at the age of 6 in 1962 and lived here continuously until 2005.
He was part of what has been called the Windrush generation, that is, those Commonwealth citizens who came to the UK between 1948 (the year in which HMT Empire Windrush docked at Tilbury bringing in workers from the Caribbean) and 1973 (when the Immigration Act 1971 came into force). All these people, as Commonwealth citizens, had the right to live and work in the UK indefinitely without giving up their birth nationality, and to come and go as they pleased.
Commonwealth citizens arriving in the UK from 1973 did not have the same rights. A practice grew of requiring people of the Windrush generation to prove that they had entered the country before 1973, which many of them could not do. The result was that they were refused re-entry to the UK after absence abroad. This happened to the Claimant.
The Claimant went to Jamaica in July 2005 to visit family. But, when he tried to return on 17 September 2008, he was unlawfully refused entry. He was forced to stay out of the UK, against his will, for 10 years, until the treatment of the Windrush generation became a national scandal. He was finally allowed to re-enter the UK on 6 September 2018.
The Second Defendant established the Windrush Lessons Learned Review as an independent assessment to be carried out by Wendy Williams, a member of Her Majesty's Inspectorate of Constabulary. Her report ( Windrush Lessons Learned Review: Independent Review by Wendy Williams) was published by the House of Commons in March 2020. The Executive Summary said:
“Members of the Windrush generation and their children have been poorly served by this country. They had every right to be here and should never have been caught in the immigration net. The many stories of injustice and hardship are heartbreaking, with jobs lost, lives uprooted and untold damage done to so many individuals and families.”
One of the case studies in the Windrush Lessons Learned Review was the Claimant's. His experience was described in this way:
“Vernon went to Jamaica to visit the son he'd had there in the late 1990s. He stayed for just over two years. Although he didn't know it, that made the “indefinite leave to remain” stamp in his Jamaican passport worthless. He was refused a UK visa, though he had three children here. In the UK since the age of six, Vernon had been going to Jamaica since his father moved back in the early 1990s and had never obtained British naturalisation. It was cheaper just to get a visa each time. But now he was stranded. A former amateur and professional boxer, he started coaching. But as money slowly ran out, he lived in his aunt's chicken coop and a disused shack, relying on small amounts his sister sent from the UK. Eventually, he contacted David Lammy MP, who took up his case. After the Guardian ran his story, the British Embassy got in touch with an airline ticket for his return. Now 63, he'd spent 13 years in Jamaica, destitute.”
On 18 February 2021, the Second Defendant sent the Claimant a personal apology, in a letter she signed by hand. Her letter said:
“The injustice and hardships suffered by you, and other members of the Windrush Generation, at the hands of successive Governments, have been shameful. Most of us cannot imagine the emotional hardship of being made to feel unwelcome in our own country, let alone the financial burden it placed upon you, or indeed the uncertainty you must have felt over the future. I remain truly sorry for all you have been through. This Government is working to right the wrongs of the past and ensure they can never happen again. Delivering justice for those who have been affected has been my personal priority throughout my time as Home Secretary.”
The decision of this court in R (Vanriel) v Secretary of State for the Home Department [2022] QB 737 cleared the way for the Claimant to become a British Citizen, following an earlier refusal by the Second Defendant, held in that case to be unlawful, in 2019.
The issues
The case before me is about financial compensation to the Claimant under the Windrush Compensation Scheme (“the Scheme”). The Scheme was originally promulgated by the Second Defendant in April 2019. The Claimant has been paid a total of £103,501.31 under the Scheme, which he accepted on 20 September 2021 by signing and returning a form stating, in relation to the final payment:
“I accept this compensation, £91,516.31 [i.e. £103,501.31 less the payments already made], as full and final settlement for my claim.”
After the Claimant had taken the money, his solicitors sent a Pre-Action Protocol letter dated 8 November 2021 and issued a Claim Form on 13 December 2021.
Eyre J refused permission to apply for judicial review on three grounds, and granted permission on two other grounds (Grounds 4 and 5). Unusually, it may be relevant to recall exactly what he said when giving permission, because at various points it was emphasised to me by the Claimant that the giving of permission was significant in showing the arguability of the claims and, therefore, the injustice to the Claimant should it turn out that he was out of time.
Eyre J gave permission to proceed on the basis of the three issues which are those argued before me:
i) The effect of the “full and final settlement”.
Eyre J did not refuse permission on any ground because of the settlement, but he expressed doubts about the Claimant's answers to it. He did not consider it arguable that the settlement clause was “an attempt to oust the court's judicial review jurisdiction”. He recognised “considerable force” in the Second Defendant's contention that, having signed such an acknowledgement and received payment, it was “abusive” for the Claimant to seek judicial review of the decision to pay compensation in a particular sum. He also recognised “force” in the proposition that the effect of such acknowledgement was that the court should, in its discretion, decline relief, even if it was otherwise merited. However, he decided that those were matters “not apt for determination at the permission stage”.
ii) Ground 4: whether the Second Defendant's refusal to make an award to the Claimant for loss of access to benefits was based on a misconstruction of Annex I of the Scheme.
iii) Ground 5: in the alternative to Ground 4, and on the assumption that Ground 4 fails, whether the refusal of an award for loss of access to benefits under the Scheme was a breach of the Claimant's rights under Article 14 and Article 1 of Protocol 1 of the European Convention on Human Rights.
Eyre J said that Grounds 4 and 5 were “not compelling but they are arguable with sufficient prospect of success for permission to be granted”. He refused permission on Grounds 1–3, with which I am not, therefore, concerned.
An additional issue is whether a witness statement from Martin Forde KC, who describes himself as “directly involved in the drafting of the Scheme”, is admissible or not. His evidence is put forward in support of the Claimant's case on Ground 4 and Ground 5, but it was also deployed in support of the Claimant's arguments of construction on the effect of the settlement.
The Scheme Rules
The Scheme Rules applicable to this case were those dated December 2020. They have been revised since then.
Rules 1.1 and 1.2 explain the purpose of the Scheme as follows:
“1.1 This compensation scheme (“the Scheme”) is designed to compensate individuals who have suffered loss in connection with being unable to demonstrate their lawful status in the United Kingdom. Those most affected are often referred to as the “Windrush generation”.
(…)
1.2 There is no single or consistent picture of the loss suffered by those affected. The Scheme has been designed to address potential losses under a range of categories and to take into account the impact of the losses in each case, as far as possible.”
Rule 1.3 states that the basis of the Scheme is that “Compensation under the Scheme is paid voluntarily”.
Part 3 of the Rules is entitled “Redress”.
Rule 3.1 provides for an apology by the Home Office to be given in conjunction with awards. This the Claimant has received.
Rules 3.2 – 3.9 provide for “Types of compensation award” under various different headings, and, in every case, refer to an Annex dealing with each type respectively.
Rule 3.5 and Annex E govern claims “in respect of loss of access to child benefit, child tax credit or working tax credit”. None of these are benefits to which the Claimant was entitled. His claim for loss of access to benefits was in respect of other benefits.
Rule 3.8 and Annex H govern claims “in respect of impact on life”. The Claimant received an award under this Annex which the Secretary of State argues covered his present claim for loss of access to benefits.
Rule 3.9 provides that “A discretionary award may be made…”. Annex I governs that....
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