High Court Finds Home Office’s Restrictive Approach to Windrush Citizenship Applications Is Irrational

Grace Brown of the Garden Court Chambers Public Law Team represented Mr Howard and his daughter, led by Phillippa Kaufman QC of Matrix Chambers, and instructed by Connie Sozi and Olivia Duffield of Deighton Pierce Glynn.

The case was covered in The Guardian.

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C was a Jamaican national born in December 1960. He arrived in the UK in November 1965 and lived here until his death in November 2019. In May 2018 (after the Windrush scandal started to become public), C obtained indefinite leave to remain and thereafter applied for British citizenship. That application was refused in three decisions in November 2018, December 2018 and May 2019 with reference to the Home Secretary’s good character requirement. The nature of C’s criminal convictions however were characterised by the judge as ‘minor’.
The claim for judicial review was filed in April 2019 and was based on (para 25) the way in which the good character requirement was formulated and applied to C and to members of the Windrush generation in light of the April 2018 “Windrush Statement” made by the then Home Secretary (Amber Rudd). C contended that the refusal of British citizenship was unlawful in light of the matters stated in the Windrush statement including that the Windrush generation were fully integrated and “British in all but legal status”. In response to this part of the claim, D relied on a witness statement from the Director of the Policy and International Directorate Department of the Home Office (paras 28-31) and submitted that it demonstrated adequate consideration of application of the GCR to the Windrush generation.
The judge did not agree, concluding that the decision of the Home Secretary was ‘to be judged on its own terms’ (para 32) and that the decision to maintain the existing good character guidance for the Windrush generation fell to be taken in the context of the Windrush statement (para 34). The decision taken by the next Home Secretary (Sajid Javid) that the good character guidance should continue to apply to the Windrush generation without modification ‘fell outside the range of options available’ to the Home Secretary (para 35). Insofar as the decision of May 2018 sought to rely on offences committed some 40 years, 30 years and 18 years respectively before C’s application for citizenship, that decision was irrational (para 36) and the decision, from that date, to continue to apply the good character guidance to applications for naturalisation made by members of the Windrush generation, was unlawful (para 37).
Whilst the court also concluded that the good character requirement in Schedule 1 to the 1981 could not be disapplied by the Home Secretary, the ‘content’ of that provision was in fact a matter for the Home Secretary (para 35).
The case has implications for those Commonwealth citizens who were settled in the UK prior to 01 January 1973 (i.e., who had a right to remain under s.1(2) of the Immigration Act 1971) and who have criminal convictions as it is least arguable that the Home Office guidance: “Nationality: good character requirement” is not to be applied, without modification, to this category of claimant for naturalisation. The court found that the “logic of the Windrush statement requires some form of departure” from that guidance (para 36). As permission to appeal was refused the Home Secretary should now consider how and/or in what way the Windrush Scheme can and should be modified so that the general approach to good character is not applied, carte blanche, to the Windrush generation.