Gloria Noren v The Secretary of State for the Home Department

The Windrush Scheme does not rewrite British nationality law or create a general discretion to grant citizenship or leave outside the scheme. An application must be determined by applying the statutory requirements of the British Nationality Act 1981 and the Scheme’s defined eligibility criteria. A person who entered the United Kingdom as an adult is not within the historic-injustice category merely because a parent qualifies under the Windrush Scheme. A judicial review claim may also be refused under section 31(2A) of the Senior Courts Act 1981 where it is highly likely that a lawful reconsideration would produce no substantially different outcome.

The claimant, a Nigerian national born abroad in 1973, applied for confirmation of British nationality or, alternatively, indefinite leave to remain. She relied on her parents’ settlement in the United Kingdom before 1 January 1973 and their later grants of indefinite leave and British citizenship under the Windrush Scheme. The Secretary of State concluded that the claimant was not British under the British Nationality Act 1981 and was ineligible under the Scheme because she first entered the United Kingdom as an adult in 2004.

The claimant alleged unfairness and irrationality, contending that the decision-maker had failed to recognise a discretion to remedy a historic injustice.

The claim for judicial review was dismissed in its entirety.

1. The parents’ status. The parents were not recognised as having been British citizens from before the claimant’s birth. Their initial Windrush applications resulted in a new grant of indefinite leave outside the Immigration Rules because their earlier settled status had lapsed through absences exceeding two years. Their later citizenship was acquired by naturalisation under section 6 of the British Nationality Act 1981. Their pre-1973 settlement had no bearing on the outcome of that naturalisation application.
2. Fairness. Although the decision letter was not tailored fully to the claimant’s request, it adequately engaged with the application when read with the pre-action response. The Secretary of State was required to apply the statutory nationality provisions and the Windrush Scheme. There was no discretion to disregard the statutory requirements or extend the Scheme to persons outside its deliberately defined cohorts.
3. Historic injustice and leave outside the Rules. The claimant, who entered as an adult, was not within the recognised historic-injustice categories. A descendant of a person eligible for a Windrush product is not thereby entitled to status. There was also no principled basis for granting indefinite leave outside the Immigration Rules, which was reserved for compelling or compassionate circumstances of the specified kinds.
4. Speculation and materiality. The court rejected speculation about what the claimant’s parents might have done had they understood their position. In any event, section 31(2A) of the Senior Courts Act 1981 applied: it was highly likely that fuller reasoning would not have made any substantial difference. The exceptional-public-interest exception in section 31(2B) did not apply.
5. The decision was rational and based on the applicable law and policy. The claimant’s application was not obviously meritorious.