High Court dismisses challenge to refusal of indefinite leave under Windrush scheme

The High Court has dismissed a judicial review challenging the decision of the Home Secretary to refuse to grant indefinite leave to remain to the claimant, Jeanell Hippolyte, under the Windrush scheme. The case is Hippolyte v Secretary of State for the Home Department [2024] EWHC 2968 (Admin).

Claimant’s background

The claimant was born in St Lucia on 19 November 1982 and she came to the UK in August 2000, aged 17, with her mother who later returned to St Lucia. In September 2002 the claimant left the UK as her student visa was ending, although she wanted to remain in the UK with her family.

In February 2006 she applied for entry clearance to join her parents who were then both living in the UK. That application and the subsequent appeal were both refused. On 11 August 2008 the claimant applied for a working holiday visa, that was also refused.

She then entered the UK on a visitor visa on 26 March 2013. On 28 August 2020 the claimant applied for indefinite leave to remain under the Windrush scheme. The application was rejected on 23 February 2021 on eligibility grounds as she had not been continuously resident in the UK since arrival. She made a second application on 2 December 2022 which was refused on 19 January 2023.

The Windrush scheme

The scheme is summarised at paragraph 10 of the judgment. There were four groups of people who could register or naturalise as British citizens, qualify for settlement or get confirmation of the status they already held:

(1) A person in the United Kingdom: who as a Commonwealth citizen was either settled in the United Kingdom before 1 January 1973 and has been continuously resident in the United Kingdom since their arrival or has the Right of Abode;

(2) A person in the United Kingdom: who as a Commonwealth citizen was settled in the United Kingdom before 1 January 1973, whose settled status lapsed because they left the United Kingdom for a period of more than 2 years, and who is now lawfully in the United Kingdom and who has strong ties to the United Kingdom;

(3) A person outside the United Kingdom: who is a Commonwealth citizen who was settled in the United Kingdom before 1 January 1973 but who does not have a document confirming their Right of Abode or settled status, or whose settled status has lapsed because they left the United Kingdom for a period of more than 2 years;

(4) A person in the United Kingdom: who is a child of a Commonwealth citizen parent, where the child was born in the United Kingdom or arrived in the United Kingdom before the age of 18, and has been continuously resident in the United Kingdom since their birth or arrival, and the parent was settled before 1 January 1973 or has the Right of Abode (or met these criteria but is now a British Citizen).

The judicial review

The claimant was seeking to establish entitlement under the fourth category. The grounds for judicial review were that the Home Secretary had failed to consider exercising discretion in relation to the continuous residence requirement and that the claimant had been discriminated against in breach of article 14 of the European Convention on Human Rights.

On the first ground, the claimant submitted that the Home Secretary had an obligation to consider exercising discretion under section 3(1)(b) of the Immigration Act 1971 to waive the continuous residence requirement in category four, and had failed to do this. It was argued that an overstayer in the claimant’s position would be granted indefinite leave under the scheme and that it was unfair for the claimant to be punished for returning to St Lucia on expiry of her student leave.

It was also submitted that the continuous residence requirement was used to demonstrate a strong ongoing connection to the UK which the claimant could demonstrate through other ways such as her family in the UK. The third point was that the claimant had lost her chance to stay in the UK because the Home Secretary had failed to issue the claimant’s father with documents showing that he held indefinite leave until 2003.

The claimant said that she could have applied for indefinite leave in line with him when she arrived as a minor in 2000 if it was not for that delay. In support of this point the claimant pointed out that she has two brothers who arrived in 2007 and who were eventually granted indefinite leave based on their father’s status, after an initial refusal.

The Home Secretary’s position was that the evidence showed that the use of discretion had been considered and a decision made not to exercise it. The court disagreed with this, saying that “a fair reading of the correspondence and communications is that no consideration was given by the Secretary of State as to whether to exercise her discretion to waive the continuous residence rule”.

Despite the finding that this failure was unlawful, the court found that section 31(2A) of the Senior Courts Act 1981 applied here and concluded that the Home Secretary was highly likely to have reached the same decision if she had considered exercising her discretion. This ground was dismissed.

On the second ground, the discrimination argument initially relied on the claimant’s brothers as her comparators. After the Home Secretary disclosed documents explained her reasoning in their cases the claimant instead relied on a hypothetical comparator whose only difference was that they had not left the UK after arrival.

The issue for the high court to decide was whether the continuous residence requirement could be justified. The court held that it could, accepting the Home Secretary’s argument that the rule avoided “uncertainty and arbitrariness” and also considered relevant the fact that the rules of the Windrush Scheme were introduced after extensive consultation.

The court concluded that “the effects of the application of the continuous residence rule to the Claimant are outweighed by the importance of the objective that the Secretary of State seeks to achieve by the rule, and so Article 14 of the Convention is not breached in her case”. The judicial review was dismissed.

Conclusion

The court expressly distinguished this case from that of R (Vanriel & Anor) v Secretary of State for the Home Department [2021] EWHC 3415 (Admin) (covered by us here). That case was a challenge to the general statutory requirement that people be physically present in the UK on the date exactly five years before the date they apply for citizenship. The High Court said this case was different because the claimant was seeking to disapply a rule specifically designed for the Windrush Scheme.