QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN on the applications of MAHMOUD BAIAI & IZABELA TRZCINSKA
LEONARD BIGOKU & AGOLLI
|- and -
| THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
JOINT COUNCIL FOR THE WELFARE OF IMMIGRANTS
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The Honourable Mr Justice Silber:
II. The Section 19 Scheme in its Legislative Context
"(3) The superintendent registrar shall not enter in the marriage notice book notice of a marriage to which this section applies unless satisfied, by the provision of specified evidence, that the party subject to immigration control –
(a) has an entry clearance granted expressly for the purpose of enabling him to marry in the United Kingdom,
(b) has the written permission of the Secretary of State to marry in the United Kingdom, or
(c) falls within a class specified for the purpose of this paragraph by regulations made by the Secretary of State."
(1) The applicant must have valid leave to enter or remain in the UK beyond a short term status, which means for more than 6 months, with more than 3 months remaining at the time of the application for the COA;
(2) There must be no good reason to believe that there is a legal impediment to the marriage, such as age or consanguinity;
(3) If the applicant does not meet requirements (1) above, the application may still be granted if
(a) an initial decision on an application for immigration status or appeal has been outstanding for 18 months; or
(b) there are compelling compassionate circumstances which make it unreasonable to expect the couple to travel and marry abroad or for the person subject to immigration control to travel abroad and apply for entry clearance for marriage in the UK.
III. The Factual Background to the Three Claims
(i) The Claimants Mahmoud Baiai and Izabela Trzcinska
(ii) The claimants Leonard Bigoku and Luljeta Agolli
(iii) Melek Tilki
IV. The Issues
1. What is the nature of the Article 12 right? Is it an absolute right from which it is not open to the State to derogate? Does the reference to "according to the national laws governing the exercise of this right" permit the State to impose procedural requirements and rules of substance preventing marriages on policy grounds?
2. In the light of the answer to 1 above, does the section 19 regime consist of either procedural rules or rules of substance that are [im]permissible having regard to the nature of the right?
3. In order to establish a violation of Article 12 of the ECHR, are the Claimants required to show that the section 19 scheme involves a substantial interference with the exercise of the right to marry?
(a) If the answer to question 3 is yes, does the section 19 scheme involve such a substantial interference with the right to marry?
(b) If the answer to question 3 is no, does the section 19 scheme in any event involve an interference with the right to marry under Article 12 of the ECHR?
4. In any event, is any interference with the right to marry which results from the section 19 scheme justified? That is, does the section 19 scheme have a legitimate objective which is sufficiently important to justify limiting a fundamental right, is the section 19 scheme rationally connected to that objective, and are the means by which that objective is sought to be achieved no more than is necessary to achieve that objective?
5. In considering question 4, the Court may wish to consider whether a scheme which requires prior permission to marry in the interests of immigration control is in principle permissible, and (if so) whether all or any of the present criteria applied by the Secretary of State for granting permission are permissible. The Court may also wish to consider whether a policy of deterring marriages of convenience by preventing all marriages in the UK by persons of a given immigration status, regardless of whether there is evidence in an individual case to suggest a marriage of convenience, is permissible.
Article 14 (with Article 12 and/or Article 9)
6. Does the section 19 scheme discriminate on the ground of religion? [In answering this question the Defendant invites the Court to consider whether those who marry under Part II of the Marriage Act 1949 are in a relevantly similar, or analogous, position to those who marry under Part III of the Marriage Act.]
7. If so, is religion a ground of discrimination that (at least when the discrimination is direct) requires particularly weighty reasons in order to be justified?
36. If so, are such weighty reasons required in this case, bearing in mind the nature of the discrimination (i.e. to what extent it is direct or indirect and whether or not such distinction matters at all)?
8. If there is discrimination on the ground of religion, is that discrimination objectively justified? That is, does the difference in treatment pursue a legitimate aim, and is there a reasonable relationship of proportionality between the means employed and the aim sought to be realised? [The Claimants suggest that the Court may wish to ask whether there is enough of a relevant difference between the religions to justify different treatment?]
