Failure to implement Windrush recommendations held to be unlawful by High Court

The High Court has held that the decision made by Suella Braverman not to implement recommendations made in Wendy Williams’ review into the Windrush scandal was unlawful. The recommendations specifically related to the creation of a Migrants’ Commissioner role and the review of the Independent Chief Inspector of Borders and Immigration’s role. The case is R (Donald) v Secretary of State for the Home Department [2024] EWHC 1492 (Admin).

Intervening were Black Equity Organisation, Unison and Speaker of the House of Commons. The first two were intervening as many of their members are descendants of the Windrush generation and they have campaigned in relation to the scandal. The Speaker’s intervention came about because of issues relating to the scope of parliamentary privilege in relation to ministerial statements, which I will not be covering here.

Background

The judgment quotes Wendy Williams, who carried out the Lessons Learned review into the Windrush scandal, who provided a very succinct summary which I will also use:

Although an Act of Parliament entitled people from the Commonwealth who arrived before 1973 and who were in the UK to the ‘right of abode’ or ‘deemed leave’ to remain in the UK, it hadn’t automatically given them the documentation to prove it. Nor had the Home Office kept records confirming their status. So, unless they made a further application and paid a fee, they had no way of showing that the UK was their rightful home, even though in most cases they had known no other. Some of the Windrush generation retained British status under changes to legislation in the 1980s.

Others had a right to register, but that was time-limited and not widely publicised. As successive governments introduced measures to discourage migrants from entering the UK illegally, they increasingly focused on requiring people to provide documentary proof of status to access public services and other essentials, such as work, driving licences, housing and healthcare. Subsequently, cases started to emerge where members of the Windrush generation couldn’t access public services as they were unable to prove their status. When they took steps to establish their status, the Home Office had no record of them, and in some cases triggered enforcement action and either removal from the UK or refusal of re-entry. This is how the tragedy unfolded.

The claimant

The claimant, Trevor Donald, was born in Jamaica on 6 August 1955 and moved to the UK in 1967. He tried to naturalise as British in 2008 but was unable to provide evidence to show continuous residence since 1967 as the Home Office wanted. He had wanted to travel to see his mother who was unwell. In February 2010 he travelled to Jamaica to attend his mother’s funeral, using his Jamaican passport.

Mr Donald was then refused re-entry to the UK for around 9 years and only then because of the Windrush scandal. He had by this point lost his home in the UK as well as missed out on critical moments in his children’s lives. In 2018 he was sent a letter of apology from yet another former Home Secretary, Sajid Javid, and he returned to the UK in May 2019. In April 2020 he applied for British Citizenship under the Windrush Scheme. Incredibly, he then needed to issue a judicial review, before he was finally granted citizenship in January 2022.

Witness evidence was provided by Black Equity Organisation and Unison from many others who were affected by the scandal.

Windrush Lessons Learned Review

Wendy Williams published her review in March 2020 and the recommendations were accepted in full by former Home Secretary, Priti Patel, on 23 June 2020. The report made 30 recommendations in total. The three recommendations under challenge in this judicial review were 3, 9 and 10:

Recommendation 3 – In consultation with those affected and building on the engagement and outreach that has already taken place, the department should run a programme of reconciliation events with members of the Windrush generation. These would enable people who have been affected to articulate the impact of the scandal on their lives, in the presence of trained facilitators and/or specialist services and senior Home Office staff and ministers so that they can listen and reflect on their stories. Where necessary, the department would agree to work with other departments to identify follow-up support, in addition to financial compensation.

Recommendation 9 – The Home Secretary should introduce a Migrants’ Commissioner responsible for speaking up for migrants and those affected by the system directly or indirectly. The commissioner would have a responsibility to engage with migrants and communities, and be an advocate for individuals as a means of identifying any systemic concerns and working with the government and the ICIBI to address them.

Recommendation 10 – The government should review the remit and role of the ICIBI to include consideration of giving the ICIBI more powers with regard to publishing reports. Ministers should have a duty to publish clearly articulated and justified reasons when they do not agree to implement ICIBI recommendations. The ICIBI should work closely with the Migrants’ Commissioner to make sure that systemic issues highlighted by the commissioner inform the inspectorate’s programme of work.

