Nelson Shardey and the ten year route to settlement: running an effective legal challenge and campaign

This summer, a legal challenge against the ten year route to settlement became a national media story. When Nelson Shardey spoke out about the pain of being told he didn’t have any lawful status after 45 years in the UK, his story touched the nation. In this post, solicitor Nicola Burgess and Policy Officer Rivka Shaw of Greater Manchester Immigration Aid Unit (GMIAU) explain the interplay between the strategic legal challenge and wider campaign for change.

Background

GMIAU’s campaigning work on the ten year route to settlement took off in 2022, when Community Organiser Fatou started working with us. She set up an Action Group dedicated to campaigning on the issue. The group has since spoken out on matters including visa fee increases and recent racist riots; spoken in Parliament; built relationships with local councillors and MPs; and held events to educate local authority workers and raise awareness with the general public about the ten year route. In the process of articulating and sharing their lived experience, they have built up a wealth of testimonies and stories.

This work is part of a partnership with IPPR and Praxis, funded by the Justice Together Initiative. In 2023 we co-published a research report, “A Punishing Process”, based on an in-depth survey of several hundred people on the ten year route to settlement. It found that the route was having a devastating impact on people’s wellbeing and family relationships, with extortionate fees leading to poverty and housing insecurity for many on the route – while providing profit for the Home Office.

Campaigning on the ten year route also brought us into a wider coalition with organisations and community groups campaigning for change, led by people with lived experience, including JCWI; Project 17 and the United Impact group; RAMFEL; Right to Remain; Reunite Families; Migrant Voice; and We Belong.

Nelson Shardey’s case

Nelson has lived in the UK since 1977, and had assumed he was a British citizen after spending decades working and building a life in the UK. This included getting married, owning a business, getting a mortgage, conducting jury service and even winning a police bravery award. But at a time when he should have been enjoying retirement, he found himself caught up in the ten year route after learning in 2019 that he had no legal status in the UK.

A grant of limited leave to remain for 30 months, on the ten year route to settlement, was seemingly the only solution to regularising his status. Despite his residence dating back decades and the life he had built for himself and his British family, he had never held settled status in the UK. Although he did not realise, or appreciate the significance, he had in fact been an overstayer since around 1980.

In 2019, the Home Office granted him limited leave to remain and in an internal minute, noted that Nelson “clearly has his whole life in the UK”. When he had to renew his leave to remain, he was without the benefit of legal representation, as he could not afford the fees. Trying to navigate the system unaided, he submitted the wrong application and applied for a replacement biometric residence permit, rather than submitting an application for further leave to remain.

This is a common mistake we encounter in practice given the labyrinthine complexity of immigration law and the need to apply using an online system. For those who lack access to technology or who are not overly tech savvy, and in the absence of legal representation, it is a problematic process.

As a result, Nelson again became an overstayer. As is sadly the norm, he wasn’t informed by the Home Office of this error. He was however encouraged to make an application for citizenship under the Windrush scheme. After a long wait, he was correctly told that he was ineligible for this route as he had never held settled status, a fact of course within the knowledge of the Home Office at the start of this application process but which came as a devastating blow for Nelson who was hoping for a quick resolution and who was still without legal representation.

It later came to light, through various disclosure requests, that during the Windrush consideration, a Home Office caseworker had made a recommendation to grant Nelson indefinite leave to remain outside the rules, due to his exceptional circumstances. The Home Secretary has the residual power to grant this under the Immigration Act 1971.

However, despite the initial recommendation being endorsed by a more senior caseworker, a decision was ultimately made that a refusal would be “appropriate” as there was “insufficient exceptionality” for a grant outside of the Windrush scheme. Nelson was therefore told that he would have to apply for limited leave to remain and restart the ten year route.

So, in 2023, after 45 years in the UK, Nelson found himself back at square one, now in his mid-70s, still needing to complete a further ten years before he could be considered settled. It was at this point that Nelson met Nicola.

Legal challenge

Nicola prepared a judicial review to challenge the decision to refuse to grant indefinite leave to remain. We argued that in light of Nelson’s particular facts, it was a breach of his article 8 ECHR rights for him to complete a further ten year probationary period before being eligible to apply for settlement. We further argued that the Home Office’s policy, which allows for a grant of indefinite leave to remain, outside the rules, on a discretionary basis, had not been properly applied.

