AL (Serbia) (FC) v. Secretary of State for the Home Department; R (on the application of Rudi) (FC) v. Secretary of State for the Home Department
- Author: House of Lords; Appellate Committee
- Document source:
-
Date:
25 June 2008
AL (Serbia) (FC) v. Secretary of State for the Home Department; R (on the application of Rudi) (FC) v. Secretary of
State for the Home Department
In this section
Whether the differentiation of treatment between asylum seekers based on their status (specifically, arriving as children without families and being still without families vs arriving with families and still with families) under a "one-off" asylum application policy is discriminatory and contrary to article 14 of the European Convention of Human Rights. The issue focuses on whether the policy has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not disproportionate in its adverse impact.
In 2003, the Home Secretary announced a one-off exercise to clear long standing asylum cases by granting claimants indefinite leave to remain in the UK, specifically families with children who had claimed asylum prior to 2 October 2000 and who were still living in the UK as a family unit in October 2003.
The appellants arrived as children and claimed asylum before 2 October 2000 but were not part of a family unit and therefore did not qualify under the one-off exercise.
On 20 August 2004, the elgibility criteria were "updated to remove a number of anomalies". The relevant change was that the policy was extended to families with dependent children aged under 18 either on 2 October 2000 OR on 24 October 2003. Therefore families who had arrived and calimed asylum before 2 OCtober 2000 but whose children had reached 18 after that date and before of teh announcement of the policy were covered. Had the claimants been in the UK with their parents, they would have been covered by the amended policy.
The appellants claimed that to treat them less favourably than other people who arrived in the UK as children, simply because they have no parents or chidlren of their own in the country was unlawful discrimination under Article 14 of the European Convention on Human Rights.
Key Consideration: Whether the difference in treatment in the application of the policy can be justified
7. [...] Was the updated policy which contained this feature proportionate? This question demands a practical, commonsense answer. Three points indicate that the answer should be in the affirmative.
8. First is the nature of the problem to which the policy was directed. I think that this carries the Secretary of State a long way. His policy was devised as a solution to pressing administrative and financial problems in the sphere of immigration control. These problems lay peculiarly within the executive?s area of responsibility. They had to be solved if the decks were to be cleared for achieving greater efficiency. How best to deal with them was primarily a matter for the exercise of judgment by the executive. Once it was decided that the policy could not be unlimited in its scope, it was inevitable that the release from immigration control could not be extended to everybody. This was likely to give rise to some anomalies. Its area of judgment included their detection and how far it was appropriate to go in securing the removal of those anomalies.
9. Second is the appellants? status as single young adults. It is accepted for present purposes that this description falls within the concluding words of article 14. Following the guidance given by the European Court in Kjeldsen, Busk Madsen and Pedersen v Denmark (1976) 1 EHRR 711, para 56, we can take it that status means a personal characteristic by which persons or groups of persons are distinguishable from each other. The appellants? case differs from those such as R (Clift) v Secretary of State for the Home Department [2007] 1 AC 484, where the claimant?s classification as a prisoner resulted in a difference in treatment but it was not possible to say that this was because of any status. Adulthood is a status, as is the state of being not married. But the status of adults is not one which has so far been recognised as requiring particularly weighty reasons to justify their being treated differently from others, as Baroness Hale points out. The less weighty the reasons that are needed, the easier it is to regard the fact that the appellants were treated differently as falling within the discretionary area of judgment that belongs to the executive.
10. Third, there is nothing to indicate that single young adults were being targeted for unfavourable treatment just because of what they were. It was the fact that the group to which they belonged was not seen to create a problem in the clearing of the backlog that was decisive in their case. Other groups which were excluded fell into the same
category. This was the inevitable consequence of a policy that was, for legitimate reasons, selective in its approach to securing immigration control with greater efficiency. Of course, the fact that a policy favours one group does not mean that if it deals unfavourably with another group it can escape the criticism that it is discriminatory. The absence
of deliberate targeting is an important factor in judging whether there is discrimination in the enjoyment of Convention rights. Deliberate discrimination will always risk intervention by the judiciary. But a difference in treatment of people outside the so-called suspect categories which is simply a by-product of a legitimate policy will not normally do
so.