9. Does the section 19 scheme discriminate, directly or indirectly, on the ground of nationality? The Claimants allege that there is indirect discrimination on the ground of nationality in that the proportion of non-British nationals who marry under Part II of the Marriage Act 1949 is considerably smaller than the proportion of British nationals who do so. [In considering whether there is discrimination on the ground of nationality, the Defendant invites the Court to consider (as in 7 above) whether those who marry under Part II of the Marriage Act 1949 are in a relevantly similar, or analogous, position to those who marry under Part III of the Marriage Act.]
10. If there is discrimination on the ground of nationality, is that discrimination objectively justified? That is, does the difference in treatment pursue a legitimate aim, and is there a reasonable relationship of proportionality between the means employed and the aim sought to be realised?
11. In addressing question 12 above, the Court will need to consider whether particularly weighty reasons are required to justify any discriminatory impact in this case, bearing in mind the nature of any discrimination.
12. In addressing any issue of justification, the Court needs to consider the extent to which the State should be afforded a discretionary area of judgment.
13. In considering the effect of the section 19 scheme, the Court needs to bear in mind the three different aspects of the scheme which are being challenged (i.e. the requirement for a COA; the policy of refusing COAs based upon immigration status regardless of whether there is evidence in an individual case to suggest a marriage of convenience; the requirement for a fee, and the requirement to give notice of marriage in a designated registry district), and to consider whether taken separately or cumulatively they involve a violation of the rights in question.
The elements of the section 19 scheme
14. If and in so far as any breaches of the ECHR are found in relation to the operation of the section 19 scheme, the Court will need to consider separately the following questions (although it may be that some or all of these issues should not be determined until any remedies hearing):
(i) Is any aspect of the relevant statutory provision (section 19 of the 2004 Act) incompatible with the ECHR rights of those affected by the scheme? [The Defendant invites the Court to consider, in addressing this issue, whether the fact that the Secretary of State's discretion to grant permission to marry under section 19(3) is not circumscribed by the 2004 Act, and that the Secretary of State is required to act compatibly with ECHR rights under section 6 of the Human Rights Act 1998, prevents that provision from being incompatible with such rights.]
(ii) Is any aspect of the relevant regulations (2005 Regulations) incompatible with the ECHR rights of those affected by them?
(iii) Is any aspect of the Secretary of State's policy set out in the guidance issued to give effect to the section 19 scheme unlawful in being incompatible with ECHR rights or contrary to Article 12 because it fails to follow fair procedures in granting and refusing certificates of approval?"
"54...in so far, as it recounts history which cannot be extracted from the successive Acts, it is relevant and helpful. Such history may properly include issues which had come to the attention of the department of state sponsoring the legislation, for example through correspondence with a representative body".
"The questions of justification and proportionality involve a sociological assessment… it also involves consideration of what is the mischief, social evil, danger etc which it is designed to deal with… But equally there will almost always be other evidentially valuable material which can be placed before the court which is relevant, such as reports that have been made, statistics that have been collected, and so on. Oral witnesses may have important evidence to give… This evidence is admitted because it relates to the making of the required sociology assessment".
"Moreover, as when interpreting a statute, so when identifying the policy objective of a statutory provision or assessing the "proportionality" of a statutory provision, the court may need enlightenment on the nature and extent of the social problem (the "mischief") at which the legislation is aimed. This may throw light on the rationale underlying the legislation"
"It is the current effect and impact of the legislation which matter, not the position when the legislation was enacted or came into force".
VI. The Article 12 Claim
"Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right"
"20…. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less".
"27… whether:(i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objectives are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective".
(ii) The issues
(a) whether the Secretary of State is entitled to impose restrictions or conditions on the right to marry in the interests of an effective immigration policy without contravening the article 12 rights of those affected by this policy and, if so,
(b) what deference should be accorded by a court to decisions of the executive and the legislature in respect of any such policy affecting article 12 rights?
(c) whether the legitimate legislative object for the section 19 scheme is sufficiently important to justify limiting fundamental rights under article 12;
(d) whether the measures in the section 19 regime designed to meet the legislative object are rationally connected to it and
(e) whether the means used in the section 19 regime which impair the article 12 right to marry are more than is necessary to accomplish that objective.
