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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Vanriel & Anor, R (On the Application Of) v Secretary of State for the Home Department [2021] EWHC 3415 (Admin) (16 December 2021) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2021/3415.html Cite as: [2021] WLR(D) 633, [2021] EWHC 3415 (Admin), [2022] 2 WLR 845, [2022] QB 737 |
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CO/2941/2020 |
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
THE QUEEN On the application of (1) VERNON VANRIEL (2) EUNICE TUMI |
Claimants |
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- and - |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
____________________
Duncan
Lewis) for the Claimants
Sir James Eadie QC and Edward Brown (instructed by Government Legal Department) for the Defendant
Hearing date: Wednesday 1 - Thursday 2 December 2021
____________________
Crown Copyright ©
The Hon. Mr Justice Bourne:
Introduction
"Between 1948 and 1973, nearly 600,000 Commonwealth citizens came to live and work in the UK with the right to remain indefinitely. But many were not given any documentation to confirm their immigration status, and the Home Office kept no records. In the last ten years, successive governments have introduced the "compliant environment" where the right to live, work and access services including benefits and bank accounts in the UK is only available to people who can demonstrate their eligibility to do so. Towards the end of 2017 the media began to report stories of members of the Windrush generation being denied access to public services, being detained in the UK or at the border, or being removed from, or refused re-entry to, the UK. This has been referred to as the Windrush scandal."
"The Home Secretary has today announced that legislation has been introduced to bring into force a package of measures under a Windrush scheme.
The legislation will enable the government to begin processing citizenship applications for the Windrush generation – Commonwealth nationals who settled in the UK before 1973 – free of charge. Free citizenship applications for children of the Windrush generation who joined their parents before they turned 18 and free confirmation of the existing British citizenship for children born to the Windrush generation in the UK where needed – will also be able to commence.
People applying for citizenship under the scheme will need to meet the good character requirements in place for all citizenship applications but will not need to take the knowledge of language and life in the UK test or attend a citizenship ceremony.
The scheme also covers the government's commitment to help members of the Windrush generation who are looking to return to the UK having spent recent years back in their home countries. These people will also be able to apply for the relevant documentation free of charge. In addition, Mr Javid confirmed that non-Commonwealth citizens who settled in the UK before 1973 and people who arrived between 1973 to 1988 who have an existing right to be in the UK are not expected to pay for the documentation they need to prove their indefinite leave to remain.
Home Secretary, Sajid Javid said:
'I am clear that we need to make the process for people to confirm their right to be in the UK or put their British citizenship on a legal footing as easy as possible. That is why I have launched a dedicated scheme which brings together our rights, obligations and offers to these people into one place.
I want to swiftly put right the wrongs that have been done to this generation and am committed to doing whatever it takes to make this happen.' "
Factual background
"I am pleased that you have been granted settled status in the United Kingdom and that you have full rights to live, work and access benefits here. I have no doubt that you fully deserve to become a citizen of this country and I would like to assure you that you are well on the path to doing so."
(1) There is no record of an ILR stamp being placed in Ms Tumi's passport, but that fact is not challenged as such.
(2) ILR stamps were not put in Ghanaian passports before 1973, and therefore such a stamp could only have been placed in Ms Tumi's passport after her return to the UK in 1980.
(3) Such ILR would have lapsed after 2 years' absence. A return before 1988 would not have automatically revived it because Ms Tumi was not settled in the UK on 1 January 1973 (see the reference to section 1(5) of the Immigration Act 1971 at [47] below).
(4) When Ms Tumi sought to enter in October 1986, her case fell for consideration under what was then paragraph 57 of the Immigration Rules, read in context of paragraph 56:
"56. A Commonwealth citizen who satisfies the immigration officer that he was settled in the United Kingdom at the coming into force of the Act, and that he has been settled here at any time during the 2 years preceding his return, is to be admitted for settlement. Any other passenger returning to the United Kingdom from overseas … is to be admitted for settlement on satisfying the immigration officer that he had indefinite leave to enter or remain in the United Kingdom when he left and that he has not been away for longer than 2 years.
