Administrative Court; Foster J,  EWHC 15 (Admin), 6 January 2022
The claimant challenged the Education (Student Support) Regulations 2011 (as amended) on the basis that they breached Article 14 ECHR read with A2P1 by restricting eligibility for student finance to individuals to would-be higher education students who were “settled in the United Kingdom” for immigration purposes on the first day of the first academic year of their course. The claimant, whose academic course started on 1 September 2020, had made an application for settled status. He had, in respect of previous applications, used the Home Office Super Priority visa application service which granted visas within 24 hours on payment of a fee, the normal turnaround offered by the Home Office for disposal of an Indefinite Leave To Remain (“ILR”) Visa application being six months. The Super Priority scheme, and a related Priority scheme, were withdrawn by the Home Office with only a few days’ notice on 31 March 2020, unknown to the Claimant. He became eligible to apply for ILR on 14 April and did so on 17 May 2020, a day before his previous visa was due to expire. He applied for student finance on 24 August 2020. He was granted ILR on 23 November 2020 but was advised by letter of 18 December 2020 that he was ineligible for student finance. After having unsuccessfully appealed this decision he sought judicial review. Foster J ruled that the discrimination in issue fell within A2P1, that the claimant was entitled to rely on the broad approach to “status” approved by the Supreme Court in R (SC) v Secretary of State for Work and Pensions  UKSC 26,  3 WLR 428 (see previous post), and that the discrimination was unjustified and unlawful.
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..
Court of Appeal: Haddon-Cave, Nicola Davies and Nugee LJJ,  EWCA Civ 898  4 WLR 94, 15 June 2021
This was an unsuccessful claim brought under Article 14 ECHR read with Article 5 and/or 8 to Rule 7(1A) of the Prison Rules 1999, which prevented the transfer to open conditions of prisoners in respect of whom deportation orders had been made to take effect on release from lengthy prison sentences. The Court of Appeal upheld the decision of the the Divisional Court (Hickinbottom LJ and Johnson J) essentially on the same grounds as the Divisional Court had relied upon, rejecting the claim that the discrimination in issue was on grounds of nationality (a suspect ground) and applying the “manifestly without reasonable foundation” test, albeit as modified by the Court of Appeal in R (Drexler) v Leicestershire County Council  EWCA Civ 502. Continue reading
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: Underhill VP, Simler and Warby LJJ,  EWCA Civ 348, 15 March 2021
The Court considered an appeal from a High Court decision which had rejected indirect race discrimination and PSED challenges to the application of the Defendant’s ex gratia scheme to support and assist third-country national refugees outside the UK who have fled the conflict in Syria. The case is important, if somewhat disheartening to equality lawyers, for its conclusions on the (limited) extra-territorial effect of the Equality Act 2010. It is worth emphasising that the Court of Appeal’s approval of the High Court’s conclusions on justification were subject to the proviso that the limited evidence on which the High Court was prepared to find in the Defendant’s favour was the result of the way in which the claim had developed post-issue; as Underhill LJ, concurring with Simler LJ leading judgment, stated at §110: “the story is indeed a good illustration of the perils of “rolling judicial review”. Continue reading