(iii) Is the Secretary of State entitled to impose restrictions or conditions on the right to marry in the interests of an effective immigration policy without contravening article 12?
"62. Such laws may thus lay down formal rules concerning matters such as notice, publicity and the formalities whereby marriage is solemnised. They may also lay down rules of substance based on generally recognised considerations of public interest. Examples of rules concerning capacity, consent, prohibited degrees of consanguinity or the prevention of bigamy. However, in the Commission's opinion national law may not otherwise deprive a person or category of persons of full legal capacity of the right to marry. Nor may it substantially interfere with their exercise of the right".
"52. The Commission first recalls that the Court has held that, even though a right is not formally denied, "hindrance in fact can contravene the Convention just like a legal impediment"and hindring (sic) the effective exercise of a right may amount to a breach of that right, even if that hindrance is of a temporary character".
"32…. "must not restrict or reduce the right in such a way or to such an extent that the very essence of the right is impaired"… In all the Council of Europe's member States, these "limitations" appear as conditions and are embodied in procedural or substantive rules. The former relate mainly to publicity and the solemnisation of marriage, while the latter relate primarily to capacity, consent and certain impediments".
"62... [States] may also lay down rules of substance based on recognised considerations of public interest" (see to the same effect paragraph 49 in Draper's case).
"The Commission notes that, in the present case, the issue concerns substantive rules, the purpose of which is, inter alia, to preclude marriages of convenience between French citizens and aliens. It does not find this limitation, in itself, to be contrary to Article 12 of the Convention."
"the exercise of [their article 12] right to marry was unjustly delayed on discriminatory and humiliating grounds, i.e. an investigation into the motives of their marriage, which went beyond the limits accepted under the Commission's case- law…".
"the purpose of [the rules] is to prevent marriages of convenience between Dutch nationals and aliens for immigration purposes. In this respect the Commission recalls that the Dutch immigration policy is clearly related to the economic well-being of the country, in particular to the authorities' concern, given the population density in the Netherlands, to regulate the labour market.[Reference omitted]
Although in the circumstances of the present case the relevance of the statement at issue may be questionable, the Commission cannot find the limitation at issue may be questionable, the Commission cannot find the limitation at issue, namely the applicants obligation to submit a statement. to be contrary to article 12..."
"does not, in principle, include the right to choose the geographical location of the marriage" (page 296)
"the Commission considers that the limitation of immigration possibilities to only those people who will definitely not create an economic burden on the host state is not of itself an unreasonable or arbitrary requirement" (page 297).
"Act 12 of the Convention does not guarantee the right to marry in a particular country, or under a particular legal system."
(iv) What deference should be shown by a court to a decision of the executive or of the legislature in respect of policy affecting Article 12 rights?
"35...been assisted by the discussion at paragraph 3.26 of Human Rights Law and Practice (Butterworth 1999), of which Lord Lester of Herne Hill QC and David Pannick QC are the general editors. They identify the following factors: (a) the nature of the Convention right: is the right absolute or (as in the case of Article 8) does it require a balance to be struck? The court is less likely to defer to the opinion of the decision-maker in the former case than the latter. (b) the extent to which the issues require consideration of social, economic or political factors. The court will usually accord considerable deference in such cases because it is not expert in the realm of policy-making, nor should it be because it is not democratically elected or accountable. (c) The extent to which the court has special expertise, for example in relation to criminal matters. (d) Where the rights claimed are of especial importance, 'a high degree of constitutional protection' will be appropriate. The European Court of Human Rights has recognised as being of especial importance rights to freedom of expression and access to the courts".
"..62. …may also lay down rules of substance based on recognised considerations of public interest"
(v) Is the legitimate legislative object for the section 19 scheme sufficiently important to justify limiting a fundamental right?
