Mahabir & Ors v Secretary of State for the Home Department

Where a family-reunion procedure affecting Article 8 rights is conditional on an unaffordable fee without an affordability assessment, it is not effectively accessible. In the circumstances of a Windrush victim who had returned to the United Kingdom under a remedial scheme, insisting on the full fee for family members breached her procedural and substantive Article 8 rights. An affordability criterion was sufficient; a universally fee-free route was unnecessary. Family members of a Windrush victim occupied a relevantly different position from other applicants because their access to the procedure directly affected the victim’s family life. Treating them alike was indirectly discriminatory. Children applying from inside and outside the United Kingdom were relevantly analogous, and charging them differently without justification was direct discrimination under Article 14.

This first-instance judicial review concerned a Windrush victim who had returned to the United Kingdom after restoration of her indefinite leave to remain, while her husband and children remained in Trinidad and Tobago. The Defendant required the family members to make ordinary out-of-country applications and pay fees calculated at £22,909 in total. No application had been made for most of them because the fees were said to be unaffordable. A similar Upper Tribunal claim led to the withdrawal and proposed revision of the relevant entry-clearance fee guidance. The central issues were whether the absence of an affordability safeguard breached the First Claimant’s Article 8 rights, and whether the treatment of Windrush families under the fee regime was unlawfully discriminatory under Article 14.

The claim succeeded and the application for judicial review was granted.

1. Construction of the fee regime. Regulation 13A of the Immigration (Nationality and Fees) Regulations 2018 applied to applications connected with an application under the Windrush Scheme by the victim herself. It did not extend to applications made by family members, whose applications were connected with a Windrush victim rather than with an application under the Scheme. The exceptional-circumstances provision in the withdrawn ECB06 guidance was read alongside examples such as civil war and natural disaster and did not include the Windrush scandal.
2. Article 8. The stronger Article 8 claim was that of the First Claimant. She had been induced to return to the United Kingdom by the remedial Windrush measures, but the full unaffordable fee for her family’s applications left her facing a choice between accessing the remedy and preserving family unity. That produced a very serious interference with her family life. A procedure conditional on an unaffordable fee was not effectively accessible, and the same facts amounted to a disproportionate interference with substantive Article 8 rights. An affordability criterion would provide a sufficient safeguard; the Court did not require every family application to be fee-free.
3. The Article 8 rights of the Second to Seventh Claimants were also engaged, but the Court’s additional view was that the Windrush Scheme’s boundaries were proportionate as they affected persons who were not themselves Windrush victims. The judgment did not determine the merits of any future applications or the level of fee any claimant could afford.
4. Article 14. Family members of a Windrush victim were in a relevantly different position from families of non-Windrush applicants because their access to the entry process directly affected the victim’s Article 8 rights. Failure to give them preferential treatment in charging fees was indirectly discriminatory. Children seeking reunion from inside and outside the United Kingdom were relevantly analogous; the place of application was not an obvious relevant difference, and the differential treatment was unjustified direct discrimination.

The Court made declarations of Convention breach, ordered costs, and directed that any damages assessment under section 8 of the Human Rights Act 1998 be transferred to the Central London County Court after two months.