A woman who was denied indefinite leave to remain (ILR) in the UK, despite her brothers and father being given the status under the Windrush Scheme, has lost a High Court challenge against the decision.
Jeanell Hippolyte, 41, challenged the Home Office’s refusal to review its decision to deny her application for ILR in the UK, after it was given to her brothers and father because of the latter’s Windrush status.
Her lawyers had said that her case was “identical” to those of her brothers, but the Home Office said her bid was “lawfully refused”.
In a ruling on Wednesday, Mr Justice Sheldon dismissed Ms Hippolyte’s case, saying she had not suffered a “historic injustice”.
He said: “The Secretary of State would have been highly likely to decide that, although the claimant was a child of a member of the Windrush generation, her claim was not really equivalent to a Windrush scheme claim, as she, and her father, Cletus Hippolyte, had not suffered a historic injustice.
“The Secretary of State would have been highly likely to decide that there was no reason therefore for the Secretary of State to make an exception to the Windrush scheme in the claimant’s case.”
The court in London heard in a two-day hearing last month that Ms Hippolyte, a Saint Lucian national, originally came to the UK as a 17-year-old student in 2000, but left in 2002 to comply with immigration rules after her student visa expired.
In written submissions, her barrister, Chris Buttler KC, said her father’s ILR status was not officially granted until 2003, and that she left the UK because the Home Office failed to issue identity status documents to her father which confirmed this.
Ms Hippolyte “did not make an application because she did not know that her father had ILR” status, Mr Buttler said.
Her brothers arrived in the UK in 2007, the court heard, and had ILR applications refused but overstayed, breaching immigration rules, until they successfully applied under the Windrush Scheme in 2019.
Mr Buttler continued: “Here the only relevant difference between the claimant and her brothers is that she complied with immigration control and they did not.”
But William Hansen, representing the Home Office, said in written submissions that Ms Hippolyte applied to the Windrush Scheme in August 2020, and was refused in February 2021 because she had “not been continuously resident in the UK” since arriving in the country.
He said a request to review the application was rejected in July 2021, and a fresh application to the scheme was made in October 2022.
The new application was refused on the same grounds, with further reviews rejected in 2023.
He said: “The primary submission is that the comparison with the treatment of Ms Hippolyte’s other siblings is misplaced because they were in a materially different position, not just in terms of continuous residence but in other respects too.”
He continued: “Continuous residence requirements in various forms are a staple feature of immigration rules.”
Mr Justice Sheldon ruled against Ms Hippolyte, saying: “The claimant had argued that there was a historic injustice in that Cletus Hippolyte had not been issued with documentation evidencing (his) status and this impacted on her status in the United Kingdom.
“There was also a historical injustice in that she was erroneously compelled to leave the UK in 2002.”
He continued: “If the Secretary of State had taken this argument into account when considering the exercise of her discretion she would have been bound to conclude that Cletus Hippolyte’s lack of documentation was incidental and not causative of any injustice.
“Accordingly, it would have provided no basis for the exercise of discretion in the claimant’s favour, and that is a conclusion which the Secretary of State was highly likely to have reached.”
Reacting to the judgement Ms Hippolyte said she was “devastated”.
“It will turn my own life and that of my children upside down,” she said.
“With the help of my solicitor, Freya Danby at Leigh Day, I hope to appeal the judgment and fight on for the right to stay in the UK, which is my home and my children’s home.”
