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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Asylum Aid, R. (On the application of) v Secretary of State for the Home Department [2025] EWHC 316 (Admin) (14 February 2025)
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Cite as: [2025] EWHC 316 (Admin)

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Neutral Citation Number: [2025] EWHC 316 (Admin)
Case No: AC-2024-LON-001479

IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL
14/02/2025

B e f o r e :

MR JUSTICE JAY
____________________

Between:
THE KING (ASYLUM AID)
Claimant

- and –


SECRETARY OF STATE FOR THE HOME DEPARTMENT
Defendant

____________________

Stephanie Harrison KC and Emma Fitzsimons (instructed by Freshfields LLP) for the Claimant
Alan Payne KC and Jack Anderson (instructed by Government Legal Department) for the Defendant

Hearing dates: 21 - 23 January 2025

____________________

HTML VERSION OF JUDGMENT APPROVED
____________________

Crown Copyright ©

    This judgment was handed down remotely at 10.30am on 14 February 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

    MR JUSTICE JAY:

    INTRODUCTION

  1. In these judicial review proceedings, Asylum Aid ("the Claimant") challenges changes to the Immigration Rules in HC 246 taking effect on 31 January 2024 and removing the ability of family members of stateless persons to apply for leave to enter the UK on a bespoke basis which was simple, streamlined and did not require the payment of a fee, and required them to apply instead under the general provisions of Appendix FM. These latter requirements may fairly be described as complex, onerous and – subject to the possibility of fee waiver – expensive.
  2. There are four grounds of challenge. In outline, by Ground 1 the Claimant contends that the Secretary of State for the Home Department ("the Defendant") has breached her public sector equality duty ("PSED") under section 149 of the Equality Act 2010. By Ground 2 it is contended that Defendant has breached section 55 of the Borders, Citizenship and Immigration Act 2009 ("the 2009 Act"). By Ground 3, it is said that the Defendant has acted incompatibly with her international obligations to stateless persons. Finally, by Ground 4 it is submitted that the Defendant has acted irrationally.
  3. When I come to address the Claimant's Grounds, I propose to adopt a different sequence. The Claimant has its forensic reasons for seeking to present the arguments in a particular order, but for reasons of logic and clarity it seems to me that I should begin with Ground 3. The nature of the Defendant's obligations to stateless persons, including on the Claimant's argument their dependants, colours the remainder of the Grounds. Ground 4 should be considered next, followed by Ground 2 and then, finally, Ground 1.
  4. The parties have brought voluminous documentation, authority and submissions to these issues. This reflects the importance of the point of principle that the claim raises, albeit these recent changes impact a relatively limited cohort of individuals. I thank counsel for their detailed and helpful submissions. Where possible I will be seeking to simplify some of the evidence. The devil may lie in the detail, but not all of it needs to be expressly set out.
  5. STATELESSNESS

  6. The leading authority on the topic in this jurisdiction is the decision of the Supreme Court in Al-Jedda v Secretary of State for the Home Department [2013] UKSC 62; [2014] 1 AC 253. At para 12 Lord Wilson JSC cited with approval the dissenting judgment of Earl Warren CJ in Perez v Brownell [1958] 356 US 44, at para 64, where the latter described the right to nationality as "man's basic right, for it is nothing less than the right to have rights". In the same paragraph Lord Wilson added that, despite the development of international human rights law over the preceding 50 years, "worldwide legal disabilities with terrible practical consequences still flow from lack of nationality". Similar observations may be found in the Strasbourg jurisprudence.
  7. The Claimant's evidence provides a helpful elaboration of Lord Wilson's basic point. In short, there are multifarious disadvantages which typically flow from lacking access to recognisable citizenship including: legal vulnerability; lack of identity documents; limited access to public services; economic hardship and exclusion; social exclusion; barriers to assimilation and integration; family separation; risk of detention and deportation; risk of human trafficking; and, restrictions on freedom of movement.
  8. Much of this is accepted by the Defendant in her own documentation. For example, in the Home Office Guidance, Permission to Stay as a Stateless Person, Version 3.0, March 2024:
  9. "Possession of nationality is considered essential for full participation in society and a pre-requisite for the enjoyment of the full range of human rights. Stateless people are not necessarily at risk of persecution or serious harm in their country of habitual residence, but they are potentially vulnerable to serious discrimination. They may, for example, be denied the right to own land or exercise the right to vote. They are often unable to obtain identity documents. They can be denied access to education and health services or blocked from obtaining employment."
  10. Ms Stephanie Harrison KC placed particular emphasis on the international instruments which have accorded special recognition to the predicament of stateless persons.
  11. Under Article 15 of the UN Universal Declaration of Human Rights published in 1948, "everyone has a right to nationality". Under Article 16(3):
  12. "The family is the natural and fundamental group unit of society and is entitled to protection by society and the State."
  13. Under the 1954 United Nations Convention relating to the Status of Stateless Persons ("the 1954 Convention"), which the United Kingdom has ratified, "a stateless person" is defined by Article 1 as a "person who is not considered a national by any State under the operations of its law". The Introductory Note and Preamble to the Convention recognise their particular plight:
  14. "(Introductory Note) To overcome the profound vulnerability that affects people who are stateless and to help resolve the practical problems they face in their everyday lives, the Convention upholds the right of freedom of movement for stateless persons lawfully on their territory, and requires States to provide them with identity papers and travel documents.
    …
    (Preamble) Considering that the United Nations has, on various occasions, manifested its profound concern for stateless persons and endeavoured to assure stateless persons the widest possible exercise of these fundamental rights and freedoms."
  15. By Article 3 of the 1954 Convention, Contracting States are obliged to apply the Convention's provisions relating to stateless persons "without discrimination as to race, religion or country of origin". By Article 32, Contracting States:
  16. "… shall, so far as possible facilitate the assimilation and naturalisation of stateless persons. They shall in particular make every effort to expedite naturalisation proceedings and to reduce as far as possible the charges and costs of such proceedings."
  17. Ms Harrison submitted, and I accept, that the term "assimilation" means no more than "facilitate the integration of".
  18. The 1954 Convention also obliges Contracting States to confer various substantive rights on stateless persons "in the same circumstances" as would be accorded to aliens generally, subject to the recognition in Article 6 that there may be requirements that, by their very nature, stateless persons may be incapable of fulfilling.
  19. The 1954 Convention imposes obligations on Contracting States in relation to stateless persons on their territories rather than elsewhere. Ms Harrison submitted that, although there is nothing in the 1954 Convention which expressly obliges Contracting States to facilitate the entry to their territory of family members of stateless persons, the "fundamental rights" mentioned in the Preamble must include a reference to the right to family life under Article 16(3) of the Universal Declaration; and, further, that the placing of obstacles in the way of family members would impact on the ability of the sponsor to integrate. She further submitted that the panoply of rights and protections accorded by the 1954 Convention are broadly comparable to those conferred by the 1951 Refugee Convention.
  20. Ms Harrison was not of course submitting that the predicament of stateless persons and refugees are identical. The third Preamble to the 1954 Convention recognised that some but not all stateless persons would also be refugees. Even so, in terms of the package of rights which the Contracting States had in mind for both groups in the early 1950s, I accept the submission that they were broadly similar. Support for that conclusion may be drawn from the Final Act of the UN Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons held in Geneva in July 1951, in particular section IV.B. Although Governments were recommended by the Conference to take "the necessary measures for the protection of the refugee's family" – on the basis that the family "is the natural and fundamental group unit of society" - no such recommendation was made in relation to stateless persons. This was because, as section III makes clear, it was considered that the draft Protocol relating to the status of stateless persons required more detailed study. As it happens, neither the Refugee Convention of 1951 or the 1954 Convention contained express provisions relating to family members. The UN Conference of Plenipotentiaries did not reconvene in 1954 to consider the position of family members of stateless persons, although – as I will be showing in due course – the travaux préparatoires for the 1954 Convention are relevant.
  21. Under the 1961 Convention on the Reduction of Statelessness ("the 1961 Convention"), also ratified by the UK, nationality must be granted to those born otherwise stateless on the territory of a state party to the Convention, to foundlings, and to those not born in a Contracting State, who would otherwise be stateless, if the nationality of one of their parents is of a Contracting State at the time of that person's birth. In common with the 1954 Convention, the 1961 Convention does not specifically oblige Contracting States to facilitate the entry onto their territory of stateless persons from third countries.
  22. The following provisions of the 1961 Convention are relevant to the Claimant's broader argument that family reunion is within scope:
  23. "Introductory Note
    …
    By adopting the 1961 Convention safeguards that prevent statelessness, States contribute to the reduction of statelessness over time. The Convention seeks to balance the rights of individuals with the interests of States by setting out general rules for the prevention of statelessness, and simultaneously allowing some exceptions to those rules.
    …
    Preamble
    THE CONTRACTING STATES,
    Acting in pursuance of resolution 896 (IX) adopted by the General Assembly of the United Nations on 4 December 1954,
    Considering it desirable to reduce statelessness by international agreement.
    Have agreed as follows:"
  24. Ms Harrison also relied on the UNHCR's Handbook on the Protection of Stateless Persons, published in 2014. In particular:
  25. "Without nationality, individuals face an existence characterised by insecurity and marginalisation. Stateless people are amongst the most vulnerable in the world, often denied enjoyment of rights such as equality before the law, the right to work, education or healthcare. Despite the actions of many States to prevent or reduce statelessness through measures such as reform of their nationality laws, new cases of stateless continue to rise.
    …
    The status of a stateless person under national law must also reflect applicable provisions of international human rights law. The vast majority of human rights apply to all persons irrespective of nationality or immigration status, including to stateless persons. Moreover, the principle of equality and non-discrimination generally prohibits any discrimination based on the lack of nationality status."
  26. The UNCHR derive support for this last proposition from Articles 2(1) and 26 of the International Covenant on Civil and Political Rights, which prohibit discrimination on the basis inter alia of "national or social origin" and "birth or other status".
  27. Further, in detailed submissions dated 20 December 2023 directed to the proposed rule change, the UNHCR made the following points:
  28. "The object and purpose of the 1954 Convention is to ensure stateless persons the widest possible exercise of fundamental rights and freedoms. In consequence, any restrictions on access to those rights should be construed narrowly and applied with caution, after due consideration of individual circumstances.
    …
    Throughout the world, stateless people and their dependants often face social marginalisation, discrimination and exclusion from mainstream services, as well as significant obstacles to accessing education, employment and identity documents. It will be difficult, if not impossible, for them to meet all of the requirements of immigration rules that are primarily designed to regulate the migration of non-stateless individuals and families. There are two foreseeable results from applying such rules to stateless people and their families. The first is that stateless people will be unable to access their rights under international law, frustrating the purpose of Part 14. The second is that the rules will require modification through published guidance, or as a result of litigation, frustrating the purpose of the simplification exercise."

    THE OLD REGIME

  29. By HC 1039, laid before Parliament by the Defendant on 14 March 2013, a new Part 14 was added to the Immigration Rules to make provision for stateless persons and their families. In November 2011 the Defendant had received a report jointly authored by the Claimant and the UNHCR, "Mapping Statelessness in the United Kingdom". The Defendant accepted many of the recommendations of that report.
  30. By way of summary, Part 14 provided as follows:
  31. (1) A stateless person is a person who meets the definition in the 1954 Convention.

