Vernon Vanriel v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Bourne |
| Judgment Date | 16 December 2021 |
| Neutral Citation | [2021] EWHC 3415 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1784/2021 |
The Queen On the application of
[2021] EWHC 3415 (Admin)
THE HON. Mr Justice Bourne
Case No: CO/1784/2021
CO/2941/2020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Chris Buttler QC, Eleanor Mitchell and Grace Brown (instructed by Duncan Lewis) for the Claimants
Sir James Eadie QC and Edward Brown (instructed by Government Legal Department) for the Defendant
Hearing date: Wednesday 1 — Thursday 2 December 2021
Approved Judgment
Introduction
These two claims for judicial review have been directed to be heard together. Mr Vanriel was granted permission by Cavanagh J on 27 July 2021. Ms Tumi was granted permission by Lane J on 13 October 2020.
The context for the claims is what has become known as the Windrush scandal. It is summarised in a report by the House of Commons Committee of Public Accounts which was published on 6 March 2019, in these terms:
“Between 1948 and 1973, nearly 600,000 Commonwealth citizens came to live and work in the UK with the right to remain indefinitely. But many were not given any documentation to confirm their immigration status, and the Home Office kept no records. In the last ten years, successive governments have introduced the “compliant environment” where the right to live, work and access services including benefits and bank accounts in the UK is only available to people who can demonstrate their eligibility to do so. Towards the end of 2017 the media began to report stories of members of the Windrush generation being denied access to public services, being detained in the UK or at the border, or being removed from, or refused re-entry to, the UK. This has been referred to as the Windrush scandal.”
On 30 May 2018 the Government brought into effect the Windrush Scheme. It was described in these terms in a Home Office press release:
“The Home Secretary has today announced that legislation has been introduced to bring into force a package of measures under a Windrush scheme.
The legislation will enable the government to begin processing citizenship applications for the Windrush generation – Commonwealth nationals who settled in the UK before 1973 – free of charge. Free citizenship applications for children of the Windrush generation who joined their parents before they turned 18 and free confirmation of the existing British citizenship for children born to the Windrush generation in the UK where needed – will also be able to commence.
People applying for citizenship under the scheme will need to meet the good character requirements in place for all citizenship applications but will not need to take the knowledge of language and life in the UK test or attend a citizenship ceremony.
The scheme also covers the government's commitment to help members of the Windrush generation who are looking to return to the UK having spent recent years back in their home countries. These people will also be able to apply for the relevant documentation free of charge. In addition, Mr Javid confirmed that non-Commonwealth citizens who settled in the UK before 1973 and people who arrived between 1973 to 1988 who have an existing right to be in the UK are not expected to pay for the documentation they need to prove their indefinite leave to remain.
Home Secretary, Sajid Javid said:
‘I am clear that we need to make the process for people to confirm their right to be in the UK or put their British citizenship on a legal footing as easy as possible. That is why I have launched a dedicated scheme which brings together our rights, obligations and offers to these people into one place.
I want to swiftly put right the wrongs that have been done to this generation and am committed to doing whatever it takes to make this happen.’”
Both Claimants claim to be victims of the type of injustice which gave rise to the Windrush Scheme, in that they were wrongfully prevented from entering the UK at a time when they had or were entitled to indefinite leave to remain in the UK (“ILR”). Both Claimants successfully applied under the Windrush Scheme and were granted ILR. Both subsequently applied for British citizenship. In both cases the Defendant refused the citizenship applications, considering that she was bound to do so by a provision of primary legislation (Sch 1, para 1(2)(a) of the British Nationality Act 1981, “BNA”) which requires that a citizenship applicant has been physically present in the UK five years prior to the application (“the 5 year rule”).
It is common ground that, on the face of it, the 5 year rule did indeed mean that citizenship could not be granted. The central question for this Court is whether the Human Rights Act 1998 (“ HRA”) nevertheless mandates a different outcome — and/or whether there should be a declaration of incompatibility in respect of the provision containing the 5 year rule.
