Hubert Howard arrived in the United Kingdom in 1960, aged four. He was a citizen of the United Kingdom and Colonies back then and was fully entitled to enter the country of his nationality. The law changed around him over the years but he carried on with his life, ending up as a caretaker at the Peabody housing association. He was in truth lawfully resident in the United Kingdom for his whole life. But that was not how it seemed to some others, including officials at the Home Office.

He tried to visit his sick mother in Jamaica in 2005 but was thwarted when his application for a British passport was refused. He was unable even to attend her subsequent funeral. Then, in 2012, amidst Theresa May’s hostile environment crack down, he was sacked from his job because he could not prove his immigration status. He applied to the Home Office for official paperwork in 2014 but was refused on the ground that he could not, within 14 days, produce a document to cover every single year of his fifty years of residence in the UK.

Eventually, after the Windrush scandal was exposed by Amelia Gentleman, he was belatedly issued with documentary proof in 2018. But he was repeatedly refused British citizenship on the grounds that he lacked “good character”. This was because, in 2018, when he was seriously ill and visiting his doctor’s surgery, he became angry with the receptionist about some difficulty and attempted to snatch from her the paperwork which she was holding: in the course of doing so he grabbed her finger. For this, he was prosecuted and convicted for a common assault and received a 12 month suspended sentence. Under the Home Office’s policy on naturalisation applications, this was sufficiently serious to bar him from becoming a British citizen for at least three years.

It is hard to believe that the prosecution, conviction and severity of sentence were unrelated to the fact Mr Howard was black. The judges of the Court of Appeal, while recognising that the assault was trivial, suggest it was all because of “the importance rightly attached to the protection of public servants from being assaulted in the course of their work”.

Mr Howard’s illness worsened; he had leukaemia. Sadly, he died in November 2019. Shortly before his death, the Home Office reached out and granted him naturalisation “on an exceptional basis”. Mr Howard died a British citizen. His family was subsequently compensated under the Windrush compensation scheme.

In the meantime, he had initiated a challenge to the last of his refusals of citizenship. After his death his daughter was granted permission to continue the legal case. The claim initially succeeded in the High Court (our write up: Good character requirement unlawfully applied in Windrush cases). That decision has now been overturned by the Court of Appeal in Rose v Secretary of State for the Home Department [2022] EWCA Civ 1068.

The case turned on whether it was rational for then Home Secretary Sajid Javid to have maintained the full force of the good character policy even for Windrush victims, leading to the refusal of Mr Howard’s application. Mr Justice Swift ruled in the High Court that this was irrational, was fundamentally mismatched with government statements about the Windrush scandal and he held that the refusal of Mr Howard’s application to become British has been unlawful. The Home Office appealed.

Giving the judgment of the Court of Appeal, Lord Justice Underhill held that Sajid Javid was entitled as a matter of law not to relax the good character requirement for Windrush victims. He could have done so if he chose, but the fact he chose not to was not unlawful. The application of the good character test has been entrusted by parliament to the Home Secretary and was “quintessentially a policy matter of a kind with which the Court should be very slow to interfere”.

Underhill LJ goes further and suggests that it may be the case that “it is not legitimate to introduce considerations which themselves have nothing to do with character”. This suggestion is explicitly one made obiter.

Finally, the judgment is notable for using the term “hostile environment”. Underhill LJ explains in a footnote that submissions were sought from the parties on terminology and then goes on:

It seems that the term “hostile environment” was originally used by ministers themselves but that from 2017 they have preferred to use the term “compliant environment”. Both are arguably rather tendentious, but the original term is more familiar and arguably rather better English, and I will use it while emphasising that I do not intend it pejoratively.

This seems eminently sensible: “hostile environment” should be the preferred term for all of us.