    (2) A stateless person in the UK (i.e. one not applying from overseas) may apply for leave to remain on the basis of his or her statelessness. One of the criteria which must be fulfilled is that the person "is not admissible to their country of former habitual residence or any other country" (para 403(c)).

    (3) Leave in the first instance will be granted for 30 months. After 5 years' continuous leave in the UK, an application may be made for indefinite leave to remain.

    (4) A family member of a stateless person who has been granted leave to remain under these rules may apply for an entry clearance on that basis. The application is made not because he or she is or may be stateless in his or her own right, but simply on the ground of a relevant familial relationship. That includes being a child under 18 who is not leading an independent life, and being a spouse, civil partner etc.

    (5) The limited and indefinite leaves granted to family members mirror those granted to their sponsors.

  32. Part 14 did not require either sponsors or their dependants to pay a fee for applying, they were exempt from paying the Immigration Health Surcharge ("the IHS"), and leave was not made subject to a "no recourse to public funds" ("NRPF") condition.
  33. Thus, family members applying under Part 14 did not have to prove that they are stateless, merely that the claimed relationship exists. The UNHCR, supported by the Claimant, says that this is neither a particularly surprising nor a "benevolent" policy because the civil and political rights of the stateless sponsor includes a right to enjoy family life, and in that way his or her assimilation into UK national life is fostered. The Defendant's present position is that Part 14 was "gold-plated" and too generous, in that the "statelessness route" for dependants did not differentiate between those who were stateless in their own right and those who were not.
  34. Once present in the UK, a family member could apply for leave to remain on the basis of his or her own statelessness (assuming that was so) or (whether or not that was so) apply on the basis of the claimed relationship.
  35. By changes to the Immigration Rules taking effect from April 2019, the initial 30 month period of leave was extended to five years and para 403(c) was fortified. An applicant had to show that he or she had taken reasonable steps to facilitate admission to his or her country of former residence, and sought and failed to obtain nationality with the relevant authorities of the country in question.
  36. THE CHANGE IN POLICY

  37. In March 2020 the Defendant accepted the Law Commission's recommendation to review, simplify and consolidate the immigration rules.
  38. In the autumn of 2022, the Defendant circulated new draft statelessness rules. The initial proposal made a distinction between family relationships formed before and after the stateless person was granted permission on the statelessness route. Prior relationships would continue to be governed by Part 14 but subsequent relationships would necessitate an application under the general provisions applicable to the family route as set out in Appendix FM.
  39. Stakeholders, including the Claimant, made representations on the draft rules. The Defendant responded with a further draft in June 2023.
  40. On 6 July 2023 a Ministerial Submission authored by Ms Laura Pearson of the Simplification and Systems Unit was sent to the Home Secretary (the Rt Hon Suella Braverman MP) and to the Minister for Immigration (the Rt Hon Robert Jenrick MP). The distinction between relationships formed before and after the grant of statelessness permission was said to bring the Defendant's policy in line with refugees. In addition the Ministerial Submission made the following points:
  41. (1) In the period 2020 to 2022, applicants for statelessness leave had fluctuated between 366 and 464. Of these, only about 16% had been granted.

    (2) The number of dependants who are not themselves stateless applying to join to stay with a stateless person is very low. This is because most dependants apply at the same time as the stateless person[1]. The Claimant has interpreted this last sentence to mean that the majority of these dependants are applying for leave to remain at the same time that the stateless sponsor is awaiting their statelessness determination. Mr Alan Payne KC for the Defendant submitted in oral argument that most relationships are formed after the sponsor's status as stateless has been recognised. There is no evidence to support Mr Payne's submission and I tend to agree with the Claimant that it is not consistent with the Ministerial Submission of July 2023. The more natural reading of the Ministerial Submission is that most dependants come to this country with their stateless sponsors and then apply for leave to remain at the same time as their stateless sponsors. However, a small number of dependants who did not come to the UK at the same time as their sponsors obviously apply later. This reading is supported by point (5) below.

    (3) "[T]here is limited, if any, rationale for the most generous policy position for stateless persons' dependants compared to refugee dependants".

    (4) Requiring partners who formed their relationship after the sponsor was granted permission on the statelessness route amounts to a strict approach because Appendix FM imposes stricter eligibility requirements.

    (5) "Although the number of stateless dependants applying outside the UK is very low (and we don't anticipate that will change), the change proposed may result in an increase in refusals."

  42. In July 2023 Ministers were also asked to consider a draft Equality Impact Assessment ("EIA") dated 6 July 2023. This was for the purpose of "demonstrating compliance with the PSED". In outline, the EIA did not identify statelessness as being a protected characteristic. No discrimination, direct or indirect, was identified on the basis of age, sex or religion. The potential for indirect race discrimination was identified. However:
  43. "Any indirect impact on the basis of race is justified as a proportionate means of achieving a legitimate aim. The proposal provides a consistent approach between refugees and stateless persons, recognising that neither can return to their country of origin to care for a dependant relative."
  44. The EIA of July 2023 recognised that "both refugees and stateless persons cannot return to their country of origin to care for their dependant relative."
  45. In the early autumn of 2023 there was a change of course. On 30 September the Defendant circulated a further set of "simplified" draft statelessness rules which proposed that a partner or dependent child of a stateless person, who is not stateless in his or her own right, can apply to join or remain with the stateless person in the UK but only under the general provisions of Appendix FM. There was no commentary or explanation for the policy change. On 12 October 2023 various stakeholders submitted to the Defendant that the Part 14 rules should be reinstated.
  46. On 9 November 2023 a second Ministerial Submission was sent to the Minister for Immigration. In the copy contained in the bundle, the Minister's comments have been added in red. I have also seen emails from the Minister's private office indicating his thought process. The impetus for the policy change came from the Minister and not from his officials.
  47. Paragraph 2 of the November 2023 Ministerial Submission stated:
  48. "We understand that your rationale for the requested policy changes stem from a desire to ensure that only those who are stateless themselves are granted permission to stay on the stateless route which features a generous 5-year route to settlement. We also consider that your proposed changes reiterate the requirement for stateless applicants to demonstrate that they are not admissible for the purposes of permanent residence to any other relevant countries, for example the country of nationality of their spouse. Do you agree that this is an accurate reflection of your rationale for the change in policy position for dependant of stateless persons?"
  49. There is no red font on the document to indicate whether the Minister did agree that his thinking had been correctly understood. However, the Minister did comment on later sections of the Ministerial Submission, and I will proceed on the basis that his officials had correctly understood him.
  50. It is clear from the Ministerial Submission that officials sought to interpret his policy "steer" and come up with a series of proposals which in their view were consistent with it. In my opinion, the Minister's thinking cannot be ignored, but ultimately it is the recommendations set out in the Ministerial Submission which require greater scrutiny.
  51. In short, officials spelt out to the Minister the following series of recommendations:
  52. (1) Family members would no longer be able to apply to come to the UK on the statelessness route. My comment is that they had never been able to do so simply on the basis that they were stateless, but the new regime would remove the ability to do so under the benevolent rules in Part 14 which conferred a right to entry simply on the basis of the claimed relationship.

    (2) Given that it was too complex to assess statelessness from overseas, the only option was to require all family members, whether or not they were stateless, to apply under Appendix FM which was a charged application route with stricter eligibility requirements. That would ensure compliance with the international law and the ECHR.

    (3) It was already the position that an applicant under the statelessness route had to demonstrate that he or she could not reside elsewhere.

    (4) Once granted leave to enter under Appendix FM, a family member would only be able to apply for leave to remain under the statelessness route if he or she could prove statelessness. In this way, the statelessness route would be available only for those who were stateless.

  53. There was some discussion during oral argument about point (3) above. Although (a) the old regime was already sufficiently robust in insisting that a statelessness applicant had no other country which would accept him or her for permanent residence, and (b) a subsequent application by a family member could not serve to remove a status already granted, Mr Payne was correct to observe that under the old regime a partner, for example, could apply from abroad as of right whereas under Appendix FM it would now have to be established that the family life of the couple could not be enjoyed overseas. If it could be, the sponsor's status would not be affected but his or her partner would not be able to obtain entry clearance. In that particular and very limited sense, therefore, the policy objective was reinforced, albeit not in relation to sponsors.
  54. It remains to be considered whether this is a rational policy.
  55. The November 2023 Ministerial Submission recognised the "reasonableness" of the UNHCR's concerns, which in my view were fairly summarised as follows:
  56. "UNHCR and wider stakeholders consider that a partner or child of a stateless person will struggle to comply with the requirements under Appendix FM. Stateless persons are highly likely to have experienced marginalisation and discrimination throughout their lives and will have had limited or no access to identity documents, employment or other services. Family members are also likely to have been negatively affected by the consequences of the sponsor's statelessness and face exceptional challenges in meeting the English language and evidentiary requirements of the Appendix FM route. UNHCR advise that in practice, this change will prevent stateless people in the UK from being reunited with their family members, and, in consequence impede their integration into UK society and the enjoyment of the fundamental human right to family life. They have raised concerns that the removal of the bespoke statelessness route is not consistent with the UK's obligations under domestic and international law to make the best interests of a child a primary consideration."
  57. The answer to those concerns was as follows:
  58. "… our position is that your desired approach complies with our obligations under the UN Statelessness Conventions and other international obligations, e.g. ECHR. A significant number of stateless family members may not meet the core requirements in Appendix FM, but the caseworker must also consider whether refusal would breach Article 8 ECHR; in practice we anticipate that most dependants will still be granted. However, a grant on the basis of human rights (rather than meeting the core requirements in Appendix FM) would put a family member on a 10-year route to settlement, in block of 30 months, rather than the current 5-year route in one block under the statelessness rules, thus requiring the individual to make more applications before settling in the UK. Whilst this is a significant change for stateless family members, and could result in significant costs for those not entitled to a fee waiver, it still provides a path to reunite or allow families to stay together."
  59. As for the duty under section 55 of the 2009 Act, a similar point was made. Although Appendix FM imposed "a more strenuous set of requirements", the new regime continues to provide a route to settlement in the UK available for children of stateless persons.
  60. The November 2023 Ministerial Submission was accompanied by a further EIA which updated the draft EIA made available in July. The November 2023 EIA recognised a number of adverse impacts under the rubrics of age and race. The data were not available to enable an assessment to be made of any indirect discrimination on the ground of sex.
  61. According to this EIA, it was recognised in the context of the first limb of the section 149(1) duty, namely the need to eliminate discrimination, that the removal of the bespoke family reunion provisions under Part 14 of the rules "may result in an indirect negative impact on children". These negative impacts flowed in the main from the more stringent requirements of Appendix FM, which might mean that the child would have to wait longer to settle. Even so:
  62. "We consider that any impacts on younger people are a proportionate means of achieving a legitimate aim of ensuring that the statelessness route is used only by those who are stateless given it provides a generous 5 year route to settlement. It helps ensure stateless applicants are not admissible for the purposes of permanent residence to any other relevant countries, for example the country of nationality of their spouse. As a result, we do not consider the change will result in any unlawful indirect discrimination."
  63. The November 2023 EIA also considered the second limb of the section 149(1) duty, namely the need "to advance equality of opportunity between persons who share a protected characteristic and persons who do not share it", which has only a limited application to immigration and nationality functions. In this regard:
  64. "A partner of a British citizen, settled person, certain refugees[2] etc. can apply to come or stay in the UK under Appendix FM. Requiring a stateless person to sponsor family members to come or stay in the UK using the same family provisions provides some consistency of approach to allow equality of opportunity."
  65. Finally, as for the third limb – the need to "foster good relations between persons who share a relevant protected characteristic and persons who do not share it" – the following point was made:
  66. "Whilst this is a tightening of approach for a partner or child of a stateless person it does align with the approach to a partner or child of a British citizen or settled person in the UK."
  67. On 7 December 2023 the Defendant laid before Parliament the Statement of Changes HC 246. These introduced a new Appendix Statelessness into the Immigration Rules. This Appendix makes it clear that where the stateless person applies for leave to remain in the UK after 31 January 2024, family members seeking an entry clearance from overseas must apply under Appendix FM of the Rules rather than Part 14. Once in the UK, unless the family member is a stateless person in his or her own right, the route to further leave to remain is under Appendix FM. If the family member claims to be stateless, the route to remain is under Appendix Statelessness. Broadly speaking, the latter matches the conditions set out in Part 14.
  68. APPENDIX FM

  69. I was taken to the key provisions of Appendix FM during the hearing. Like many of the Immigration Rules, it is not a particularly user-friendly document. The core requirements of Appendix FM may be summarised as follows:
  70. (1) Proof of identity with a passport or other equivalent documentation.

