The King on the application of Milton Vivian Thompson v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Eyre |
| Judgment Date | 10 August 2023 |
| Neutral Citation | [2023] EWHC 2037 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3046/2022 |
and
[2023] EWHC 2037 (Admin)
Mr Justice Eyre
Case No: CO/3046/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Birmingham Civil Justice Centre
33 Bull Street, Birmingham, B4 6DS
Grace Brown (instructed by Bhatt Murphy Solicitors) for the Claimant
William Hansen (instructed by Government Legal Department) for the Defendant
Hearing dates: 26 th & 27 th July 2023
Approved Judgment
This judgment was handed down remotely at 10.00am on 10 th August 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
On 21 st June 2019 the Claimant applied for compensation under the Windrush Compensation Scheme (“the WCS”). That application was refused in a series of decisions and reviews culminating in the Defendant's decision of 23 rd August 2022. The Claimant applies for judicial review of that decision with the permission of Steyn J.
The crux of the Defendant's reasoning in refusing the Claimant's application was that a compensation payment under the WCS fell to be made where an individual held lawful status in the United Kingdom but had suffered detriment because of an inability to demonstrate that lawful status. The Defendant's position was that the Claimant's leave to enter the United Kingdom had lapsed automatically on 29 th July 2004 and that the refusal of leave when the Claimant had sought to enter the country on 2 nd March 2005 had been lawful. It said that, as a consequence, the Claimant did not have lawful status in the United Kingdom until he was granted a Returning Resident's visa on 17 th April 2019. This, in turn, meant that detriments he had suffered were not caused by an inability to demonstrate his lawful status and so fell outside the scope of the WCS.
The Claimant advances three grounds of challenge but at the heart of all of them are the related questions of whether the Claimant had an entitlement to leave to enter the United Kingdom; of the lawfulness and effect of the decision of 2 nd March 2005; and of the Claimant's status for the purposes of the WCS as a consequence of the first two matters.
Ground 1 was expressed as being that it was wrong in law for the Defendant to have approached matters on the footing that the Claimant's indefinite leave to remain had lapsed before 2 nd March 2005. Although entitled in those terms the expansion of ground 1 in the Statement of Facts and Grounds focused on the contention that the refusal of leave to enter on 2 nd March 2005 had been unlawful. Ground 2 was closely related and was a contention that even if the Claimant had lost his indefinite leave to remain before 2 nd March 2005 he was to be regarded as having had lawful status from that date. This was on the footing that he should have been given indefinite leave to enter. In part these grounds were based on the Claimant's contention that he was to be seen as having lawful status because of his exemption from deportation. However, as developed in Ms Brown's skeleton argument and in oral submissions the Claimant's case focused on the contention that he should have been granted indefinite leave to enter on 2 nd March 2005. In ground 3 the Claimant said that his treatment was discriminatory and contrary to his Article 14 Convention rights. The discrimination was said to take the form of Thlimmenos discrimination as explained by Lord Reed in R(SC) v Work & Pensions Secretary [2021] UKSC 26, [2022] AC 223 at [48] namely treating persons in the same way when there were material differences between their situations. As it developed in the course of argument the Claimant's case in this regard was parasitic on grounds 1 and 2. The contention was that to the extent that the Claimant lacked lawful status that was because of a failure to equate his exemption from deportation with lawful status or because of the unlawful decision of 2 nd March 2005, as the Claimant characterized it, and that it was discriminatory to treat the Claimant in the same way as others who lacked lawful status but whose lack of it was the result of a lawful decision.
The Issues .
The principal issues are as follows.
First, it will be necessary to consider the interrelation between exemption from deportation, indefinite leave to enter or remain, and lawful status for the purposes of the WCS.
Next, I will consider the basis of the decision of 2 nd March 2005 to refuse the Claimant leave to enter. The Defendant says that the decision was made after consideration of Immigration Rule 19 as well as IR 18 and was lawful. The Claimant says that IR 19 was not considered and that the failure to do so meant that the refusal of leave was unlawful.
The Claimant was removed to Jamaica on 2 nd December 2006. The Defendant says that this was by way of administrative removal as a consequence of the fact that the Claimant had neither leave to enter nor leave to remain. The Claimant says that the removal was pursuant to a deportation order which should not have been made (it being common ground that the Claimant was exempt from deportation). The relevance of this removal and of the subsequent revocation of the deportation order to the determination of this claim will depend on the conclusion reached as to the interrelation between the Claimant's exemption from deportation and his possession of lawful status for the purposes of the WCS.
Then, it will be necessary to consider whether the Claimant had lawful status for the purposes of the WCS as a consequence of the 2 nd March 2005 decision and his entitlement or otherwise to leave to enter in March 2005. The Claimant says that although leave had been refused he was “admissible” and because of the unlawfulness of the refusal he should be regarded as having lawful status or as being entitled to it. The Defendant says that eligibility under the WCS depends on the Claimant showing that he had lawful status at the relevant time. She accepts that if the Claimant was entitled to leave to enter but had been refused it wrongfully then he was to be treated for the purposes of the WCS as having that status. However, the Defendant denies that the Claimant had an entitlement to be given leave to enter and she says that the refusal of leave was lawful.
The question of whether the Claimant was within the scope of the WCS will then have to be determined in light of the conclusions on the preceding issues and I will then consider the lawfulness and rationality of the refusal of compensation in the light of that determination.
A subsidiary issue arises from the Defendant's alternative argument that the decision maker under the WCS should have proceeded on the basis that even if the Claimant's position had not been considered under IR 19 in March 2005 a refusal of leave would have been inevitable if there had been such consideration. The Defendant said that on this footing section 31(2A) of the Senior Courts Act 1981 came into play and that I should refuse relief on the basis that the outcome for the Claimant would not have been substantially different if the conduct under challenge had not occurred.
As will be seen below the Claimant has a number of convictions for serious offending and has engaged in discreditable conduct in other respects. Ms Brown accepted that the Claimant's character and conduct would be relevant to the level of any award made to the Claimant under the WCS but said that they were irrelevant to his eligibility under that scheme and to the issues before me. It is correct that if the Claimant establishes his eligibility under the WCS and the consequent unlawfulness of the decision that he was not eligible then his character and conduct are not relevant to the relief sought in these proceedings namely a direction that a fresh decision be made. They are, however, relevant to two aspects of the matters before me. First, they are relevant to the lawfulness or otherwise of the refusal of leave to enter on 2 nd March 2005. Second, they combine with the inconsistencies in and the other unreliable features of the Claimant's application under the WCS and of his evidence in these proceedings to determine the approach I am to take to the necessary findings of fact as I will explain below.
The Legislative and Regulatory Framework .
The starting point is section 1 of the Immigration Act 1971 which provided in the following terms, first, for those who had the right of abode in the United Kingdom to be free to enter and remain in the country and, second, for those settled in the United Kingdom at the time the Act came into force to be treated as having been given indefinite leave to enter or remain.
“1.—General principles.
(1) All those who are in this Act expressed to have the right of abode in the United Kingdom 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 may be otherwise lawfully imposed on any person.
(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).
…”
By section 3(4) the Act provided for leave to enter or remain to lapse on travel outside the common...
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