Each claimant had arrived here with their parents, and stayed for several years. They were excluded from the scheme allowing families who had been here more than three years to stay here, because they had attained 18 and were no longer dependant on their families. They said the removals would be discriminatory.
Held: To justify a discrimination the court had to find ‘very weighty reasons.’ It was the discriminatory effect of the measure which must be justified, not the measure itself. The practical difficulties of removing such as the applicants were less. Though the discrimination would create hard cases on compassionate grounds, any such line might also give rise to claims on compassionate grounds. Being parentless is an ‘other status’ under article 14. On balance the policy was justified, and there was no violation of Article 14.
‘In general, the list concentrates on personal characteristics which the complainant did not choose and either cannot or should not be expected to change. The Carson case is therefore unusual, because it concerned discrimination on the ground of habitual residence, which is a matter of personal choice and can be changed.’
Baroness Hale asked: ‘What difference does it make that the complaint is that the policy discriminates, not between children, but between young adults? On the one hand, the special care and protection which all children both need and deserve is in general no longer needed once they have grown up. On the other hand, the status which differentiates them, that of being without parents or family, remains with them for life (or until their parents can be found), just as does the status of being illegitimate or adopted. But it is not one which has so far been recognised as requiring particularly weighty reasons if a difference in treatment is to be justified. ‘
Lord Brown said: ‘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 non-discrimination, 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. ‘
Judges:
Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Scott of Foscote, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood
Citations:
[2008] UKHL 42, [2008] 1 WLR 1434, Times 02-Jul-2008, [2008] HRLR 41, [2008] INLR 471, [2008] Imm AR 729, [2008] 4 All ER 1127, 24 BHRC 738, [2008] UKHRR 917
Links:
Statutes:
European Convention on Human Rights 14
Jurisdiction:
England and Wales
Citing:
Appeal from – AL (Serbia) v Secretary of State for the Home Department CA 28-Nov-2006
. .
Appeal from – Rudi, Regina (on the Application of) v Secretary of State for the Home Department CA 14-Dec-2007
Carnwath LJ said of the ‘near-miss’ argument: ‘This argument is, in my view, based on a misconception. The Secretary of State is of course entitled to have a policy. The promulgation of the policy normally creates a legitimate expectation that it . .
Cited – Kjeldsen, Busk, Madsen and Peddersen v Denmark ECHR 7-Dec-1976
The claimants challenged the provision of compulsory sex education in state primary schools.
Held: The parents’ philosophical and religious objections to sex education in state schools was rejected on the ground that they could send their . .
Cited – Relating to certain aspects of the laws on the use of languages in education in Belgium (Belgian Linguistics) No 2 ECHR 9-Feb-1967
The applicants, parents of more than 800 Francophone children, living in certain (mostly Dutch-speaking) parts of Belgium, complained that their children were denied access to an education in French.
Held: In establishing a system or regime to . .
Cited – EB (Kosovo) v Secretary of State for the Home Department HL 25-Jun-2008
The claimant arrived as a child from Kosovo in 1999. He said that the decision after so long, it would breach his human rights now to order his return.
Held: The adjudicator had failed to address the effect of delay. That was a relevant . .
Cited – Abdulaziz etc v The United Kingdom ECHR 28-May-1985
Three women, all lawfully settled in the UK, had married third-country nationals but, at first, the Secretary of State had refused permission for their husbands to remain with them, or join them, in the UK.
Held: The refusals of permission had . .
Cited – Ghaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
Cited – S, Regina (on Application of) v South Yorkshire Police; Regina v Chief Constable of Yorkshire Police ex parte Marper HL 22-Jul-2004
Police Retention of Suspects DNA and Fingerprints
The claimants complained that their fingerprints and DNA records taken on arrest had been retained after discharge before trial, saying the retention of the samples infringed their right to private life.
Held: The parts of DNA used for testing . .