    (2) Minimum income of the sponsor of at least £29,000 per annum.

    (3) Adequate accommodation without recourse to public funds for the family. The NRPF condition may be removed if the applicant establishes destitution, is at risk of becoming destitute imminently, or that there are particularly compelling reasons relating to the welfare of a child or parent in receipt of very low income.

    (4) An English language requirement, which may be waived on the grounds of disability, age or exceptional circumstances.

    (5) An application fee currently of £1,846 for applications outside the UK and of £1,048 for applications within the UK. An application may be made to waive the fee.

    (6) Payment of the IHS. Again, there is power to waive that surcharge.

  71. There are exceptions to certain eligibility requirements for leave to remain as a partner or parent. The latter exceptions apply only to the parents of children who are in the UK. In relation to partners, the exception requires proof that the applicant has a genuine and subsisting relationship with a partner who (for these present purposes) is in the UK with permission as a stateless person, and there are "insurmountable obstacles" to family life with that partner continuing outside the UK. The term "insurmountable obstacles" means very significant difficulties which could not be overcome or would entail very substantial hardship.
  72. Applicants who meet the core requirements of Appendix FM are granted entry clearance for no more than 33 months, and subsequent leave to remain is granted for 30 months at a time. An application for indefinite leave to remain may be made after five years. The application fee of £2,885 cannot be waived.
  73. GEN 3.2 to Appendix FM provides a general basis for the grant of leave to enter where a person does not satisfy any of the core requirements for entry but the grant of permission is required by Article 8 of the ECHR. In particular:
  74. "(2) Where sub-paragraph (1) above applies, the decision-maker must consider, on the basis of the information provided by the applicant, whether there are exceptional circumstances which would render refusal of entry clearance, or leave to enter or remain, a breach of Article 8 of the ECHR, because such refusal would result in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member whose Article 8 rights it is evident from that information would be affected by a decision to refuse the application.
    …
    GEN 3.3(1) In considering an application for entry clearance or leave to enter or remain where paragraph … GEN 3.2 applies, the decision-maker must take into account, as a primary consideration, the best interests of the relevant child."
  75. On 17 May 2024 the Defendant provided Guidance on amongst other matters the application of the exceptional circumstances criterion to family reunion applications. Mr Payne submitted that the effect of the Guidance taken as a whole is that on a proper application of Appendix FM most applications will succeed. In my judgment it is regrettable that the Defendant has not filed any witness statement covering this and many other issues. Ms Harrison reminded me of the strictures uttered by the Court of Appeal (Moses, Beatson and Underhill LJJ) in R (oao Das) v Secretary of State for the Home Department [2014] EWCA Civ 45; [2014] 1 WLR 3538, at para 80, and the risk that adverse inferences will be drawn if a defendant's duty of candour is not met. As Lord Walker of Gestingthorpe explained in Belize Alliance of Non-Governmental Organisations v Department of the Environment [2004] Env LR 761, at para 86, there is an obligation imposed on defendants in judicial review proceedings:
  76. "… to co-operate and to make candid disclosure, by way of affidavit, of the relevant facts and (so far as they are not apparent from contemporaneous documents which have been disclosed) the reasoning behind the decision challenged in the judicial review proceedings."
  77. The Defendant has in consequence been overly-reliant in assertions made in Mr Payne's skeleton argument and in oral argument. Although I would endorse the decision not to seek to adduce evidence to seek to bolster the Defendant's compliance or lack of it with her PSED, because in this respect the case must succeed or fail on what the documents say, I cannot agree that it was a sound forensic decision to abstain from adducing witness evidence which could assist the Court on the rationale for the change of policy, and analyse the relevant data with appropriate precision. In this regard, aside from the point of principle I have already outlined, I note that the House of Lords Secondary Legislation Scrutiny Committee's 8th Report of Session 2023-24 called for the greater publication of statistics and analysis in this area.
  78. What I do gather from the Guidance is that applications brought by child dependants should ordinarily succeed if proper regard is had to the primacy of the best interests of the child and the likely impossibility of family life being capable of being enjoyed by the family unit as a whole outside the UK. The position is far less clear in relation to partner applications made in circumstances where the relevant relationship was formed after the sponsor's status as a stateless person was recognised in the UK and the applicant has rights of residence in a third country. There are clear and obvious reasons why the second category of case is less meritorious than the first, although under the Defendant's new policy they are equiparated in the sense that all cases are corralled into Appendix FM.
  79. Ms Harrison further submitted that unaccompanied children had no ability to apply under Appendix FM. Mr Payne disputed that was the case, pointing out that their cases fell within the overarching Article 8 provisions of GEN 3.2, or would be considered outside the rules altogether. I consider that Mr Payne is probably right about GEN 3.2 applying (although my confidence in that conclusion is undermined somewhat by his alternative submission that these applications would be considered outside the rules), although this application for judicial review cannot turn on a narrow point of this sort.
  80. IMPACT OF APPENDIX FM ON STATELESS APPLICANTS AND THEIR DEPENDANTS

  81. The Claimant has assembled an impressive body of evidence addressing the difficulties created by the new regime on stateless applicants and their dependants. The Defendant has sought to contest none of that evidence. The furthest that the Defendant has gone is to seek to adduce some statistical evidence via her skeleton argument to the effect that between 1 January 2019 and 31 December 2023, there were 7,671 applications under Appendix FM in relation to persons aged up to 18-years-old on the basis of a child's best interests, 1,712 for what is described as "family life breach of Article 8", and 1,067 on the basis of "breach of Article 8 (exceptional circumstances)". It is said that approximately 40% of all applications by children under Appendix FM are made on the grounds which a non-stateless child dependant who could not meet the core requirements would need to advance. I am not sure what that means, and the 40% figure has not been explained.
  82. There is also some further statistical evidence in the Defendant's bundle which appears to post-date the change in policy.
  83. I repeat what I have already said about the Defendant's failure to assist the Court in understanding her policy and the underlying data. My approach must therefore be to accept the Claimant's evidence, except where it is contradicted by contemporaneous documentation or plainly wrong, and to be wary about any factual assertion made by Mr Payne, except where it is supported by a contemporaneous document or plainly right.
  84. Ms Emma Fitzsimons, junior Counsel for the Claimant, has prepared a helpful table which seeks to cut a clear route through the mass of evidence. I am grateful for her industry which was carried out overnight.
  85. According to Ms Sophie Humes, who is an immigration caseworker at the Claimant:
  86. "Applications under Appendix FM entail considerable evidential and procedural complexities, which are compounded by the limited availability of legal assistance for applicants. As a result, applicants are often deterred from pursuing an application in the first place or, if they do, are much more likely to fall out of the process due to the challenges of proceeding."
  87. These difficulties include: the limited availability of legal advice for applicants; the difficulties in obtaining exceptional case funding to receive legal aid; and the difficulties in obtaining a waiver of the application fee and IHS. A number of witnesses testify to the complexity of the application process to obtain these waivers, the need for expert legal advice, the lengthy application process, the long delays in the Defendant's process of applications, and the precariousness of being on section 3C leave whilst the waiver fee application is pending, with the consequent impacts on student finance, welfare benefits, housing etc.
  88. Other witnesses, including Ms Djamilla Hitchins and Ms Anna Skehan, speak to the difficulties in lifting the NRPF condition which needs to be imposed as a condition to qualify for the 5-year route to settlement. Ms Hitchins explains that the application process is extremely burdensome and requires an applicant to provide extensive documentary evidence to show that they meet the criteria for having the condition lifted. According to the Migration Observatory, in practice a relatively small share of people with NRPF have their condition lifted by the Home Office.
  89. According to Ms Humes:
  90. "In my experience, it would be virtually impossible for such applicants (who would previously have applied under Part 14 but must now apply under Appendix FM) to complete their application without the help of a legal adviser, largely because of the onerous and evidentially taxing substantive requirements that they need to satisfy."
  91. And:
  92. "Whilst I do not have direct experience of advising family members of stateless persons on applications under Appendix FM (given how recently the HC 246 rule change came into effect), I would expect from my experience that the vast majority of applicants who would have formerly applied for family reunion under Part 14 and now must apply under Appendix FM will not meet the substantive requirements and will need to rely on the "exceptional circumstances" discretion … an application under the exceptional circumstances route can generate further procedural obstacles to the grant of limited leave to remain (such as evidence gathering and any further appeal), the implications of which are compounded by lack of access to legal assistance."
  93. According to the evidence of Ms Judith Carter:
  94. "These difficulties are exacerbated by the fact that, in my experience, the family members of stateless sponsors tend to be disproportionately female and/or children. … This indicates that women and children will be disproportionately impacted by the new rules and they make up the majority of dependants of stateless people.
    Finally, I add that stateless people's dependants are often stateless themselves – as is typically the case, for example, with Palestinian families. Requiring stateless dependants to apply for leave to enter under Appendix FM[3], with the administrative and other burdens that entails, only serves to prolong family separation and thus further magnifies the difficulties faced by stateless people seeking family reunion in the UK."
  95. The Claimant's evidence also addresses the disadvantages of having to apply and obtain indefinite leave to remain on the 10-year as opposed to the 5-year route. The latter is available only for those who meet the core requirements of Appendix FM including the NRPF condition: if that condition is waived, the applicant is then on the 10-year route.
  96. An applicant on the 10-year route has to apply every 30 months, leading to four sets of fees, unless a waiver is secured. In the event that a waiver is refused, there is then the very short time frame of 10 days in which to pay the full fee, failing which the applicant is unlawfully present in the UK. These disadvantages have a disproportionate impact on children and young people, in terms of uncertainty and stress, childhood poverty, negative health consequences and access to higher education. In Ms Skehan's view:
  97. "In short, the 10-year route serves to prevent and inhibit integration of applicants and their families by placing obstacles in their way across a range of spheres, including education, employment, health and financial security. It can trap people in poverty and prevents them from reaching their full potential. The harmful impacts of the 10-year route are, in my experience, visited particularly acutely on vulnerable and disadvantaged groups with protected characteristics based on race, sex or disability but especially so on women, children and young people."
  98. During the course of the hearing I granted permission to the Claimant to rely on the second witness statement of Djamilla Hitchins. In the context of Appendix FM, which I confess I found, at times, somewhat difficult to understand, I had asked Counsel whether the online forms were similarly complex. This evidence addresses the online forms which the dependants of stateless sponsors have to complete. Given that the form is generic rather than tailored, it is said that unless the applicant provides incorrect information at certain stages it will not be possible to proceed to the next page. Furthermore, by providing such incorrect information the applicant runs the risk of the application being refused and/or of criminal proceedings. I am concerned albeit not necessarily surprised that applicants are placed under such difficulties and stress. The Defendant must as a matter of urgency ensure that their online forms are user-friendly and can be used by the dependants of stateless persons applying under Appendix FM.
  99. THE COURSE OF THE LITIGATION

