R (Rudi and Ibrahimi) v Secretary of State for the Home Department; AL (Serbia) v Secretary of State for the Home Department

JurisdictionUK Non-devolved
Judgment Date25 June 2008
Neutral Citation[2008] UKHL 42
CourtHouse of Lords
Date25 June 2008
AL (Serbia) (FC)
Secretary of State for the Home Department
R (on the application of Rudi) (FC)
Secretary of State for the Home Department

[2008] UKHL 42

Appellate Committee

Lord Bingham of Cornhill

Lord Hope of Craighead

Lord Scott of Foscote

Baroness Hale of Richmond

Lord Brown of Eaton-under-Heywood


Appellant in first appeal:

Rabinder Singh QC

Nicola Rogers

Joanna Stevens

(Instructed by Brighton Housing Trust)

Appellant in second appeal

Andrew Nicol QC

Mark Henderson

(Instructed by Howe and Co)

Respondents in both appeals:

Monica Carss-Frisk QC

Lisa Giovannetti

Rory Dunlop

(Instructed by Treasury Solicitor)


My Lords,


I have had the advantage of reading in draft the opinions of all my noble and learned friends. In the result, I reach the same conclusion as my noble and learned friend Baroness Hale of Richmond, for whose exposition of the issues I also am grateful. But, for reasons given by my noble and learned friends Lord Hope of Craighead and Lord Brown of Eaton-under-Heywood, I reach this conclusion with fewer misgivings than she expresses.


Viewed through the eyes of the appellants, the Home Secretary's family policy seems harsh: they have suffered the misfortune of losing their parents and now suffer the additional misfortune of losing a benefit which they would have enjoyed had they arrived here with their parents. But viewed through the eyes of the Home Secretary, the policy looks very different: he faced a formidable administrative problem caused by the difficulty, delay and expense of removing families, and the solution was to grant an indulgence to them which was not called for in the case of young, unaccompanied adults who were no part of the problem. If any of the latter had strong claims to remain on article 8 grounds, they could be addressed on a case-by-case basis.


The task of the court is not, however, to view the policy through the eyes of one party or another but to make an objective overall judgment. In my opinion the policy was justified by the administrative exigency which inspired it, and it was not disproportionate because it permitted compelling claims by those falling outside the policy to be recognised and accommodated. The appellants may yet be able to advance such claims.


My Lords,


I have had the advantage of reading in draft the opinion of my noble and learned friend Baroness Hale of Richmond in which she describes the background to these appeals. As she has explained, the appellants' complaint is that, having arrived in this country as children without families and being still without families, their claims for asylum have been treated differently by the Secretary of State from those of other people who arrived here as children with their families and are still with their families. They are both young adults who reached the age of 18 between 2 October 2000 and 24 October 2003. If they had been living here as members of a family they would have been eligible for indefinite leave to remain under the one-off exercise that was announced on 24 October 2003, as updated on 20 August 2004. As it is, they are not being permitted to stay here without their cases being submitted to individual scrutiny. This is simply because they are single and because on the relevant dates they were not living here as part of a family.


It is common ground that both cases are within the ambit of article 8 of the European Convention on Human Rights. It is not suggested that the way the appellants have been treated was in itself a direct violation of their rights under that article. But the Secretary of State accepts that the fact that the appellants' cases fell outside the scope of the updated policy engages, in a general way, their right to respect for their private lives. The question to which these appeals are directed arises under article 14. It is whether this difference in treatment in the application of the policy can be justified. Mr Rudi also claims that the decision to remove him was unlawful at common law because it was irrational. The same question lies at the heart of this argument too. The issue in both cases is essentially one of proportionality.


The policy from which so many others have benefited was not devised as a piece of social engineering with a view to safeguarding the welfare of families. It had a much more pragmatic purpose: see Neuberger LJ's careful analysis in the Court of Appeal [2006] EWCA Civ 1619, paras 25-39. It was to save public funds by clearing the ground to promote greater efficiency in the future. The administrative and financial burden that had resulted from a huge growth in asylum applications and from an ever increasing backlog in the removal of those whose claims had been held to be unsuccessful was a clog on the promotion of efficiency that had to be addressed somehow. The policy was directed in a broadly defined way to those areas where savings could be achieved to best practical effect. An administration which did not attempt to address these problems would be failing in its duty of sound government. It seems to me to be beyond question that the original policy had a legitimate aim. It was directed to improving the system of asylum control in the general public interest. The policy was updated in August 2004 to remove what were described as a number of anomalies. Here too the aim was a legitimate one.


Eligibility was not extended to young adults who were not living as part of a family because this was not where the problem was thought to lie in clearing the backlog. 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.


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.


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.


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.


I would hold therefore that, looked at overall, the updated policy was a proportionate response to the very particular practical problem to which it was addressed. My reasons are essentially the same as those given by my noble and learned friend Lord Brown of Eaton-under-Heywood. I would dismiss these appeals.


My Lords,


I have had the advantage of reading in draft the opinion on these appeals that has been prepared by my noble and learned friend Baroness Hale of Richmond. For the reasons she gives, with which I am in full agreement, I too would dismiss both appeals.


My Lords,


In October 2003, the Home Secretary, Mr David Blunkett, announced a one-off exercise to clear some long-standing asylum cases off the books by giving the claimants indefinite leave to remain in this country. Inevitably, there were...

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