"in relation to all marriages (both those to EEA nationals and those to British citizens or people settled here) existing enforcement powers were considered insufficient to solve the problem of sham marriages. It is simply not possible to have immigration officers attending every single wedding, or conducting home visits to, or interviews with, every couple who is getting married or who has recently been married, in order to establish whether the marriage is genuine-this would be extremely resource intensive and we do not have such resources available. It was therefore considered that the better solution would be to make it more difficult to enter into sham marriage in the first place".
a) the Secretary of State's marriage policy (DP3/96) provides that removal or deportation will not be enforced if the person subject to deportation or removal was married and has lived together with his or her spouse continuously for at least two years prior or the start of the enforcement action. The beneficiaries of that policy become entitled to a discretionary leave to remain. This is an important factor because, as Miss Bennett points out, it is "relatively common" for persons who are in the United Kingdom unlawfully not to make themselves known to the immigration authorities;
b) parties to a sham marriage may seek to rely on that marriage to resist removal on the basis that removal would infringe their right s to a private and family life under Article 8 of the ECHR. Miss Bennett points out first that such claims are "particularly common" where an asylum claim has been made and been rejected and second that it is very difficult to prove that any particular marriage was not genuine but was a sham entered into solely to obtain immigration advantages for the party who is neither a British national nor an EEA national;
c) the spouse of a person settled here would ordinarily be expected to regularize their stay so that if they are here unlawfully they would be expected to return home to obtain the appropriate entry clearance as spouse. A sham marriage could assist a person who had no basis for coming to the United Kingdom by providing a basis on which to apply as for entry clearance as the spouse of a person settled here and
d) caseworkers dealing with applications for dependants of EEA nationals suspect in many cases that marriages are sham marriages but they are unable to refuse applications on that ground because a lack of resources makes it impossible to conduct a home visit or an interview.
a) do not need to live together for their marriage to be regarded as genuine and subsisting;
b) are entitled to bring a wider range of dependents into the United Kingdom;
c) are not subject to the "no switching rule" which prohibits visitors and certain other categories of foreign categories from applying for leave to remain as the spouse of a British national, as they benefit from Treaty rights as soon as they are married;
d) are not required to meet the maintenance and accommodation requirements of the Immigration Rules and
e) are not charged for their applications.
a) since he took up his position in 1988, there has been a significant problem with sham marriages arranged for the purpose of avoiding immigration control. In many cases, there was no effort to conceal that this was the purpose of the marriage with the illegal entrants admitting that this was the purpose of the marriage. Couples very frequently were unable to converse in the same language and they required interpreters to enable them to communicate with each other. They often appeared to know very little about the person that they were about to marry;
b) until early 2001, the only remedy open to him was to report his suspicions to the Registrar General, who could if there was sufficiently compelling evidence then refer the matter to the Immigration Service but he said that nothing appeared to happen as a result of these reports;
c) after 2001, the legal position changed, because section 24 of the Immigration and Asylum Act 1999 placed a statutory duty on registrars to report suspicious marriages to the Home Office. In addition with effect from 1 January 2001, couples had to give a minimum of 15 days' notice to a registrar prior to the marriage taking place, stating where they resided and the nationality of both parties. Registrars were also from that time obliged by statute to report suspicious marriages direct to the Immigration Service;
d) these changes made little difference and his personal experience was that about 20% of all marriages conducted between 2001 and the implementation of the 2004 Act were sham in the sense of being entered into "purely to obtain more advantageous immigration status";
e) this meant that during this period, there were about 250 sham marriages alone in Brent. Miss Bennett states that in 2001, 756 reports were received of suspicious marriages, which were forwarded to the Immigration Service but that this number later increased to 1,205 in 2002, to 2,700 in 2003 and to 3700 in 2004 ;
f) in some London Boroughs, notably Haringey, up to 50% of marriages were considered to be for the purpose of circumventing immigration control;
g) there had been an increasing trend in Brent and also in Westminster where one party to the marriage is subject to immigration control and the other party to be national from a country from within the EEA (primarily from France, Holland, Portugal and Belgium) to provide utility bills and bank statements as evidence of their address. He explained that upon comparison with the Superintendent Registrar of Westminster City Council, it was discovered that a number of bank statements and utility bills listed identical transactions and balances with the only difference being the name recorded as the account holder. He prepared a significant file of such documents, all of which were found to be forgeries. At a meeting of London registration managers held in December 2003, it became apparent that the majority of districts were receiving similar documents as evidence of addresses of those wishing to marry.