  100. Proceedings were issued on 29 April 2024 and permission was granted on all grounds by Lang J on 31 July. The Detailed Grounds of Defence were originally due on 30 September 2024. The Defendant made three applications for an extension of time to file the Detailed Grounds and this was not done until 29 October 2024. The reason for the extensions was that the Defendant was preparing a further EIA, and that was not ready until 28 October. The Defendant had made it clear that she would defend the claim regardless. The October 2024 EIA was not personally considered by the Minister, the Rt Hon Dame Angela Eagle MP, at the time although she was made aware of the position in general terms. On 20 January 2025, with the hearing due to start in less than 24 hours, the October 2024 was sent to the Minister for approval. She did approve it, but complained through her Assistant Private Secretary that she should have been given more advance notice.
  101. The October 2024 EIA had express regard to a report, "The Deintegration Generation: We Belong". The Defendant also had available some limited statistical information bearing on the percentage of dependency applicants who were female.
  102. The October 2024 EIA asserted that the EIA had been updated "as part of our continuing duty to have due regard to the need to achieve the objectives set out under section 149 of the Equality Act 2010". This EIA expressly recognised that stateless persons were more likely to find themselves on the 10-year route to settlement, and that was disadvantageous. In short:
  103. "Being subject to Appendix FM and the 10-year route may therefore have a negative impact on the family of a stateless person by requiring them to engage in a more onerous and protracted process for entering and achieving settled status. This has implications and presents obstacles to them obtaining settlement and integrating into society."
  104. Under the rubric of age discrimination, the EIA referenced "The Deintegration Generation" report which highlighted the potential adverse impacts of placing children and young persons on the 10-year route to settlement: in particular, the high cost and the barrier to higher education and career ambitions. It followed that the integration process was made "more challenging".
  105. However, it was pointed out that these impacts were mitigated by the fact that the child would be able to remain legally in the UK throughout the qualifying period and there were relatively small numbers involved - approximately 50 applications a year. It therefore followed that the impact to applying under Appendix FM "would be minimal".
  106. Overall, and this is a reprise of the November 2023 EIA:
  107. "We consider that the impacts on younger people are a proportionate means of achieving a legitimate aim of ensuring that the statelessness route is used only by those who are stateless given that it provides a generous 5-year route to settlement. It helps ensure stateless applicants are not admissible for the purposes of permanent residence to any other relevant countries, for example the country of nationality of their spouse. As a result, we do not consider the change will result in any unlawful indirect discrimination."
  108. A similar analysis is evident in relation to race and sex. Dealing with the latter first, new statistical evidence permits the Defendant to say that, of the 799 applications under Part 14 brought between April 2023 and the end of January 2024, 438 were female. Accordingly, the changes had a greater impact on women than men. However, it is said that this impact was mitigated by the ability of women to bring a statelessness application in their own right, and the fee waiver regime. As for race discrimination:
  109. "We consider that whilst stateless persons may share some characteristics which make it more challenging for them to meet the Appendix FM requirements, those who are stateless and who are present in the UK can apply to remain on the statelessness route. For dependants who are stateless or who wish to apply as dependants, the grant of permission to stay to the stateless sponsor which provides the latter with stateless documents, the right to work etc. goes some way to addressing some of the disadvantages a stateless person might otherwise have. Moreover, even where it is not possible to meet the Appendix FM criteria, consideration is given to whether Article 8 requires the application to be granted or whether there are sufficiently compelling circumstances which require the application to be granted. Even if this places them on a more uncertain path to settlement requiring for example, renewal of applications, paying fees, steps are in place which can be accessed to mitigate those difficulties (for example, securing fee waivers if needed).
    …
    Any indirect impact on the basis of race is justified as a proportionate means of achieving a legitimate aim of ensuring that the statelessness route is utilised by stateless persons only. A route for a partner and children will still be available under the family route in Appendix FM and this is consistent with other sponsors also on the route ensuring that they have a route for family reunification."
  110. This last sentence is somewhat difficult to follow, but I think that what is being said is that the cases of family members on the family route under Appendix FM are no different from those of other persons (i.e. non-stateless persons) who are also sponsoring family members on the same basis. On any view, the drafting of the last sentence could be improved.
  111. The October EIA does not refer to any of the Claimant's evidence adduced in these proceedings. It does not repeat the summary of the UNHCR's objections set out in the November 2023. The new Minister did not have that document when she was asked to sign off the October EIA in January this year.
  112. GROUND 3: THE DEFENDANT'S INTERNATIONAL OBLIGATIONS TO STATELESS PERSONS AND THEIR DEPENDANTS

  113. The Claimant submits that the Defendant has erred in law and/or has acted irrationally and contrary to her stated intention to act in a manner compatibly with her international law obligations, in particular the 1954 and 1961 Conventions as well as the ECHR. Ms Harrison submitted that the Claimant's arguments have received the full support of the UNHCR to which great weight must be attached by domestic courts. It is submitted that the rule change frustrates and undermines the Defendant's discharge of her obligation to reduce statelessness, by "making it deliberately and positively more difficult for a stateless dependant to be admitted to the UK". Furthermore, and Ms Harrison placed particular emphasis on this aspect in her oral argument, the rule change cuts directly across the principle of facilitating assimilation as enacted by Article 32 of the 1954 Convention. Ms Harrison submitted that assimilation or integration includes, as a relevant factor, support for family reunification, based on the objectives and purposes of the 1954 Convention whether read alone or together with the recognition in international human rights law of the fundamental right to family life.
  114. Mr Payne relied on the black-letter of the relevant provisions, and the Claimant's concession that the international conventions contain no express right to family reunification.
  115. Clearly, the Claimant's submissions under Ground 3 must command very considerable respect, supported as they are by the opinion and reasoning of the UNHCR which should attract great weight given its special expertise: see R (AAA (Syria) and others) v Secretary of State for the Home Department [2023] UKSC 42; [2023] 1 WLR 4433, at paras 63-71. Further, I am certainly able to accept the Claimant's argument that if the rule change were contrary to the UK's international obligations, this Court would have power so to declare: see R (oao PK (Ghana)) v Secretary of State for the Home Department [2018] EWCA Civ 98; [2018] 1 WLR 3955 (at para 34) and R (oao EOG and KTT) v Secretary of State for the Home Department [2022] EWCA Civ 307; [2023] QB 351 (at paras 33-36). Ultimately, however, I am unable to accept the Claimant's case under Ground 3, for the following reasons.
  116. It is accepted by the Claimant that there is nothing in the 1954 or 1961 Conventions which places any specific obligation on Contracting States to adopt particular measures to enable the dependants of stateless persons, whether or not they themselves are stateless, to apply for entry clearance to come to the UK on that basis. The highest that the Claimant's case may properly be put, in my judgment, is that the UK cannot place insuperable obstacles in the way of family reunification, but I am unable to conclude that the Defendant's rule change goes that far.
  117. In the absence of a specific obligation, the Claimant relies more broadly on the general duty in Article 32 of the 1954 Convention to facilitate assimilation or integration, and equivalent obligations imposed by international human rights law to recognise the right to family life (see, in the different context of state immunity, the general statement made in Al-Adsani v UK [2002] 34 EHRR 11, at para 55, that a "Convention should so far as possible be interpreted in harmony with other rules of international law of which it forms part.")
  118. However, these general principles do not require a Contracting State to do anything in particular, still less to make it as easy as possible for the dependants of stateless persons to apply for entry clearance to enter the UK on that basis. The express obligations under the 1954 and 1961 Conventions relate to stateless persons physically present on the territory of the relevant Contracting State. To the extent that these obligations may permissibly be expanded to cover dependant family members, this is only in a very general way. I agree with the Defendant's analysis that Article 32 of the 1954 Convention is in very similar terms to Article 34 of the Refugee Convention, which provides that "… the Contracting States shall so far as possible facilitate the assimilation and naturalisation of refugees". Although as a matter of policy the UK has adopted a generous stance in relation to certain family members of refugees (see McDonald's Immigration Law and Practice, 10th edition, para 12.228), that was not compelled by any international obligation. The highest that the case may be put is that it flows from a recommendation made at the International Conference in 1951. As previously explained, I am prepared to accept for present purposes that the rationale behind the recommendation applies equally to stateless persons, but in the context of this third ground that does not avail the Claimant.
  119. My analysis has proceeded on the premise that international law treats stateless persons and refugees, broadly speaking at least, in the same way. Mr Payne advanced the more ambitious argument that stateless persons are distinct from refugees in any event. It is convenient to address that argument at this stage. His point was that the 1951 Refugee Convention protection against refoulement means that the refugee sponsor cannot enjoy family life in their home country with pre-flight family members. Further, the protection against refoulement is different in nature from the protections afforded to stateless persons. I cannot accept that submission. A stateless person cannot enjoy family life in his or her country of origin. The Ministerial Submission of July 2023 recognised that "both cohorts are vulnerable groups governed by international conventions and neither cohort can return to live in their country of origin."
  120. In addition, after the hearing, Ms Harrison drew my attention to the position adopted by Her Majesty's Government in the travaux to the 1954 Convention. It was accepted as a general rule that:
  121. "… the treatment accorded to stateless persons in the United Kingdom does not differ from that accorded to refugees and Her Majesty's Government see no objection in principle to applying the provisions of the [1951 Convention] to stateless persons who are not refugees insofar as these provisions are susceptible of application to such stateless persons."
  122. It follows that a broad comparison between the international law obligations owed to refugees on the one hand and to stateless persons on the other is appropriate. This comparison is no more than that: these two cohorts are not identical.
  123. The difficulty with the Claimant's argument, at least under this Ground 3, is that although the platform for it is sound, the consequences that flow from treating the two sets of obligations as broadly speaking in alignment are not as the Claimant would seek to persuade me. In my view, the position has been correctly explained by Lavender J in R (DM) v Secretary of State for the Home Department [2023] EWHC 740 (Admin); [2023] 1 WLR 4109, at paragraph 9:
  124. "Mr Husain was at pains to stress that the claimant was not inviting me to adjudicate on the United Kingdom's compliance with its international obligations. I will refer to certain international material merely by way of context. I note, however, that neither the 1951 Refugee Convention nor the 1967 Protocol provide for refugees to have a right to family reunion. As Sales LJ said in paragraph 13 of his judgment in Mosira v Secretary of State for the Home Department [2017] EWCA Civ 407:
    "The Refugee Convention does not impose an obligation on Contracting States to grant leave to enter or leave to remain in order to achieve family reunion with a sponsor who has been granted refugee status in the host state, but the UN Human Rights Committee exhorts Contracting States to do this."
  125. The consequences of the UK's obligation under Article 32 of the 1951 Convention to "so far as is possible" foster the integration of statelessness persons may, I think, be shortly stated. Although I may accept the Claimant's argument that a series of provisions which frustrates the purposes of Article 32 such that integration is practically impossible or close to it would amount to a violation of the UK's international obligations, anything falling short of that high hurdle must be regarded as within the Contracting State's legitimate policy choices in importing into domestic law a duty in the international sphere which is defined at so high a level of generality. Whether the Contracting State's policy choice is rational according to its domestic public law raises in my view a different issue.
  126. Taking the Claimant's evidence at its highest, I cannot conclude that the formidable threshold I have identified has been met. I take into account the Defendant's failure to adduce any evidence and rely simply on the documents speaking for themselves, to the extent that they do. I am not satisfied that the Defendant has done her best to assist the Court, and in the context of the remaining grounds will not be cutting her any slack. That having been said, I am not satisfied that the Claimant has done enough to persuade me that the procedural hoops which lies in the way of Article 8 applicants seeking entry under GEN 3.2 of Appendix FM are so stringent as to be close to be insurmountable. The fact remains that a number of such applications have been made.
  127. For all these reasons, I must reject the Claimant's Ground 3.
  128. GROUND 4: IRRATIONALITY