Permission to apply for judicial review was granted and as a result, the Home Office agreed to reconsider. They did this but refused him once again. Their argument rested on their insistence that Nelson must complete a “probationary period” – ie. ten years of precarious limited leave – before being granted indefinite leave to remain.

We subsequently amended our grounds, to include a challenge to the Home Office policy itself. We argued that, although they are permitted to apply a staged approach to settlement, the current policy is too restrictive. In particular, we argued that the requirement to serve a probationary period of a continuous ten years’ residence with precarious leave (ie. the ten year route) where it is certain (or as certain as it can be) that a person will continue to have a private and/or family life right to remain in the UK in the future is irrational.

Legal challenge meets campaign

We know from our casework experience, through the voice of our action group and as confirmed in our A Punishing Process report, that sadly Nelson is not alone – and while his story is unique, so are so many others. Our report found that 60% of people on the ten year route who responded to our survey had been in the UK for over a decade. 15% had been here for over 20 years.

Just as with Nelson, subjecting this group of people to a “probationary” ten years of applications, fees and insecurity is irrational and unjust, when just like Nelson, their whole lives are here. Their circumstances are not going to change, if anything their ties only become stronger and so all things being equal, all future applications under the route will be successful.

Our existing body of work on the ten year route formed part of the evidence in Nelson’s case: testimony from GMIAU’s Action Group, evidence from the hundreds of people with lived experience of the route who answered our survey, and the analysis in the Punishing Process report.  We are extremely grateful to Praxis and IPPR for providing evidence in support of the challenge, which along with our own evidence, contextualised the unfairness of the ten year route and demonstrated that Nelson’s case, although a stark example on his own facts, is not an isolated example. This helped to show that Nelson’s claim had wider application, requiring guidance from the tribunal. 

Continuing the legal challenge after yet another Home Office rejection was not a foregone conclusion, and required one more vital ingredient: the courage of Nelson and his sons Aaron and Jacob. They decided to continue to fight instead of accepting limited leave to remain on the ten year route. This came with risks, most significantly financial risk. Because Nelson was not eligible for legal aid, if he had lost the case, he would have been ordered to pay the Home Office’s legal fees.

Nevertheless, their sense of justice and the knowledge that they had the support of their community carried them forward. The family told us: “Whatever the outcome, we would much rather have tried than to have submitted to a biased system that penalises the most vulnerable in our society.” They decided to continue to fight the legal challenge and set up a GoFundMe for potential legal costs.

Nelson and his sons also made the brave decision to speak to the media. We at GMIAU supported the family to get ready to speak about their story and set up interviews with BBC News, the Guardian, and the Liverpool Echo.

Media campaign

Involving the media in this campaign had a dual purpose. We hoped to raise awareness of the wider issue, shining a spotlight on the injustice of the ten year route for Nelson and all others caught up in its unfairness. We also knew that getting media coverage would put pressure on the Home Office to resolve Nelson’s case. (It’s an often-noted phenomenon – and an injustice – that immigration cases that receive media attention are often resolved more quickly. It’s been observed that people should not need a journalist as well as a lawyer to get justice, but often they do.)

We were confident that Nelson’s story would appeal to journalists, and we hoped that media attention would give it a greater impact as well as increasing the chances of success. And it did. There was a huge reaction to Nelson’s story, and the family soon received requests to speak to more journalists, including twice appearing on ITV’s This Morning. The GoFundMe quickly climbed, reaching over £47,000 – far beyond its original goal.

Why did Nelson’s case resonate with so many people? His story is especially striking, and powerful details of it stick in people’s minds. It could be the fact that he did jury service – an obvious marker of a citizen who made himself known to government departments. Some were struck by the police bravery award he won in 2007.

For his community who have known him for decades, there were memories of the business he owned, Nelson’s News, and of Nelson helping people with groceries during Covid. And of course, Nelson himself, who spoke emotionally about the injustice he was facing, and often appeared with his son Jacob, reminding us of the impact on his whole family.

Challenges of media coverage

When we were pitching Nelson’s story to the media and speaking to journalists, we wanted to avoid too much emphasis on the exceptionality of Nelson’s case. His story is exceptional, but we were also challenging the idea that a ten year “probationary period” is an acceptable policy. We wanted to raise awareness of the harms of the ten year route as laid out in our research and campaigning. We had a concern that without this point being made, we could contribute to the narrative that the ten year route is fine, but had been misapplied to Nelson only. The opposite is true, ten years is too long for anyone.