"The legislative objective [of preventing sham marriages entered into so as to avoid immigration control] is sufficiently important to justify limiting the fundamental [article 12 right]".
(vi). Are the measures in the section 19 regime which are designed to meet the legislative objectives rationally connected to it?
"63. The criteria which it has been suggested will be applied by the Secretary of State in deciding whether or not to approve of marriage in an individual case will not be based on the assessment of the genuineness of a marriage… The length of time for which a person has leave to remain in the UK, for example, has nothing to do with the genuineness or otherwise of any marriage into which he or she proposes to enter. This criterion will effectively operate as a statutory presumption that a marriage involving a person with less than six months leave to stay is not a genuine marriage. But there is no necessary of logical connection between the genuineness of a proposed marriage and the length or time which a person has leave to stay in the United Kingdom".
"is aware of no evidence, however of sham marriages taking place according to the rules of the Church of England…. Couples who wish to marry in their parish church would normally be known to the minister. There is an expectation upon couples to meet with the minister and talk through why they wish to marry etc. It is considered that this acts as a real disincentive to parties in intending to engage in a sham marriage".
"12. Prior to including the 2004 Act, consideration was given as to whether the requirements of the marriage provisions should be extended to include Church of England ceremonies after ecclesiastical preliminaries. The decision was taken that this was not necessary.
13. Everyone has the right to marry for the first time in the parish in which they reside and banns are read out in the churches where both parties reside. The vicar has no authority to refuse to marry such a couple but he does have the right to determine the time and date of the wedding. Prior to the reading of the banns, he would also wish to interview the couple together and to question them so that he can be satisfied of their intentions towards each other. He can ask to see the couple on a number of occasions.
14. Churches are often booked up for weddings and it could take many months between the couple first seeing the vicar and the marriage taking place. It is normal for couples to arrange a wedding many months in advance.
15. This type of ceremony is unlikely to be used by those seeking to enter into sham marriages because of the close questioning of the vicar about the intentions of the couple towards each other; and the uncertainty of when the wedding might take place.
16. The Archbishop's Office stated that, as far as it is aware, there have been no problems reported by Church of England clergy that these ceremonies are being used for the purposes of sham marriages. No evidence suggests that these marriages have been, nor will be in the future, used to abuse the immigration system.
17. It is believed that the reason for the lack of sham marriages is due in part to the need to plan church weddings some time in advance and because of the, sometimes intrusive, personal questioning of couples as to the nature of the relationship and their intentions towards one another.
18. There are three methods, the first of which are "banns", the second being by way of a special license from the Archbishop and the third, a common licence.
19. Banns is where the public declaration of the intended marriage is read out in church on 3 successive Sundays.
20. The second form of preliminary is the Archbishop's special licence. A couple can apply for a special licence through the Archbishop's faculty office when they wish to get married in another parish to where they are resident, in a place where banns may not be published or where they wish to get married quickly. For example, the couple may wish to marry in the parish where one of them was brought up, where their parents live or where one of them is a foreign national. It may also be a rushed marriage because one of the parties is dying. Applications can be dealt with quickly but they are closely scrutinised and a licence can be refused if inadequate reasons are given.
21. The third form of ecclesiastical preliminary is a Common license. A clergyman in the diocese is appointed as a surrogate, to deputise for the bishop in the granting of common marriage licences. He will consider the granting of licenses in circumstances where, for example, one party is a foreign national and it is uncertain whether a purely religious ceremony will be recognised as valid in that person's country. Only one party of the couple need apply to the surrogate and be questioned about the application.
22. However, although there is no delay caused by the reading of banns with either the special licence or common licence, it is considered that those wishing to enter sham marriages are equally likely to be attracted to these provisions. The couple will still need to go to see the vicar of the parish and will be questioned about their intentions towards each other before an application for a license is made".
