Mahabir & Ors v Secretary of State for the Home Department [2021] EWHC 1177 (Admin) (06 May 2021)
Mrs Lynda Mahabir came to the UK as a baby aged two months in 1969. She lived in the UK until 1977 but was forcibly removed by her father to Trinidad in 1977. The Home Office's failure to document her lawful immigration status meant that she was unable to return to the UK for 41 years, when she was finally granted leave to remain pursuant to the Windrush scheme in 2018. However, the Home Office demanded £22,909 in application fees from her husband and five children (including two minors) and refused to consider their entry visa applications under the Windrush scheme. But the family did not have the £22,909 to pay the Home Office. Sitting as a Deputy High Court Judge, Mr Tim Smith held that the SSHD committed "a colossal interference" in Mrs Mahabir's right to family life because she either had to forego the remedies the executive had put in place with the express intention of remedying the injustice suffered by her and others like her, or else she had to break up the family. Notably, she broke up the family, hoping that it was only temporary, but in the process she suffered the "colossal interference" with her right to family life identified by Lord Wilson in R (Quila) v SSHD [2012] 1 AC 621. The court noted that by 2018 heartbreaking accounts of the Windrush scandal were reported in the media. The plight of Windrush victims was well known indeed, and these events marked a racist epoch in British history.
In January 2020, Mrs Mahabir brought her son Micah-Bjorn Mahabir, the sixth claimant, to the UK. He was granted leave to enter for six months and applied for leave to remain as in-country applicant invoking article 8 of the ECHR and argued that to be separated again from his mother would result in an interference with his and his mother's rights. He was granted granted limited leave to remain in February 2021. Except for the sixth claimant, no application had been made in relation to Mr Mahabir and the rest of the couple's children. The claimants did not seek a conventional public law remedy but a remedy based on their ECHR rights. Accordingly, the SSHD accepted that no point could be taken based on the absence of any actual application. Mr Smith recalled that in the Windrush Lessons Learned Review Independent review by Wendy Williams it had been made quite clear that the Immigration Act 1971 provided the Windrush generation the right of abode in the UK but they were not given any documents to demonstrate their status and records were not kept. On the other hand, "They had no reason to doubt their status, or that they belonged to the UK. They could not have been expected to know the complexity of the law as it changed around them." Wendy Williams lamented that "in particular their history was institutionally forgotten" and in light of the infamous hostile environment policies of the UK government, the scale of the problem began to be understood by 2017 and in the spring of 2018 national newspapers and journalists, chief among them the Guardian's Amelia Gentleman, were reporting harrowing stories about the scandal.
Context
On 23 April 2018 in her oral statement to Parliament about the Windrush scandal, Amber Rudd, the Home Secretary of the day, had unconditionally pledged to Parliament that the wrong suffered by the Windrush generation needed to be "put right" and that "an apology is just the first step" in that process. The government established the Windrush Scheme, it came into force on 30 May 2018 to provide support to Windrush victims with applications for documentation and advice on how the scheme worked alongside existing immigration rules. Mrs Mahabir fell within the Group 1 sub-category "those who wish to return to the United Kingdom from overseas" but her husband and children did not fall within this sub-category and were not otherwise Windrush victims under the guidance, whether within Group 1 or at all.
For persons such as Mrs Mahabir who were Commonwealth citizens arriving before 1973 but who were subject to immigration control and had been outside the UK for more than 2 years, the process for re-establishing ILR was firstly to apply for a returning resident visa entitling them to ILE for 6 months. After obtaining ILE status the applicant was able to enter the UK, at which point they could apply for a permit confirming that they now held ILR. In summary, Mrs Mahabir submitted that the SSHD's actions were unlawful in that they breached article 8 – the right to respect for private and family life – and article 14 – prohibition of discrimination – of the ECHR. The article 14 ground was argued dually on the basis direct and indirect discrimination, "Thlimmenos" discrimination after the case of Thlimmenos v Greece (2001) 31 EHRR 15 in the ECtHR.
The High Court
As to the Windrush Scheme and its application to the claimants, Mr Tim Smith said that it was clear that Mrs Mahabir was a Windrush victim. Whether she was a "paradigm" type of victim was unnecessary for the court to decide as it had no bearing on her eligibility for the special treatment flowing from her identification as a victim within the scheme. He did not consider that an application by a family member of a Windrush victim would be "in connection with" a Windrush application. There was no doubt that Mrs Mahabir, being the only Windrush victim in these proceedings, could not herself make an application for leave to enter on behalf of her family members. Further, as the decision-maker had found in the decision to grant leave to remain to the sixth claimant he was granted leave because a refusal of his application would result in unjustifiably harsh consequences for him, his mother Mrs Mahabir whose article 8 rights it was evident from the information provided, would be affected by a decision to refuse his application. Mr Smith said that "it seems to me that that must be right" and he further noted that the SSHD "maintained that there is no discretion available to her officials under the Windrush scheme to waive, in whole or in part, the requirement to pay the application fees." He concluded that on a true reading of the SSHD's policies this was correct and that payment of the full fee had to be made. Accordingly, he went on to hold that:
161. A consequence of this is that the First Claimant was faced with a thankless choice. Either she had to forego the remedies which the Defendant had put in place with the express intention of remedying the injustice suffered by her and others like her, or else she had to break up the family. She chose to do the latter – in the hope no doubt that it would be only temporary – but in the process she has suffered the "colossal interference"with her right to family life identified by Lord Wilson in Quila. The evidence from the First Claimant in her witness statement about the negative impact of the separation from her family upon her is both undisputed and unsurprising.
In the circumstances of the case, it made little difference whether the court identified that interference as rendering the procedure effectively inaccessible to her (a breach of the procedural limb of article 8) or a disproportionate interference with respect for her family life (a breach of the proportionality limb of article 8). The court was satisfied that it constituted a breach of both limbs.
