The Home Office unlawfully prevented a Windrush woman’s husband and children from joining her in the UK, the High Court has ruled, in what it branded as a “colossal interference” in her right to family life.
Lynda Mahabir, a Trinidadian national, was brought to the UK at two months old in 1969 before being taken 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.
However, the department refused to consider the applications of her husband and five children, two of whom are under 18, under the Windrush scheme, saying they had to pay the application fees, which would have amounted to over £20,000 – a sum they could not afford.
In a landmark ruling on Thursday, deputy High Court judge Tim Smith ruled that Ms Mahabir was faced with “a thankless choice” of either having to forego her rights under the Windrush scheme or breaking up the family – which he said constituted a “colossal interference” with her right to family life.
The judge continued: “I am persuaded that the failure of the [Home Office] 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.”
Ms Mahabir, now 52, spent her early life in west London, but was taken to Trinidad by her father aged eight after her parents divorced.
“I thought I was on holiday. I kept writing to my mum telling her I want to come home. But then the holiday was getting a bit long. I wanted to go back to school. I was missing my friends,” she told The Independent.
“In the end, I had to accept it. But I always felt British. I took that lifestyle to Trinidad; I was different to everyone else. The way they would behave, their culture, I wasn’t accustomed to it. I never really did integrate.”
Ms Mahabir met her husband, Winston, aged 15 and they later married and had five children, the eldest of whom is now 29 and the youngest 11.
She tried a number of times to travel to the UK to visit her mother but was refused visas. It wasn’t until 2018, when the Windrush scandal broke, that she was given the opportunity to return to Britain, her “home”.
When Ms Mahabir was granted status under the Windrush scheme, she asked the Home Office whether her family could join her and was told she should come to the UK first.
When the family said goodbye at the airport in Trinidad in October 2018, they were therefore under the impression that they would be apart for three months at the most before they would be able to join her in Britain.
“The kids were crying – my youngest was nine at the time. But we had been assured that it would just be a little while before things would be rectified for them in the same way I got my status sorted,” she said.
On returning to the UK, Ms Mahabir said she felt that she was “back home” like a “duck to water”. She soon got her own home in west London and found a job, in the hope that her family would be joining her soon.
However, the following month Ms Mahabir found out they wouldn’t be able to join her, at which point she said her “world came crashing down”.
Reflecting on the Home Office’s decision, she said: “It didn’t make sense. They were saying one thing but doing something else. Right the wrongs means right the wrongs, not make more wrong.”
It was at this point that the family decided to fight the matter in court. For the past two and a half years, Ms Mahabir has been living apart from Winston and her children, in the hope that they would win the case.
“I knew I had to go forward. I wanted it to all be over. It was really hard not knowing when this nightmare was going to end,” she said.
Ms Mahabir, who works as a community support facilitator, said she was “relieved” and “thrilled” at the court judgment and looked forward to having her husband and children join her once Covid-19 restrictions ease.
“I’m glad I held on and kept moving forward with this. I hope that other people in this situation can also be helped by this ruling,” she added.
Jeremy Bloom, from Duncan Lewis Solicitors, who represents the family, said the ruling was a “fantastic outcome” for the Mahabirs as well as others who are unable to join Windrush generation family members in the UK “simply because the Home Office refuses to waive their exorbitant application fees”.
He added: “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 spokesperson 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.”