Judicial Review hearing starts on questions of ‘institutional racism’ at the Home Office

National Civil Rights Organisation calls on Home Secretary to commit to Windrush recommendations

April 23rd 2024, London: The judicial review hearing into the decision of former Home Secretary Suella Braverman MP as Home Secretary to drop three key recommendations from the Williams Windrush Lessons Learned Review has started at the Royal Courts of Justice today.

The Claimant, Mr Trevor Donald, a recognised Windrush Scandal survivor, is bringing this judicial review, supported by Unison and Black Equity Organisation (BEO), who are intervening in the case. Permission to bring the claim and for the interventions was granted by Mrs Justice Thornton.

BEO commissioned an expert report from Frances Webber, trustee and former Vice Chair of the Institute of Race Relations, which sets out the historical legislative mistreatment of the Windrush generation and concludes that dropping key recommendations from the Williams Review is a manifestation of the institutional racism that continues to pervade Home Office culture and decision-making – Mrs Justice Thornton said of the expert report that it was “reasonably required to resolve the proceedings”.

Mr Donald’s legal challenge is to the decision of then Home Secretary Suella Braverman not to continue with a promise given by previous Home Secretary Priti Patel to implement all of the recommendations made by Wendy Williams, published in the Windrush Lessons Learned Review. The judge said that both Unison and BEO had “relevant knowledge to assist the Court”.

The claimant asserts that the decision to renege on the promises breached his legitimate expectation that they would be adhered to and resulted in him being discriminated against contrary to ECHR, Article 14, taken in conjunction with Article 8. He also argues that the decision was in breach of the Home Secretary’s Public Sector Equality Duty and her duty of inquiry.

Timi Okuwa, CEO of Black Equity Organisation commented:

“The issues at the heart of this review aren’t just legal ‘spin’ but have real-life impacts on Windrush survivors and their descendants. The British public have an innate sense of justice and it is time for the lessons of the Windrush Scandal to be fully addressed and the recommendations of Wendy Williams’ Review to be implemented in full – to ensure that no-one in this country faces such institutional hostility. We look forward to the opportunity to support Mr Donald’s claim and highlight the on-going issues of institutional racism we believe still exist in the Home Office.”

SUMMARY OF THE CASE AND BEO’S ARGUMENT:

• The claimant in the case is Mr Donald, a recognised Windrush victim.

• Mr Donald’s legal challenge is to the decision of then Home Secretary Suella Braverman not to continue with a promise given by previous Home Secretary Priti Patel to implement all of the recommendations made by Wendy Williams, published in the Windrush Lessons Learned Review.

• On 26 Jan 2023, Suella Braverman announced to Parliament that she was not proceeding with 3 previously accepted recommendations:

1. Recommendation 3: To run reconciliation events which would enable people who had been impacted by the scandal to articulate this impact 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.
2. Recommendation 9: To introduce a Migrants’ Commissioner that would be responsible for speaking up for migrants and those affected by the system, including being an advocate for individuals. Purpose being to identify systemic concerns.
3. Recommendation 10: Review the remit and role of the Independent Chief Inspector of Borders and Immigration (ICIBI), including considering whether to give the CI power to publish reports and to require ministers to publish clearly articulated and justified reasons when they do not implement recommendations.

• Mr Donald’s claim raises 5 arguments:

1. Substantive legitimate expectation: That after former Home Secretary Priti Patel announced that she would implement all 30 recommendations on 30 June 2020, and following the Home Office publishing its Comprehensive Improvement Plan on 30 September 2020, in which it set out its detailed plan to address all the recommendations, he had a legitimate expectation in law that the recommendations would be implemented. As Mr Donald had a legitimate expectation, he argues that Suella Braverman could only reneged on this commitment if this was justified in the public interest. No evidence has been provided at all about the reason for Suella Braverman resiling from the promise. Given the importance of the promise to Mr Donald and Windrush survivors, any decision not to continue with the recommendations needed to take this into account.
2. Procedural legitimate expectation: The Comprehensive Improvement Plan acknowledged the need for the Home Office to be open, listen and consult. This created a legitimate expectation that the Home Office would consult on important matters that related to the Windrush Lessons Learned Review. Failing to consult key stakeholders (including Black Equity Organisation) before taking a decision to resile from the commitments breached the promise to consult.
3. Discrimination – Article 14. Windrush survivors have been recognised as a social group that should not be discriminated against, within the meaning of Article 14 of the European Convention on Human Rights (i.e. recognised as an ‘other group’):The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. The Claimant and BEO say that the decision not to implement the recommendations disproportionately impacts Windrush survivors and their families (and, as a consequence, Black and Asian communities) and that given the historic injustices (which BEO’s expert Fran Webber says constituted institutional racism), the Home Office needed to justify making this discriminatory decision. Again, no justification was shown.
4. Breach of Tameside duty of inquiry: A public authority like the Home Office is supposed to obtain information that is necessary to make informed and rational decisions. This can include a duty of inquiry and may require consultation of third parties. The Claimant says that in these circumstances and given Windrush experiences, the duty is particularly important, and the Home Secretary did not carry out appropriate or adequate inquiries before deciding to resile from previous promises to implement the three recommendations.
5. Breach of Public Sector Equality Duty: Section 149(1) of the Equality Act 2010 (the “Eq A 2010”) provides that a public authority must have “due regard” to the need to eliminate discrimination, harassment, victimisation and any other conduct prohibited by or under the 2010 Act, advance equality of opportunity and foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

The Claimant says the Home Secretary herself did not properly consider this duty and did not think about the backdrop of the Windrush scandal and the damage caused by it, which had obvious implications for issues of race.