Trevor Donald, R (on the application of) v Secretary of State for the Home Department

A substantive legitimate expectation requires a clear, unambiguous and unqualified representation. A detailed governmental policy plan may instead generate a procedural expectation of consultation where changing it without consultation would be conspicuously unfair. The duty to consult is distinct from the rationality-based Tameside duty of inquiry.

Indirect discrimination requires a disproportionate adverse effect on a group sharing a relevant status. Thlimmenos discrimination concerns failure to treat differently persons whose situations are significantly different. Any difference in treatment must be justified as pursuing a legitimate aim by proportionate means.

The Public Sector Equality Duty requires due regard to the statutory equality considerations. It was complied with in relation to reconciliation events, but breached in relation to decisions not to proceed with a Migrants’ Commissioner and an independent review of the ICIBI.

The claimant, a member of the Windrush generation, challenged the former Home Secretary’s December 2022 decision not to proceed with Recommendations 3, 9 and 10 of the Windrush Lessons Learned Review. The recommendations concerned reconciliation events, a Migrants’ Commissioner, and review of the Independent Chief Inspector of Borders and Immigration.

He alleged substantive and procedural legitimate expectation, indirect and Thlimmenos discrimination under articles 14 and 8 ECHR, breach of the Tameside duty of inquiry, and breach of the Public Sector Equality Duty under section 149 of the Equality Act 2010.

1. Substantive legitimate expectation. The Ministerial Statement and Comprehensive Improvement Plan did not amount to a clear, unambiguous and unqualified promise that Recommendations 3, 9 and 10 would be implemented. The plan used qualified language and contemplated continuing policy development and review. Ground 1 was dismissed.
2. Procedural legitimate expectation. The circumstances generated a secondary procedural expectation of consultation before substantially changing the response in the plan. The expectation arose cumulatively from the seriousness of the Windrush injustice, the Home Office’s repeated commitment to listen to stakeholders, the considered nature of the plan, the initial implementation steps, and the central involvement of Wendy Williams and the ICIBI.
3. Consultation concerning Recommendation 3 was sufficient. The BIMA consultations and engagement with the Windrush Cross-Government Working Group addressed whether reconciliation events should proceed, and the competing views were conscientiously considered. There was no breach in that respect.
4. There was no sufficient consultation before abandoning the proposed Migrants’ Commissioner or the ICIBI review. The decision therefore breached the procedural legitimate expectation in relation to Recommendations 9 and 10.
5. Article 14 ECHR. The decision concerning Recommendation 3 was Thlimmenos discrimination because Windrush victims were treated like the general population despite their materially different situation. It was justified by the strongly divergent views about the events and the risk of division and distress. The decisions concerning Recommendations 9 and 10 had a disproportionately prejudicial effect on Windrush victims compared with the population at large. The Defendant failed to establish a legitimate aim and proportionate means, or failed to provide sufficient evidence to do so.
6. Tameside duty. The duty requires reasonable inquiry and is a rationality-based test. The evidence did not show that no reasonable Secretary of State could have been satisfied that she possessed the necessary information. Ground 4 was dismissed.
7. Public Sector Equality Duty. The nature of the Recommendation 3 decision and the material before the Home Secretary established substantive compliance. The same inference could not be drawn for Recommendations 9 and 10. The decision-maker had not been shown to have due regard to the equality benefits of proceeding or the implications of abandoning them.
8. The claim succeeded in part. Grounds 2, 3 and 5 were upheld in part; Grounds 1 and 4 were dismissed. Consequential matters were reserved.