  129. Ms Harrison submitted that the rule change is irrational on both process and substantive grounds because the Defendant failed to accord weight to the particular vulnerability of stateless persons under international law, the evidence establishes that a substantial number of people will suffer real hardship, the statutory purpose is frustrated and like cases are not treated alike, and there is no sufficiently compelling countervailing consideration to be put in the balance against the significant hardship. Ms Harrison presented me with an array of submissions developing these points. Rather than set them all out, I propose to address her arguments during the course of my analysis of this Ground 4.
  130. Mr Payne's short submission was that there is only one test of irrationality and that it is a very high one. Fundamentally, he submitted, this ground does no more than express disagreement with the change in policy. The short point in response is that the Amended Rules comply with the UK's international obligations, and provide a structured approach to decision-making that enables individual hardship to be taken into account both procedurally and substantively. That is not irrational or perverse.
  131. In oral argument Mr Payne submitted that it was wrong for the Claimant to invite comparison between the new and old regimes. Part 14 of the Rules was overly generous and went further than the requirements of international law. This generosity meant that there was a significant risk under the old regime that people who were not stateless were gaining access to the 5-year route to settlement. In order to address that risk, the policy choices open to the Defendant were, theoretically at least, two-fold. These were either to create a regime in which the issue of statelessness was determined at the time an entry clearance application was made; or, to assimilate the applications of the family members of stateless persons to those of everyone else, and bring their cases within the general rules in Appendix FM. The first option would create difficulties of adjudication and decision-making, and could reasonably be rejected. It was not unreasonable to adopt the second option even if entry to the UK under Appendix FM was more difficult than had been the case under the old benevolent regime.
  132. As I have already pointed out, the springboard for this argument is the Ministerial Submission of November 2023. It would have been preferable had there been a witness statement to support Mr Payne's points, but on reflection I do not think that the absence of such a statement is fatal to Mr Payne's ability to advance this particular submission.
  133. Mr Payne advanced other submissions which I will address during the course of my analysis of Ground 4.
  134. My point of departure is to emphasise the hurdles in the way of the Claimant on Ground 4. However its case is put, matters of government policy are, generally speaking, not for the Courts but for the executive (see, for example, para 57 of the judgment of Underhill LJ in R (oao Pantellerisco) v Secretary of State for Work and Pensions [2021] EWCA Civ 1454; [2021] PTSR 1922). Furthermore, whatever opinion I might have on the merits of this policy is wholly irrelevant and must be suppressed. The principle of the separation of powers creates clear red lines which cannot be crossed.
  135. I propose to review the key jurisprudence in chronological order. It is unnecessary to refer to all the cases mentioned in the parties' skeleton arguments and oral submissions.
  136. The locus classicus in the context of the unreasonableness of immigration rules remains the decision of Simon Brown J, as he then was, in R v Immigration Appeal Tribunal, ex parte Manshoora Begum [1986] Imm AR 385. The immigration rule that the Court struck down as perverse included a requirement that a dependant seeking entry under the age of 65 should be living alone in the most exceptional compassionate circumstances, "including having a standard of living substantially below that of their own country". Simon Brown J scrutinised this rule through the prism of the judgment of Lord Russell of Killowen CJ in Kruse v Johnson [1898] 2 QB 91: bye-laws could be "condemned" if unreasonable in the sense, for instance, that they be:
  137. "… found to be partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men …"
  138. Simon Brown J concluded:
  139. "I see no possible basis in sense or justice for a requirement which will automatically disqualify from admission under the rule virtually all those from the poorer countries of the world, irrespective of whatever compassionate circumstances may surround their case."
  140. Ms Harrison stressed the principle that a rule must not be "partial and unequal in [its] operation as between different classes". She drew attention to other statements of high authority to broadly similar effect. For example, in Matadeen v Pointu [1999] 1 AC 98, Lord Hoffmann giving the judgment of the Privy Council confirmed the general principle that:
  141. "… treating like cases alike and unlike cases differently is a general axiom of rational behaviour." (at 109D)

    However, Lord Hoffmann went on to state that what he called "the very banality of the principle" raised doubts as to its proper confines. In particular:

