High Court rules that Secretary of State has discretion to grant citizenship to Windrush victims


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The Claimants were members of the Windrush generation who, having spent time outside of the UK with family, were unlawfully refused entry when they sought to return home and were effectively exiled for many years. It was only when the Windrush scandal broke that they were finally able to return. Both were then granted indefinite leave to remain, but refused citizenship on the basis that the British Nationality Act (“BNA”) contained an inflexible rule requiring that they have been in the UK on the date five years prior to their application (“the 5-year rule”).

The Court accepted the Claimants’ argument that the refusal of their citizenship applications was incompatible with their rights under Articles 14 and 8 ECHR in that it was both discriminatory and arbitrary. The Court further accepted that, under s 3 of the Human Rights Act (“HRA”), the Secretary of State was required to read the relevant section of the BNA as affording her a discretion to waive the 5-year rule in cases where members of the Windrush generation were unable to satisfy it through no fault of their own. The Court accordingly quashed the refusals and ordered that the Claimants’ applications be determined according to law.

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. In particular, it confirms that a s 3 reading is available wherever the application of a statutory rule is incompatible with the rights of an individual claimant (without any need for the claimant to establish that the rule will operate disproportionately in all or almost all cases); and that, if a s 3 reading is unavailable in such a case, an individual-level declaration under s 4 will in principle be available.

Chris Buttler QC represented Mr Vanriel and Ms Tumi; Eleanor Mitchell represented Mr Vanriel.

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