While the Windrush Scheme was designed to remedy the historic injustices suffered by Windrush victims as a result of the failings of past administrations, the cracks in the present Scheme continue to be unveiled. In less than one month, the High Court has ruled against the Home Office twice in cases concerning Windrush. On 23 April 2021, in Hubert Howard v Secretary of State for the Home Department CO/979/2019, the High Court held that the Home Office’s practice of denying Windrush victims with minor criminal convictions citizenship as a result of them failing the restrictive “good character” requirement was irrational and unlawful. This judgment should encourage Windrush victims in a similar situation to re-apply.
The Windrush Scheme most recently came under the spotlight before the High Court on 6 May 2021 in R (Mahabir) v the Secretary of State for the Home Department  EWHC 1177. This case concerned a Windrush victim, Mahabir, who was born in Trinidad and came to the UK at 3 months old. She lived in the UK for 8 years before returning to Trinidad in 1977. By virtue of the Immigration Act 1971, Mahabir became entitled to indefinite leave to remain (“ILR”) in the UK on 1 January 1973. However, this was lost when Mahabir returned to Trinidad and she was unaware of her right to regain her ILR by returning to the UK before 1 August 1988. It was not until 2018, when stories of the Windrush scandal had circulated widely that Mahabir was granted entry clearance for six months to allow her to collect the documentation confirming that her ILR had been restored.
Mahabir entered the UK alone, with her family (including her five children) remaining in Trinidad. In order for Mahabir’s family to join her in the UK, they had to pay application fees amounting to £22,909—an unaffordable fee for Mahabir and her family. Notably, the Windrush Scheme permits fee-free applications for leave to remain for a child of a Windrush victim if they live in the UK but a child living overseas must pay a full application fee.
Mahabir and her family challenged the Home Office’s refusal to allow them to make fee-free applications for leave to enter or remain under the Windrush Scheme. They argued that such refusal led to their family being separated for over 2 years, which was in breach of their right to respect for private and family life under article 8 of the European Convention on Human Rights (ECHR) and their right not to be discriminated against under article 14 ECHR.
The Court held that Mahabir’s article 8 rights had been breached by the unaffordable application fee which rendered the procedure effectively inaccessible and disproportionately interfered with her family life. The Court opined that a criterion of affordability should be introduced as a safeguard, rather than fee-free applications.
While the Court accepted that the benefits of the Windrush Scheme had deliberately been extended only to direct victims of the Windrush scandal, this policy rationale did not justify an interference with Mahabir’s article 8 rights. Ultimately, Mahabir was faced with what Mr Justice Smith described as a “thankless choice”: Mahabir either had to dispense with the remedies the Home Office had granted in order to remedy the injustice suffered by her and other Windrush victims, or she had to break up her family.
The Court held that the Home Office’s failure to treat family members of a Windrush victim preferentially in respect of application fees was indirect discrimination and in breach of article 14 ECHR. The Court also found that distinguishing between applications made from outside the UK and those made from within, when calculating fees, was both an arbitrary distinction and unjustifiable on the facts.
It is hoped that this case will assist many other Windrush victims in bringing their family to the UK.
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