Cited – Carson, Regina (on the Application of) v Secretary of State for Work and Pensions; Reynolds v Same HL 26-May-2005
One claimant said that as a foreign resident pensioner, she had been excluded from the annual uprating of state retirement pension, and that this was an infringement of her human rights. Another complained at the lower levels of job-seeker’s . .
Cited – Stec and Others v United Kingdom ECHR 12-Apr-2006
(Grand Chamber) The claimants said that differences between the sexes in the payment of reduced earning allowances and retirement allowances were sex discrimination.
Held: The differences were not infringing sex discrimination. The differences . .
Cited – Secretary of State for Work and Pensions v M HL 8-Mar-2006
The respondent’s child lived with the estranged father for most of each week. She was obliged to contribute child support. She now lived with a woman, and complained that because her relationship was homosexual, she had been asked to pay more than . .
Cited – Burden and Burden v The United Kingdom ECHR 11-Sep-2007
The claimants were sisters who had lived together all their lives. They complained of discrimination in their treatment under the Inheritance Tax system as opposed to the treatment of a same sex couple living in a sexual relationship. . .
Cited – Clift, Regina (on the Application of) v Secretary of State for the Home Department HL 13-Dec-2006
The claimants were former serving prisoners who complained that the early release provisions discriminated against them unjustifiably. Each was subject to a deportation requirement, and said that in their cases the control on the time for their . .
At First instance – Rudi and Another v Secretary of State for the Home Department Admn 26-Jan-2007
. .
Cited – Matadeen and others v M G C Pointu and others (Mauritius) PC 18-Feb-1998
It is a well recognised canon of construction that domestic legislation, including the Constitution, should if possible be construed so as to conform to international instruments to which the state is party. Lord Hoffmann said: ‘of course persons . .
Cited by:
Cited – RJM, Regina (on the Application of) v Secretary of State for Work and Pensions HL 22-Oct-2008
The 1987 Regulations provided additional benefits for disabled persons, but excluded from benefit those who had nowhere to sleep. The claimant said this was irrational. He had been receiving the disability premium to his benefits, but this was . .
Cited – Mathieson v Secretary of State for Work and Pensions SC 8-Jul-2015
The claimant a boy of three in receipt of disability living allowance (‘DLA’) challenged (through his parents) the withdrawal of that benefit whilst he was in hospital for a period of more than 12 weeks. He had since died.
Held: The appeal . .
Cited – Steinfeld and Keidan, Regina (on The Application of) v Secretary of State for International Development (In Substitution for The Home Secretary and The Education Secretary) SC 27-Jun-2018
The applicants, an heterosexual couple wished to enter into a civil partnership under the 2004 Act, rather than a marriage. They complained that had they been a same sex couple they would have had that choice under the 2013 Act.
Held: The . .
Cited – McLaughlin, Re Judicial Review SC 30-Aug-2018
The applicant a differently sexed couple sought to marry under the Civil Partnership Act 2004, but complained that they would lose the benefits of widowed parent’s allowance. Parliament had decided to delay such rules to allow assessment of reaction . .
Cited – McLaughlin, Re Judicial Review SC 30-Aug-2018
The applicant a differently sexed couple sought to marry under the Civil Partnership Act 2004, but complained that they would lose the benefits of widowed parent’s allowance. Parliament had decided to delay such rules to allow assessment of reaction . .
Cited – Stott, Regina (on The Application of) v Secretary of State for Justice SC 28-Nov-2018
Extended Determinate Sentence created Other Status
The prisoner was subject to an extended determinate sentence (21 years plus 4) for 10 offences of rape. He complained that as such he would only be eligible for parole after serving two thirds of his sentence rather than one third, and said that . .
Cited – DA and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 15-May-2019
Several lone parents challenged the benefits cap, saying that it was discriminatory.
Held: (Hale, Kerr LL dissenting) The parents’ appeals failed. The legislation had a clear impact on lone parents and their children. The intention was to . .
Lists of cited by and citing cases may be incomplete.
Immigration, Human Rights, Children
Updated: 07 February 2022; Ref: scu.270382