Factual background
Mr Vanriel was born in Jamaica in 1956. In 1962 he came to the UK with his mother to join his father who was already working here. He was and is a Commonwealth citizen settled in the UK before 1 January 1973 and is therefore a member of the first of four categories of person to whom the Windrush Scheme applies.
Mr Vanriel lived in the UK from 1962 until 2005, working, establishing family life and having two children here. After his mother died, his father returned to Jamaica in the 1990s. Mr Vanriel visited him there in 1998 and, while in Jamaica, had a brief relationship which resulted in the birth of a third child, a son, in December 1998. Thereafter he regularly visited his father and son in Jamaica, travelling on his Jamaican passport which contained a stamp showing that he had ILR. When he renewed his passport in 2003, the stamp was not reproduced but he thought nothing of it.
His father died in 2004 and he went to Jamaica to arrange the burial. When he sought to return, his application for leave to enter as a returning resident was refused. That decision was overturned on appeal in January 2005, and Mr Vanriel thought it had just been a “hiccup in the system”. He returned to Jamaica in July 2005 to spend an extended period with his third child. In early 2007 he wished to return to the UK and applied for leave as a returning resident, but was refused. He applied again, and was refused again on 8 December 2008, for reasons which are not now material.
Mr Vanriel found himself stranded in Jamaica for over 13 years. Thanks to health problems, he endured considerable hardship. But in 2018 the Windrush scandal occurred, and this prompted him to make a new application. On 22 August 2018 he was granted a visa as a returning resident under the Windrush Scheme, and he returned to the UK on 6 September 2018.
He applied for ILR on 11 October 2018 and a few days later, his representatives confirmed to the Defendant that he wished to become a British citizen.
On 21 November 2018 the Defendant confirmed that he had been granted ILR. He then waited until February 2020 to hear more about his citizenship application, when a data subject access request uncovered Home Office documents such as a note on 30 July 2019 stating that the application “will be unsuccessful”.
Further delays ensued and Mr Vanriel threatened to apply for judicial review. On 18 February 2021, the Defendant refused the citizenship application. In short, the decision was that the 5 year rule was not satisfied and there was no discretion to waive it.
The refusal on 18 February 2021 was contained in a personal letter from the Defendant, referring to the injustice and hardship suffered by Mr Vanriel and other members of the Windrush generation as “shameful” and apologising for his treatment. While reiterating that the 5 year rule could not be waived, the letter continued:
“ I am pleased that you have been granted settled status in the United Kingdom and that you have full rights to live, work and access benefits here. I have no doubt that you fully deserve to become a citizen of this country and I would like to assure you that you are well on the path to doing so.”
The letter expressed “ deep regret” for the fact that “ we are constrained by the parameters of the existing legislation”, added that the Government was urgently considering the scope for changing the law for cases of this kind and concluded that “ We will continue to work with you to ensure you can obtain citizenship at the earliest possible point, with no fees applied”.
Ms Tumi was born in Ghana on 3 September 1963. Her father arrived in the UK in about December 1963 and was joined by her mother in around March 1964. Ms Tumi arrived as a baby later that year. She has three siblings, one who accompanied her to the UK and two others who were born here, and all three are British citizens. On 21 October 1971, Ms Tumi's parents were registered as citizens of the United Kingdom and Colonies under section 6(1) of the British Nationality Act 1948 as amended by section 12(2) of the Commonwealth Immigrants Act 1962.
In 1972, Ms Tumi, her parents and her three siblings left the UK for Ghana as her parents had obtained work there. In 1980, following the breakdown of the relationship between her parents, Ms Tumi, then about 17, returned to the UK with her mother and her three siblings. She studied and worked. In 1982 she was married in the UK. On 9 October 1982, she gave birth to a daughter, who is a British citizen.
On 16 June 1984, Ms Tumi left the UK for the USA where her husband had been admitted to a university. Her daughter stayed in the UK under the guardianship of Ms Tumi's mother. Ms Tumi sought to return to the UK in October 1986 after her relationship with her husband had broken down. She presented to...
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