    "The fact that equality of treatment is a general principle of rational behaviour does not necessarily entail that it should be a justiciable principle – that it should always be the judges who have the last word on whether the principle has been observed. In this, as in other areas of constitutional law, sonorous judicial statements of uncontroversial principle often conceal the real problem, which is to mark out the boundary between the powers of the judiciary, the legislature and the executive in deciding how that principle is to be applied." (at 109F-G)
  142. Ms Harrison also relied on the decision of the Court of Appeal in AM (Somalia) v Entry Clearance Officer [2009] EWCA Civ 634; [2009] UKHRR 103 in support of the proposition that a decision-maker should make the necessary distinctions between persons or groups whose circumstances are relevantly and significantly different. At a relatively high level of generality, I consider that proposition is supported by para 44 of the judgment of Elias LJ:
  143. "This traditional concept of indirect discrimination is not the same concept as treating different cases differently. In the latter, the core of the applicant's complaint is not that a rule is imposing a barrier and cannot be justified; rather, the complaint is that even accepting the rule can be justified in its application to others, it ought not to be applied to the applicant because his or her situation is materially different, and that difference ought to be recognised by the adoption of a different rule, which may take the form of an exemption from the general rule. The complaint is not that the single rule adopted is inappropriate because discriminatory and unjustified; it is that it is the circumstances require that there should be more than one rule."
  144. In my judgment, Ms Harrison was correct to place particular emphasis on this principle. In further support of it, Elias LJ noted that in the context of Article 14 of the ECHR the ECtHR in Thlemmenos v Greece [2001] 31 EHRR 15, at para 44, stated that the Article can be invoked where:
  145. "… States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different."
  146. Next in my chronological review, the decision of the Divisional Court in R (oao Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin); [2019] 1 WLR 1649 is often cited in support of what is said to be a wider (or perhaps different) principle of "process irrationality". One may debate the taxonomy, but I do not read what has become a classic passage in the judgment of Carr J (as she then was, sitting with Leggatt LJ, as he then was) as, with respect, enunciating any new principle:
  147. "The second ground on which the Lord Chancellor's Decision is challenged encompasses a number of arguments falling under the general head of "irrationality" or, as it is more accurately described, unreasonableness. This legal basis for judicial review has two aspects. The first is concerned with whether the decision under review is capable of being justified or whether in the classic Wednesbury formulation it is "so unreasonable that no reasonable authority could ever have come to it": see Associated Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223, 233-4. Another, simpler formulation of the test which avoids tautology is whether the decision is outside the range of reasonable decisions open to the decision-maker: see e.g. Boddington v British Transport Police [1998] UKHL 13; [1999] 2 AC 143, 175 (Lord Steyn). The second aspect of irrationality/unreasonableness is concerned with the process by which the decision was reached. A decision may be challenged on the basis that there is a demonstrable flaw in the reasoning which led to it – for example, that significant reliance was placed on an irrelevant consideration, or that there was no evidence to support an important step in the reasoning, or that the reasoning involved a serious logical or methodological error."
  148. The parties also referred me to para 113 of Carr J's judgment, which in my view should be set out in full:
  149. "We accept that in principle it was open to the Lord Chancellor to adopt a policy response which did not directly correspond to the problem which it was designed to meet. A policy-maker may reasonably decide that the disadvantages of a finely tuned solution to a problem outweigh its advantages and that a broader measure is preferable, even if the broader measure is both over- and under-inclusive in that it catches some cases in which there is no or no significant problem and fails to catch some cases in which the problem occurs. Such an approach is in any event consistent with the nature of the Scheme, which uses criteria such as PPE as proxies for the complexity of cases. It is inherent in the use of such proxies that they will result in under-compensation in some cases. But this does not cause unfairness if it is off-set by over-compensation in other cases. What matters is that overall a reasonable balance is struck." (emphasis supplied)
  150. That paragraph was considered by Rose LJ, as she then was, in R (oao Johnson) v Secretary of State for Work and Pensions [2020] EWCA Civ 778; [2020] PTSR 1872. At para 50 of her judgment, Rose LJ framed the issue for the Court's determination in these terms:
  151. "We need to consider what are the disadvantages of deciding not to "fine-tune" the Regulations thereby allowing the non-banking day salary shift problem to persist unresolved; what are the disadvantages of adopting a solution to the non-banking day salary shift problem; would a solution be consistent or inconsistent with the nature of the universal credit regime; and has a reasonable balance been struck by the SSWP – or rather is it possible to say that no reasonable Secretary of State would have struck the balance in the way the SSWP has done in this case?"
  152. Although not relied on by the parties, I think that it is helpful to refer to the way a differently constituted Divisional Court (Singh LJ and Jay J) conceptualised para 98 of Carr J's judgment. This was in another challenge brought by the Law Society, viz. R (oao Law Society) v Lord Chancellor [2024] EWHC 155 (Admin); [2024] 1 WLR 3097, at para 227:
  153. "As the Divisional Court made clear in that passage, the classic formulation of unreasonableness as a ground for judicial review has always had two aspects which were to be found in the seminal judgment of Lord Greene MR in the Wednesbury case. The first is concerned with the process by which a decision is reached and not with the substantive outcome. To some extent this aspect of unreasonableness may well overlap with other familiar grounds of judicial review, for example that all relevant considerations must be taken into account and irrelevant considerations must not be taken into account. The second aspect is that, even if the process cannot be legally impugned in any way, the resulting decision may be so unreasonable that no reasonable decision maker could have arrived at it. As the Divisional Court put it in Law Society (No 2), a better formulation of this test, which avoids tautology, is to ask whether the decision is outside the range of reasonable decisions open to the decision-maker."
  154. It is possible to expand slightly on the Divisional Court reasoning in this particular passage. In situations where the decision-maker chooses, or is required by its duty of candour in judicial review proceedings, to set out her reasons in the decision itself or in a subsequent witness statement, it may be easier for the Court to conclude that the reasons given are illogical, lack any evidential foundation[4] and/or (in situations where expert evidence is relied on) contain a methodological error. In such situations the Court is not substituting its own view of the merits for the decision-maker's. It is merely examining the reasons provided and applying the multi-faceted Wednesbury principle to them.
  155. Finally, Ms Harrison relied on the decision of Cavanagh J in R (oao RAMFEL) v Secretary of State for the Home Department [2024] EWHC 1374 (Admin); [2024] 1 WLR 4950. In that case Cavanagh J concluded that the Secretary of State's failure to issue digital eVisas to all those with extended leave under section 3C of the Immigration Act 1971 was irrational. Ms Harrison informed me that this case is now before the Court of Appeal. In my view, I should therefore be focusing more on Cavanagh J's analysis of the general principles in play than the application of those principles to the particular facts.
  156. Without descending into a granular analysis of Cavanagh J's decision and the reasons for it (see paras 196-218 of his detailed judgment), for present purposes I may highlight the following aspects. First, the Secretary of State had applied a blanket policy (para 196). Secondly, the evidence clearly established that a substantial number of those on section 3C leave suffer real hardship owing to their inability to prove their immigration status (para 197). For some, the consequences were "very severe indeed". Thirdly, the failure to provide a digital means of proving immigration status, "when such means is readily available", frustrates the purpose of section 3C and the broader purpose of immigration legislation (para 207). Fourthly, an application of Rose LJ's criteria in Johnson led to only one possible answer (para 212). Cavanagh J preferred to envisage this case through the lens of traditional Wednesbury unreasonableness rather than the "process irrationality" outlined in para 98 of the Law Society case (para 216).
  157. Applying these principles to the Defendant's decision-making in the present case, my starting-point is to identify the correct target. In my judgment, the Defendant's reasons for enacting this policy are to be found in the November 2023 Ministerial Submission and accompanying EIA. It is not permissible, at least for the purposes of this Ground, to consider any additional reasons appearing in the EIA of October 2024. By then, the policy had already been put into operation and the decision-making process had come to an end. In the same way as the general principle in judicial review proceedings is that a decision-maker is not allowed to seek to support a decision with reference to reasons which were not uttered at the time and appear only in a post-decision witness statement, the Defendant is bound by what is said in the contemporaneous documentation. For this purpose, it is of course right to take into account emails and other material emanating from the Minister's private office at the time. These provide some insight into the decision-making process as it was being formulated.
  158. I agree with Ms Harrison that the Defendant's reasons for the change of policy are unreasonable and unlawful in a number of important ways. I do not accept all the points that she makes. I confine myself to the following matters, which in my judgment apply both individually and cumulatively.
  159. First, there is no recognition in the Ministerial Submission that stateless persons and their dependants are a particularly vulnerable group recognised as such under international law. Para 6 of the Ministerial Submission does fairly summarise the arguments advanced by the UNHCR and those described as other stakeholders, but the answer set out under para 8 is to my mind superficial and unconvincing. An appropriately deeper analysis would, and should, have included a recognition not merely that there has been bare compliance with the 1954 and 1961 Conventions (I have found for the Defendant on Ground 3). The Minister should have been informed of the recommendation in 1951 that the dependants of refugees should be subject to more favourable rules of entry (where the relationship subsisted pre-flight), that the UK has adopted more favourable rules for such refugees, and that the stance of Government had previously been that there was no material difference between the position of stateless persons and refugees. The Ministerial Submission of July 2023 had accepted all of this, but no attempt was made to explain the subsequent change of policy in that context.
  160. Secondly, I consider that para 8 of the Ministerial Submission of November 2023 understates the core requirements of Appendix FM to a very considerable degree, particularly in relation to children. It is a flight of meiosis to say that "a significant number of stateless family members may not meet the core requirements of Appendix FM". The Claimant's voluminous evidence demonstrates this in spades. Although the rich detail of that evidence was not available in November 2023, its essential gravamen had been put to the department. No evidence has been adduced to contradict it. The Minister should have been told that the overwhelming majority of stateless family members would not meet the core requirements, for multiple reasons, and that they would be forced to rely on exceptional circumstances and Article 8.
  161. Thirdly, para 8 of the Ministerial Submission states "we anticipate that most dependents will still be granted". In oral argument Mr Payne demonstrated how and why this would be the case. Certainly in relation to child applicants, I accept Mr Payne's submission. However, I cannot see how this point avails him. Why require a child to go through a lengthy and stressful application process under Appendix FM, assuming that with appropriate assistance she or he works out how to apply, when the highly likely upshot is that the application will eventually succeed? In my judgment, the imposition of this unnecessary and close to pointless requirement is a paradigm example of a perverse policy. Furthermore, the policy deploys a sledgehammer to crack a nut, and treats everyone in the relevant cohort in exactly the same way when they are not all the same (see my fourth and fifth points below). Moreover, at the time the policy was being formulated the Minister was given no indication of the likely numbers affected. It may well be that most child applicants come to the UK with their parents and that the numbers involved are quite small. However, on that premise it is no answer that the impact may be limited in terms of the numbers of individuals affected. The impact on those individuals is very high.
  162. Fourthly, the policy lumps all dependants together without any attempt to differentiate between them. This blunderbuss approach cannot be justified. In my judgment, there are clear and obvious distinctions to be drawn between different classes of dependants, some of which are more meritorious than others. At one extreme there are the stateless children of stateless persons. At the other, there are the non-stateless partners of persons whose status as stateless has been recognised in the UK but where the relevant relationship was formed after the latter came to this country. In my opinion, it would be difficult to argue that requiring individuals in this second category to apply under Appendix FM is perverse. Yet the whole group has been treated in the same way, without any objective and reasonable justification.
  163. Fifthly, the dependants of stateless persons are treated in the same way as all those seeking to apply to come to this country under Appendix FM. Although, pace Ms Harrison's submission, there is no direct comparison being made in the Ministerial Submission between the dependants of stateless persons and the dependants of British citizens and settled persons, I have already made the point that many of the dependants of stateless persons inhabit a different category. In this way cases are being treated as equal when they are not, without any objective and reasonable justification.
  164. Sixthly, I repeat the point that under international law the position of stateless persons and refugees is broadly similar. The Defendant has adopted a "benevolent" policy towards pre-flight dependants of refugees, and officials were minded to perpetuate that policy in relation to stateless persons in July 2023. The policy in relation to refugees followed the recommendation made in 1951, and in 1954 Her Majesty's Government enunciated a similar position in respect of stateless persons. Although the Defendant was not compelled by international law to follow this course, in my judgment it was incumbent on the department to acknowledge that refugees were the closest comparator group, because other things being equal like cases should be treated alike, and then provide an objective and reasonable justification for any differentiation.
  165. Seventhly, I have some difficulty with the stated Ministerial rationale, namely the "desire to ensure that only those who are stateless themselves are granted permission to stay on the stateless route". That route never applied to entry to the UK. The position under the old and the new regimes is the same, viz. that stateless persons in the UK can apply under the stateless route. However, and without any further explanation from a witness as to what the Minister may have meant, he appears to have lost sight of the fact that the issue here is not stateless persons but their dependants. In this regard, my first point is relevant.
  166. Eighthly, it is not correct to say that the change in policy "reiterate[s] the requirement for stateless applicants to demonstrate that they are not admissible for the purposes of permanent residence to any other relevant countries". The Ministerial Submission of November 2023, possibly disabusing the Minister of a view he had expressed to his officials, made it clear that it was already clearly the position that "individuals will only be accepted as stateless if they cannot reside in another country". It follows that there was nothing that could sensibly be reiterated: this was already plain enough. I have accepted Mr Payne's submission that the change in policy did achieve something different. If, for example, a non-stateless dependant with rights of residence in Country X applied to come to the UK as the partner of a stateless person, his or her application could be refused on the basis that it was reasonable for the stateless person with rights in this country to travel to Country X to enjoy family life with the partner. Assuming that Country X would grant leave to the stateless person to enter its territory for that purpose, I can see that the policy may have some justification. However, it has nothing to do with the need to ensure that a stateless applicant is not admissible elsewhere. In any event, rather than adopting an undifferentiated approach, the obvious way to address this issue is to bring these particular cases within the scope of Appendix FM, rather than treat all dependants as if they are the same.
  167. Finally, the Ministerial Submission of November 2023 does not address proportionality at all, and I have already set out the way in which the EIA of November 2023 does so (see §45 above). In my opinion, this goes nowhere near far enough. I have already explained why the "legitimate aim" is set out without appropriate discrimination or differentiation between different types of case. In any event, the separate question of proportionality is not properly analysed: it is merely asserted. In my judgment, the Defendant has not justified the very significant impact on the vulnerable dependants of stateless persons, in particular children. That impact could have been mitigated by, for example, requiring the non-stateless partners of stateless persons (in particular, those who formed the relevant relationship after the latter came to the UK) to bring their claims under the general provisions of Appendix FM but preserving the bespoke route for children.
  168. In terms of whether it is possible to say that no reasonable Defendant could have struck the balance in the way achieved in November 2023, applying para 50 of Rose LJ's test in Johnson, I have concluded that it is.
  169. I am not to be understood as concluding that the only reasonable policy the Defendant could adopt is that to be found in Part 14 of the old rules, or something close to it. It is clear from what I have said that had the Defendant not sought to treat all dependants in precisely the same way, it might well have been possible to enact a lawful policy. My reasons have focussed in particular on the position of child dependants.
  170. For all these reasons, Ground 4 succeeds.
  171. GROUND 2: THE BEST INTERESTS OF CHILDREN

  172. Section 55 of the Borders. Citizenship and Immigration Act 2009 provides in material part:
  173. "55 Duty regarding the welfare of children
    (1) The Secretary of State must make arrangements for ensuring that—
    (a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, …"
  174. This provision is very familiar now in an immigration context. It has been considered on at least two occasions by the Supreme Court: see MM (Lebanon) v Secretary of State for the Home Department [2017] UKSC 10; [2017] 1 WLR 771, and CAO v Secretary of State for the Home Department [2024] UKSC 32; [2024] 3 WLR 847; and recently by the Court of Appeal in R (oao PRCBC) v Secretary of State for the Home Department [2021] EWCA Civ 193; [2021] 1 WLR 3049. I also note Cavanagh J's summary of the relevant principles, including the Defendant's Guidance, in RAMFEL at paras 244-246.
  175. Mr Payne relied on two authorities in particular. In FA (Sudan) v Secretary of State for the Home Department [2021] EWCA Civ 59, the Court of Appeal emphasised (at para 71) that the section 55 duty was to have regard rather than achieve a particular outcome. In R (oao Cardona) v Secretary of State for the Home Department [2021] EWHC 2656 (Admin) Linden J, having reviewed a number of authorities, held (at para 64(i)) that the real question was the nature of the arrangements made by the Defendant and whether those arrangements fulfilled the statutory requirements.
  176. Para 15 of the Ministerial Submission of November 2023 stated:
  177. "Whilst the proposed changes do disadvantage child dependants as they will have to meet a more strenuous set of requirements in order to be granted permission to stay in the UK, we consider that our obligations under section 55 … continue to be met given that there will be a route to settlement in the UK available for children of stateless persons. Furthermore, the transitional arrangements will ensure that children already on the statelessness route (or children of parents who are already on the statelessness route) at the time of the introduction of Part 14 will be treated favourably, thus showing our consideration of the best interests of children."
  178. Appendix FM and the associated guidance does require caseworkers to have regard to the best interests of children as a primary consideration.
  179. In my judgment, Ground 2 adds nothing on the facts of this case to Ground 4. If I am right about Ground 4, Ground 2 must succeed; and the converse also holds true. Given what I have already said under the rubric of Ground 4, I have to say that relying on the existence of a route to settlement under Appendix FM rings somewhat hollow. Furthermore, whereas one may agree that the transitional provisions do betoken a degree of consideration of the best interests of children, the application of these provisions will be short-lived. Once they no longer apply, the children of stateless persons will of course fall under the general provisions of Appendix FM. It is in that context that the section 55 duty properly falls to be considered. The existence of a route that is technically available, however difficult it may be to fulfil its conditions, however pointless it may be to require a child to pass through these hoops, and whatever the disadvantages that may flow to the child even if those conditions are somehow met, does not in my judgment fulfil the requirements of section 55.
  180. Ground 2 therefore succeeds.
  181. GROUND 1: THE PUBLIC SECTOR EQUALITY DUTY

