Home Office to reconsider Windrush compensation rejection after court loss

A claimant seeking compensation under the Windrush Compensation Scheme after being denied entry to the UK and removed from the UK in July 1999 will have his application reconsidered after the High Court quashed the Home Office’s refusal. The case is R (Lee) v Secretary of State for the Home Department [2025] EWHC 519 (Admin) 

Background

The claimant was born in Jamaica on 12 May 1956 and he moved to the UK on 1 December 1971. From 1 January 1973 he held indefinite leave to remain in the UK under section 1(2) of the Immigration Act 1971 but was not issued with any document confirming this. The claimant, his wife and their children travelled frequently between the UK, Jamaica and Guyana.

On 16 June 1999 the claimant was issued with a Jamaican passport in the UK. On 29 July 1999 the claimant travelled to the UK from Jamaica but was refused re-entry to the UK. He was detained for two days at Harmondsworth and returned to Jamaica.

His wife, a British citizen, and two of their children returned to the UK in January 2000. In March 2000 the claimant re-entered the UK and in April 2001 he was granted leave to remain until 23 April 2002. In May 2002 he was granted indefinite leave to remain.

On 8 August 2019 the claimant applied to the Windrush Compensation Scheme for compensation relating to various losses resulting from his inability to demonstrate his lawful status in the UK. This included his detention and removal from the UK in July 1999 and loss of access to employment from March 2000 to May 2001, as well as the impact his detention, deportation, inability to work and separation from his family had on him.

The claimant provided details of four of his passports, including copies of some pages, and he said that one of them had been lost. He also provided a witness statement with “very brief details of when he came to England in 1971, his schooling and work in the UK, and his detention and removal to Jamaica in July 1999”. The claimant said that he had travelled back and forth between the UK, Guyana and Jamaica before 1999 without any problems, but he did not provide dates for these.

On 5 May 2020 the claimant provided further information including more copies of pages from his passports. On 14 October 2020 a Home Office caseworker asked for evidence of the date the claimant had moved to Jamaica in 1997 (as he had mentioned this in his statement). They also asked for details of whether he had been in the UK between 1997 and 29 July 1999 along with any supporting evidence. On 11 November 2020 a response was sent saying that the claimant had provided all the information and documents that he had.

The compensation application was rejected on 17 March 2021, with the Home Office decision maker asserting that he had been outside the UK for two years before his attempted re-entry on 29 July 1999, that his indefinite leave had lapsed and refusal of entry had been lawful.

A tier 1 review was sought on 14 May 2021, pointing out that his Jamaican passport had been issued in the UK on 16 June 1999. On 6 December 2021 the tier 1 decision upheld the refusal. A subsequent tier 2 review led to an independent adjudicator stating that “the Home Office had not satisfactorily explained the decision-making process on the issue and asked it to provide a full explanation”.

Another refusal was issued on 20 December 2022. Quite bizarrely, the letter said that his Jamaican passport issued in the UK on 16 June 1999 could have been collected by someone else, before going on to note that the claimant used that passport to enter Jamaica on 21 June 1999 (it is difficult to conclude anything other than he travelled from the UK on the passport).

The refusal letter said that he had tried to enter the UK as a visitor in July 1999 and this indicated that his status had lapsed. The letter stated “we have no information to show you held ILR when you were refused re-entry to the UK on 29 July 1999”. The claimant applied for judicial review of the decision.

The judicial review 

In support of the judicial review, the claimant provided a witness statement with “a much fuller – and different – version of the events prior and up to 1999” than had been provided with his compensation application, including that he remembered being in the UK from December 1998 or January 1999 until June 1999. As the judicial review was to be decided based on the information the decision maker had at the time, it was submitted that this new evidence was relevant to show what the Home Secretary could have learned if the right enquiries had been made.

There were three grounds of challenge, the second one is the one that succeeded. There were two parts to the submission:

Ground 2(a) is that the Defendant wrongly thought that the Claimant retained ILR for two years after leaving the UK, and that was wrong in law because prior to July 2000 there was no such thing as non-lapsing leave. To that extent, it is closely related to ground (1). Ground 2(b) is that the Defendant “failed to recognise that under the Immigration Rules then in force, the Claimant had a right to seek readmission to the UK as a returning resident (whether or not he had been outside the UK for more than two years)”. It therefore by implication invokes paragraphs 18 and 19 of the then Rules.

As many of you will be aware, if a person with indefinite leave is outside the UK for more than two years (five years if they have settled status under Appendix EU), their leave will lapse. Before 30 July 2000, the legal position was different, and a person’s leave lapsed when they left the common travel area, under section 3(4) of the Immigration Act 1971.

This automatic lapsing of indefinite leave was subject to the immigration rules which provided that a person could be re-admitted for settlement on return to the UK. If not admitted as a returning resident, the person could be admitted as a visitor for six months.

The court said that when the claimant arrived at Heathrow on 29 July 1999 the immigration officer should have considered whether he should have been admitted for settlement under the rules, as he had last left the UK on 21 June 1999. The claimant would have met all of the conditions of the immigration rules except potentially the need to have held indefinite leave when he last left the UK. There was a need for the Home Office to determine whether he had held indefinite leave before the visit that ended when he went to Jamaica on 21 June 1999.

The court concluded that:

The upshot is that, in my judgement, the Defendant failed to ask herself the correct questions, based on how paragraphs 18 and 19 of the Rules would have applied to the Claimant in 1999 – both on 29 July 1999 and in relation to the visit that ended on 21 June 1999 – assuming he had documents to show his past immigration status. Although it is sufficient for the purpose of the judicial review to conclude the Defendant failed to ask herself the right question, I consider the error probably arose because the Defendant wrongly assumed the Claimant’s ILR lapsed if he could not establish he had not been outside the UK for more than two years: what has been referred to as the “two year rule”, bearing some similarity to the position following the 2000 Order.

The Home Secretary also attempted to have the judicial review dismissed under s.31(2A) of the Senior Courts Act 1981, which says that the High Court must refuse to grant relief if it is highly likely that the outcome would not have been substantially different if the conduct had not occurred. In seeking to rely on this section, the Home Secretary argued that the “totality” of the evidence, including the post-decision witness statement, showed that the claimant was not entitled to indefinite leave in July 1999.

The court said section 31(2A) was “not a licence for the court to supplant the public authority’s fact-finding function and to undertake a role which is not appropriate in judicial review proceedings” and that the fact finding and decision was to be carried out by the decision makers under the scheme. If wrong, the court said that it would have concluded that it was not “highly likely” that the outcome would have been the same.

The decision was quashed and must be remade by the Home Office.  

Conclusion

This is incredibly complex stuff, with a solid grasp of legislative history needed and it is not clear that all Home Office decision makers are up to the task. Reading this decision reminded me of last year’s report by the Parliamentary Ombudsman which found that the Home Office had been wrongfully denying people compensation. The claimant here has been fortunate to have an incredibly skilled legal team, but not all are so lucky.