The England & Wales Court of Appeal has concluded that the experience of hardship suffered by Windrush migrants irrelevant to the determination of their British citizenship applications.
On July 27 the Court of Appeal handed down its judgment in the case of Hubert Howard (deceased) (substituted by Maresha Howard Rose) v The Secretary of State for the Home Department. This was an appeal by the Secretary of State of the High Court decision of Mr Justice Swift who found that it was irrational for the Secretary of State not to take into account Windrush victimhood status when considering British citizenship applications.
Mr Howard, was born in Jamaica, then a British colony, on 17 December 1956. He arrived in the UK at the age of three, with his mother in November 1960 and resided there until his death on 12 November 2019.
Following Jamaica’s independence from the UK on 6 August 1962, and by virtue of having arrived in the UK before 1 January 1973, Mr Howard had indefinite leave to remain in the UK. This status meant that there was no limitation on his immigration leave and he could travel in and out of the UK as he wished; work; and access services without seeking permission. It meant that he was exempt from deportation. Significantly it also meant that having come to the UK as a British subject he saw himself as British. Although he was five when Jamaica became independent, the Government did not carry out an exercise to properly inform his parents or people of other newly independent countries of the consequences of independence to their British subject status.
Similarly, when the British Nationality Act 1981 came into force on 1 January 1983, which introduced a 5-year window for individuals like Mr Howard to register as British, this time-frame and the effect in law for failing to do it – that he would lose the entitlement- were not accurately explained to Mr Howard and others like him. The Government’s own commissioned report on the Windrush generation by Wendy Williams conceded this.
Mr Howard had tried for years prior to this to obtain confirmation of his status and continued to do so years after, being turned down at each turn.
In February 2018 the Home Office advised him to make another NTL application saying:
“Your case has recently been brought to my attention as you have been having certain issues due to not holding a document to confirm your status…..Given your circumstances it would be advisable to make an NTL application.”
When he eventually applied for citizenship, in 2018, Mr Howard had been convicted of common assault and received a 12-month suspended sentence. This conviction had followed an altercation he had had with a member of staff at his local GP surgery. He recalled that:
“HH came to the GP surgery because DPW had asked him to get his GP to sign a form in respect of his benefits. They had given him a time limit to get it to them or they were going to cancel his Employment Support Allowance. HH filled in his part of the form then gave it in to the GP surgery. He left it with them for 2 weeks. When he enquired about it a week later, [he was] told him that it had not been signed and that he should come back after a few days. When he returned, it had still not been signed. A few days later HH went back to the surgery and saw a form at the desk which he had not seen before. He introduced [himself] and asked for the signed form. A woman at the reception said it had not been signed. HH asked why. [He was] told him it would take 40 days. HH explained that that was not the form he wanted, he wanted the DWP form. [The staff member] kept on repeating that it would take 40 days for the form and was not listening to him...”
He was trying to get the form. In the process it is alleged that he grabbed the staff member’s finger. The police were involved and attended his home and asked him to apologise to bring the matter to an end. He refused to apologise for something he did not do. He was accused of common assault. He refused to plead guilty against advice and as a result he was only able to obtain representation under the duty scheme.
By then Mr Howard was suffering from leukaemia. As a result of the conviction, when he had finally obtained confirmation of his indefinite leave status and was able to apply for British citizenship under the Windrush Scheme, this was refused. The reasoning was that he did not satisfy the good character requirement, another criterion for naturalisation as a British citizen.
He challenged this in a judicial review claim in the High Court which, after his death on 12 November 2019, was continued by his daughter. The claim argued that the Home Secretary needed to consider applications made by Windrush migrants under the Windrush Scheme, the purpose of which is to correct past wrongs, with that purpose in mind.
The High Court ruled in his favour, recognising that “proceeding to determine applications by members of the Windrush generation on the basis of the general approach applied to all applicants, was not an option properly available to the Home Secretary.’
The decision by the Court of Appeal effectively says that Mr Howard’s experiences of hardship as a Windrush migrant are irrelevant to the question of good character.
Responding to the judgment, Deighton, Pierce, Glynn, the law firm which represented the interest of Mr Howard in the case, said:
“We think this is wrong. Fairness requires that for this cohort, and within the context of the Windrush Scheme, the assessment of good character should permit an assessment of how they have come to be where they are and the State’s role in that. The Windrush generation continue to be failed and the judgment has the effect of re-victimising those who have already suffered at the hands of the State.”
SOURCE: Deighton, Pierce, Glynn