Milton Vivian Thompson, R (on the application of) v Secretary of State for the Home Department
[2023] EWHC 2037 (Admin)
Jeanell Hippolyte v Secretary of State for the Home Department
20 November 2024
[2024] EWHC 2968 (Admin)
High Court
A woman was denied UK residency under a scheme for people wrongly denied status in the past. She argued the government should have used its power to make an exception. The court agreed the government didn't consider this, but said the decision would likely have been the same anyway. The court also rejected her discrimination claim, finding that the government's rules were fair.
Key Facts
- •Jeanell Hippolyte challenged the Home Secretary's refusal of indefinite leave to remain under the Windrush Scheme.
- •She failed to meet the continuous residence requirement.
- •She argued unlawful refusal due to (i) failure to consider discretion under the Immigration Act 1971, section 3(1)(b) to waive the requirement; and (ii) Article 14, read with Article 8 ECHR violation.
- •Hippolyte left the UK after her student visa expired, then re-entered later.
- •Her father, Cletus Hippolyte, was a member of the Windrush generation and experienced delays in receiving documentation.
- •Hippolyte contended that the lack of documentation for her father affected her ability to apply for indefinite leave to remain earlier.
- •The case involved considering whether the Home Secretary considered exercising her discretion and whether there was discrimination.
Legal Principles
Public law decision-makers cannot fetter their discretion; even with a policy, exceptions must be possible.
R (West Berkshire District Council) v. Secretary of State for Communities and Local Government [2016] 1 WLR 3923
Secretary of State has wide discretion under section 3 of the Immigration Act 1971 to grant leave to enter or remain.
R (Munir) v Secretary of State for the Home Department [2012] 1 WLR 2192
Section 31(2A) Senior Courts Act 1981 allows refusal of relief if the outcome would likely be the same even with proper consideration of discretion.
Section 31(2A) Senior Courts Act 1981
Article 8 ECHR (right to respect for private and family life) and Article 14 ECHR (prohibition of discrimination) were considered.
European Convention on Human Rights
Bank Mellat test for proportionality applied to determine justification of discrimination.
Bank Mellat v HM Treasury (No 2) [2014] AC 700
Outcomes
Claim under Ground 1 (failure to consider discretion) dismissed.
The court found that the Secretary of State did not consider exercising her discretion to waive the continuous residence rule, but the court further held that even if she had, the application would likely have been refused due to a lack of historic injustice and the unlikelihood that she would have met requirements for indefinite leave to remain even if she had applied earlier.
Claim under Ground 2 (Article 14, read with Article 8 ECHR violation) dismissed.
While the Claimant was considered in an analogous situation to a hypothetical comparator, the continuous residence rule was deemed justified under the Bank Mellat test, with the court giving considerable deference to the Secretary of State's decision in the immigration field. The negative impact on the Claimant was considered outweighed by the importance of the rule's objectives.
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