Timothy Jacob-Owens (EUI) and Jo Shaw (University of Edinburgh)
The plight of the UK’s Windrush generation has provided a potent and often tragic illustration of how the law can create and sustain a regime of precarity for those the state wishes to exclude. At issue here is the fate of racialised (former) colonial subjects who had lawfully travelled to Britain and who later fell afoul of the so-called ‘hostile environment’. Subsequent legislative and judicial responses following the breaking of the ‘Windrush scandal’ in 2018 have in turn illuminated the scope and limitations of the law as means of remedying this historical (and ongoing) injustice. We began to address the latter topic in an earlier blog post and in a recent article published in the Journal of Immigration, Asylum and Nationality Law (JIANL). These two publications explore the case of Hubert Howard, a member of the Windrush generation whose application to naturalise as a British citizen was rejected by the Home Secretary on the grounds that he failed the ‘good character’ requirement. In 2021, the High Court of England and Wales found that the Home Secretary’s decision was unlawful (see the blog post and article for a more detailed exposition of the facts and judgment). The case has since moved on, with the Court of Appeal overturning the High Court’s decision in late July 2022.
Before turning to the Court of Appeal’s judgment, it is worth briefly recalling the circumstances which led to the original rejection of Howard’s naturalisation application. Shortly after the Windrush scandal broke, the then Home Secretary Amber Rudd gave a statement pledging to facilitate access to British citizenship for members of the Windrush generation, including by waiving the usual fees and language and integration requirements. Rudd also intended to devise a more lenient approach to the ‘good character’ requirement but was forced to resign before this was put in place. Her successor, Sajid Javid, decided that the latter change was unnecessary, with the consequence that Howard’s naturalisation application was assessed against the usual standard. As the Court of Appeal’s recent judgment notes, ‘the only reason why he was found not to satisfy the good character requirement was [an] offence for which he had been convicted in June 2018’ (at [27]). The court goes on to describe that offence in the following terms:
In April 2018 Mr Howard, who was already seriously ill, attended his doctor’s surgery. He became angry with the receptionist about some difficulty and attempted to snatch from her the paperwork which she was holding: in the course of doing so he grabbed her finger.
On this basis, Howard was prosecuted, convicted of common assault, and given a 12-month suspended sentence. The Court of Appeal justified this outcome by reference to ‘the importance rightly attached to the protection of public servants from being assaulted in the course of their work’ (at [27]). As Colin Yeo notes, ‘[i]t is hard to believe that the prosecution, conviction and severity of sentence were unrelated to the fact Mr Howard was black.’ We might add that the incident occurred after he had been told he was not a British citizen, had been denied indefinite leave to remain, and had lost his job, all as a consequence of the hostile environment.
A reasonable minister after all
The High Court had held that no reasonable minister could have proceeded as Javid had chosen to, given the steps which Rudd had already taken to facilitate the naturalisation of members of the Windrush generation. ‘The logic of the Windrush statement’, the court argued, ‘required some form of departure’ from the usual approach to the good character requirement, presumably paving the way for it to be applied more leniently in such cases (at [36]). The Home Secretary’s approach was thus found to be what is called in English administrative law ‘Wednesbury unreasonable’ and hence unlawful.
In our JIANL article (p. 134), we noted that the High Court’s decision was ‘a fragile victory’ and that, on appeal, it might ‘be found to have been too intrusive vis-à-vis ministerial discretion’. As it turns out, our concerns were warranted. In a unanimous judgment, the Court of Appeal held that the question of how the good character requirement should apply to members of the Windrush generation ‘is quintessentially a policy matter of a kind with which the Court should be very slow to interfere’ (at [42]). For the court, the undifferentiated application of the requirement in cases such as Howard’s fell within the range of reasonable options; the Home Secretary had acted lawfully.
Any other avenues?
The Court of Appeal’s judgment is clearly a blow for those who are resorting to litigation as a means of seeking redress for members of the Windrush generation and reinforces a more general sense that the courts are very reluctant to intervene in politically sensitive citizenship cases, as observed elsewhere in relation to the Supreme Court decisions in Begum and PRCBC.
If traditional public law challenges seem to have little chance of success, we may wonder whether human rights law might offer an alternative avenue for redress. In its original decision, the High Court had rejected the argument that Howard had suffered discrimination contrary to Article 14 of the European Convention on Human Rights (ECHR), either on the ground of ‘race’ or ‘membership of the Windrush generation’ (as ‘other status’). In our JIANL article (p. 136), we suggested that it could plausibly be argued that a more lenient approach to the good character requirement is required under Section 3 of the Human Rights Act, which requires legislation to be read – as far as possible – as being compatible with Convention rights. On this basis, we speculated that ‘that the applicants [would] push for reconsideration of the “Windrush generation” discrimination claim on appeal’.
This expectation was not borne out, however: the Court of Appeal’s decision is confined solely to the ‘reasonableness’ argument. The judgment notes that counsel for the applicants had sought to argue in support of the High Court’s decision ‘by reference to article 14 of the European Convention on Human Rights’ but that they ultimately did not pursue this in argument (at [35]). While in one sense this seems like a missed opportunity, it also means that the possibility of deploying such arguments in future is not foreclosed by an adverse appellate court judgment at this stage. It remains to be seen how the higher courts might respond to future challenges of this sort, as the struggle to right the wrongs of the Windrush scandal continues.