57. A passenger who has been away from the United Kingdom too long to benefit from the preceding paragraph may nevertheless be admitted if, for example, he has lived here for most of his life."
Legal framework
"If, on an application for naturalisation as a British citizen made by a person of full age and capacity, the Secretary of State is satisfied that the applicant fulfils the requirements of Schedule 1 for naturalisation as such a citizen under this subsection, he may, if he thinks fit, grant to him a certificate of naturalisation as such a citizen."
"(1) Subject to paragraph 2, the requirements for naturalisation as a British citizen under section 6(1) are, in the case of any person who applies for it—
(a) the requirements specified in sub-paragraph (2) of this paragraph, or the alternative requirement specified in sub-paragraph (3) of this paragraph;
(b) that he is of good character; and
(c) that he has a sufficient knowledge of the English, Welsh or Scottish Gaelic language; and
(ca) that he has sufficient knowledge about life in the United Kingdom; and
(d) that either—
(i) his intentions are such that, in the event of a certificate of naturalisation as a British citizen being granted to him, his home or (if he has more than one) his principal home will be in the United Kingdom; or […]
(2) The requirements referred to in sub-paragraph (1)(a) of this paragraph are—
(a) that the applicant was in the United Kingdom at the beginning of
the period of five years ending with the date of the application, and that the number of days on which he was absent from the United Kingdom in that period does not exceed 450; and
(b) that the number of days on which he was absent from the United Kingdom in the period of twelve months so ending does not exceed 90;
(c) that he was not at any time in the period of twelve months so ending subject under the immigration laws to any restriction on the period for which he might remain in the United Kingdom; and
(d) that he was not at any time in the period of five years so ending in the United Kingdom in breach of the immigration laws.
(3) The alternative requirement referred to in sub-paragraph (1)(a) of this paragraph is that on the date of the application he is serving outside the United Kingdom in Crown service under the government of the United Kingdom."
"(1) If in the special circumstances of any particular case the Secretary of State thinks fit, he may for the purposes of paragraph 1 do all or any of the following things, namely—
(a) treat the applicant as fulfilling the requirement specified in paragraph 1(2)(a) or paragraph 1(2)(b), or both, although the number of days on which he was absent from the United Kingdom in the period there mentioned exceeds the number there mentioned;
(b) treat the applicant as having been in the United Kingdom for the whole or any part of any period during which he would otherwise fall to be treated under paragraph 9(1) as having been absent;
(c) disregard any such restriction as is mentioned in paragraph 1(2)(c), not being a restriction to which the applicant was subject on the date of the application;
(d) treat the applicant as fulfilling the requirement specified in paragraph 1(2)(d) although he was in the United Kingdom in breach of the immigration laws in the period there mentioned;
(e) waive the need to fulfil either or both of the requirements specified in paragraph 1(1)(c) and (ca) if he considers that because of the applicant's age or physical or mental condition it would be unreasonable to expect him to fulfil that requirement or those requirements.
(2) Sub-paragraph (3) applies in a case where, on the date of the application, the applicant is or has been a member of the armed forces.
(3) If in the special circumstances of the particular case the Secretary of State thinks fit, he may for the purposes of paragraph 1 treat the applicant as fulfilling the requirement specified in paragraph 1(2)(a) although the applicant was not in the United Kingdom at the beginning of the period there mentioned."
(1) Some are "hard-edged", meaning that the requirement (such as residence during a certain period) either is or is not objectively satisfied.
(2) Others, such as good character or the "sufficient knowledge" provisions are "soft-edged", meaning that it is for the Defendant in her discretion to decide whether or not they are satisfied.
(3) The 5 year rule is subject to an exception for those who have been in Crown service overseas, and it is made subject to a discretion when applied to members of the armed forces.
(4) Save to the extent in (3) above, the 5 year rule is a hard-edged provision and there is no discretion to disapply it.
(5) There is a discretion to disapply any of the other hard-edged requirements.
"(1) 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.
(2) This section—
(a) applies to primary legislation and subordinate legislation whenever enacted; …"
"ARTICLE 8
Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
ARTICLE 14
Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
"(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right.
