Grace Brown, Joint Head of Garden Court Chambers, was instructed by Freya Danby and Jacqueline McKenzie of Leigh Day.
The Court of Appeal has ruled that the Home Office must take a fresh decision in the case of Jeanell Hippolyte, finding that officials unlawfully failed to consider exercising discretion when refusing her application for status under the Windrush Scheme.
This is the first Windrush-related case to succeed in the Court of Appeal and demonstrates that the Windrush Scheme should not necessarily be applied in an inflexible way. Consideration needs to be given to the exercise of discretion and relaxation of the criteria in appropriate cases.
Although Ms Hippolyte did not meet the continuous residence requirement of the Windrush Scheme, her legal team had invited the Secretary of State to consider discretion in light of her strong ties to the UK and the circumstances of her family.
The Court of Appeal found that:
- The Home Office’s claim that they did not need to exercise discretion because “mandatory requirements have not been met” was evidence of their failure to exercise discretion.
- The High Court had erred by speculating how the Secretary of State would have decided the application, despite never having exercised discretion in the first place.
- There was no evidential basis to support the High Court’s finding that the outcome was “highly likely” to be the same. Lord Justice Singh held that this unlawfully intruded into merits-based decision making.
- Ms Hippolyte’s deep family and personal ties to the UK could satisfy the underlying purpose of the continuous residence requirement, which the High Court described as “a proxy” for strong ties. The Court of Appeal said this point must now be considered by the Home Office.
- The High Court had wrongly treated “historical injustice” as a required condition for exercising discretion under the Windrush Scheme.
The ruling is important for potential and possibly past claimants under the Windrush Scheme as it means that in cases where a claimant would not qualify for status on a strict reading of the criteria, there may well be grounds for a grant of status if a basis can be identified on which the Secretary of State for the Home Department can reasonably exercise her discretion.
Grace Brown, Joint Head of Garden Court Chambers, and Chris Buttler KC of Matrix Chambers acted for the Appellant. They were instructed by Freya Danby and Jacqueline McKenzie of Leigh Day.
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