Justice for Windrush? Reasonableness and Race in Howard

Timothy Jacob-Owens (GLOBALCIT/EUI) and Jo Shaw (GLOBALCIT/University of Edinburgh)

Hubert Howard was born in Jamaica in 1956 and moved to the UK at the age of three, where he lived until his death in 2019. Having been born a citizen of the UK and Colonies, he became a citizen of Jamaica following Jamaican independence in 1962, which meant that he was then treated as a ‘Commonwealth citizen’ for the purposes of UK law and therefore subjected to immigration control. In 2012, having never sought formal recognition of his legal rights and status, his employer concluded that Howard was unable to prove his right to work as required under new legislation putting some of the onus of border control on private parties. Consequently, he lost his job. He then entered the labyrinth of the UK’s immigration system. He applied for indefinite leave to remain and was initially rejected, having been unable to provide documents for every year since 1960 in order to prove his long-standing residence in the UK. After finally having his residence situation regularised, he later applied to naturalise as a British citizen but was refused, with the Home Office citing a series of minor past criminal convictions as evidence of his failure to meet the ‘good character’ requirement. The Home Office eventually reviewed his case and decided to grant his application for naturalisation. Hubert Howard died a few weeks later.

Howard’s case is illustrative of the broader injustices suffered by members of the ‘Windrush generation’, who travelled lawfully to Britain from various Caribbean territories (then colonies) after the Second World War for employment reasons and later fell into various gaps created by the rapid reshaping of UK immigration and citizenship law in the twilight of the Empire. The implications of this were later thrown into sharp relief by the strict documentary culture of the so-called ‘hostile environment’, under which excessively high evidentiary demands were imposed on individuals to prove their right to be in Britain, effectively ‘shifting’ the border inside the state. As a consequence, many members of the Windrush generation lost their jobs, were denied healthcare, and were even deported or denied re-entry to the UK (we will return to the citizenship implications of this in due course).

When the Windrush scandal broke in 2018, the then Prime Minister Theresa May – ironically the primary architect of the hostile environment in her former role as Home Secretary – issued a formal apology. May’s Home Secretary Amber Rudd made a parliamentary statement pledging to ‘put these wrongs right’, and was forced out of office by the scandal. A taskforce and compensation scheme were established, which – after a scandalously slow start – had paid out a total of £14.1 million by March 2021.

The Saga Continues

The story is far from over, however. In order to acquire British citizenship, members of the Windrush generation have been required to naturalise, despite the government’s acknowledgment that they are ‘British in all but legal status’. Steps were taken to facilitate this, including waiving the usual citizenship fees and the requirements to prove knowledge of the language and to pass the Life in the UK test. Nonetheless, two key barriers persist, both of which further highlight the failings of the state.

The first has affected those who cannot show that they satisfy the residence test, often as a consequence of the government’s own errors. In 2010, after attending his mother’s funeral in Jamaica, Trevor Donald was denied permission to re-enter Britain, despite having lived in the UK for over 40 years, and was only allowed to return in 2019. His subsequent application for British citizenship was then refused on the basis that he had not been resident in the UK for the previous five years. Similarly, Ken Morgan failed to meet the residence requirement and was refused British citizenship after his passport was wrongly confiscated by UK officials, leaving him stranded in Jamaica for 25 years.

Priti Patel, the current Home Secretary, claims that there is no legal ‘exception for members of the Windrush generation who are unable to qualify for citizenship through no fault of their own’. Reportedly ‘frustrated’ by this, it has been proposed that there should be legislative reform to allow the Home Secretary greater discretion to waive the residence requirement. The proposed reform may also introduce a discretionary adult ‘registration’ route for such cases. It remains an open question, however, whether the Secretary of State is really prevented from waiving the residence requirement in cases of this sort (either by ministerial discretion or by adopting secondary legislation), given that the current legislation provides for discretion with respect to at least certain aspects of this requirement. In any case, the fact that this issue was not (publicly) considered at the time the Windrush scheme was established betrays a lack of foresight on the part of a government that had been so intent on hampering people’s access to their residency rights.

The second persistent barrier to naturalisation for some members of the Windrush generation has been the continued application of the ‘good character’ requirement. As was done with the requirement to pay a fee for citizenship and to take the Knowledge of Language and Life in the UK test, Amber Rudd was in favour of relaxing this requirement and had developed a proposal for how it might be applied more leniently to Windrush victims. However, after she was forced to resign, Sajid Javid, her successor, reversed the proposal, opting instead to apply the requirement exactly as it would be applied to all other cases, including vulnerable groups such as many children born in the UK and applying to register as citizens.

