COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
Ref No: 0A161922007
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MAURICE KAY
LORD JUSTICE ELIAS
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Miss Lisa Giovannetti and Mr Jonathan Hall (instructed by Treasury Solicitor) for the Respondent
Hearing date : 25 March 2009
Crown Copyright ©
Lord Justice Maurice Kay :
The decision of the AIT
"the parties will be able to maintain themselves and any dependants adequately without recourse to public funds."
"20. I accept that family life exists between the appellant and the sponsor, and that the respondent's decision constitutes an interference with the appellant's right to respect for his family life. However, the sponsor is free to join her husband in Hargeisa, in Somaliland, at any time she wants. There are certainly no insurmountable obstacles to the parties enjoying their family life in Somaliland. [Counsel] has drawn my attention to the medical reports concerning the sponsor's health, but the sponsor has been able to spend a month in Somaliland in 2004 and 2006 and a month in Ethiopia in 2005. I bear in mind also that the sponsor has her mother here in the UK, and other members of her family. However, in my view the consequences of the respondent's decision are not sufficiently grave as to engage Article 8 at all.
21. However, if I am wrong about that, then the issue is whether the respondent's decision is proportionate to the legitimate aim pursued, namely the maintenance of an effective policy of immigration control. Balancing the public interest in the respondent being able to pursue his legitimate policy, against the appellant's rights under Article 8, I am satisfied that the respondent's decision is proportionate to the legitimate aim pursued, and is therefore justified under Article 8(2)."
The ground of appeal
"Whether paragraph 281(v) is incompatible with Article 14 of the ECHR taken together with Article 8 (and thereby must be disapplied or read down), given its failure to make provision for people with disabilities by either: (1) excusing them from the maintenance requirement, or at least (2) allowing third party maintenance."
The legal framework
"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."
"The Court has so far considered that the right under Article 14 not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is violated when States treat differently persons in analogous situations without providing an objective and reasonable justification However, the Court considers that this is not the only facet of the prohibition of discrimination. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different."
"For the purposes of Article 14, a difference in treatment is discriminatory if it 'has no objective and reasonable justification', that is, if it does not pursue a 'legitimate aim' or if there is not a 'reasonable relationship of proportionality between the means employed and the aim sought to be realised." (Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471, at paragraph 72).
At this point, the common ground comes to an end. I propose to consider the disputed areas under a series of headings.
Is this a case of discrimination on the ground of disability?
Justification: Is this a "weighty reasons" case?
Justification: Does the application of paragraph 281(v) of the Immigration Rules pursue a legitimate aim and is there a reasonable relationship of proportionality between the means employed and the aim sought to be realised?
"the discriminatory effect of the measure which must be justified, not the measure itself." (AL(Serbia) v Secretary of State for the Home Department  UKHL 42,  1 WLR 1434, per Baroness Hale, at paragraph 38, emphasis added).
"a general policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory notwithstanding that it is not specifically aimed at that group." (DH v Czech Republic (2008) 47 EHRR 3, at paragraph 175.)
"the means used to impair the right or freedom are no more than is necessary to accomplish the objective." (R(Daly) v Secretary of State for the Home Department  UKHL 26,  2 AC 532, per Lord Steyn, at paragraph 27).
"In these circumstances, the Court considers that imposing a further sanction on the applicant was disproportionate. It follows that the applicant's exclusion from the profession of chartered accountants did not pursue a legitimate aim. As a result, the Court finds that there existed no objective and reasonable justification for not treating the applicant differently from other persons convicted of a felony.
it was the State having enacted the relevant legislation which violated the applicant's right not to be discriminated against in the enjoyment of his right under Article 9. That the State did so by failing to introduce appropriate exceptions to the rule barring persons convicted of a felony from the profession of chartered accountants."
"This is an area where the court should be very slow to substitute its view for that of the executive
The fact that there are grounds for criticising, or disagreeing with, these views does not mean that they must be rejected. Equally, the fact that the line may have been drawn imperfectly does not mean that the policy cannot be justified. Of course, there will come a point where the justification for a policy is so weak, or the line has been drawn in such an arbitrary position, that, even with the broad margin of appreciation accorded to the state, the court will conclude that the policy is unjustifiable. However, this is not such a case, in my judgment."
"In this country, successive administrations over the years have endeavoured, in Immigration Rules and administrative directions revised and updated from time to time, to identify those to whom, on grounds such as kinship and family relationship and dependence, leave to enter or remain should be granted. Such rules to be administratively workable, require that a line be drawn somewhere."
"The sponsor, or the sponsor and the entrant between them, is/are to be the source of the entrant's maintenance and support, both because such a requirement will tend to give concrete effect to the family unit in question (this was the reason given for the rule change to 297 by the Migration Strategic Directorate), and also, no doubt, for the reason given by Tuckey LJ at paragraph 16 in MW(Liberia),  EWCA Civ 1376: '[t]hird party arrangements of the kind in question in this case are necessarily more precarious and, as the Tribunal said in AA, more difficult to verify'."
Lord Justice Elias:
The scope of Article 14
"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, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
"..the court has already accepted in previous cases that a difference in treatment may take a the form of disproportionately prejudicial effects of a general policy or measure which, though couched in neutral terms, discriminates against a group .[S]uch a situation may amount to "indirect discrimination" which does not necessarily require a discriminatory intent."
"Such a difference in treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. "
(see Burden v United Kingdom (Application no.13378/05) para 60.)
Applying the principles
Is there discrimination?
"The contracting state enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment, and this margin is usually wide when it comes to general measures of economic or social strategy."
This is an observation on the margin of appreciation which is not strictly applicable in the domestic courts, but the House of Lords has adopted a similar approach in the context of the relationship between the legislature or executive and the judiciary: see e.g. the observations of Lord Hoffmann in R (Carson) v Secretary of State for Work and Pensions  UKHL 37;  1 AC 173 para 16.
Making an exception to rule 281(v)
Third party funding
Lord Justice Mummery: