R (Rudi and Ibrahimi) v Secretary of State for the Home Department; AL (Serbia) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Neuberger,Lord Justice Gage,Lord Justice Ward,LORD JUSTICE CARNWATH,Sir Peter Gibson,Lord Justice Wall |
| Judgment Date | 14 December 2007 |
| Neutral Citation | [2006] EWCA Civ 1619,[2007] EWCA Civ 1326 |
| Date | 14 December 2007 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C4/2007/0998 & C4/2007/0427,Case No: C5/2006/0624 |
[2006] EWCA Civ 1619
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
(Mr Justice Hodge OBE, President and Mr A McGeachy, Senior Immigration Judge)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Ward
Lord Justice Neuberger and
Lord Justice Gage
Case No: C5/2006/0624
HX/21466/2004
Ms Nicola Rogers and Ms Joanna Stevens (instructed by Brighton Housing Trust) for the appellant
Ms Lisa Giovannetti (instructed by the Treasury Solicitor) for the respondents
Introduction
This is an appeal brought by Mr A L against the decision of the Asylum and Immigration Tribunal ("the AIT"), who rejected his contention that his removal from the United Kingdom would be in breach of Article 14 of the European Convention on Human Rights and Freedoms ("ECHR").
The facts relating to the appellant
The relevant facts relating to the appellant may be shortly stated. He was born on 28 April 1984 in Kosovo, where he lived with his parents until March 1999, when the family left, after they had been threatened by the authorities. Shortly thereafter, the appellant was separated from his parents, with whom he has had no subsequent contact, despite periodic attempts to locate them. He arrived in the United Kingdom (via Macedonia and Albania in each of which he spent a few months) in January 2000.
Almost immediately on arriving in this country, the appellant claimed asylum. A year later, the Secretary of State refused his claim, but granted him exceptional leave to remain until 28 April 2002, his eighteenth birthday. Since then, he has been resident in this country. On 4 April 2002, he applied for an extension of his leave to remain, but this was refused by the Secretary of State on the ground that the appellant had no reason to fear persecution if he was returned to Kosovo.
The appellant's appeal was rejected by an Adjudicator on 31 March 2005, but, on 27 June 2005, Henriques J, sitting in the Administrative Court, ordered that his appeal should be reconsidered in relation to one issue. That issue was "whether the removal of the [appellant] would be contrary to Article 8 taken together with Article 14 [of the ECHR] having regard to the fact that the [appellant] was at the time of entering the UK an unaccompanied minor and would thus be treated differently from a person in identical circumstances with one or more natural parents in this country".
The appellant's remitted appeal was then heard by the AIT (Mr Justice Hodge and Mr A McGeachy), who dismissed it in a determination promulgated on 6 January 2006. He now appeals against that determination.
The appellant's case on Article 14: the family amnesty policy
The appellant's Article 14 claim arises out of a concession announced by the Secretary of State on 24 October 2003. This concession is contained in "APU Notice 4/2003", and is sometimes referred to as the "family amnesty policy". In that Notice, the Secretary of State announced the policy as a "One off exercise to allow families who have been in the UK for three or more years to stay".
The policy involved the grant, for those who qualified, of indefinite leave to remain in the United Kingdom. In order to qualify, a person had to be an adult who satisfied three conditions, namely that he or she (a) had made an asylum claim before 2 October 2000, (b) had been in the United Kingdom for at least three years on 24 October 2003, and (c) had at least one dependant (other than a spouse) aged under 18 in the United Kingdom on 2 October 2000 or 24 October 2003. The concession extended to the spouse of any qualifying adult. So far as other dependants of such an adult were concerned, they also benefitted from the concession provided that they "formed part of the family unit on 24 October 2003". (The explanation of the choice of dates is that 2 October 2000 is when the Human Rights Act 1998 came into force, and 24 October 2003 is when the policy was announced.)
