The Administrative Court of England and Wales has found that the UK Home Office was “irrational” and “unlawful” in applying the “good character” requirement for British citizenship to applicants from the Windrush Generation.
R (On the Application of Hubert Howard (deceased, substituted by Maresha Howard Rose pursuant to CPR 19.2(4) and PD 19A)) v Secretary of State for the Home Department [2021] EWHC 1023 (Admin)concerned the case of Hubert Howard, who was born in 1956 in Jamaica and came to the United Kingdom four years later as part of the so-called ‘Windrush Generation’ that moved to the UK from the Caribbean after the Second World War and before 1973. Like all those born in British colonies, he had a right of settlement in the UK as a citizen of the United Kingdom and Colonies. Upon Jamaica gaining independence in 1962, Howard became a Commonwealth citizen.
As would be discussed in this case, the “good character” requirement is one aspect considered by the Home Office in determining eligibility for British citizenship. In the 1980s this requirement was dropped as part of a government programme to register the Windrush Generation and allow them to acquire British citizenship. However, officials at the time stated that it was not a legal requirement to register and so many people - including Howard - did not, particularly as under the Immigration Act 1971 Commonwealth citizens had automatic settlement rights. For several decades thereafter, Howard and many others continued to live and work in the UK without being given or asked to provide any documentary evidence of these automatic settlement rights.
In 2007 and 2010, Howard applied for a British passport but on both occasions his application was rejected on the grounds that he was not a British citizen. Then in February 2012 he was informed by the Home Office that in order to apply for British citizenship he would first need to apply for indefinite leave to remain in the UK. If granted indefinite leave to remain, he could apply for British citizenship...once he could demonstrate the required period of lawful residence in the UK. That year he lost his job as caretaker with the Peabody Trust, when he was unable to produce a passport following an inspection by the UK Immigration Services.
In 2014, solicitors for Howard made a ‘No Time Limit Application’. This application allows persons with indefinite leave to remain to obtain a biometric residence permit. In order to obtain this, however, the Home Office stipulated that for each year of residence in the UK (in Howard’s case, since 1960) he had to provide at least one piece of evidence demonstrating that residence. Unsurprisingly, and like many other Windrush applicants, Howard failed to meet this requirement and his application was refused.
Significantly for this case, in 2018 then-Home Secretary Amber Rudd made the Windrush Statement in the House of Commons. In this statement she said that the Windrush Generation were “British in all but legal status.” Following this statement, Hubert Howard obtained a declaration from the Home Office that he had indefinite leave to remain since 1973; he then applied for British citizenship by naturalisation. His application for British citizenship was refused on the “good character” ground, however, as Howard had committed a number of criminal offences, the latest of which was a conviction in June 2018 for common assault. It was noted that according to Home Office guidance, “those convicted and given a non-custodial sentence of 12 months...will not be considered as rehabilitated for three years and...they will, therefore, not usually be granted British citizenship.” The Home Office refused Howard’s argument that he had been British at the point of committing the crimes. In 2019, with Howard seriously ill, the Home Office finally granted his application for naturalisation on compassionate grounds “on an exceptional basis”.
In finding that the Home Office had acted unlawfully in applying the “good character” requirement to applications for naturalisation made by members of the Windrush Generation, the court examined the Home Office’s initial decision under Rudd to reconsider the content of the good character requirement as applied to the Windrush Generation. It had been decided that the good character guidance would be amended “in respect of more minor convictions for anyone resident before 1973”. However, this decision was overturned under incoming Home Secretary Sajid Javid, who decided that the existing guidance should continue to be applied to all applicants including those from the Windrush Generation. Javid’s decision, the court stated, “fell outside the range of options available to him acting reasonably.” The Windrush Statement made by Rudd in the House of Commons made clear, in the court’s view, that “particular importance would now be attached to the long-residence and integration of the Windrush Generation...there is no sufficient reason to explain why, when it came to the good character requirement, no significance was attached at all to the long-residence and integration of a group all of whom had arrived in the United Kingdom prior to 1973, at least 45 years earlier.” In Howard’s case, relying on minor offences committed forty, thirty and eighteen years earlier to refuse his application was “irrational” in the context of the Windrush Statement. As for the conviction in 2018, the court pointed out that guidance merely stated that a suspended sentence within three years of a naturalisation application would “normally” mean an application refusal - an approach that “could not properly be maintained by the Home Secretary consistent with the Windrush Statement.”
You can read the full judgment here.