Following the Windrush Lessons Learned Review, the Home Office published its Comprehensive Improvement Plan as a response to the review. On recommendation 3, the response was that they were hosting a series of events to allow those affected by Windrush to share their experiences and that they were working closely with the Windrush Cross-Government Working Group to develop these events.

On recommendation 9 for a Migrants’ Commissioner, the plan said that the Home Office were consulting with the Windrush working group to advance the recommendation. For recommendation 10 regarding the role of the Independent Chief Inspector of Borders and Immigration, the plan said that a full independent review would be carried out with a view to making the inspectorate “more independent, effective and efficient”.

In March 2022 Wendy Williams published her progress report looking at the progress made by the Home Office in implementing her recommendations. While accepting that it had proved challenging because of differing views of those consulted, Ms Williams expressed disappointment that none of the events relating to recommendation 3 had taken place. On recommendation 9 for a Migrants’ Commissioner, Ms Williams was critical of the lack of a process or timescale for implementation.

In September 2022 a submission by officials recommended that the Home Secretary did not proceed with recommendation 9, believing that there were “other opportunities to fulfil the spirit of this recommendation more effectively” which including the strengthening of the Independent Chief Inspector of Borders and Immigration’s role.

On the recommendation around the review of the Independent Chief Inspector role, options were sent to the Home Secretary by officials on 18 November 2020 which included a recommendation that someone was directly appointed to the role and that an open appointment process was not required given the role was for less than 18 months. In June 2021 after progress had been made with a shortlist of candidates, special advisers to the Home Secretary who asked that the usual appointments be used.

In July 2021 officials asked the Home Secretary to confirm how she would like them to proceed. She said that she did not want to proceed with a direct appointment and wanted a fair and open process. This was done and ten applications had been received by 28 March 2022. The Home Secretary was asked if the advert could be re-opened for a short period but she declined to agree to that and said to ask her again later in the year. This was done on 28 July 2022 but no response was received.

In September 2022 a ministerial submission was made, recommending that recommendations 3 and 9 were dropped and that recommendation 10 was proceeded with and that the advert for the independent reviewer was re-opened for a short period. The Home Secretary asked for this to be re-submitted to her in early November 2022 and on 7 December she responded, agreeing that recommendations 3 and 9 be closed but also stating that recommendation 10 should be closed as she wanted a wider review into all Home Office arm’s length bodies.

This decision was communicated to parliament on 26 January 2023 by written ministerial statement explaining why the recommendations were no longer being implemented. Wendy Williams had been notified the previous day by a letter from the Permanent Secretary.

The judicial review

There were five grounds of challenge, each broken down into separate issues. The grounds were breach of an alleged substantive legitimate expectation, breach of an alleged procedural legitimate expectation, indirect discrimination, breach of the Tameside duty of inquiry and failure to comply with the public sector equality duty.

The High Court dismissed the first ground of challenge, saying that the claimant had not established that there was a “clear, unambiguous and unqualified representation” to implement the recommendations. This was because there was no explicit statement made in the Comprehensive Improvement Plan to that effect and the wording used indicated “further investigation, policy deliberation and consideration”.

On ground 2, the court held that there was a procedural expectation that the Home Secretary would consult with relevant stakeholders, including Wendy Williams and the Independent Chief Inspector of Borders and Immigration, before substantially changing the response to the recommendations. Ground 2 was upheld in relation to recommendations 9 and 10. It was held that consultation had taken place to a sufficiently fair degree on recommendation 3.

The court also held that the decision not to proceed with recommendations 9 and 10 amounted to indirect discrimination on the grounds of race that was not objectively and reasonably justified. For recommendation 3, the court said that the long-standing divisive views among stakeholders and the view of the working group that the proposed events would be “divisive, distressing and/or ineffective” meant that the response was proportionate in this case.

The court dismissed ground 4 but allowed ground 5, holding that there was also a failure to comply with the public sector equality duty when taking the decision not to proceed with recommendations 9 and 10.

Conclusion

A fitting legacy for an abysmal Home Secretary. In the meantime, these recommendations should be re-visited. In particular it has been clear for a considerable amount of time that the Independent Chief Inspector of Borders and Immigration’s role needs to be strengthened, this tension culminated in the departure of the most recent inspector David Neal, who gave evidence in this case. Because of Braverman’s decision, this process is now years behind where it should be and action should be taken as a matter of urgency.