Raymond Alfred Lee, R (on the application of) v Secretary of State for the Home Department

For compensation under the Windrush Compensation Scheme, “inability to demonstrate lawful status” may include a person whose leave had technically lapsed on leaving the United Kingdom but who was potentially entitled to readmission under the applicable Immigration Rules.

A decision-maker must therefore consider whether the person would probably have been admitted as a returning resident under paragraphs 18 or 19 of the Rules, including the person’s status when last leaving the United Kingdom. It is insufficient to apply a simple two-year rule under which leave is treated as having lapsed and the claim is rejected.

The duty to make reasonable enquiries remains subject to the Wednesbury standard. The statutory bar on relief under section 31(2A) of the Senior Courts Act 1981 does not permit the court to replace the primary decision-maker’s fact-finding function.

The claimant, a member of the Windrush generation, challenged the defendant’s refusal of compensation under the Windrush Compensation Scheme. His claim arose from his refusal of entry and removal to Jamaica in July 1999.

It was common ground that he had obtained indefinite leave to remain under section 1(2) of the Immigration Act 1971, but that such leave lapsed when he travelled outside the common travel area under section 3(4), as the law stood before July 2000.

The defendant concluded that the claimant had not shown that he held indefinite leave to remain when refused entry. The claimant argued that the defendant had misunderstood both the Scheme and the Immigration Rules, and had failed to make sufficient enquiries. The central issue was whether the defendant had asked the legally correct question about the claimant’s potential entitlement to readmission.

1. Ground 2 succeeded. The defendant’s decision of 20 December 2022, and the earlier decisions so far as necessary, were quashed and the claim was remitted for reconsideration. The remaining grounds were dismissed.
2. Under section 3(4) of the Immigration Act 1971, the claimant’s leave would have lapsed when he left the common travel area before the Immigration (Leave to Enter and Remain) Order 2000 came into force. He therefore could not strictly have held indefinite leave to remain on arrival in July 1999.
3. That did not determine the compensation claim. “Inability to demonstrate lawful status” under Annex C of the Windrush Compensation Scheme could encompass a person potentially entitled to readmission under paragraphs 18 or 19 of the Immigration Rules, even if leave had technically lapsed.
4. The decision-maker had to consider whether the claimant would have been admitted under paragraph 18 as a returning resident, including whether he had indefinite leave when he last left, whether he had been absent for more than two years, and whether he sought admission for settlement. If paragraph 18 was unavailable solely because of excessive absence, paragraph 19 also required consideration.
5. The defendant failed to address those questions. The references to the claimant not having or being unable to prove indefinite leave were inconsistent with the statutory lapsing rule and did not explain the application of paragraphs 18 and 19. The error was material because there was a real possibility of a different outcome.
6. The reasonable-enquiries challenge failed. The defendant had asked for information about the claimant’s movements, while his representatives twice requested a decision on the existing material. No reasonable decision-maker was required to investigate matters before 1997 on the evidence then available.
7. Section 31(2A) of the Senior Courts Act 1981 did not require refusal of relief. The court could not determine disputed facts on fresh, untested evidence or assume the role of the primary decision-maker. It was not highly likely that the outcome would have been substantially the same.

This was a first-instance judicial review. Permission was granted by Poole J on 16 November 2023. The Administrative Court quashed the decision under challenge and remitted the matter for reconsideration.