    The Claimant's Submissions

  182. Ms Harrison submitted on the back of relevant authority that the "rearguard" EIA of October 2024 came too late to inform the decision-making process, was not personally considered by the Minister at the time it was made, and should be disregarded for present purposes.
  183. She submitted that the earlier EIAs did not amount to a proper discharge of the Defendant's duties under section 149 of the Equality Act 2010 because the Defendant (1) failed to identify that statelessness itself is a protected characteristic, (2) failed to undertake an adequate inquiry of the equality impacts upon stateless people and their families, (3) failed to give adequate consideration to the equality impacts on women, (4) failed to give adequate consideration to the equality impacts for children, in line with their best interests and welfare, and (5) treated stateless persons like other vulnerable groups.
  184. Ms Harrison submitted that even if it were appropriate to bring into consideration the EIA of October 2024, it repeats many of the solecisms of its predecessors. Furthermore, she contended that the Defendant has failed to identify the true nature and extent of the discriminatory impacts on children and women. Hereabouts, she recruited many of the submissions she was also to deploy under the banner of her irrationality ground.
  185. Ms Harrison developed these points at some length and with considerable panache in her oral argument. I do not propose to lengthen this judgment by reciting all the details, although I can assure the Claimant that I am bearing all the submissions made well in mind.
  186. The Defendant's Submissions

  187. Mr Payne submitted that compliance with the PSED does not require a formal impact assessment to be undertaken. He defended the earlier EIAs but invited me to consider the EIA of October 2024 on the basis that, by the time of the hearing before me, any defects had been remedied by the subsequent assessment, and in any event the Court is required by section 31(2A)-(2C) of the Senior Courts Act 1981 to refuse relief "if it appears … to be highly likely that the outcome for the applicant would not have been substantially different".
  188. Mr Payne submitted that statelessness is not a protected characteristic in its own right for the purposes of the equality legislation. He argued that one cannot be discriminated against on the ground that one lacks a characteristic set out in the statute, unless Parliament has made specific provision for that. Here, he drew a contrast between race and religion. In oral argument Mr Payne developed two submissions that had not been prefigured. First, he argued that statelessness is really about immigration status. Secondly, he contended – if I understood his submission correctly – that consideration should be given to the concept of de facto statelessness.
  189. Mr Payne argued that an assessment for the purpose of section 149 does not merit the sort of acute forensic analysis undertaken by the Claimant. Overall, the EIAs clearly had regard to the vulnerability of stateless persons and also the position of women and children. In common with Ms Harrison, his submissions on what may be described as the merits replicated those advanced under the banner of the irrationality ground.
  190. The Legislative Framework

  191. Section 9 of the Equality Act 2010 provides in material part:
  192. "9 Race
    (1) Race includes—
    (a) colour;
    (b) nationality;
    (c) ethnic or national origins.
    (2) In relation to the protected characteristic of race—
    (a) a reference to a person who has a particular protected characteristic is a reference to a person of a particular racial group;
    (b) a reference to persons who share a protected characteristic is a reference to persons of the same racial group.
    (3) A racial group is a group of persons defined by reference to race; and a reference to a person's racial group is a reference to a racial group into which the person falls.
    …"
  193. Section 10 provides in material part:
  194. "10 Religion or belief
    (1) Religion means any religion and a reference to religion includes a reference to a lack of religion.
    (2) Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief."
  195. Section 13(1) provides:
  196. "13 Direct discrimination
    (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others."
  197. Section 19(1) and (2) provide:
  198. "19 Indirect discrimination
    (1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.
    (2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if—
    (a) A applies, or would apply, it to persons with whom B does not share the characteristic,
    (b)it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
    (c) it puts, or would put, B at that disadvantage, and
    (d) A cannot show it to be a proportionate means of achieving a legitimate aim."
  199. Section 149 provides:
  200. "149 Public sector equality duty
    (1) A public authority must, in the exercise of its functions, have due regard to the need to—
    (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
    (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
    (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
    (2) A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1).
    (3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—
    (a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
    (b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
    (c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.
    (4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons' disabilities.
    (5) Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—
    (a) tackle prejudice, and
    (b) promote understanding.
    (6) Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act.
    (7) The relevant protected characteristics are—
    • age;
    • disability;
    • gender reassignment;
    • pregnancy and maternity;
    • race;
    • religion or belief;
    • sex;
    • sexual orientation.
    (8) A reference to conduct that is prohibited by or under this Act includes a reference to—
    (a) a breach of an equality clause or rule;
    (b) a breach of a non-discrimination rule.
    (9) Schedule 18 (exceptions) has effect."

    The Key Authorities

  201. In R (oao Elias) v Secretary of State for Defence [2006] EWCA Civ 1293; [2006] 1 WLR 3213, the Court of Appeal (Mummery, Arden and Longmore LJJ) were considering the predecessor to section 149 in the context of race discrimination. At para 274 of her judgment, Arden LJ said this:
  202. "It is the clear purpose of section 71 to require public bodies to whom that provision applies to give advance consideration to issues of race discrimination before making any policy decision that may be affected by them. This is a salutary requirement, and this provision must be seen as an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation. It is not possible to take the view that the Secretary of State's non-compliance with that provision was not a very important matter."
  203. In R (oao Hurley and Moore) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin) the Divisional Court (Elias LJ and King J) set out the proper approach to the concept of "due regard":
  204. "77. Contrary to a submission advanced by Ms Mountfield, I do not accept that this means that it is for the court to determine whether appropriate weight has been given to the duty. Provided the court is satisfied that there has been a rigorous consideration of the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then as Dyson LJ in Baker (para 34) made clear, it is for the decision maker to decide how much weight should be given to the various factors informing the decision.
    78. The concept of "due regard" requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision maker. In short, the decision maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors. If Ms Mountfield's submissions on this point were correct, it would allow unelected judges to review on substantive merits grounds almost all aspects of public decision making."
  205. Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345 (Elias, Kitchin and McCombe LJJ) is an important case from the Claimant's perspective.
  206. At para 26 of his judgment McCombe LJ summarised the principles applicable to the discharge of the section 149 duty, in these terms:
  207. "(1) As stated by Arden LJ in R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213; [2006] EWCA Civ 1293 at [274], equality duties are an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation.
    (2) An important evidential element in the demonstration of the discharge of the duty is the recording of the steps taken by the decision maker in seeking to meet the statutory requirements: R (BAPIO Action Ltd) v Secretary of State for the Home Department [2007] EWHC 199 (QB) (Stanley Burnton J (as he then was)).
    (3) The relevant duty is upon the Minister or other decision maker personally. What matters is what he or she took into account and what he or she knew. Thus, the Minister or decision maker cannot be taken to know what his or her officials know or what may have been in the minds of officials in proffering their advice: R (National Association of Health Stores) v Department of Health [2005] EWCA Civ 154 at [26 – 27] per Sedley LJ.
    (4) A Minister must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated before the adoption of a proposed policy and not merely as a "rearguard action", following a concluded decision: per Moses LJ, sitting as a Judge of the Administrative Court, in Kaur & Shah v LB Ealing [2008] EWHC 2062 (Admin) at [23 – 24].
    (5) These and other points were reviewed by Aikens LJ, giving the judgment of the Divisional Court, in R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin), as follows:
    (i) The public authority decision maker must be aware of the duty to have "due regard" to the relevant matters;
    (ii) The duty must be fulfilled before and at the time when a particular policy is being considered;
    (iii) The duty must be "exercised in substance, with rigour, and with an open mind". It is not a question of "ticking boxes"; while there is no duty to make express reference to the regard paid to the relevant duty, reference to it and to the relevant criteria reduces the scope for argument;
    (iv) The duty is non-delegable; and
    (v) Is a continuing one.
    (vi) It is good practice for a decision maker to keep records demonstrating consideration of the duty.
    (6) "[G]eneral regard to issues of equality is not the same as having specific regard, by way of conscious approach to the statutory criteria." (per Davis J (as he then was) in R (Meany) v Harlow DC [2009] EWHC 559 (Admin) at [84], approved in this court in R (Bailey) v Brent LBC [2011] EWCA Civ 1586 at [74-75].)
    (7) Officials reporting to or advising Ministers/other public authority decision makers, on matters material to the discharge of the duty, must not merely tell the Minister/decision maker what he/she wants to hear but they have to be "rigorous in both enquiring and reporting to them": R (Domb) v Hammersmith & Fulham LBC [2009] EWCA Civ 941 at [79] per Sedley LJ."
  208. Paragraphs 60 and 69 of McCombe LJ's judgment are also relevant:
  209. "60. In the end, drawing together the principles and the rival arguments, it seems to me that the 2010 Act imposes a heavy burden upon public authorities in discharging the PSED and in ensuring that there is evidence available, if necessary, to demonstrate that discharge. It seems to have been the intention of Parliament that these considerations of equality of opportunity (where they arise) are now to be placed at the centre of formulation of policy by all public authorities, side by side with all other pressing circumstances of whatever magnitude.
    …
    69. The Judge decided that even had he reached the conclusion that the PSED had not been discharged, he would have confined the relief to an appropriate declaration. He took that view because (as he put it) "A number of significant developments remain outstanding" (paragraph 56 of the judgment). It is probably my fault, but I am not clear what he meant by this. It seems to me that if a decision is reached without due regard to the PSED then it is an unlawful decision and, subject to any overarching discretionary features, the decision should be quashed. That is the course that I would adopt in this case and, if my Lords agree, I would allow the appeal and quash the decision now under challenge."
  210. Bracking was approved by the Supreme Court in Hotak v London Borough of Southwark [2015] UKSC 30; [2016] AC 811, at para 73 in particular. Bracking was also applied by the Court of Appeal (Sir Terence Etherton MR, Dame Victoria Sharp P. and Singh LJ) in R (oao Bridges) v Chief Constable of South Wales Police [2020] EWCA Civ 1058; [2020] 1 WLR 5037, at paras 175-181. In that case the Court of Appeal granted a declaration rather than a quashing order (para 210). Both Bracking and Bridges were cited with approval by the Supreme Court in R (oao Marouf) v Secretary of State for the Home Department [2023] UKSC 23; [2023] 3 WLR 228, at para 14.
  211. Finally, I note that in RAMFEL at paras 219-223 Cavanagh J summarised the principles applicable to the discharge of the section 149 duty. I do not understand that summary to be in dispute.
  212. Discussion

