A claimant wrongly given a deportation order couldn’t benefit from the Windrush Compensation Scheme because his indefinite leave to remain had already lapsed, the High Court has held in R (on the application of Thompson) v Secretary of State for the Home Department [2023] EWHC 2037 (Admin).

The compensation scheme was set up in the wake of the highly publicised Windrush scandal. Thousands of people who had lived in the UK legally for decades were wrongly treated as illegal immigrants because they didn’t have proof of their legal status. Many lost work, accommodation, or access to benefits. Some were detained, removed, or wrongly denied re-entry after trips abroad.

The facts

Mr Thompson was born in Jamaica and came to the UK as a child in 1969. He automatically acquired indefinite leave to remain in 1973 when the Immigration Act 1971 came into force.

In 2002, Mr Thompson travelled to Jamaica. He was convicted of possessing cocaine with intent to supply and imprisoned until 2005. As he had been outside the UK for more than two years, his indefinite leave to remain lapsed automatically under article 13(4)(a) of the Immigration (Leave to Enter and Remain) Order 2000.

When he returned to the UK, he was found to be in possession of cannabis and refused leave to enter. He was sentenced to two years’ imprisonment for importation, and a deportation order was made in 2006. The Secretary of State returned him to Jamaica later that year, but he came back to the UK in 2007, apparently using a false passport. He was imprisoned again in 2008 under a false name. He was removed to Jamaica again in 2012 on the basis that he was present in breach of a deportation order.

The deportation order was eventually revoked in 2019. This was because the Home Secretary had no legal power to make it in the first place. Under section 7 of the Immigration Act 1971, a Commonwealth citizen is exempt from deportation if they were ordinarily resident in the UK on 1 January 1973 and have been ordinarily resident for the last five years. That applied to Mr Thompson. He has now been readmitted to the UK with indefinite leave to enter.

The compensation application

Mr Thompson applied to the Windrush Compensation Scheme. The rules required him to show that he had suffered loss, damage, or detriment ‘in connection with being unable to demonstrate [his] lawful status in the United Kingdom’. ‘Lawful status’ is defined as right of abode or ‘settled status’. ‘Settled status’ is in turn defined as indefinite leave to enter or remain.

The Secretary of State refused compensation saying his leave had lapsed while he was outside the UK. That meant he didn’t have ‘lawful status’ by the time he was removed and so any detriment was not caused by an inability to demonstrate such status.

Is exemption from deportation ‘lawful status’?

By the time of the hearing, everyone agreed Mr Thompson had been exempt from deportation. He argued that this exemption should be equated with indefinite leave. The judge, Mr Justice Eyre, rejected this. There is, he pointed out, case law saying that an inability to deport or remove someone doesn’t give them a right to remain in the UK.

This meant that Mr Thompson couldn’t claim he had ‘lawful status’ purely by virtue of the exemption from deportation. There was some inconsistency in the evidence as to whether the legal mechanism used to send him to Jamaica was deportation (because his presence in the UK was not conducive to the public good) or administrative removal (because he had no leave to remain). Eyre J decided it was the latter, but this didn’t really matter for the purposes of the compensation scheme, which only applied if he had ‘lawful status’ at the relevant time.

Returning resident?

Mr Thompson’s alternative argument was that he should be regarded as having ‘lawful status’ because the refusal of leave to enter in 2005 was unlawful. He said that even though his indefinite leave had lapsed, the immigration officer should have considered granting him leave as a returning resident under paragraph 19 of the Immigration Rules. This contains a discretion to admit someone who has been away for more than two years; the rules at the time gave the example of someone who ‘has lived here for most of his life’.

Eyre J agreed that paragraph 19 didn’t seem to have been considered. But, he said, that made no difference. The fact was that Mr Thompson no longer had leave when he came back to the UK, and the decision made on arrival didn’t change that. He wasn’t legally entitled to indefinite leave to enter – at most he was entitled to be considered for it. There was therefore no reason to treat him as having lawful status for the purposes of his compensation application.

Anyway, Eyre J added, Mr Thompson would inevitably have been refused leave to enter even if paragraph 19 had been considered. The immigration officer would have had to consider the general grounds for refusal. These have since been tightened up (see here), but even back in 2005 they said someone should usually be refused entry if they’d been convicted abroad of an offence carrying at least 12 months’ imprisonment in the UK. They also allowed refusal for someone whose ‘character, conduct or associations’ made a grant of leave ‘undesirable’. Mr Thompson had attempted to import drugs into the UK within a week of his release from imprisonment in Jamaica for possession of drugs with intent to supply. It was, Eyre J concluded, ‘not conceivable’ that he would have been granted indefinite leave in these circumstances.  

Comment

The judicial review therefore failed. Mr Thompson didn’t have indefinite leave at the relevant time, so he couldn’t show he had wrongly suffered from an inability to prove ‘lawful status’.

It is noteworthy that Mr Thompson was granted indefinite leave to enter in 2019 despite not having suffered the kind of injustice the compensation scheme is aimed at. Eyre J cast some doubt on the correctness of that grant. It was apparently based on Mr Thompson being unlawfully deported despite being exempt, but that analysis, the judge said, was ‘questionable’ given that he could have been administratively removed anyway. The Home Secretary also seems not to have known before this judicial review that Mr Thompson had another conviction under a false name in 2008.

Mr Thompson’s judicial review is the third this year in which the High Court has considered the Windrush Compensation Scheme. All three claims have failed, although for different reasons; see (R (on the application of Kaur) v Adjudicator’s Office and another [2023] EWHC 1052 (Admin)  and R (on the application of Vanriel) v Adjudicator’s Office and another [2023] EWHC 924 (Admin), discussed here. Whether the scheme goes far enough remains open to debate.