Administrative Court; Bourne J,  EWHC 3415 (Admin), 16 December 2021
The claimants relied, inter alia, on Articles 14 and 8 in challenging decisions to deny them citizenship. Both were wrongfully prevented from entering the UK at a time when they had or were entitled to indefinite leave to remain in the UK (“ILR”), subsequently applied under the Windrush Scheme and were granted ILR before applying for British citizenship. These applications were denied on the basis that they failed to satisfy Schedule 1 para 1(2)(a) of the British Nationality Act 1981, which requires that a citizenship applicant has been physically present in the UK five years prior to the application (“the 5 year rule”). The question for the Court was whether the 5 year rule could be challenged by reason of the HRA. Bourne J ruled that the absence of discretion or flexibility within the five year rule amounted to Thlimmenos discrimination against the claimants contrary to Article 14 in conjunction with Article 8, but that a Convention compatible reading was possible under section 3 HRA by permitting the defendant to deem that an individual had complied with the 5 year rule..
Administrative Court: Tim Smith (sitting as a deputy judge of the High Court),  EWHC 1177 (Admin), 6 May 2021
In this case the High Court accepted that measures put in place in response to the “Windrush scandal” breached the first claimant’s Article 8 rights and the Article 14 rights of the second to seventh claimants. The case is a useful reminder of the potential for Article 14 to succeed where a claim under the substantive right would not, though the reasoning on Article 14 is succinct to say the least. It is also an example of a case in which a successful application for judicial review resulted in an order for assessment of damages under s8 HRA. Continue reading
Court of Appeal: Singh, Rose and Arnold LJJ,  EWCA Civ 618, 12 May 2020
Note that the decision in R (DA) v Secretary of State for Work and Pensions  UKSC 21;  1 WLR 3289 is no longer good law as a result of the decision of the Supreme Court in R (SC) v Secretary of State for Work and Pensions  UKSC 26,  3 WLR 428 (see later post).
The standard of justification in Article 14 cases concerning welfare benefits has been fixed by the Supreme Court as being the “manifestly without reasonable foundation” (MWRF) test. Attempts to unseat this on the basis that it is inconsistent with the approach of the ECHR where protected characteristics such as sex or disability are concerned (see eg R (Carmichael) v Secretary of State for Work and Pensions  UKSC 58,  1 WLR 4550) have failed, even the perennially courteous Lord Wilson insisting in R (DA) v Secretary of State for Work and Pensions  UKSC 21;  1 WLR 3289 that, as regards welfare benefits, “the sole question is whether it is manifestly without reasonable foundation. Let there be no future doubt about it.” This approach may fall to be revisited in light of the ECtHR decision in JD & A v United Kingdom (Applications nos. 32949/17 and 34614/17)  HLR 5, in which that Court confirmed that the MWRF applies to discrimination challenged under Article 14 and A1P1 only in “circumstances where an alleged difference in treatment resulted from a transitional measure forming part of a scheme carried out in order to correct an inequality” (such as in Stec v UK (Applications nos. 65731/01 and 65900/01)(2006) 43 EHRR 47). Meanwhile, the decision of the Court of Appeal in TD indicates that even the MWRF test is capable of being breached. Continue reading