(a) the person conducting such non- Anglican religious ceremonies might well ask to see the couple on a number of occasions in order to be satisfied of their intentions towards each other;
(b) it is normal for couples to arrange and book a wedding in those religious places for such non- Anglican religious ceremonies many months in advance;
(c) thus such non- Anglican religious ceremonies are unlikely to be used by those seeking to enter into sham marriages because of the close questioning of the person conducting the religious ceremony of the intentions of the couple towards each other and the uncertainty of when the wedding might take place and
(d) inquires could have been and should have been made of those in positions similar to that of the Archbishop's Office in Anglican marriages who have an over-view of each of the different types of the non-Anglican religious marriages in order to ascertain if, like those marriages in the Anglican churches, there had been no problems reported by those officiating at such marriages that their ceremonies were being used for the purpose of sham marriages.
a) he explains that when he as a Hindu got married, the Hindu priest who was due to officiate, invited him and his prospective wife "for a detailed discussion regarding the marriage vows which [they] were due to take" and he questioned them "in some detail regarding what our intentions were, and explained the commitment that we were about to make to each other";
b) he stated that "the meeting took place a considerable time prior to our marriage taking place and as far as I am aware, is a norm in our religion" and
c) he exhibits a letter from Dr Parvinder Singh Garcha, the General Secretary of the Executive Committee of Gurdward Sri Guru Singh Sabha Southall, who explained that in Sikh marriages, an approved person together with their minister of religion"perform a valuable function in talking to prospective marriage couples and only when they are committed to each other are marriage ceremonies performed. Furthermore there are inherent delays in conducting Sikh marriages as Gudwaras get booked for weddings many months in advance. We have robust systems in place so as to preserve the sanctity of marriage according to the Sikh faith"
(vii) Are the means used in the new regime necessary to accomplish that objective?
"70. In approaching this issue, as noted in R v Johnstone  1WLR 1736, 1750, Para 51, courts should have in mind that theirs is a reviewing role. Parliament is charged with the primary responsibility for deciding whether the means chosen to deal with a social problem are both necessary and appropriate. Assessment of the advantages and disadvantages of the various legislative alternatives is primarily a matter for Parliament. The possible existence of alternative solutions does not in itself render the contested legislation unjustified: see the Rent Act case of Mellacher v Austria ...1989) 12 EHRR 391, 411, para 53. The court will reach a different conclusion from the legislature only when it is apparent that the legislature has attached insufficient importance to a person's Convention right. The readiness of a court to depart from the views of the legislature depends upon the circumstances, one of which is the subject matter of the legislation. The more the legislation concerns matters of broad social policy, the less ready will be a court to intervene".
a). "it is simply not possible to have immigration officers attending every single wedding, or conducting home visits to, or interviews with, every couple who is getting married or who has recently been married, in order to establish whether the marriage is genuine-this would be extremely resource intensive and we do not have such resources available. It was therefore considered that the better solution would be to make it more difficult to enter into a sham marriage in the first place" (paragraph 23 of Miss Bennett's witness statement)
b). "applications for COAs are charged for on a cost recovery basis in line with Treasury guidelines" (paragraph 28 (ibid));
c). "it was not considered that the requirement[ that those who did not qualify for COA would be expected to return home and apply for entry clearance there would] create any unreasonable delay in the exercise of the right to marry …U K visas are able to process 90% of applications for entry clearance within 24 hours"(paragraph 29 (ibid));
d). "introducing a requirement to assess whether the potential marriage is genuine or a sham would require substantial additional resources. Detailed investigations and interviews would need to be conducted, so that costs would greatly increase. In line with Treasury guidelines, these costs would need to be recovered from the applicants and would lead to a significant increase in the cost of an application for a certificate of approval. In addition, as there are approximately 1,200 applicants for certificates of approval per month, it is likely that there would be a substantial delay in dealing with these applications if such a requirement was introduced"(paragraph 34(ibid) and
e). the Home Office is able to issue individuals with a travel document which would enable somebody caught by the regime to travel to his or her home country and then apply for a passport and relevant entry clearance from there
(vii) Conclusions on the Article 12 claim
VII. The Article 14 Claim
"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".
a) involves a distinction between marriages conducted according to the rites of the Church of England pursuant to ecclesiastical preliminaries and all other marriages;
b) may have an indirectly discriminatory effect in that non-British nationals are less likely to marry pursuant to the rites of the Church of England following ecclesiastical preliminaries;
c) discriminates on the ground of immigration status as it only applies to persons who are subject to immigration control and
d) is capable of constituting indirect discrimination
(a) what is the proper approach to this article 14 claim?
