Court of Appeal: Underhill VP, Asplin and Simler LJJ,  EWCA Civ 336, 16 March 2022
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
The claimants were single mothers from Albania who had been victims of sex trafficking who had sought asylum in the UK. Prior to the grant of their refugee status they had been denied financial support under the provisions of the Modern Slavery Victim Care Contract in respect of their dependent children because they were asylum seekers in receipt of asylum support. They would not have been so excluded had they not been in receipt of asylum support but had been in receipt of financial support from other sources (universal credit, “legacy” benefits or paid work). The High Court ruled that the claimants’ treatment amounted to discrimination on grounds of sex contrary to Article 14 ECHR read with Article 8 and A1P1. Noting that the different treatment was the result of mistake rather than intention, the Judge ruled that the margin of appreciation available to protect the making of a judgment did not so readily protect against incompetence in its execution, remarking that “a margin of appreciation is not the same thing as a licence to err”. Kerr J was notably critical of the defendant, referring to her evidence being “not of progress towards reform but of corporate amnesia and repeated requests for more time” and submissions made on her behalf as “constitutionally wrong and unfair to the court”. He awarded the claimants under s8(3) HRA, seeing “real force” in the submission that their treatment had been “egregious”.