(2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility. …"
"(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if—
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
(3) In this section "public authority" includes—
(a) a court or tribunal, and
(b) any person certain of whose functions are functions of a public nature,
but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament."
New proposed legislation
The issues
i. What is the natural meaning of paragraphs 1 and 2 of schedule 1 to the BNA in respect of the 5 year rule?
ii. Were the Defendant's decisions, giving those provisions their natural meaning, incompatible with the Claimants' rights under ECHR Article 14?
iii. Were the decisions, giving those provisions their natural meaning, incompatible with the Claimants' rights under ECHR Article 8?
iv. If the answer to ii or iii is yes, is it possible for those provisions to be given a different meaning which is compatible with the Claimants' ECHR rights under HRA section 3?
v. If the answer to iv is no, should there be a declaration of incompatibility under HRA section 4?
Issue i: the natural meaning of paragraphs 1 and 2 of the 5 year rule
Issue ii: Were the Defendant's decisions, giving those provisions their natural meaning, incompatible with the Claimants' rights under Article 14?
i. Does the subject matter of the complaint "fall within the ambit" of one of the substantive Convention rights?
ii. Does the ground on which the Claimants claim to have suffered the discrimination constitute a "status"?
iii. Have they been treated in the same way as other people whose situation is relevantly different from theirs because they do not share that status?
iv. Did the Claimants' treatment have an objective and reasonable justification?
"It is accepted that Windrush victims like the first claimant are in a different position from other applicants. The question is whether family members of a Windrush victim are too. In my judgement, the answer to that question must be yes. Their ability to access the entry application process bears directly on the article 8 rights of the Windrush victim, as I have found above. The fact that the outcome of family members' applications will bear directly on the article 8 rights of a Windrush victim is sufficient reason why the family members should be accorded a status over and above those of other applicants."
"(1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right,
(2) whether the measure is rationally connected to the objective,
(3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and
(4) whether, balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter."
"In order to qualify for naturalisation as a British citizen, an individual is required to demonstrate close links with, and a commitment to the UK. As part of this the expectation is that applicants should meet the residence requirements".
"115. In summary, therefore, the court's approach to justification generally is a matter of some complexity, as a number of factors affecting the width of the margin of appreciation can arise from 'the circumstances, the subject matter and its background'. Notwithstanding that complexity, some general points can be identified.
(1) One is that the court distinguishes between differences of treatment on certain grounds, discussed in paras 100—113 above, which for the reasons explained are regarded as especially serious and therefore call, in principle, for a strict test of justification (or, in the case of differences in treatment on the ground of race or ethnic origin, have been said to be incapable of justification), and differences of treatment on other grounds, which are in principle the subject of less intensive review.
(2) Another, repeated in many of the judgments already cited, sometimes alongside a statement that 'very weighty reasons' must be shown, is that a wide margin is usually allowed to the state when it comes to general measures of economic or social strategy. … In some of these cases, the width of the margin of appreciation available in principle was reflected in the statement that the court 'will generally respect the legislature's policy choice unless it is "manifestly without reasonable foundation" ' …
(3) A third is that the width of the margin of appreciation can be affected to a considerable extent by the existence, or absence, of common standards among the contracting states …
(4) A fourth, linked to the third, is that a wide margin of appreciation is in principle available, even where there is differential treatment based on one of the so-called suspect grounds, where the state is taking steps to eliminate a historical inequality over a transitional period. Similarly, in areas of evolving rights, where there is no established consensus, a wide margin has been allowed in the timing of legislative changes …
(5) Finally, there may be a wide variety of other factors which bear on the width of the margin of appreciation in particular circumstances. …
116. As the cases demonstrate, more than one of those points may be
relevant in the circumstances of a particular case, and, unless one factor is of overriding significance, it is then necessary for the court to make a balanced overall assessment."
"… there is not a mechanical rule that the judgment of the domestic authorities will be respected unless it is 'manifestly without reasonable foundation'. The general principle that the national authorities enjoy a wide margin of appreciation in the field of welfare benefits and pensions forms an important element of the court's approach, but its application to particular facts can be greatly affected by other principles which may also be relevant, and of course by the facts of the particular case."
