Milton Vivian Thompson, R (on the application of) v Secretary of State for the Home Department

Exemption from deportation, ordinary residence and settled status are distinct concepts. Exemption from deportation does not itself confer indefinite leave to enter or remain, or lawful status under the Windrush Compensation Scheme. A person whose indefinite leave has lapsed after more than two years abroad may apply for leave to enter, but has no entitlement to its grant.

Immigration Rules 18 and 19 must be read with the general grounds in paragraph 320. Failure to consider rule 19 may make a refusal unlawful, but it does not itself confer lawful status. Compensation under the Scheme requires both lawful status and detriment caused by inability to demonstrate it. A person without lawful status cannot satisfy that requirement.

The claimant sought judicial review of the Secretary of State’s refusal of compensation under the Windrush Compensation Scheme. His indefinite leave to remain, acquired under the Immigration Act 1971, had lapsed after more than two years’ absence from the United Kingdom. On returning in March 2005, he was refused leave to enter. The claimant contended that he was protected by exemption from deportation, that he should have been granted indefinite leave under Immigration Rule 19, and that the refusal was discriminatory under Article 14 of the Convention.

The central issues were whether exemption from deportation amounted to lawful status, whether the March 2005 decision was unlawful because rule 19 was not considered, whether the claimant nevertheless had lawful status for the Scheme, and whether relief should be refused under section 31(2A) of the Senior Courts Act 1981.

Claim dismissed. The claimant’s exemption from deportation did not amount to indefinite leave to enter or remain, settled status, or lawful status for the Windrush Compensation Scheme. Section 33(2A) of the Immigration Act 1971 required ordinary residence without restriction on the period of stay. Exemption from deportation under section 7 was therefore distinct from being settled.

1. The claimant’s indefinite leave had lapsed after more than two years outside the United Kingdom. He retained only an entitlement to apply for leave to enter. He had no entitlement to its grant as of right.
2. The March 2005 refusal was made without consideration of Immigration Rule 19. The contemporaneous form showed that rule 19 had not been addressed, although paragraph 320(19), concerning exclusion conducive to the public good, had been considered.
3. The failure to consider rule 19 did not confer lawful status. Even if the rule had been considered, refusal would have been inevitable. The claimant’s convictions, drug offending, and conduct on returning from Jamaica meant that a grant of indefinite leave would have been perverse.
4. The Scheme compensates detriment caused by inability to demonstrate existing lawful status. The claimant lacked that status between 2004 and 2019. His detriments resulted from failure to recognise his exemption from deportation, not from inability to prove settled status.
5. The Article 14 claim failed because there was no material difference between the claimant and others who lacked lawful status. In any event, under section 31(2A) of the Senior Courts Act 1981, the outcome would not have been substantially different.

First-instance judicial review in the Administrative Court. The claim challenging the Secretary of State’s decision of 23 August 2022 was dismissed.