Following the approach in R (Gudanaviciene) v Director of Legal Aid Casework [2015] 1 WLR 2247, it was clear to the court in relation to the procedural limb that a procedure which depends upon the payment of an unaffordable fee cannot be said to be "effectively accessible" to those whose human rights are affected. It was too much to say that the cure for this must be to make entry applications by family members of a Windrush victim fee-free. Mr Smith also stated that "an assessment of means against an affordability criterion in individual cases may lead to the conclusion that no fee at all can be afforded but that is not necessarily the case for all applicants."
As for the proportionality limb, the court noted the evidence for the government in these proceedings provided by Alison Samedi, who was at the relevant time a Deputy Director of the Home Office with responsibility for Windrush policy. Ms Samedi's evidence gave an explanation of the origins and rationale for the policy. The SSHD submitted that she was entitled to draw the lines of her policy in the way she did and that where Parliament has approved the Windrush scheme the court should afford the government a wide margin of appreciation. Mr Smith judged that the argument fell down for two reasons and held:
164. … Firstly whilst it is the case that the statutory elements of the Windrush scheme have been approved by Parliament the policy and the guidance given to Home Office officials which shape the operation of the scheme have not; they remain within the purview of the Defendant and her Department. Secondly, whilst Ms Samedi's explanation seeks to justify why the benefits of the Windrush scheme have deliberately not been extended to applicants in the position of the Second to Seventh Claimants I have concluded that the breach relates to the First Claimant's article 8 rights. Ms Samedi's explanation of the policy rationale does not therefore justify the failure to safeguard the First Claimant's article 8 rights.
167. … It suffices for me to note that the interference with the First Claimant's article 8 rights that I have identified means that there "may well" be a strong claim mounted by any of the other Claimants as and when they apply for leave. That has certainly been the case for the Sixth Claimant's application already, as acknowledged in terms by one of the Defendant's officials. It is not appropriate for me to stray beyond that conclusion but neither is it necessary for me to do so for present purposes.
168. It will be seen that my decision is based on the article 8 rights of the First Claimant rather than those of the Second to Seventh Claimants. My decision is thus firmly anchored to the operation of the Windrush scheme, which the First Claimant indisputably benefits from.
169. My finding that the First Claimant's article 8 rights have been breached is sufficient [to] allow the claim under Ground 1.
The court added that an application for entry by Mr Mahabir and the rest of the couple's children can only be made by the them themselves. Any consideration of article 14 must therefore consider the treatment given to them, not to Mrs Mahabir. Article 14 does not create a freestanding right and a claim must be associated with another ECHR right. But in this case, the court had no difficulty in holding that it is associated with the rights in article 8. The family unit was being broken up and that clearly affected the article 8 rights of the entire Mahabir family. Mr Smith agreed with the point that this is sufficient to place Mr Mahabir and the children left behind in Trinidad in the "other status" category within article 14.
No dispute arose as to the fact that Windrush victims like Mrs Mahabir are in a different position from other applicants. The question was whether family members of a Windrush victim were too in a different position from other applicants. Mr Smith held as follows:
174. … In my judgement the answer to that question must be yes. Their ability to access the entry application process bears directly on the article 8 rights of the Windrush victim, as I have found above. The fact that the outcome of family members' applications will bear directly on the article 8 rights of a Windrush victim is sufficient reason why the family members should be afforded a status over and above those of other applicants.
175. I am therefore persuaded that the failure of the Defendant to afford family members of a Windrush victim preferential treatment in the charging of fees, over and above other classes of applicant, is indirectly discriminatory against them and is unlawful. Ground 2 therefore succeeds.
Ground 3 was an argument about direct discrimination as the Windrush scheme permitted fee-free applications for a child of a Windrush victim if they reside in the UK but a child residing overseas needed to pay a full application fee. The court noted that the making of an application to be reunited with a Windrush victim from either within or outside the UK was not an "obvious relevant difference" as identified by Lord Nicholls in the authority of R (Carson) v Secretary of State for Work and Pensions [2006] 1 AC 173.
The grounds for making an application were article 8 based. Those grounds applied with equal force wherever the application is made from. Distinguishing between applications made from outside the UK and those made from within, when calculating fees, seemed to be an arbitrary distinction and one which the SSHD had not justified on the facts. Ground 3 therefore also succeeded.
Comment
Daniel Trilling of the Guardian has rightly described the Home Office as "cruel, paranoid, failing". Trilling also characterised the borders, immigration and citizenship section of the organisation as "part police state, part welfare state and part money-making scheme." He reported that a former colleague of the present Home Secretary Priti Patel informed him that "she's a blunt instrument" and always tries to come across as super tough in a place which is by its own admission "not fit for purpose". Applying a sledgehammer to crack a nut and causing problems for everyone everywhere seems to be a specialism of the Home Office.
The obscene level of fees charged for immigration and nationality applications are set out in the Immigration and Nationality (Fees) Regulations 2018 which stem from the hideous, "flagship", hostile environment legislation contained in the Immigration Act 2014. To say, as the Home Office used to before the handing down of this decision, that Mrs Mahabir's family should have paid £22,909 in visa application fees for entry clearance was extortion of the worst possible kind. Apart from the typical hallmark bloodymindedness of the UK government, there was no point whatsoever for the Home Office to have insisted on the £22,909 being paid by the Mahabir family. But they elected to do so and caused grief for the Mahabir family. As the judgment in the present case clearly shows, so great is the desire to make money that the 'money-making scheme' part of the Home Office could not resist emptying out Mrs Mahabir's pockets despite her being an undisputed victim of the Windrush scandal and despite her inability to pay these extortionist fees.