The Home Office’s refusal to give families of the Windrush generation preferential fees to enter the UK is unlawfully discriminatory, a High Court judge has ruled.
Judge Tim Smith made the ruling after Lynda Mahabir, who was born in Trinidad, was separated from her husband and five children for more than two years due to the large fees the family would have to pay to join her in the UK.
The judge said the Home Office’s insistence the 52-year-old’s family had to pay nearly £23,000 to join her left her with "a thankless choice".
Mrs Mahabir was brought to the UK when she was two months old in 1969 before being taken back to Trinidad by her father in 1977 after her parents divorced.
The Home Office did not document her lawful immigration status, like many others from the Windrush generation, so she was not able to return to the UK for 41 years.
She was then granted leave to remain under the Windrush scheme in 2018, which helps people whose immigration status was not confirmed get the documents they need.
Mrs Mahabir returned to the UK, where her mother and step-siblings live, under the impression she would be apart from her family for three months at the most before they could join her.
But, the Home Office refused to consider the applications of her husband and five children, two of whom are under 18, under the Windrush scheme and said they had to pay the application fees, which they could not afford.
In Thursday’s landmark ruling, the judge said: "Either she had to forego 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.
"She chose to do the latter, in the hope no doubt that it would be only temporary, but in the process she has suffered (a) colossal interference with her right to family life."
He said Mrs Mahabir’s evidence "about the negative impact of the separation from her family upon her is both undisputed and unsurprising".
The High Court ruled the Home Office’s failure "to afford family members of a Windrush victim preferential treatment in the charging of fees… is indirectly discriminatory against them and is unlawful".
Jeremy Bloom, the Mahabir family’s lawyer, said: "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."