High Court finds Home Office’s restrictive approach to Windrush citizenship unlawful

The High Court has found the Home Office’s restrictive approach to Windrush citizenship unlawful, in a judgement handed down today (23 April).

The judgement looked at the Home Office’s imposition of a restrictive ‘good character’ requirement that denied members of the Windrush generation citizenship status.

The ‘good character’ requirement became part of UK citizenship, introduced in the British Nationality Act 1981, long after many Windrush migrants came to the UK.

Despite this, and despite the clear aims of the Windrush citizenship application process, the Home Office continued to refuse citizenship to applicants on the basis of minor criminal records. The High Court has ruled today that this approach was unlawful.

The content of the ‘good character’ requirement is not defined in statute, and instead is a matter for the Home Secretary to set out in guidance.

Campaigners are now urging any person whose application for citizenship under the Windrush scheme was refused with reference to the Home Office’s restrictive requirement to consider re-applying in light of today’s judgment.

The ruling arrives too late for Hubert Howard, who died on 12 November 2019 having waited his whole life to be recognised as a British citizen since arriving in the UK in November 1960 at the age of 3.

Despite Government attempts to stop the litigation, his claim was continued by his daughter to vindicate what should have been plain all along: that Mr Howard was always entitled to British citizenship and that the many refusals, and that the many refusals he faced under the Windrush scheme before his death were wrong.

Had the right decision been made at the outset, granting him confirmation of his lawful status in the mid 2000s as he had sought, he would have had many years to enjoy his status of citizenship, a status he believed he held as a young boy growing up in Hackney.

Bringing the case, law firm Deighton Pierce Glynn argued that the Government’s failure to disapply the good character requirement for citizenship applications made by the Windrush generation was discriminatory and was irrational, because it undermined the Government’s intentions for the Windrush Scheme.

The High Court has agreed with the latter submission, in its judgment detailing the mundane hostility of successive Acts of Parliament that gradually restricted and then removed many Windrush migrants’ access to citizenship.

In a considerable vindication of Mr Howard’s legal struggle and that of his daughter, the High Court concluded that “in the context of what had been said in the Windrush statement this reliance on minor offences committed some 40 years, 30 years and 18 years, respectively before Mr Howard’s application for naturalisation as a British citizen was irrational.”

The Court’s conclusion regarding the decision of the then Home Secretary Sajid Javid to retain the ‘good character’ requirement in full “fell outside the range of options available to him acting reasonably.”

“Even allowing for the significant margin that the Wednesbury reasonableness standard permits any decision-maker, there is no sufficient reason to explain why, when it came to the good character requirement, no significance attached at all to the long-residence and integration of a group all of whom had arrived in the United Kingdom prior to 1973, at least 45 years earlier.”

The Home Secretary is currently seeking permission to appeal the judgement.

Connie Sozi of Deighton Pierce Glynn, representing Mr Howard and his daughter, said: “Applying barriers in the context of the Windrush scheme, which was set up to correct the historic injustice suffered by the Windrush generation was an abhorrent abuse of power by the Government and I am glad for Hubert that the High Court has now recognised it was unlawful.

“It is too late of course for him, but today’s ruling is at least considerable vindication for his daughter and his family and the many other families affected by the ‘good character requirement’.”