This decision has subsequently had significant consequences for individuals like Hubert Howard, who have failed to satisfy the requirement because of a history of minor criminal offences. Many of the Windrush victims were left destitute by the measures taken by the UK and it is hardly surprising if some were therefore forced into petty crime in order to survive. As with the residence requirement, the fact that a person is deemed to fail the good character requirement is thus often connected to the failings of the state.

No Reasonable Minister

In a legal challenge brought by Howard, and continued after his death by his daughter, it was argued that the Home Office’s use of the good character requirement to refuse his naturalisation application was unlawful. The England and Wales High Court found that, in light of Rudd’s parliamentary statement and her attempts to facilitate naturalisation for members of the Windrush generation, the Home Secretary’s decision to apply the requirement in an undifferentiated manner fell short of what is called, in UK administrative law, the Wednesbury ‘reasonableness’ standard: no reasonable minister could have proceeded as Javid chose to, immediately after taking over from Rudd. ‘The logic of the Windrush statement’, the court argued, ‘required some form of departure’ from the usual approach (at [36]). The Home Office’s refusal of Mr Howard’s naturalisation application was thus held to be unlawful.

The High Court’s decision vindicates the view that Hubert Howard had a lawful argument to be granted British citizenship, something that should never have been in doubt given the government’s own position on the Windrush victims’ status. Unless the Home Office successfully appeals the decision, the Home Secretary’s guidance on the application of the good character requirement for members of the Windrush generation will now need to be rethought, with potential implications for others whose naturalisation applications have been refused on equivalent grounds. In addition, it has been argued that this judgment could have implications for a highly restrictive and arguably vindictive good character requirement which continues to be applied within the Windrush compensation scheme, denying compensation for state harm to those who have criminal convictions.

Race and the Limits of the Law

In addition to the common law challenge, it was also argued that the Home Office’s use of the good character requirement constituted unlawful discrimination under the European Convention on Human Rights. Unlike the Wednesbury argument, the High Court was quick to dismiss the view that Howard had suffered discrimination on the ground of race: ‘The good character requirement is applied to all non-United Kingdom nationals who apply to obtain British citizenship by naturalisation’ and ‘as applied to that class, the good character requirement is one that is justifiable and justified’ (at [20]). No mention was made of the fact that Howard had been a racialised (former) colonial subject. The court was somewhat more amenable to the argument that the Home Office had discriminated on the ground of ‘other status’, namely membership of the Windrush generation, but ultimately also dismissed that view.

These findings are perhaps unsurprising. A related issue was raised in the East African Asians case, which concerned the impact of post-war immigration restrictions imposed by the UK on British Asians from Kenya and Uganda. In that case, the European Commission on Human Rights acknowledged that the restrictions had ‘racial motives’ and found that the discrimination vis-à-vis British Asians holding citizenship of the UK and Colonies amounted to ‘degrading treatment’ within the meaning of Article 3 of the Convention. By contrast, the Commission argued that no such discrimination was suffered by those categorised as ‘British protected persons’, who were considered to be neither aliens nor full ‘British subjects’. In the absence of full citizenship, human rights law was thus blind to Britain’s discriminatory treatment of its former colonial subjects, despite the post-war citizenship regime itself being structured on white supremacist premises, as Nadine El-Enany has shown. The High Court’s findings in Howard further underline the limitations of human rights law as a means of challenging the systemic racism of the colonial state.

Lessons Learned?

The independent Windrush Lessons Learned Report argued that the Home Office must not only ‘acknowledge the wrong which has been done’ but must now also ‘open itself up to greater external scrutiny’. In Howard, as we have seen, the scrutinising power of judicial review went some way to correcting the injustice suffered by one member of the Windrush generation, and may yet also have consequences for others. For Howard himself, the verdict is far too little, far too late.  

Even the narrow avenues for redress offered by judicial review, often the only available remedy in immigration cases, are now threatened by the possible outcomes of the Independent Review of Administrative Law, which forms part of a broader programme of government unaccountability. In this context, it is difficult to take seriously the idea that the lessons of the Windrush scandal have really been learned.

The Lessons Learned report also acknowledges that the Home Office’s ‘failings demonstrate an institutional ignorance and thoughtlessness towards the issue of race and the history of the Windrush generation within the department, which are consistent with some elements of the definition of institutional racism’. The judgment in Howard is likewise blind to the historical foundations of the UK’s current citizenship regime, which had the effect of excluding a large segment of British society – racialised (former) colonial subjects – from enjoying secure access to rights and status.

Related concerns might now also be raised with respect to the government’s post-Brexit treatment of EU citizens, another group to have experienced the legal violence of the state in the form of radical status change. Some have already pointed to the risk of a ‘Windrush scandal for EU citizens’. It remains to be seen whether these fears will be realised.

Featured image: Steve Eason (CC BY-NC-SA 2.0)