Excluded from the concession were persons who had a criminal conviction, those who were the subject of an Anti-Social Behaviour, or Sex Offender, Order, those who had made an asylum application "in more than one identity", those who should have their asylum claim considered in another country, those who presented a risk to security, or those whose presence in the UK was otherwise not conducive to the public good.
The appellant's case is based upon Article 14 of the ECHR ("Article14") which provides:
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
In Thlimmenos –v- Greece (2001) 31 EHRR 15, the Strasbourg Court said that:
"The application of Article 14 does not presuppose a breach of one or more of such provisions and to this extent it is autonomous. For Article 14 to become applicable it suffices that the facts of a case fall within the ambit of another substantive provision of the Convention or its Protocols"
11. In this case, the appellant contends that his non-eligibility for indefinite leave to remain in this country is within the ambit of his private and/or family life under Article 8 of the ECHR, and that, consequently, his reliance on Article 14 is, at least in principle, justified. While Ms Giovannetti made it clear that the concession was not intended to be of general application, the Secretary of State accepts that, at least in this case, there is no reason in principle why the appellant should not be entitled to rely upon Article 14. In other words, it is conceded that there is a sufficient nexus between the appellant's case and Article 8 of the ECHR to enable him to invoke, at least in principle, a claim under Article 14.
In paragraph 21 of its clear and carefully reasoned decision, the AIT explained the appellant's case that the policy is unjustifiably discriminatory insofar as it does not apply to him in the following terms:
"He was a child who had himself claimed asylum prior to 2 October 2000. He had been in the United Kingdom for over 3 years on 24 October 2003. The dependant child of an asylum seeker who had claimed asylum as the appellant had in January 2000 and was still living, as the appellant was, in the UK in October 2003, some three years later, would have qualified for indefinite leave to remain as a dependant of that asylum seeker. The appellant was at 2 October 2000 an asylum claiming unaccompanied minor. He claimed his position is the same as a child under eighteen in October 2000 who is the child of an adult asylum applicant. It is discriminatory to treat him differently. The concession should apply to him as a matter of law."
The law relating to Article 14
The appellant contends that he has been unjustifiably discriminated against, contrary to Article 14, under the family amnesty policy, because, as someone who arrived in this country as an unaccompanied minor, he is less favourably treated under the policy than people who shared all his characteristics (minors seeking asylum before October 2000 who are still here in October 2003), save that they arrived here with a parent (and I shall refer to this group as "accompanied minors") . As Ms Giovannetti said when opening her submissions on behalf of the Secretary of State, this case raises a point in a "difficult and complicated area of the law".
In Wandsworth London Borough Council –v- Michalak [2003] 1 WLR 617, Brooke LJ said at paragraph 20 that, in considering the question of whether or not there had been a breach of Article 14, the court should adopt a structured approach, which involved answering the following questions:
a) "Do the facts fall within the ambit of one or more of the substantive Convention provisions …?
b) If so, was there different treatment as respects that right between the complainant on the one hand and other persons put forward for comparison ("the chosen comparators") on the other?
c) Were the chosen comparators in an analogous situation to the complainant's situation?
d) If so, did the difference in treatment have an objective and reasonable justification: in other words, did it pursue a legitimate aim and did the differential treatment bear a reasonable relationship of proportionality to the aim sought to be achieved?"
As subsequent consideration of those questions has shown, it is by no means clear that this structured approach, attractive though it seems on the face of it, is appropriate, at least in many cases: see for instance the observations of Lord Hoffmann and Lord Walker of Gestingthorpe in R(Carson) –v- Secretary of State for the Home Department [2006] 1 AC 173 at paragraphs 30 to 33 and 63 and 64 respectively. At paragraph 63, Lord Walker approved the suggested approach, in relation to sex discrimination claims, of Lord Nicholls of Birkenhead in Shamoon –v- Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 at paragraph 11, to the effect that tribunals might be well advised to:
"concentrate[e] primarily on why the claimant was treated as she was. Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case. Or was it for some other reason? If the latter the application fails."
Accordingly, a "simple and non-technical approach" is often, indeed normally, appropriate – see...
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