Trinidadian national Lynda Mahabir, a victim of the Windrush scandal in the United Kingdom, says she is looking forward to being reunited with her family soon.
Last week, a UK High Court ruled that the Secretary for the Home Department had committed “a colossal interference’” in Mahabir’s right to family life.
She took the government to court claiming the financial impact of the fees for them to apply to enter the UK had separated her from her husband, Winston, and five children.
Her lawyers argued this was a breach of her right to family life, and discriminated against her relatives. Deputy High Court Judge Tim Smith ruled in favour of the family, and against the home secretary.
Smith said there was no dispute Mahabir was a Windrush victim.
Mahabir went to the UK at two months old in 1969, before being brought back to Trinidad by her father in 1977.
The Home Office failed to document her lawful immigration status and, as a result, she was unable to return to the UK for 41 years – until she was granted leave to remain under the Windrush scheme in 2018.
WAITING TO BE REUNITED
In a WhatsApp conversation with Newsday, Mahabir said she was very “thankful and grateful” for the outcome of the case in court. “And, my family and I are looking forward to be reunited soon.”
She admitted it was a hard and tough journey, but it was a battle that was worth fighting for.
“It was not an easy road but through our faith in Jesus, he gave us the strength to cope with the hardships faced.”
She and her family keep in touch through social media and WhatsApp, she said. How soon does she expect they will be able to join her in the UK?
“As soon as the Home Office responds to the applications submitted by my lawyers.”
She said she went to the UK as a child and was given the wrong immigration status. She returned to the UK and was granted leave to remain under the Windrush scheme in 2018.
She said Home Office did not recognise that her family should also be there with her. Mahabir said despite the way she and her family were treated, she did not give up.
Mahabir challenged the home office’s refusal to consider her husband and children’s application under the Windrush scheme, saying they had to pay the relevant application fees, which would have amounted to over £20,000.
Mahabir, in e-mail exchanges with the Home Office, said it would be a “daunting task’ to pay the fees but wanted to establish her status as a British citizen and wanted her family with her.
In her judicial review claim, she challenged the home office’s refusal to allow the family to make fee-free applications to enter the UK.
She argued her family was forced to separate for over two years and this was in breach of their right to family life under Article 8 of the European Convention on Human Rights (ECHR) and of their rights not to be discriminated against under Article 14 of the ECHR.
A THANKLESS CHOICE
In his ruling, Smith held that Mahabir was faced with “a thankless choice,” of either giving up the remedies put in place by the home office to remedy the injustices suffered by the victims of the Windrush scandal or breaking up her family.
Smith said Mahabir chose to do the latter – in the hope, no doubt, that it would be only temporary – but in the process she has suffered the "colossal interference" with her right to family life.
“The evidence from the first claimant in her witness statement about the negative impact of the separation from her family upon her is both undisputed and unsurprising,” he said in the decision.
He found there was a breach of her Article 8 rights by interfering with her right to respect for family life by making as a precondition, her husband and her children pay a fee to enter the UK without consideration of affordability.
Smith held the home secretary effectively failed to afford Mahabir “an effective way” to assert her rights and “disproportionately interfered” with it.
He also held that Mahabir’s husband's and children’s rights were also breached by “unjustifiably failing to treat them differently from the family members of non-Windrush victims and by unjustifiably failing to treat them in the same way as the children of a Windrush victim who is resident in the UK.
“I am therefore persuaded that the failure of the defendant to afford family members of a Windrush victim preferential treatment in the charging of fees, over and above other classes of applicant, is indirectly discriminatory against them and is unlawful.”
One of Mahabir’s lawyers, Jeremy Bloom, said in a press release, “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.”
Mahabir and her family are likely to receive compensation for the breaches to their rights as Smith sent it to the Central London County Court for an assessment of damages.
People who went to the UK between 1948 and 1971 from Caribbean countries have been labelled the "Windrush generation." This refers to the ship MV Empire Windrush, which in 1948, took workers from Jamaica, Trinidad and Tobago and other countries, to help fill post-war UK labour shortages.
The UK home office kept no record of those granted leave to remain and issued no paperwork, making it difficult for Windrush arrivals to prove their legal status. Those who lacked documents were told they needed evidence to continue working, get National Health Service treatment, or even remain in the UK. The judgment was delivered by e-mail.