This was challenging, and we didn’t fully succeed as understandably, journalists focused more on the personal injustice and the emotional impact on Nelson. In his interviews, though, Nelson was thoughtful about presenting himself as part of a wider fight. He spoke in the national news about hoping the route would be abolished or reformed, and his argument for his own right to indefinite leave to remain was never at the expense of others.

We also managed to cut through to publications and media outlets that don’t normally run stories detailing immigration injustice. This Morning is an example of this, with Nelson and Jacob appearing twice, explaining the intricacies of the ten year route as well as the very human impact on their family.

Given Nelson’s history as a newsagent and retailer, his story was also picked up by trade publications. We were able to extend beyond the usual echo chamber, reaching people who have probably never heard of the ten year route but who were moved by Nelson’s story. This was also apparent in the way the story was shared on social media.

Parliamentary intervention

As well as speaking to the media, Nelson had a meeting with his MP during the campaign, whowrote to the then Immigration Minister. We hoped that the coverage and the clear public support for Nelson, made mainstream by the media coverage, would add more pressure for a positive outcome in his case. We had also hoped that Nelson’s MP would be willing and able to ask a question in Parliament, but this was made impossible by the timing of the General Election. Although not his constituent MP, Jess Philips also took an interest in Nelson’s case after meeting him and Jacob on set at This Morning. She too promised to raise his case with the Minister.

Success!

In June, after their solicitors had considered the amended grounds and supporting evidence, and in the face of their ongoing failure to fully respond to disclosure requests, the Home Office backed down and compromised the judicial review proceedings in Nelson’s favour. They agreed to grant Nelson indefinite leave to remain “outside the rules”, accepting that his case is exceptional. They also agreed to waive the application fee.

This was a huge victory for Nelson: the certainty and security of settled status in his retirement, after a lifetime spent at the heart of his local community. After one year of having indefinite leave to remain, he will be able to apply for British Citizenship. It also meant that the money the family raised through GoFundMe was donated to three North West charities: Wirral Foodbank, the Boaz Trust and the Clatterbridge Cancer Charity, rather than paying the Home Office’s legal costs.

Nelson had the energy to do another round of media interviews, and said: “I was so relieved that in the end, we have won the battle. Now we hope to win the war: for the authorities to agree that the 10-year route is inhuman, and abolish it or shorten it.”

The campaign continues

At GMIAU, we were utterly thrilled for Nelson and his family, and proud to have been part of this journey with them, with the right outcome for him at the end of it. What ultimately won the day – the legal challenge, the media scrutiny, the parliamentary intervention, or a combination of all three – we will never know.

But as Nelson said, the war isn’t over: because the Home Office settled the case, the court didn’t get to hear our argument against the policy and the ten year route itself. This is still something that needs to be taken forward. With Nelson and his family, we’re writing to Seema Malhotra, the Parliamentary Under-Secretary of State for Migration and Citizenship of the United Kingdom. We’re asking her to meet with us and to consider capping all routes to settlement at five years.

While there are other changes to the ten year route that are urgently needed, like scrapping visa fees and the No Recourse to Public Funds condition – shortening the route is our key ask, shared by other campaigning organisations. It would remove years of burden from people, and it would save resources for the Home Office, which faces severe delays in making decisions on fee waiver and leave to remain applications. It would mean that people like Nelson, already embedded in their communities, would not face that ten year “probationary period” of precarious status.

The policy work continues and there remains scope for others, like Nelson, to apply for indefinite leave to remain on a discretionary basis. The threshold is high, but as “A Punishing Process” and our casework shows, many people for many reasons find themselves with a set of exceptional circumstances and a viable argument to show that a probationary period of ten years is irrational.

The key question: why should someone whose life and future lies here in the UK need to endure ten years of precarious status and pay thousands of pounds before they can settle? still needs to be answered by the courts and ultimately by Parliament.

GMIAU would like to thank Rowena Moffatt of Doughty Street Chambers for all her support with the legal challenge.

This article was co-authored by Rivka Shaw. Rivka Shaw has been a Policy Officer at Greater Manchester Immigration Aid Unit since 2020. She works with people affected by immigration controls to research and document immigration injustice in the North West, and to advocate and campaign for change.