43. Like so many equality issues, the issue is relatively easy to state but not at all easy to answer. Instinctively one feels that to treat two young men so very differently, because one arrived here as a child with his family and one did not, has to be wrong. [...] If the aim of the policy had been to select the most deserving cases for special treatment, then the difference would have been difficult to explain, let alone to justify.
44. However, that was not the principal aim of the exercise. The overall aim was to ?clear the decks?, to reduce the back-log so as to make the system more efficient in the future. It is accepted that this was a legitimate aim, albeit a strictly pragmatic one. The easiest way to do this would have been to choose a neutral criterion, such as the date on which the person entered this country, as had been done in a previous such exercise. It is accepted that bright lines of this sort, even if they produce what appear to be arbitrary distinctions between one case and another, are often necessary and can be justified: see, eg, the age rules in R (Reynolds) v Secretary of State for Work and Pensions [2005] UKHL 37, [2006] 1 AC 173.
45. Instead, the Home Secretary was more selective, concentrating on a group which it was thought would bring the greatest financial and administrative advantages. It is accepted by the Home Secretary that some criteria, however rational on pragmatic grounds, would not have been justifiable. It would obviously have been wrong to select only
families headed by men rather than families headed by women, perhaps because it was believed that men could or would more readily find work to support the family; or to select families from some ethnic groups rather than others, perhaps for the same reason. That is one reason why Mr Singh devoted so much time to trying to persuade us that being
parentless or childless, or not being part of a family unit, was in the same sort of category as race or sex.
46. The administrative and pragmatic reasons put forward for the original policy are not difficult to accept. It is in the public interest that the administration of asylum and immigration control be as efficient as possible. Indeed, the original policy did not involve any less favourable treatment as between the two groups of children while they were children. It is rather less easy to accept that the same reasons applied to the 2004 extension to young adults. Then the difference in treatment between the two groups became acute, because one would be sent back to their country of origin and the other would not. But the administrative reasons for singling out the one for more favourable treatment make rather less sense. Indeed, there is very little evidence of what the reasons were for the 2004 extension. It did remain within the original concept of the policy, as applying to family units as a whole, rather than extending it to a quite different category. Young adults who are part of a family unit may find it easier to make a claim based upon the right to respect for their family life, than young adults who are not part of a family unit may find it to make a claim based upon the right to respect for the private life which they have established here. One suspects, but it is pure speculation, that the bright date lines drawn by the original policy had thrown up some particularly hard cases. And the justifications put forward for the original policy were never entirely administrative. It was recognised that there were also strong compassionate grounds in many of these family cases. No doubt this made it easier to ?sell? the policy in some quarters where it might otherwise have been unpopular.
47. Once compassionate grounds come into the picture, it becomes rather more difficult to justify distinguishing between young men who do and young men who do not have a family in this country. It would be different if the latter had a family of some sort to return to in their home countries. But it is more difficult to draw a distinction on compassionate grounds between a person who arrived here as an unaccompanied child, who could not be returned to his home country while he was a child because there was no-one there to look after him, who had therefore to make a life for himself in this country, and who still has no family to return to, and a person who is here with his family, but whose family has no better right to be here under the asylum and immigration rules than does the single person who is being excluded. Whatever the outcome of these appeals it is to be hoped that the authorities will recognise the strength of the compassionate grounds in these cases. However, there may be many other people falling outside the policy where the compassionate grounds are also strong. The essence of the policy was its efficiency, not its compassion.