(b) what degree of scrutiny is required in respect of an article 14 claim based on discrimination on grounds of religion?
(c) what degree of scrutiny is required in respect of an article 14 claim based on discrimination on grounds of nationality?
(d) whether the section 19 regime constitutes discrimination on grounds of religion and or nationality and, if so,
(e) whether it is justified in the interests of immigration control.
(ii) What is the proper approach to the Article 14 claim?
"25... (i) Do the facts fall within the ambit of one or more of the substantive Convention provisions… (ii) 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 (iii) Were the chosen comparators in an analogous situation to the complainant's situation? (iv) If so, did the difference in treatment have an objective and reasonable justification?"
"29. Brooke LJ took these questions from the analysis of the European jurisprudence in Grosz, Beatson and Duffy's Human Rights: The 1998 Act and the European Convention, (2000) para C14-08. They are no doubt an accurate taxonomy of the various issues decided by the Strasbourg court. But I am not sure that they are always helpful as a framework for reasoning. Question (i) reflects the fact that article 14 is confined to discrimination as to a list of particular matters and, as Stanley Burnton J said in this case  3 All ER 994, 1010, para 52 it would be logical to add the question of whether the discrimination was on one of the specified grounds. Unless the claim satisfies these requirements, article 14 is not engaged at all. Question (ii) identifies the nature of the claimant's case. It identifies the real or hypothetical person in comparison with whom he complains he is being treated differently.
30. The real difficulty about the questions is the apparent overlap between questions (iii) and (iv). If an "analogous situation" in question (iii) means that the two cases are not relevantly different (no two cases will ever be exactly the same) then a relevant difference may be the justification for the difference in treatment. In what kind of case does one go on to question (iv) and ask separately about justification? Laws LJ  3 All ER 577, 604, para 61 suggested that it might clarify matters to substitute for question (iii) a "compendious question":
"Are the circumstances of X and Y so similar as to call (in the mind of a rational and fair-minded person) for a positive justification for the less favourable treatment of Y in comparison with X".
31. But in my opinion there are two difficulties about this formulation. First, it appears to reduce question (iii) to asking whether there is, so to speak, a prima facie case of discrimination (do the facts "call for" a justification) and to treat question (iv) as dealing with whether the call has been answered. But this division of the reasoning into two stages is artificial. People don't think that way. There is a single question: is there enough of a relevant difference between X and Y to justify different treatment? Secondly, the invocation of the "rational and fair-minded person" (who is, of course, the judge) suggests that the decision as to whether the differences are sufficient to justify a difference in treatment will always be a matter for the judge. In many cases, however, the decision will be a matter for Parliament or the discretion of the official entrusted with statutory powers.
32.It might be more logical to confine question (iv) to justification for different treatment of cases which were not relevantly different, e.g. to achieve some legitimate teleological or administrative purpose, such as correcting the effect of past discrimination or the administrative convenience of having clear distinctions. That would explain why in such cases the courts insist that the discrimination must be necessary and proportionate for the object to be achieved. But neither the Strasbourg court nor the English courts have approached the matter in this way (in Michalak itself, Brooke LJ regarded the fact that near relatives were relevantly different from distant relatives as an answer to question (iv) rather than question (iii)) and it is certainly not expressed in the formulation of the questions.
33. For these reasons I have found it better not to use the Michalak framework".
"3. For my part, in company with all your Lordships, I prefer to keep formulation of the relevant issues in these cases as simple and non-technical as possible. Article 14 does not apply unless the alleged discrimination is in connection with a Convention right and on a ground stated in article 14. If this prerequisite is satisfied, the essential question for the court is whether the alleged discrimination, that is, the difference in treatment of which complaint is made, can withstand scrutiny. Sometime the answer to this question will be plain. There may be such an obvious, relevant difference between the claimant and those with whom he seeks to compare himself that their situations cannot be regarded as analogous. Sometimes, where the position is not so clear, a different approach is called for. Then the court's scrutiny may best be directed at considering whether the differentiation has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not disproportionate in its adverse impact".
