From ‘Citizens of the UK and Colonies’, to ‘Commonwealth Citizens’, to ‘subject to immigration control’: the legislative erosion of the Windrush generation’s British citizenship rights is laid bare at paragraphs 1-5 of R (Howard) v Secretary of State for the Home Department [2021] EWHC 1023 (Admin). Anyone with an interest in mid-late 20th century British nationality and immigration law should read it in full. If we don’t learn about the past we can’t understand the present. Alison Harvey’s excellent piece from last July is worth delving into for more.

This particular case was a successful challenge to a 2018 decision of former Home Secretary Sajid Javid to continue to rigidly apply the “good character policy” to naturalisation applications made by the Windrush generation. Javid’s decision was held to be Wednesbury unreasonable and thus unlawful.

Any members of the Windrush generation who have been refused naturalisation on good character grounds due to minor offending should now consider re-applying.

Mr Hubert Howard

The claimant, Mr Hubert Howard, sadly died before the conclusion of these proceedings. The proceedings were continued on his behalf by his daughter.

Mr Howard was born in Jamaica in 1956 and brought to the UK in 1960. He automatically acquired citizenship of the UK and Colonies at birth under the British Nationality Act 1948.

On 5 August 1962 Jamaica gained independence and Mr Howard automatically became a Jamaican citizen. By becoming a Jamaican citizen, he ceased to be a Citizen of the UK and Colonies and instead became reclassified as a Commonwealth Citizen. Mr Howard could later have registered as a Citizen of the UK and Colonies on account of his residence in the UK, however he was just a child at that time and no application was made on his behalf.

With the passing of the Immigration Act 1971, Mr Howard being a person without the right of abode, became subject to immigration control. He was deemed to have indefinite leave to remain in the UK.

After commencement of the British Nationality Act 1981, the term “Citizen of the UK and Colonies” was replaced by “British citizen”. By 1 January 1988, Mr Howard had lost the opportunity to apply to register as a British citizen.

Mr Howard’s immigration woes began with his first brush with the hostile environment in 2012. His employer conducted a right to work check and he was unable to prove his right to work. Thus began his bureaucratic nightmare, much of which will sound painfully familiar to those following the Windrush saga.

No original documents to cover every second year since 1960

In 2014 Mr Howard applied to the Home Office for a No Time Limit endorsement (i.e. a document to prove he had indefinite leave to remain). It was refused because he didn’t provide one original document from every second year dating back to 1960. Yes, 1960.

The letter explained that for each year of residence in the United Kingdom he had to provide at least one piece of evidence demonstrating that residence. Thus, for Mr Howard, this meant that he had to have documentary evidence of his residence in the United Kingdom in each year since 1960. He was asked to provide the information within 14 days. 

Paragraph 8

Imagine being asked for original documents to cover a period of time spanning over half a century. And to pull them together within 14 days. I highlight this aspect of the case with some bias; it brings back memories of a Windrush case I was involved in around the same time with the same No Time Limit application response.

In 2018, following the statement made by then Home Secretary Amber Rudd on 23 April 2018, known as “the Windrush statement”, Mr Howard applied again and this time he was granted the indefinite leave to remain document he had been entitled to all along.

Naturalisation refused

He then applied to naturalise as a British citizen under section 6 of the British Nationality Act 1981. With ever-evolving reasons for refusal, he was refused on three occasions, each time on good character grounds.

Put shortly, Mr Howard’s application for naturalisation was refused on the basis of his criminal record: three convictions between 1974 and 1977 each of which had resulted in a Probation Order; three convictions relating to Class B drugs between 1984 and 1988 each of which had resulted in a fine; a conviction in 2000 for an offence under the Public Order Act which had been addressed by imposition of a further Probation Order; and the June 2018 offence which had resulted in the 12-month suspended sentence. As the letter put it, there were no “sufficient mitigating circumstances which means it would be appropriate to exercise discretion and grant … citizenship”.

