Home Office discriminating against Windrush generation’s families – High Court

Home Office
Home Office (PA Archive)
16:41pm, Thu 06 May 2021
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The Home Office’s refusal to give the families of people from the Windrush generation preferential treatment when charging fees to enter the UK is unlawfully discriminatory, the High Court ruled.

Lynda Mahabir, a 52-year-old woman who was born in Trinidad, suffered a “colossal interference” with her right to family life when she was separated from her husband and five children for more than two years, a judge said on Thursday.

Judge Tim Smith ruled that the Home Office’s insistence that Mrs Mahabir’s family had to pay nearly £23,000 in fees to join her in the UK left her with “a thankless choice”.

The judge said: “Either she had to forego the remedies which the (Home Office) had put in place with the express intention of remedying the injustice suffered by her and others like her, or else she had to break up the family.

The judgment makes it clear that the Home Office talks a good talk on Windrush but in reality the scheme is riddled with limitations and fails to properly consider the human rights of those it aims to help

“She chose to do the latter, in the hope no doubt that it would be only temporary, but in the process she has suffered (a) colossal interference with her right to family life.”

The judge added that Mrs Mahabir’s evidence “about the negative impact of the separation from her family upon her is both undisputed and unsurprising”.

The High Court also ruled that the Home Office’s failure “to afford family members of a Windrush victim preferential treatment in the charging of fees… is indirectly discriminatory against them and is unlawful”.

Speaking after the ruling, Mrs Mahabir, from west London, said she was “very happy” with the decision and hoped her family would be able to join her in the next two months.

She told the PA news agency: “We (my family) all agreed that we would fight this because the UK is a better place for them.

“I lost that opportunity as a child growing up, but I knew that opportunity could be available for them (my children) if I just held on.”

Trinidadian national Mrs Mahabir, who works with disabled people as a community support facilitator, was raised in the UK until she was nine, before being taken back to Trinidad by her father in 1977.

This was despite a court order – arising from her parent’s divorce at the time – ruling that she should not be taken out of the UK, Mrs Mahabir said.

Despite attempts to return, it was only in 2018 – some 41 years later – that she was allowed back permanently as a resident under the Windrush scheme.

Mrs Mahabir said she had asked the Home Office if her family would be able to come with her, but was told to “get over to the UK first” and then “see about her family”.

It was only when she was told to apply for their resident status that she learned she would have to pay in excess of £20,000 – a fee that made it almost “impossible” to bring them over, she said.

Speaking about her treatment by the Home Office, Mrs Mahabir said: “I felt misled. I don’t want to use the word lied to, as that is too strong, but it is along those lines.”

The Home Office said it was “considering the implications” of the judgment and that it remained “determined to right the wrongs suffered by the Windrush generation”.

In a statement after the ruling, Jeremy Bloom, a solicitor at the law firm Duncan Lewis who represented the Mahabir family, said: “This is a fantastic outcome for the Mahabir family and for all those who are unable to come to the UK to join members of the Windrush generation simply because the Home Office refuses to waive their exorbitant application fees.

“The judgment makes it clear that the Home Office talks a good talk on Windrush but in reality the scheme is riddled with limitations and fails to properly consider the human rights of those it aims to help.

“A genuine commitment to righting the historic wrongs committed would not have to be enforced by court judgment in this way.”

A Home Office spokeswoman said: “We remain determined to right the wrongs suffered by the Windrush generation – over 12,500 people have been issued with documentation confirming their status or British citizenship free of charge under the Windrush scheme.

“We are carefully considering the implications of this judgment and will continue our work to ensure members of the Windrush generation receive the documentation they need, free of charge, in order to live, work and access services in the UK.”

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