The High Court has ruled that the Home Secretary breached the human rights of two members of the Windrush generation when she refused to recognise them as British citizens. In R (Vanriel and Tumi) v the Secretary of State for the Home Department  EWHC 3415 (Admin), Mr Justice Bourne held that the Home Secretary had a discretion to disapply the requirement of the British Nationality Act 1981 that a person must have been in the UK for 5 years before making an application for citizenship (“the 5 Year Rule”). The Court held that the failure to exercise this discretion amounted to a breach of the Claimants rights to private and family life and their rights not to be discriminated against (Articles 8 and 14 of the European Convention on Human Rights).
The Claimants were refused citizenship purely because they did not meet the 5 Year Rule, despite their very strong connection to the UK. The only reason that they could not fulfil this requirement was because the Home Office had unlawfully prevented them from coming back to the UK earlier, and only granted them leave after the Windrush scandal broke.
Jeremy Bloom, Solicitor for the Claimants said as follows:
“This judgment is an absolute vindication for our clients who have shown amazing courage and determination to challenge the Home Office’s unlawful decisions. Our clients were locked out of the UK for years by the Home Office through no fault of their own, then told that they did not qualify for British citizenship because they did not meet the residency requirements.
The Home Secretary and her predecessors have been at pains to describe how important it is to them to right the wrongs suffered by members of the Windrush generation. They say that they consider members of the Windrush generation to be British citizens. In these cases, it took a High Court judicial review (which the Government defended to its last breath) to force them to use their discretion in a humane and compassionate way. The lessons have clearly not been learned at all. Home Office data shows that around 12,000 immigration applications have been refused under the Windrush scheme, and those members of this cohort who are in similar situations will now be able to challenge these refusals.
The Home Secretary said that she deeply regretted that there were no exceptions for members of the Windrush generation who are unable to qualify for citizenship through no fault of their own. This judgment proves that she was wrong about that, and will ensure that she acts in a compassionate and human rights compliant way when considering applications in the future.”
The legal team at Duncan Lewis Solicitors was Toufique Hossain, Jeremy Bloom and Nina Kamp. They instructed Chris Buttler QC (Matrix Chambers), Grace Brown (Garden Court Chambers) and Eleanor Mitchell (Matrix Chambers).
Read reported judgment HERE