48. It is also relevant that this was a policy aimed to benefit family groups. It was about who should be allowed to stay, whether or not they had a good claim to do so, and who should be obliged to go. The policy makers were not thinking in terms of the children, still less of the young adults, who were and were not to benefit from it. They did not address
their minds to the unaccompanied minor asylum-seekers. It was not targeted against them. That is a relevant, although by no means conclusive consideration in article 14 cases. But the fact that it was aimed at family groups is relevant in another way. The favourable treatment given to the family groups was an aspect of the respect accorded by the state to family life, as, for example, was the favourable treatment given to husbands who wanted to bring their wives here in the Abdulaziz case. In the Abdulaziz case, it was that same right to respect for family life which was engaged by the differential treatment given to wives who wanted to bring their husbands here. In this case, however, it is not the same right which is in play. The family life of the family groups who are here is undoubtedly in play, whereas it is only the private life of the appellants which may be in play. Although both are protected by article 8, we are not therefore looking at differential treatment in relation to exactly the same Convention right. This makes this case very different from the usual article 14 case. Whether one regards it as a case in which the individuals are not in an analogous situation, or whether one regards it as a case of justification, one way or another it appears to me that the policy can withstand scrutiny in the sense explained by Lord Nicholls in the Carson case.
49. I therefore find it possible to conclude, although not without considerable misgivings and regrets, that there has been no violation of article 14 in this case. As already explained, if the claim cannot succeed on article 14 grounds, it cannot in my view succeed at common law. I would therefore dismiss both appeals.
51. In a sentence (although I shall have to expand upon it a little) it seems to me quite simply contrived and unreal to regard this policy as a violation of article 14 or of the common law principle of nondiscrimination, either on grounds of disproportionality or for want of justification. Its plain intent was to improve the system of immigration control by releasing from it an easily identifiable group of people (of all nationalities, both sexes and various ages) who were causing it particular problems, essentially families with children. The policy was called the ?family amnesty? policy and was clearly introduced rather for the benefit of the Home Office than for those whom it enabled to remain. Necessarily bright lines had to be drawn: the concession only availed the relevant family if the parent of the dependent child[ren] had applied for asylum before 2 October 2000 and dates were also specified (later extended) for when the dependency had to exist.
52. Of course a concession of this nature could have been applied across the board. But if it had been it would have allowed to remain in this country very many people whose removal would have presented no particular difficulty. Obviously this would have brought less net benefit in the way of immigration control: those additionally allowed to stay
would have added to the numbers released from immigration control without corresponding benefit to its future efficiency. It necessarily followed from the policy actually adopted that all sorts of people fell outside it. Unaccompanied children were plainly amongst those who did not qualify?although they in fact benefited from another policy directly referable to children, ensuring that they would not in any event be removed during their minority. Also excluded were all those (even if otherwise within a qualifying family) on whose behalf no asylum claim had been made before 2 October 2000. Also all those outside the specified family structure?adults without dependent children or, indeed, grandparents, uncles, aunts, or anyone else except parents, even if they were living with dependent children.
53. There was plainly no question here of the policy intentionally disadvantaging children qua children (quite the contrary given, as I have stated, that they were not to be removed in any event) or unaccompanied children qua unaccompanied children (as opposed to unaccompanied children as one amongst a large number of disparate categories of people consisting of all those who failed to come within a specified family group on whose behalf an asylum application had been made by the due date). Even supposing that those coming within the policy and those falling outside it were in otherwise similar situations (in that all were aspiring to settlement in this country), if one asks whether the
differences in their respective situations justified their different treatment (the question which Lady Hale at para 24 reminds us that Strasbourg asks in these cases), I would unhesitatingly answer ?yes?. The policy was introduced on a selective basis for sound pragmatic reasons. It involved no discrimination on any ?suspect? ground. It was not sexist, nor racist, nor ageist.
54. Accordingly I see no possible basis for overturning this policy either under article 14 or at common law. In my opinion the claims of both appellants were rightly rejected at all stages below. In common with all your Lordships, I too would dismiss both these appeals.
Appeals dismissed.
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