"64. My Lords, I think the time has come to say that in cases on Article 14 the Michalak catechism, even in a corrected form is not always the best approach".
(iii) What degree of scrutiny is required?
"55.The proposition that not all possible grounds of discrimination are equally potent is not very clearly spelled out in the jurisprudence of the Strasbourg Court. It appears much more clearly in the jurisprudence of the United States Supreme Court, which in applying the equal protection clause of the 14th Amendment has developed a doctrine of "suspect" grounds of discrimination which the court will subject to particularly severe scrutiny. They are personal characteristics (including sex, race and sexual orientation) which an individual cannot change (apart from the wholly exceptional case of transsexual gender reassignment) and which, if used as a ground for discrimination, are recognised as particularly demeaning for the victim"
"57. As I have said, these distinctions are not so clearly signalled in the jurisprudence of the European Court of Human Rights. But Mr Howell QC (for the respondent Secretary of State) submitted, in my opinion correctly, that the equivalent doctrine is to be found there. Where there is an allegation that article 14 has been infringed by discrimination on one of the most sensitive grounds, severe scrutiny is called for. As my noble and learned friend, Lord Nicholls of Birkenhead put it in Ghaidan v Godin-Mendoza  2 AC 557, 568, para 19:
". . . where the alleged violation comprises differential treatment based on grounds such as race or sex or sexual orientation the court will scrutinise with intensity any reasons said to constitute justification. The reasons must be cogent if such differential treatment is to be justified."
58. In its judgments the European Court of Human Rights often refers to "very weighty reasons" being required to justify discrimination on these particularly sensitive grounds. This appears, for instance (in relation to cases of discrimination on the ground of sex) in Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471, 501, para 78; Schmidt v Germany (1994) 18 EHRR 513, 527, para 24; Van Raalte v Netherlands (1997) 24 EHRR 503, 518-519, para 39. When Harris, O'Boyle and Warbrick's valuable work, Law of the European Convention on Human Rights, was published in 1995, the authors recognised that the Strasbourg Court had its own suspect categories, identifying them as discrimination on the grounds of race, gender or illegitimacy. Since then religion, nationality and sexual orientation have, it seems, been added: see Jacobs and White, European Law of Human Rights, 3rd ed (2002), pp 355-6, citing Hoffmann v Austria (1994) 17 EHRR 293, 316, para 36; Gaygusuz v Austria (1997) 23 EHRR 364, 381, para 42 and Salgueiro da Silva Mouta v Portugal (2001) 31 EHRR 1055, 1071, para 36. Where an individual lives is in principle a matter of choice. So although it can be regarded as a personal characteristic it is not immutable. Nor is there anything intrinsically demeaning about an individual's place of residence. Social or business practices which amount to what is sometimes called a "postcode lottery" might, if devoid of any rational basis, constitute discrimination. But that is not this case".
" 33. The European Court therefore accepts that there has been a difference in treatment and that that difference was on the grounds of religion; this conclusion is supported by the tone and phrasing of the Supreme Court's considerations regarding the practical effects of the applicant's religion. Such a difference in treatment is discriminatory in the absence of an "objective and reasonable justification" that is, if it is not justified by a "legitimate aim" and if there is no "reasonable relationship of proportionality between the means employed and the aims thought to be realised….
36. …Notwithstanding any possible arguments to the contrary, a decision based essentially on a difference of religion alone is not acceptable. The court therefore cannot find that a reasonable relationship of proportionality existed between the means employed and the aim of pursuit; there has accordingly been a breach of Article 8 taken in conjunction with Article 14".
"in particular "very weighty reasons" will be required by a state to justify discrimination on the grounds of ... religion..."
(iii) What degree of scrutiny is required in respect of an article 14 claim based on discrimination on grounds of nationality?
"58. …Since  nationality ... [has] it seems been added".
"42…very weighty reasons would have to be put forward before the court could regard a difference of treatment based exclusively on the grounds of nationality as compatible with the Convention".
(iv) Does the section 19 regime constitute discrimination on grounds of religion or of nationality?
(v) Is the discrimination justified in the interests of immigration control?
(vi) Conclusions on the Article 14 claim