ANTHONY BROWN (R on the application of) v THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Primary legislation in immigration and nationality remains subject to Article 14 scrutiny, but a challenge to legislation per se requires a heightened case. The claimant must show that the provision is incapable of operating proportionately in all, or almost all, cases. The court must distinguish between a criterion retained on the statute book and the criterion’s fact-specific application. Article 14 may require a measured adjustment in how a criterion is applied, particularly where rigidity creates unjustified discrimination, but it does not ordinarily require wholesale disapplication of every statutory citizenship criterion for an entire historical cohort. A broad legislative and policy latitude applies in immigration and nationality matters. The continued application of the Schedule 1 criteria to the Windrush Generation therefore lacked a realistic prospect of being held incompatible with Article 14.

The claimant, a member of the Windrush Generation who had obtained British citizenship by naturalisation, sought judicial review concerning the continued application of the Schedule 1 criteria for naturalisation under the British Nationality Act 1981. He argued that applying the five-year residence, good character and principal-home criteria to the Windrush Generation constituted unjustified discrimination under Article 14, read with Article 8. He advanced both a Thlimmenos failure-to-differentiate claim and a conventional differential-treatment claim, seeking a declaration of incompatibility.

Permission had previously been refused on the papers by Farbey J. Fordham J reconsidered permission at an oral hearing and also considered a separate challenge to the Windrush Compensation Scheme. The central issue was whether either challenge was arguable with a realistic prospect of success.

1. Permission refused. Neither the Article 14 challenge to the statutory criteria nor the challenge to the Compensation Scheme disclosed a viable ground with a realistic prospect of success.
2. Article 14 claims based on a failure to differentiate require the court to ask whether the subject matter falls within the ambit of a substantive Convention right, whether the alleged ground constitutes a status, whether persons in relevantly different situations were treated alike, and whether that treatment had objective and reasonable justification. The justification inquiry requires consideration of legitimate aim, rational connection, less intrusive means and overall proportionality. In a conventional differential-treatment claim, the discriminatory impact itself must be justified.
3. The court must justify the measure itself, while taking account of its discriminatory impact. The presence of a criterion in primary legislation is analytically distinct from the criterion’s fact-specific and context-specific application. The earlier Windrush cases showed that public law or human-rights defects could arise in application, including rigidity in applying the five-year rule or unchanged good-character guidance, without establishing that the statutory criteria were unlawful in themselves.
4. Immigration and nationality legislation attracts a broad policy latitude. The historical statutory entitlement to registration, the Windrush Statement, the Windrush Scheme, parliamentary scrutiny and subsequent policy developments did not make it realistically arguable that every Schedule 1 criterion had to be disapplied for all members of the Windrush Generation. The claim’s proposed wholesale disapplication therefore had no realistic prospect of success.
5. The parties accepted that a challenge to legislation per se involved asking whether the provision was incapable of operating proportionately in all, or almost all, cases. The court did not base its conclusion on that test, but considered that its heightened character reinforced the result.
6. The Compensation Scheme submissions were too brief and general to identify any viable systemic or individual public-law challenge. The claimant was not entitled to require adoption of the proposed £10,000 payment.

Permission for judicial review was refused on the papers by Farbey J on 13 August 2021. The present court reconsidered permission at an oral hearing and refused permission.