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High Court finds colossal interference in Windrush rights by Home Office

Thursday 6 May 2021

Ali Bandegani of the Garden Court Chambers Public Law Team, led by Chris Buttler QC at Matrix Chambers, represented the Claimants. They were instructed by Toufique Hossain, Jeremy Bloom, Jonah Mendelsohn and Nina Kamp of Duncan Lewis Solicitors.

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In a landmark judgment today in R (Mahabir) v the Secretary of State for the Home Department, the High Court ruled that the Secretary for the Home Department has committed ‘a colossal interference’ in the right to family life of a Windrush victim.

The Claimants are a Trinidadian family; two parents and five children, two of whom are minors. Mrs Mahabir is a member of the Windrush Generation who arrived in the UK with her mother as a 2 month old baby in 1969. She lived here until 1977 when she was forcibly removed against her will. The Home Office failed to document her lawful immigration status and as a result, she was unable to return to the UK until she was granted leave to remain under the Windrush scheme in 2018.

The Home Office refused to consider the applications of Mrs Mahabir’s husband and children under the Windrush scheme, saying that they had to pay the relevant application fees, which would have amounted to over £20,000. Unable to afford those fees, but desperate to rebuild her life in the UK where she feels she has always belonged, Mrs Mahabir came to the UK, with a plan to bring her family over as soon as she could.

The Claimants challenged the Home Office’s refusal to allow them to make fee-free applications for leave to enter or remain under the Windrush scheme, arguing that the enforced family separation of over 2 years was in breach of their right to family life under Article 8 of the European Convention on Human Rights (ECHR) and of their rights not to be discriminated against under Article 14 ECHR.

Mr Tim Smith sitting as a Deputy High Court Judge ruled that Mrs Mahabir was faced with ‘a thankless choice. Either she had to forego the remedies which the Defendant and her successors had put in place with the express intention of remedying the injustice suffered by her and others like her, or else she had to break up the family.’ This constituted a ‘colossal interference’ with her right to family life, in breach of Article 8 ECHR.

The Judge ruled that the Home Office’s failure to treat Mrs Mahabir’s husband and children preferentially in terms of their application fees amounted to indirect discrimination in breach of Article 14 ECHR. The Home Office had also not justified its policy of treating family members of a Windrush victim in the UK more favourably than those outside of the UK.

Jeremy Bloom, the solicitor for the Claimants, said the following:

"This is a fantastic outcome for the Mahabir family and for all those who are unable to come to the UK to join members of the Windrush generation simply because the Home Office refuses to waive their exorbitant application fees. The judgment makes it clear that the Home Office talks a good talk on Windrush but in reality the scheme is riddled with limitations and fails to properly consider the human rights of those it aims to help. A genuine commitment to righting the historic wrongs committed would not have to be enforced by court judgment in this way."

Click here to download the judgment.

This press release was first posted on Duncan Lewis' website on 6 May 2021

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