VERNON VANRIEL (R on the application of) v SECRETARY OF STATE FOR THE HOME DEPARTMENT

The natural meaning of the five-year presence requirement in Schedule 1 to the British Nationality Act 1981 is hard-edged. However, its inflexible application to a recognised or recognisable Windrush victim whose wrongful exclusion caused non-compliance may be incompatible with ECHR articles 8 and 14. The aim of proving connection and commitment to the United Kingdom can be achieved by a less intrusive discretionary approach. Under section 3 of the Human Rights Act 1998, the requirement may therefore be read as conferring a discretion in such cases. That discretion does not require citizenship to be granted; the decision remains for the Secretary of State.

Two judicial review claims were heard together. Both claimants had long-standing connections with the United Kingdom, had been prevented from re-entering through circumstances associated with the Windrush scandal, and were later granted indefinite leave to remain under the Windrush Scheme.

The Secretary of State refused their naturalisation applications because neither satisfied the five-year presence requirement in Schedule 1 to the British Nationality Act 1981. The central questions were whether applying that requirement infringed articles 8 or 14 of the ECHR, whether section 3 of the Human Rights Act 1998 required a compatible interpretation, and whether a declaration of incompatibility was necessary.

1. Claims succeeded. Applying the five-year rule in its unmodified form infringed the claimants’ rights under article 14 in conjunction with article 8, and also infringed article 8 independently. The Secretary of State erred in law by treating the rule as immovable.
2. The claims concerned the application of legislation in individual cases, rather than a challenge requiring proof that the statutory provision was incapable of proportionate operation in all or almost all cases. For the article 14 claim, the court applied the four-stage inquiry in R (DA and DS) v Secretary of State for Work and Pensions [2019] UKSC 21: ambit of a substantive Convention right, status, treatment of relevantly different situations, and objective and reasonable justification.
3. The claimants had a relevant status because they were recognised, or recognisable, as persons to whom the Windrush Scheme applied and were unable to satisfy the five-year rule because of their exclusion. They were treated in the same way as applicants whose situations were materially different. Applying the proportionality approach in Bank Mellat v HM Treasury (No. 2) [2014] AC 700, the five-year rule pursued a legitimate connection-based aim and was rationally connected to it. However, a discretionary requirement would have been less intrusive, and the severity of the impact outweighed the importance of the objective. The margin afforded to Parliament did not alter that conclusion; the approach in R (SC) v Work and Pensions Secretary [2021] UKSC 26 required a flexible, non-mechanical assessment.
4. Article 8 does not guarantee a right to acquire citizenship, but arbitrary denial of citizenship may engage it. Bright-line rules are permissible in principle. In these cases, however, the decisive discord between wrongful exclusion and the requirement of presence on a particular date made reliance on the rule, without any discretion to consider other factors, arbitrary.
5. Section 3 of the Human Rights Act 1998 permitted and required Schedule 1 to the British Nationality Act 1981 to be read as conferring a discretion to disapply the five-year rule where the Secretary of State’s default was, or might have been, the reason it could not be satisfied. That interpretation respected the legislation’s fundamental purpose and did not compel any particular citizenship decision. The Secretary of State retained the decision-making power.
6. Mr Vanriel’s claim clearly succeeded. Ms Tumi’s case was less certain, but on balance she was entitled to have her application considered under the section 3-compliant discretion. No declaration of incompatibility was made because a compatible interpretation was available.

not stated in the judgment.