On 19 June the High Court held that the government’s decision to renege on key recommendations from the independent review into the Home Office scandal on Windrush was unlawful (Trevor Donald, R (on the application of) v Secretary of State for the Home Department [2024] EWHC 1492 (Admin)).

Shantha David

Shantha David

Background

In 2018 former home secretary Sajid Javid commissioned Wendy Williams CBE as independent adviser to the Windrush Lessons Learned Review (WLLR), in response to the Home Office scandal involving Commonwealth (mainly Caribbean but also African and Indian sub-continental) migrants who came aboard the ship HMT Empire Windrush in June 1948, and also came between 1948 and 1973.

The WLLR was published in 2020. Williams summarised the scandal as follows in her 2022 WLLR progress update report:

‘Although an act of parliament entitled people from the Commonwealth who arrived before 1973 and who were in the UK to the “right of abode” or “deemed leave” to remain in the UK, it hadn’t automatically given them the documentation to prove it. Nor had the Home Office kept records confirming their status. So, unless they made a further application and paid a fee, they had no way of showing that the UK was their rightful home, even though in most cases they had known no other. Some of the Windrush generation retained British status under changes to legislation in the 1980s.

‘Others had a right to register, but that was time-limited and not widely publicised. As successive governments introduced measures to discourage migrants from entering the UK illegally, they increasingly focused on requiring people to provide documentary proof of status to access public services and other essentials, such as work, driving licences, housing and healthcare. Subsequently, cases started to emerge where members of the Windrush generation couldn’t access public services as they were unable to prove their status. When they took steps to establish their status, the Home Office had no record of them, and in some cases triggered enforcement action and either removal from the UK or refusal of re-entry. This is how the tragedy unfolded.’

On 23 June 2020, home secretary Priti Patel apologised unreservedly for the pain, suffering and misery caused; and acknowledged the ‘unspeakable injustices and institutional failings spanning successive governments over several decades’.

The WLLR made 30 recommendations which Patel confirmed had been accepted in full. On 26 January 2023, home secretary Suella Braverman announced that she would abandon three of these commitments:

  • A migrants’ commissioner responsible for speaking up for migrants and those affected by the system directly or indirectly (recommendation 9);
  • a strengthening of the powers of the independent chief inspector of borders and immigration (10); and
  • the holding of reconciliation events for affected individuals and their families (recommendation 3).

Recommendations 9 and 10 were regarded as the checks and balances to prevent a recurrence of the scandal.

The claim

The claimant in the judicial review, Trevor Donald, arrived in the UK in 1967, aged 12, and was granted indefinite leave to remain in 1971. However, when he visited Jamaica in 2010 to attend his mother’s funeral, he was prevented from returning to the UK and exiled for nine years before the scandal came to light. Donald sought to judicially review the home secretary’s decision.

UNISON and the Black Equity Organisation were granted permission to intervene and supported Donald’s case.  

UNISON’s application to the High Court was supported by evidence from UNISON member Michael Braithwaite, a London teaching assistant, who worked with children with special educational needs. Braithwaite lost his job when he was incorrectly identified as not having settled status in the UK, which he described as ‘a total nightmare that destroyed my life’.  

UNISON’s witness, national policy officer Narmada Thiranagama, charted the experience of its Windrush generation and migrant members affected by the hostile environment that was whipped up by the government from 2012.

Decision

The High Court held that Braverman’s decision to abandon recommendations 9 and 10 was unlawful because she: failed to consult key stakeholders; could not justify the discriminatory effects of her decision on victims of the scandal; and failed to comply with the public sector equality duty.

The public sector equality duty requires public authorities to consider any particular disadvantage that people with protected characteristics may suffer, and to meet those needs or reduce the inequalities.

Mrs Justice Heather Williams DBE said Braverman failed to consult with key stakeholders and could not justify the discriminatory effects of her decision on victims of the Windrush scandal. The judge said the former home secretary failed to comply with the public sector equality duty, given the ‘adverse impact on migrants and future migrants more generally’.

The court found Braverman was ‘not justified’ in breaking promises to create a migrants’ commissioner and boost the powers of the chief inspector for borders and immigration.

Intervention by the speaker

The speaker of the House intervened to say that parliamentary privilege prevented the intervenors from relying on ministerial statements to the Commons and evidence given to the home affairs select committee. The court agreed with UNISON’s submission that a promise made in a statement to parliament can be relied on as founding a legally enforceable ‘legitimate expectation’ – an important point for future cases.

 

Shantha David is head of legal services for UNISON, and solicitor for the intervenor UNISON in R (Trevor Donald) v the Secretary of State for the Home Department

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