European Court of Human Rights, Fifth Section (App. No. 26922/19),  ECHR 26922/19, 1 September 2022
The ECtHR rejected a claim that the non-payment to the applicant of his state pension while he was in prison breached Article 14 read with A1P1. The Court rejected the claim that the disparate impact the rule had on the applicant, as someone with no other source of income, related to a “status” for the purposes of Article 14, ruling at §79 that “The different impact that the disqualification had on prisoners with and without other social security entitlements or other forms of income is not related to an aspect of their personal status”. It accepted that being a prisoner could amount to a status but denied that he was similarly situated, for the purposes of an Article 14 claim, with non-convicted persons detained in psychiatric institutions who were “patients, not prisoners” (§85). Nor was he similarly situated with prisoners held on remand who were entitled to continued payment of state pensions (§92) in view of the entitlement of remand prisoners to be presumed innocent.
Court of Appeal: Peter Jackson, Singh and Andrews LJJ,  EWCA Civ 1, 11 January 2022
This decision concerned a challenge to the suspension of Disability Living Allowance (“DLA”) after an individual in receipt of the benefit has been hospitalised for 28 days. The challenge was brought under Article 14 read with A1P1 to the Convention by MOC, a 60 year old man with complex medical conditions and disabilities whose sister, MG, had been appointed to act as his deputy by the Court of Protection. Prior to his hospitalisation MOC, who had cognitive, mental capacity and mental health issues, Down’s Syndrome, deafness, blindness, dermatological issues, mobility issues, Hirschsprung Disease, double incontinence, dietary issues and severe learning disabilities, had lived with MG prior to his period of hospitalisation and was provided around-the-clock care by MG and her family. When MOC’s DLA was removed he appealed to the First-tier and Upper Tribunal and thereafter to the Court of Appeal. The claimant’s case was that his need for MG to look after his interests and advocate on his behalf did not cease during his period of hospitalisation. His appeal failed. Singh LJ, with whom Peter Jackson and Andrews LJJ agreed, ruled that the claimant had failed to establish the collective disadvantage required for an indirect discrimination claim, and could not rely on (lack of) capacity as a “status” due to its shifting nature, and that any discrimination was in any event justifiable. Continue reading
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..
Divisional Court: Lewis LJ and McGowan J,  EWHC 3114 (Admin), 23 November 2021
The Divisional Court rejected a challenge under Article 14 to the lawfulness of the claimant’s detention following his recall to for failure to comply with the terms of his release on licence. A number of claims were made, including that the application to the claimant of the licence regime imposed by the Criminal Justice Act 2003, rather than its predecessor the Criminal Justice Act 1991, breached Article 14 read with Article 5 and/or 7 of the Convention because he had been treated differently from a prisoner convicted of an identical offence and sentenced to an identical because he had not been in custody at the time that the 2003 Act’s licence regime was imposed, having instead been unlawfully at large.
The Court rejected all the grounds of challenge. As to Article 14, it ruled at §61 that the Claimant was not in fact subject to different treatment by reason of having been unlawfully at large at the material date, rather because of the date on which his offences. At §63, “even assuming differential treatment between the claimant and such a prisoner on grounds of other status, and assuming that they are in an analogous situation, the difference in treatment would be objectively justified. The second defendant wished to move to a different system of release provisions, including increasing the licence period to make it co-extensive with the remainder of the sentence. That was done by making the 2003 Act provisions governing release apply to sentences for offences committed on or after 4 April 2005. The decision to alter the arrangements for early release is objectively justified. The application of the new arrangements to those who committed offences after a certain date is also objectively justified. That conclusion is consistent with the observations of Lord Hughes JSC in R v Docherty (Shaun)  UKSC 62,  1 WLR 181, cited by Lady Black JSC in Stott at paragraph 62”.
