Two victims of the Windrush scandal have won a High Court challenge arguing for citizenship law to be applied more leniently in special cases like theirs. Mr Justice Bourne held today that a seemingly inflexible provision of British nationality law requiring that people be physically in the UK exactly five years before they apply for naturalisation can be waived where insisting on it would be a human rights breach. The case is R (Vanriel & Anor) v Secretary of State for the Home Department [2021] EWHC 3415 (Admin).

Windrush victims denied British citizenship

Vernon Vanriel, the first claimant, is a classic Windrush case. Born in Jamaica in 1956, he came to the UK in 1962 to join his mother and lived here for 43 years. In 2005, he went back to Jamaica to bury his father and spend time with his son, staying for about 18 months. He was denied re-entry to the UK and ended up “stranded in Jamaica for over 13 years”.

“It has been hell”, Mr Vanriel told Amelia Gentleman of the Guardian in 2018. “If I ever end up accidentally going to hell, I’ll be well prepared for it from the experience I have had here”.

When the Home Office acknowledged the Windrush scandal and set up a scheme for giving people their papers, Mr Vanriel was allowed back in and secured indefinite leave to remain. Understandably, in light of his experience, he wanted British citizenship too. Officials sat on his citizenship application for two years and four months before issuing a refusal in February this year.

The problem was paragraph 1, Schedule 1 of the British Nationality Act 1981. This lists the requirements for naturalisation, which include:

that the applicant was in the United Kingdom at the beginning of the period of five years ending with the date of the application…

In other words, you have to be physically present in the UK on the date exactly five years before the date you apply for citizenship. For example, if you are about to apply for citizenship on 16 December 2021, you had better check that you were not abroad (gone home for Christmas, say) on 16 December 2016.  Mr Vanriel was, through no fault of his own, in Jamaica five years before the date of his naturalisation application.

Unlike many of the other requirements for naturalisation, the Home Office could not waive this one, even if it wanted to. As Mr Justice Bourne put it: “the 5 year rule is a hard-edged provision and there is no discretion to disapply it”. In fairness to the department, most lawyers agreed that its hands were tied by the five-year rule. The upshot was that there was no legal way for the Home Office to grant citizenship to Mr Vanriel and others in his position until they had been back in the UK for five years.

Duncan Lewis Solicitors did not share this view of the law. On behalf of Mr Vanriel and a second Windrush victim denied citizenship by the five-year rule, Eunice Tumi, they asked the High Court for a ruling that there is discretion to waive the five-year rule after all. Just two weeks after the hearing, Bourne J has come back with exactly that.

Reinterpretation of inflexible citizenship law

First, the judge found that the decision to refuse citizenship constituted discrimination against the claimants contrary to Article 14 of the European Convention on Human Rights. The claimants were treated the same as any other citizenship applicants despite their status as Windrush victims and the government could not justifiy that situation.

For these reasons, making the decisions in the Claimants’ cases by application of the 5 year rule with no discretion or flexibility was incompatible with their rights under Article 14…

For good measure, the refusals were also “incompatible with their Article 8 rights”.

Having established a human rights breach, Bourne J then asked: can Schedule 1 be interpreted a different way, so as to avoid that human rights breach? In other words, can the 1981 Act be read as though it allows a discretion to waive the five-year rule, even the actual words of the legislation do not?

Section 3 of the Human Rights Act 1998 says that “so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”. Using section 3, a judge can even “change the unambiguous meaning of the words in the legislation”, so long as he or she respects “the essential meaning or principle which Parliament intended” (see paragraph 105).

In this case, Bourne J found, the “essential meaning or principle” of Schedule 1 was that “citizenship will be granted only to those of good character who have shown a sufficient commitment and connection to the UK”. The five-year rule is a means to that end, not a fundamental principle in its own right. Hence it can be given a new meaning — one allowing for discretion in certain cases — so as to be compliant with human rights.

113. I therefore conclude that, under HRA section 3, it is possible to read and interpret schedule 1 to the BNA as if it contained a discretion to dis-apply the 5 year rule in cases where, because the Defendant’s default was (or may have been) the reason why the rule could not be satisfied, that reading is necessary to avoid an infringement of ECHR Article 14 and/or Article 8…

120. … the Defendant erred in law when deciding that she had no discretion.

This does not, the judge emphasised in paragraph 115, mean that all Windrush victims are automatically entitled to British citizenship. It will be up to the Home Office to consider exercising discretion in individual cases. On the other hand, given the wording of para 113, this new discretion to waive the five-year rule does not seem confined to Windrush cases only.

More discretion allowed in naturalisation applications

Mr Vanriel and Ms Tumi are now entitled to have their citizenship applications reconsidered, this time with the possibility of waiving the five-year rule. Their solicitor, Jeremy Bloom, said:

The Home Secretary said that she deeply regretted that there were no exceptions for members of the Windrush generation who are unable to qualify for citizenship through no fault of their own. This judgment proves that she was wrong about that, and will ensure that she acts in a compassionate and human rights compliant way when considering applications in the future.

Matrix Chambers, whose barristers represented the claimants, said:

As well as setting a valuable precedent for other Windrush victims who have been denied citizenship on a rigid application of the 5-year rule, the judgment establishes a number of important general principles concerning the interpretation and application of the HRA [Human Rights Act].

The Home Office may appeal, but the five-year rule is going to be softened one way or another. Clause 8 of the Nationality and Borders Bill currently before Parliament will amend Schedule 1 so as to allow the Home Secretary to waive the five-year rule. Bourne J held that didn’t make the case before him academic; if anything, the forthcoming amendment “lends some support to the fairly uncontroversial proposition that the present lack of a discretion can lead to injustice”.