"158. … it remains the position that a low intensity of review is generally appropriate, other things being equal, in cases concerned with judgments of social and economic policy in the field of welfare benefits and pensions, so that the judgment of the executive or legislature will generally be respected unless it is manifestly without reasonable foundation. Nevertheless, the intensity of the court's scrutiny can be influenced by a wide range of factors, depending on the circumstances of the particular case, as indeed it would be if the court were applying the domestic test of reasonableness rather than the Convention test of proportionality. In particular, very weighty reasons will usually have to be shown, and the intensity of review will usually be correspondingly high, if a difference in treatment on a 'suspect' ground is to be justified … But other factors can sometimes lower the intensity of review even where a suspect ground is in issue … Equally, even where there is no 'suspect' ground, there may be factors which call for a stricter standard of review than might otherwise be necessary, such as the impact of a measure on the best interests of children.
159. It is therefore important to avoid a mechanical approach to these
matters, based simply on the categorisation of the ground of the difference in treatment. A more flexible approach will give appropriate respect to the assessment of democratically accountable institutions, but will also take appropriate account of such other factors as may be relevant. As was recognised in Ghaidan v Godin-Mendoza [2004] 2 AC 557 and R (RJM) v Secretary of State for Work and Pensions [2009] AC 311, the courts should generally be very slow to intervene in areas of social and economic policy such as housing and social security; but, as a general rule, differential treatment on grounds such as sex or race nevertheless requires cogent justification.
160. It may also be helpful to observe that the phrase 'manifestly
without reasonable foundation', as used by the European court, is merely a way of describing a wide margin of appreciation. A wide margin has also been recognised by the European court in numerous other areas where that phrase has not been used, such as national security, penal policy and matters raising sensitive moral or ethical issues.
161. It follows that in domestic cases, rather than trying to arrive at a
precise definition of the ambit of the 'manifestly without reasonable
foundation' formulation, it is more fruitful to focus on the question whether a wide margin of judgment is appropriate in the light of the circumstances of the case. The ordinary approach to proportionality gives appropriate weight to the judgment of the primary decision-maker: a degree of weight which will normally be substantial in fields such as economic and social policy, national security, penal policy, and matters raising sensitive moral or ethical issues. It follows, as the Court of Appeal noted in R (Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department (National Residential Landlords Association intervening) [2021] 1 WLR 1151 and R (Delve) v Secretary of State for Work and Pensions [2021] ICR 236, that the ordinary approach to proportionality will accord the same margin to the decision-maker as the 'manifestly without reasonable foundation' formulation in circumstances where a particularly wide margin is appropriate.
162. It is also important to bear in mind that almost any legislation
is capable of challenge under article 14. Judges Pejchal and Wojtyczek
observed in their partly dissenting opinion in JD [2020] HLR 5, para 11:
'Any legislation will differentiate. It differentiates by identifying certain classes of persons, while failing to differentiate within these or other classes of persons. The art of legislation is the art of wise differentiation. Therefore any legislation may be contested from the viewpoint of the principles of equality and non-discrimination and such cases have become more and more frequent in the courts.'
In practice, challenges to legislation on the ground of discrimination have become increasingly common in the United Kingdom. They are usually brought by campaigning organisations which lobbied unsuccessfully against the measure when it was being considered in Parliament, and then act as solicitors for persons affected by the legislation, or otherwise support legal challenges brought in their names, as a means of continuing their campaign. The favoured ground of challenge is usually article 14, because it is so easy to establish differential treatment of some category of persons, especially if the
concept of indirect discrimination is given a wide scope. Since the principle of proportionality confers on the courts a very broad discretionary power, such cases present a risk of undue interference by the courts in the sphere of political choices. That risk can only be avoided if the courts apply the principle in a manner which respects the boundaries between legality and the political process. As Judges Pejchal and Wojtyczek commented, at para 10:
'Judicial independence is accepted only if the judiciary refrains from
interfering with political processes. If the judicial power is to be
independent, the judicial and political spheres have to remain separated.' "
Issue iii: Were the decisions, giving those provisions their natural meaning, incompatible with the Claimants' rights under ECHR Article 8?