Claimant: Philip Rule, instructed by Instalaw
Defendants: Hugh Flanagan, instructed by the Government Legal Department
Court of Appeal: Underhill VP, Moylan and Dingemans LJJ,  EWCA Civ 1572, 2 November 2021
The claimant was a qualified solicitor with “various difficulties and mental health disabilities” who had been unemployed since 2011 and was accepted for the purposes of the litigation as being “vulnerable” as the term is used in the authorities relating to the inherent jurisdiction. He unsuccessfully sought financial orders against the respondents, his parents, requiring them to continue to provide him with significant financial support. His applications failed on the basis that the family court had no jurisdiction to make the orders sought under s27 of the Matrimonial Causes Act 1973 or Schedule 1 of the Children Act 1989 (because his parents were neither divorced nor separated), and that its inherent jurisdiction was not available to assist the applicant because of the “fundamental principle” that the jurisdiction cannot be used when there was “a comprehensive statutory scheme dealing … with the circumstances in which a child, including as here, an adult child, can make a claim against a living parent”. It further ruled that s3 HRA did not permit an alternative construction. The claimant appealed on the basis, inter alia, that the matters complained of fell within the scope of Articles 6 and 8 and A1P1 and engaged a protected status. Moylan LJ, with whom Moylan and Dingemans LJJ agreed, dismissed the appeal. Continue reading
 EWCA Civ 1439,  STC 2199
Court of Appeal: Sir Julian Flaux C, Henderson and Nicola Davies LJJ,  EWCA Civ 1439,  STC 2199, 6 October 2021
The Court of Appeal considered a challenge brought by Arron Banks in respect of a finding of the Revenue and Customs Commissioners that donations of almost £1 million made by him to the UK Independence Party (“UKIP”) were ineligible to be exempted from the inheritance tax liability attaching to his estate by reason of being gifts to political parties because UKIP at the material time failed to meet the threshold established in the Inheritance Tax Act 1984 (s24) of having at least two members in the House of Commons or one member plus at least 150,000 votes in the relevant election.” The claimant sought to rely on Article 14 of the ECHR read with Article 1 of the First Protocol to the ECHR, Article 10 and/or or Article 11 (freedom of assembly) of the ECHR and/or on Articles 10 and/or 11. The Upper Tribunal had overturned a decision by the First-tier Tribunal that Mr Banks had been discriminated against on grounds of his political opinion contrary to Article 14 (though no remedy had be granted to him as it was not possible to construe s24 of the 1984 Act in a Convention-compliant manner and it was not open to the tribunal to make a declaration of incompatibility under s4 HRA). The appellant appealed on the grounds, inter alia, that the Upper Tribunal erred in law in failing to hold that s24 directly or indirectly discriminated against him on the grounds of his political opinion in breach of Article 14 taken with A1P1, also that it erred in dismissing his claim that he was discriminated against on the grounds of being a supporter of a party which did not have any MPs following the 2010 General Election, alternatively that he was a victim of discrimination against UKIP on the grounds that it had no MPs following the 2010 General Election. He also claimed that the UT had erred in concluding that any discrimination (which it had not accepted had occurred) was justified. The Court (Henderson LJ with whom the Chancellor and Davies LJ agreed) dismissed his appeal. Continue reading
Supreme Court,  UKSC 27,  1 WLR 3746, 9 July 2021
Lord Lloyd-Jones, Lady Arden, Lords Hamblen, Burrows and Stephens
The question for the Supreme Court was whether the exclusion of victims of human trafficking, from compensation under the 2012 iteration of the Criminal Injuries Compensation Scheme (“the CICS”) on the ground of their previous criminal convictions unjustifiably discriminated against them contrary to Articles 4 and 14 ECHR. The Court (per Lord Lloyd-Jones with whom Lady Arden and Lords Hamblen, Burrows and Stephens agreed) adopted broad approaches both to “ambit” and to “other status”. It accepted that the discrimination fell within Article 4 ECHR and that “having an unspent conviction which resulted in a custodial or community sentence is a status for the purposes of art 14”.
Because the claimants’ criminal convictions pre-dated and were unconnected with their status as victims of human trafficking the Court rejected their Thlimmenos claim that they had were entitled, by reason of being trafficked, to be treated differently from other CICS applicants with criminal convictions. The court did accept that the claimants had been discriminated against as people victims of trafficking with relevant unspent convictions, but concluded, having considered the approach of the Supreme Court in R (SC) v Secretary of State for Work and Pensions  UKSC 26,  3 WLR 428 (see associated blog), that such discrimination was justified. Continue reading
Supreme Court  UKSC 26,  3 WLR 428, 9 July 2021
Lord Reed P, Lord Hodge DP, Lady Black, Lords Lloyd-Jones, Kitchin, Sales and Lord Stephens
This is a very important decision of the Supreme Court concerning a challenge brought under Articles 8 and 12 ECHR, read alone and with Article 14, to the restriction of the individual element of child tax credit to an amount calculated by reference to two children. The Supreme Court rejected the challenges under Articles 8 and 12 and, of more relevance to this blog, rejected arguments about direct and indirect discrimination against children, though it accepted that there were prima facie cases of sex discrimination and of direct discrimination against children living in households with more than two children, as compared with children living in households with two or fewer children.
The challenge ultimately failed on justification grounds but the case, which has been cited extensively in virtually every Article 14 decision of the domestic courts since it was decided, is significant because the Court revisited the “manifestly without reasonable foundation” which had been the orthodox approach to Convention challenges to economic/ social policy in the domestic courts since at least 2012. The case was also significant in that it reimposed an orthodox approach to the treatment of unincorporated international obligations (here the Convention on the Rights of the Child) and included extensive consideration of the reliance which might be placed by the courts on Parliamentary debates and other Parliamentary material when considering whether primary legislation is compatible with Convention rights.
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