Paragraph 13

“I have carefully considered whether it is appropriate to exercise discretion in your case”

Each refusal was accompanied by the notorious words “I have considered whether it is appropriate to exercise discretion in your case”. The outcome of that consideration was always “no”. Notwithstanding Mr Howard having been accepted as a member of the Windrush generation, and notwithstanding the Windrush statement describing the Windrush generation as British citizens, the decision-makers in Mr Howard’s case did not waiver; they followed the good character guidance rigidly and to the letter.

Until October 2019, that is. Shortly before he passed away, the Home Office reached out and granted him naturalisation “on an exceptional basis”.

No discrimination

The first challenge to the decision was framed in terms of Article 14 read with Article 8 of the European Convention on Human Rights. The discrimination claim was characterised in terms of the Windrush generation being a relevant “other status” for the purposes of Article 14. The Windrush generation was defined as all those who had a right to remain in the United Kingdom by virtue of section 1(2) of the 1971 Act who, prior to 1 January 1988, could have obtained British nationality by registration (without a good character requirement). As an alternative argument, the discrimination was characterised in terms of race. Swift J accepted the definition of Windrush generation and accepted that it is a group that has a relevant Article 14 “other status”. The race argument was not accepted.

Ultimately the discrimination challenge failed: Swift J held that regardless of whether the challenge was directed at the specific decision to apply the good character in Mr Howard’s case, or whether it more generally targeted the existence of a good character requirement at all for those of the Windrush generation, it fails. The application of a general rule which has a disproportionate effect on a group of people must either fail to pursue a legitimate objective, or alternatively if it does pursue a legitimate objective, it must lack reasonable justification. Swift J held that the good character requirement is a legitimate objective set out in primary legislation with reasonable justification, and it is capable of being pursued proportionately (paragraphs 24-25).

Unreasonable approach to good character

Key to this case was a witness statement from the Home Office’s Director in the Border, Immigration, Citizenship Policy and International Directorate. The statement explained a material sequence of events between April and May 2018 when successive Home Secretaries Amber Rudd and Sajid Javid considered whether to modify the good character requirement for those within the scope of the Windrush scheme previously announced by Rudd.

Rudd favoured change, Javid did not. Rudd wanted to make a special allowance in the good character policy for Windrush applicants. On 25 April 2018, she authorised this. Five days later Javid replaced Rudd as Home Secretary. He was asked about this policy on his first day in the job. In early May 2018, Javid decided that the good character policy should be applied equally to all applicants and that no distinction should be made between Windrush and non-Windrush applicants.

Swift J held that Javid’s decision to maintain the existing good character policy without modification for the Windrush generation was unlawful (paragraph 33).

the decision taken by Mr Javid in early May 2018 that the existing good character guidance should continue to apply without modification to Windrush generation applications, fell outside the range of options available to him acting reasonably. There is a mis-match, a lack of logical connection, between that decision and the approach to Windrush generation applications announced in the Windrush statement, and then made good on every other matter relevant to a naturalisation application.

Paragraph 35

Javid’s decision was unlawful because it failed to explain why no significance at all was given to the long period of lawful residence and integration of the Windrush generation, all of whom had arrived in the UK before 1973. Swift J recognised that the Home Secretary could not completely disapply the good character requirement — it is a statutory requirement after all — but it remained up to the Home Secretary to decide the policy underpinning that requirement:

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 logic of the Windrush statement required some form of departure.

Paragraph 36

In relation to the most recent decision of the Home Office to refuse Mr Howard’s application, Swift J held that the reliance placed on minor offences committed over a period of forty years was irrational (paragraph 36). Thus, both the broader policy decision of the Home Secretary and the subsequent application refusals specific to Mr Howard were unlawful.

Consequences for the Windrush generation

This decision has direct consequences for members of the Windrush generation who arrived in the UK before 1973 and who have been refused naturalisation on good character grounds. Assuming the Home Office does not appeal, I would expect to see an amendment to the good character policy to bring in changes along the lines of those originally mooted by Amber Rudd: i.e. a more generous approach to those who resided in the UK prior to 1973.

Those with particularly serious offending or other character issues (for example, terrorist associations) will likely not be aided by this judgment, but those with relatively minor offending issues may now find a path to citizenship opened up thanks to the persistence of Mr Howard, his daughter, and their legal team. Any person in this situation should consider a fresh application with reference to this judgment.