  213. After the hearing the Defendant drew my attention to Marouf in support of a submission that section 149 does not have extra-territorial effect. Initially, I misinterpreted the Defendant's submission on Marouf. It was not that the whole of the Claimant's case on Ground 1 should fail for want of jurisdiction, but rather that the impact of the change in policy fell within the scope of the section but only to the extent that such impact bore on persons within the UK. It is convenient to address that submission at the outset.
  214. Marouf was concerned with Palestinians in Syria who sought to come to the UK under the Syrian Vulnerable Persons Resettlement Scheme. The Supreme Court held that the section 149 duty did not apply to them at all because they were outside the country at all material times. They had no connection with this country. The presumption against extra-territorial effect had not been rebutted.
  215. I accept the Claimant's submission that Marouf is distinguishable. The facts of the case before me fall into two broad categories. In the first category the stateless sponsor is physically present in the UK and seeks to bring his or her dependants to this country from overseas. Treating the family as closely linked, as I have done throughout this judgment, it seems to me that these dependants do have a sufficient connection to this country for section 149 purposes through their sponsors. In the second category of case, there are dependants already in the UK who seek leave to remain under a set of rules which are more favourable to them than those set forth in Appendix FM. As I have already noted, the majority of dependants in fact fall into this second category. They are within the UK and Marouf has no application to them. Even if I am wrong about the first category, the existence of this second category is sufficient to bring the full facts of this case within the scope of section 149.
  216. Turning now to the merits of Ground 1 on the assumption that section 149 applies to this factual structure, the first question to be resolved is whether statelessness is a protected characteristic. I reject Mr Payne's submission that statelessness is really about immigration status - not being a protected characteristic - rather than nationality or its absence. Statelessness is, by definition, about the absence of nationality; and the Defendant's guidance makes that clear. The absence of nationality may well have consequences for immigration status in relation to any State where the individual does not enjoy rights, but the key reason or basis for the discrimination should be identified. That may be found in Article 1(1) of the 1954 Convention rather than in any of the exceptions. In this regard, Mr Payne relied on Article 1(2)(ii), which provides that a person is not stateless if he or she benefits from the same rights and obligations which are attached to the possession of the nationality of the country in which he or she is present. In my judgment, however, this provision does not begin to support the submission that any discrimination in a statelessness case is really on the ground of immigration status. I also consider that Mr Payne's reliance on Onu v Akwiwu [2016] UKSC 31; [2016] 1 WLR 2653 was misplaced. There, the operative cause of the claimant's discrimination was her immigration status. That is not the position in relation to stateless persons. Further, I reject his submission that statelessness includes de facto statelessness. Aside from my not understanding where this submission was intended to lead, para 100 of the decision of the Court of Appeal (Lady Carr LCJ, Bean and Whipple LJJ) in Shamima Begum v Secretary of State for the Home Department [2024] EWCA Civ 152; [2024] 1 WLR 4269 is authority for the proposition that statelessness means and only means de jure statelessness.
  217. Mr Payne's much better argument was that, unless Parliament expressly made it clear (see, for example, section 10 of the Equality Act 2010), a person cannot be discriminated against on the basis of not having the relevant protected characteristic.
  218. There is no authority directly on point. In R (oao Ward and others) v London Borough of Islington [2019] EWCA Civ 692, the Court of Appeal (Underhill, Lewison and King LJJ) considered indirect discrimination claims brought by Irish travellers and a Kurdish refugee of Turkish nationality. At para 56 of his judgment, Underhill LJ said this:
  219. "In the present case the protected characteristic is that of "race" as defined. Since "race" includes national origins, and a racial group may be made up of two or more distinct sub-groups, non-UK nationals are a class of people sharing a racial characteristic. It is also possible, of course, to define [A's] protected characteristic differently. As well as being a non-UK national, he is also a non-UK/EEA national, a Turkish national, and a person of Kurdish ethnicity. Each of these could be described as a protected characteristic."
  220. I do not read this passage as providing a complete answer to the issue I have to resolve, although it comes quite close to it. The proposition under consideration is that those for whom the Claimant is concerned are discriminated against not just because the majority may be persons of colour, or from a particular ethnic group, or many may be young and/or female, but because they do not have a nationality. It is the absence of nationality that makes them particularly vulnerable, and international law recognises them as such.
  221. In addressing this issue, I bear in mind that discrimination legislation should be given a broad and purposive interpretation: see Chief Inspector of Education, Children's Services and Skills v Interim Executive Board of Al-Hijrah School [2017] EWCA Civ 1426; [2018] 1 WLR 1471, at para 56. In those circumstances, I accept Ms Harrison's submission that it is obvious that Parliament must have had the absence of nationality within contemplation when section 9(1)(b) of the Equality Act 2010 was enacted. If stateless persons are recognised under international law as being apt to be discriminated against for that reason alone, it would seem quixotic that a domestic statute in this jurisdiction should provide otherwise. Section 10 covers the absence of religious belief because it is not so clear-cut that this lack could be the basis for discriminatory action.
  222. Para 5 of Ms Harrison's Reply Note advances a submission on direct and indirect discrimination which (and this may be my fault) I simply do not understand. Mr Payne advanced no submissions on the topic. Neither counsel referred me to section 13 of the Equality Act 2010. Given that it is not the Claimant's complaint that stateless persons are treated less favourably because they are stateless (it is the Claimant's complaint that they should be treated more favourably than British citizens etc. for that reason), I do not think that direct discrimination is relevant here. The Claimant is driven back to the indirect discrimination provisions, which were those considered and analysed by the Defendant.
  223. The next question to resolve is whether the Defendant is entitled to rely on the October 2024 EIA at all; and, if she can, to what extent.
  224. Mr Payne submitted that the July and November 2023 EIAs, read in conjunction with the Ministerial Submissions, complied with the section 149 duty, and that the only reason the October 2024 EIA was promulgated was because the Defendant has recognised a continuing duty under the section.
  225. I am not persuaded by that submission. It is clear from the timetable that the Defendant regarded the October 2024 EIA as an essential part of its defence to the Claimant's Ground 1, and it was for that reason that the Detailed Grounds of Defence were delayed until this further EIA was ready. Moreover, the October 2024 EIA contains a much better analysis of the issues, based in part no doubt on what the Claimant was contending in its Statement of Facts and Grounds but also on the further information that was not apparently available in 2023. In my judgment, if the Defendant wishes to rely on the October 2024 EIA she has to accept that it formed no part of the decision-making process in relation to the new policy (that was already in place in January 2024) during the period when the decision-maker was supposed to retain an open mind. It is also deeply regrettable that the Minister herself did not consider the October 2024 EIA until the day before the hearing began.
  226. These criticisms having been made, it remains necessary to be clear where they lead. I am finding in the Claimant's favour on Grounds 2 and 4; Ground 1 does not arise as a standalone issue. Given that I am unable to conclude that the October 2024 EIA was created in bad faith, it follows that I must address the issue of whether it complies with section 149. If it does, but the earlier EIAs do not, the consequences in terms of relief may well be academic in light of the conclusions I have already reached as to the lawfulness of the new policy in public law terms. If, on the other hand, the later does not comply with section 149, the Defendant is clearly in no better position.
  227. In the circumstances that have arisen, I have reached the conclusion that I should take Ground 1 in stages. The first question is the lawfulness of the November 2023 EIA read in conjunction with the Ministerial Submission of November 2023 and, to the extent necessary, the July 2023 materials. The second question is the lawfulness of the October 2024 EIA.
  228. Answering the first question, the November 2023 EIA was plainly deficient. I have reached that conclusion for three reasons. First, there is no recognition that statelessness is a protected characteristic and that stateless persons are a particularly vulnerable group. Secondly, the EIA's treatment of the issue of sex discrimination is jejune. Although the data may not have been readily available, no explanation was given as to why steps could not be taken to obtain it and/or why the introduction of the new policy was so urgent. In any event, I consider that it is obvious that dependants would be more likely to be female (as was established to be the position when the data were available), and the issue should have been considered on that footing as a matter of basic common sense. Thirdly, the EIA was deficient for many of the reasons I have already set out under the rubric of Ground 4.
  229. I do not accept Ms Harrison's contention that the Defendant has made a false comparison with the position of the dependants of British citizens and settled persons. She has not done so in the context of the main section 149(1)(a) duty. It is true that such a comparison is made in the context of the section 149(1)(b) duty (to the extent that applies) and the section 149(1)(c) duty, but I note the different wording of those provisions. The Defendant's reasoning is not particularly compelling when addressing what is described as limbs 2 and 3 of the PSED, but I am not persuaded that the Defendant has failed conscientiously to address her obligations in these respects. Ground 1 should not in my view succeed in relation to limbs 2 and 3 alone.
  230. Turning to the second question, it may be hardly surprising that the October 2024 EIA is a vast improvement on the earlier materials. Although this EIA does not expressly treat statelessness as a protected characteristic in its own right, it does consider in sufficiently precise terms the particular vulnerability of stateless persons both generally and in the context of integration. Given that the section 149 duty is about substance and not form, and given too that I am not directly seized of an indirect discrimination claim, I am able to accept Mr Payne's submission that the potential impact of the Amended Rules has been considered "by reference to characteristics which are or may be common to stateless persons." Furthermore, the October 2024 EIA contains a reasonably detailed analysis of the issue of indirect discrimination in the context of sex on the basis of statistical data for the period 1 April 2023 to 31 January 2024.
  231. Even so, in my judgment the October 2024 EIA still falls short of meeting the due regard duty under section 149(1)(a) of the Equality Act 2010, in various of the respects I have already identified under Ground 4. In particular, I repeat what I have said under §§114-117 above (setting out my second to fifth reasons for upholding the irrationality ground) and §121 above (setting out my final reason).
  232. DISPOSAL

  233. The claim succeeds on Grounds 1, 2 and 4 but fails on Ground 3.
  234. I invite the parties to agree a form of Order which reflects my reasoning and conclusions.

Note 1   According to the witness statement of Christian Langford dated 23 January 2025, in 2024 there were only four family member applications to reunite with a stateless person, in relation to three families, all of which were granted. I note also paras 9 and 18 of the witness statement of Judith Carter of the Liverpool Law Clinic. They have advised on approximately 60 statelessness applications, around 20% of which included applicants who had family members in the UK or abroad. The clients of the clinic are mainly stateless men who formed relationships after their grant of status.     [Back]

Note 2   i.e. post-flight family-members of refugees. There is a different and more benevolent regime for pre-flight family-members of refugees.     [Back]

Note 3   This requirement applies only to applications for an entry clearance. It does not apply to leave to remain applications brought by those who are stateless in their own right. Although the evidence does not cover this point, my understanding is that a dependant granted leave to enter under Appendix FM and who then applies for leave to remain under Appendix Statelessness, will be granted 30 months’ leave to remain in the first instance. Having remained in the UK under the statelessness provisions for at least 5 years is the precondition for an application for ILR under those provisions.     [Back]

Note 4   My reading of Viscount Radcliffe’s celebrated passage in Edwards v Bairstow [1956] AC 14, at 36, is that the no evidence principle, as a sub-set of error of law, could be expressed in the alternative in the language ofWednesbury: “I do not think that it much matters whether this state of affairs is described as one in which there is no evidence to support the determination or as one in which the evidence is inconsistent with and contradictory of the determination or as one in which the only true and reasonable conclusion contradicts the determination. Rightly understood, each phrase propounds the same test.” Viscount Radcliffe’s preference was for the last of these three formulations.     [Back]

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