"The provisions of Article 8 do not … guarantee a right to acquire a particular nationality or citizenship. Nevertheless, the Court has previously stated that it cannot be ruled out that an arbitrary denial of citizenship might in certain circumstances raise an issue under Article 8 of the Convention because of the impact of such a denial on the private life of the individual".
"… the legal framework … fostered excessively formalistic approach to the annulment of Russian citizenship and failed to give the individual adequate protection against arbitrary interference …
The Government did not demonstrate why the applicant's failure to submit information about some of his siblings was of such gravity to justify deprivation of Russian citizenship several years after the applicant had obtained it. In the absence of balancing exercise which domestic authorities were expected to perform, the impugned measure appears to be grossly disproportionate to the applicant's omission. The Court therefore concludes that there has been a violation of Article 8 …"
Issue iv: is it possible for paragraphs 1 and 2 of schedule 1 to the BNA to be given a different meaning which is compatible with the Claimants' ECHR rights under HRA section 3?
(1) In R v Lambert [2001] UKHL 37, [2002] 2 AC 545, Lord Hope said at [79]:
"The obligation [at s.3 HRA 1998], powerful though it is, is not to be performed without regard to its limitations. Resort to it will not be possible if the legislation contains provisions, either in the words or phrases which are under scrutiny or elsewhere, which expressly contradict the meaning which the enactment would have to be given to make it compatible. ... It does not give power to the judges to overrule decisions which the language of the statute shows have been taken on the very point at issue by the legislator".
(2) In Re S (Care Order: Implementation of Care Plan) [2002] UKHL 10, [2002] 2 AC 291 Lord Nicholls said at [40]:
"... a meaning which departs substantially from a fundamental feature of an Act of Parliament is likely to have crossed the boundary between interpretation and amendment. This is especially so where the departure has important practical repercussions which the court is not equipped to evaluate".
(3) In Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557, Lord Nicholls said at [33]:
"Parliament, however, cannot have intended that in the discharge of this extended interpretative function the courts should adopt a meaning inconsistent with a fundamental feature of legislation. That would be to cross the constitutional boundary section 3 seeks to demarcate and preserve. Parliament has retained the right to enact legislation in terms which are not Convention-compliant. The meaning imported by application of section 3 must be compatible with the underlying thrust of the legislation being construed. Words implied must … 'go with the grain of the legislation'. Nor can Parliament have intended that section 3 should require courts to make decisions for which they are not equipped. There may be several ways of making a provision Convention-compliant, and the choice may involve issues calling for legislative deliberation."
(4) In R (Wilkinson) v Commissioners of Inland Revenue [2005] UKHL 30, [2005] 1 WLR 1718, Lord Hoffmann said at [17]:
"I do not believe that section 3 of the 1998 Act was intended to have the effect of requiring the courts to give the language of statutes acontextual meanings. ... There is a strong presumption, arising from the fundamental nature of Convention rights, that Parliament did not intend a statute to mean something which would be incompatible with those rights. The Convention, like the rest of the admissible background, forms part of the primary materials for the process of interpretation. But, with the addition of the Convention as background, the question is still one of interpretation, i.e. the ascertainment of what, taking into account the presumption created by section 3, Parliament would reasonably be understood to have meant by using the actual language of the statute".
"In the present case, there is no reason to believe that Parliament either foresaw or intended the potential injustice which can result from absolute and inflexible time limits for appeals. It intended short and firm time limits, but can only have done so on the basis that this would in practice suffice to enable anyone wishing to appeal to do so without difficulty in time."
"2 (1) If in the special circumstances of any particular case the Secretary of State thinks fit, he may for the purposes of paragraph 1 do all or any of the following things, namely—
(a) treat the applicant as fulfilling the requirement specified in paragraph 1(2)(a) or paragraph 1(2)(b), or both; "
Issue v: If the answer to iv is no, should there be a declaration of incompatibility under HRA section 6?
Conclusion