Jeanell Hippolyte v Secretary of State for the Home Department

A policy conferring immigration status under the Windrush Scheme must not be applied so rigidly that the Secretary of State refuses to consider whether an exception should be made. The decision-maker must consider whether to exercise the broad discretion under section 3(1)(b) of the Immigration Act 1971 to waive a policy requirement, even where the applicant does not satisfy the scheme’s stated conditions.

Nevertheless, relief may be refused under section 31(2A) of the Senior Courts Act 1981 where it is highly likely that the same decision would have been reached following lawful consideration. A continuous-residence requirement in the Windrush Scheme was justified as a bright-line proxy for strong and subsisting ties with the United Kingdom.

The claimant, a child of a person from the Windrush generation, applied for indefinite leave to remain under category 4 of the Windrush Scheme. Her application was refused because she had not remained continuously resident in the United Kingdom since arriving as a child.

She sought judicial review on two remaining grounds. First, she alleged that the Secretary of State had failed to consider exercising the discretion under section 3(1)(b) of the Immigration Act 1971 to waive the continuous-residence requirement. Secondly, she alleged that applying that requirement breached Article 14, read with Article 8, of the Convention.

1. Failure to consider discretion. A public authority may adopt an unqualified policy, but must retain the ability to consider exceptions in individual cases. The correspondence showed that the claimant’s representations had been acknowledged and considered within the strict terms of the Windrush Scheme. It did not show consideration of whether the continuous-residence requirement itself should be waived. The statement that discretion was inappropriate because mandatory requirements had not been met demonstrated that discretion had not been considered at all. Ground 1 was therefore established.
2. Relief under section 31(2A). Relief was nevertheless refused. The court applied the high threshold under section 31(2A) of the Senior Courts Act 1981. On the representations actually made, it was highly likely that the Secretary of State would have reached the same decision. The claimant had not applied for indefinite leave to remain as a minor in 2000 and had no automatic entitlement under rule 298. The asserted historic injustice was also highly likely to have been rejected. The court could not conclude that the Secretary of State would necessarily have found that the claimant’s father was not present in the United Kingdom, but other requirements under rule 298 involved evaluative judgments that might not have been satisfied.
3. Lawful status. The court rejected the submission that lawful presence as a visitor necessarily barred an application for another immigration status under the Windrush Scheme. The visitor rules did not state that a visitor could not make such an application.
4. Article 14. The claimant was in an analogous position to a hypothetical child of a category 1 Windrush parent who had remained continuously resident. The difference was the very requirement under challenge. Applying the Bank Mellat proportionality test and allowing a wide margin of appreciation in immigration matters, the continuous-residence rule was justified. It was a rational proxy for strong and subsisting ties, avoided uncertainty and arbitrariness, and could not be replaced by individual assessment without compromising those objectives. The rule was not applied in breach of Article 14 read with Article 8.
5. The judicial review application was dismissed.