The husband and children of a Windrush generation woman were prevented from joining her in the UK by the Home Office. The high court ruled, after they had been separated for almost three years, that this represented ‘a colossal interference’ in her right to family life.
In an important judgement that could help many others from the Windrush generation to bring close relatives to the UK, the family of Lynda Mahabir, who was stuck outside the UK for almost 40 years will now be able to join her in Britain without paying thousands of pounds in immigration fees.
Mahabir, 52, a Trinidadian national, was brought to London as a two month old baby in 1969 and remained here until 1977 when her father took her back to Trinidad to live with him. She was eligible for British citizenship but was unaware of her rights. As a result she was unable to return, and was separated for more than 40 years from her mother and half-siblings in the UK, until the Home Office immigration scandal broke in 2018, when the government promised to right the wrongs done to the Windrush generation.
Mahabir then applied to the Home Office’s Windrush taskforce and was granted permission to move back to Britain. She said officials at the Home Office told her “Let’s sort you out first and then see about the family”. She travelled to London alone in October 2018, telling her children, the youngest of whom was nine, that she would arrange for them to join her within a few months. However, she discovered that officials would not waive her family’s immigration fees, and she was unable to meet the cost, which would have amounted to over £20,000.
Solicitor for the claimants Jeremy Bloom from Duncan Lewis said the ruling could make it easier for large numbers of people living abroad who had applied for immigration assistance under the Windrush scheme but been rejected. More than 12,500 people have been granted immigration status under the Windrush scheme, and any children born abroad to those people will now be able to apply for permission to reside in the UK even if they are unable to afford the fees.
“This is a wonderful 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 judgement 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 historical wrongs committed would not have to be enforced by a court judge in this way”.
This is the second significant ruling against the Home Office on Windrush in less than a month. An April high court judgement will prevent the department from refusing citizenship to Windrush-generation applicants if they have minor, historical convictions.
Mahabir, who worked as a civil engineer in Trinidad, said she had always felt British, having spent such a formative period of her childhood in London. “When I went back to Trinidad I thought I was going on a holiday. It was only after a while that I realised I wasn’t going to be coming back to my mum”. As an adult she tried repeatedly to get permission to travel to the UK but was refused a visa.
She felt disappointed that she had been forced to go to court to secure justice. “The government says it wants to right the wrongs but then creates more wrongs in the process. It didn’t make sense to me”.
Tim Smith, a deputy high court judge, ruling against the Home Office said: “Mahabir had been faced with a ‘thankless choice’. She had to either forgo 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”. Mahabir chose to do the latter, expecting the separation to be only temporary. This constituted a ‘colossal interference’ with her right to family life he ruled. The Home Office had not justified its policy of treating family members of Windrush victims in the UK more favourably than those stuck outside the UK.
Mahabir, who has found work in the UK looking after children with disabilities, said her husband, a pastor, would make swift arrangements to join her with their children.
A Home Office spokesperson said: “We are carefully considering the implications of this judgement 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”.