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URL: http://www.bailii.org/uk/cases/UKHL/2008/42.html
Cite as: [2008] WLR 1434, [2008] UKHRR 917, [2008] HRLR 41, [2008] Imm AR 729, [2008] UKHL 42, [2008] 1 WLR 1434, [2008] 4 All ER 1127, [2008] INLR 471, 24 BHRC 738

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Judgments - AL (Serbia) (FC) (Appellant) v Secretary of State for the Home Department R (on the application of Rudi) (FC) (Appellant) v Secretary of State for the Home Department

HOUSE OF LORDS

SESSION 2007-08

[2008] UKHL 42

on appeal from: [2006] EWCA Civ 1619

[2007] EWCA Civ 1326

OPINIONS

OF THE LORDS OF APPEAL

FOR JUDGMENT IN THE CAUSE

AL (Serbia) (FC) (Appellant) v Secretary of State for the Home Department

R (on the application of Rudi) (FC) (Appellant) v Secretary of State for the Home Department

Appellate Committee

Lord Bingham of Cornhill

Lord Hope of Craighead

Lord Scott of Foscote

Baroness Hale of Richmond

Lord Brown of Eaton-under-Heywood

Counsel

Appellant in first appeal:

Rabinder Singh QC

Nicola Rogers

Joanna Stevens

(Instructed by Brighton Housing Trust )

Appellant in second appeal

Andrew Nicol QC

Mark Henderson

(Instructed by Howe and Co)

Respondents in both appeals:

Monica Carss-Frisk QC

Lisa Giovannetti

Rory Dunlop

(Instructed by Treasury Solicitor)

Hearing dates:

10, 14 APRIL 2008

ON

WEDNESDAY 25 JUNE 2008

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

AL (Serbia) (FC) (Appellant) v Secretary of State for the Home Department

R (on the application of Rudi) (FC) (Appellant) v Secretary of State for the Home Department

[2008] UKHL 42

LORD BINGHAM OF CORNHILL

My Lords,

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

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

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

LORD HOPE OF CRAIGHEAD

My Lords,

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

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

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

Eligibility was not extended to young adults who were not living as part of a family because this was not where the problem was thought to lie in clearing the backlog. Was the updated policy which contained this feature proportionate? This question demands a practical, commonsense answer. Three points indicate that the answer should be in the affirmative.

First is the nature of the problem to which the policy was directed. I think that this carries the Secretary of State a long way. His policy was devised as a solution to pressing administrative and financial problems in the sphere of immigration control. These problems lay peculiarly within the executive's area of responsibility. They had to be solved if the decks were to be cleared for achieving greater efficiency. How best to deal with them was primarily a matter for the exercise of judgment by the executive. Once it was decided that the policy could not be unlimited in its scope, it was inevitable that the release from immigration control could not be extended to everybody. This was likely to give rise to some anomalies. Its area of judgment included their detection and how far it was appropriate to go in securing the removal of those anomalies.

Second is the appellants' status as single young adults. It is accepted for present purposes that this description falls within the concluding words of article 14. Following the guidance given by the European Court in Kjeldsen, Busk Madsen and Pedersen v Denmark (1976) 1 EHRR 711, para 56, we can take it that status means a personal characteristic by which persons or groups of persons are distinguishable from each other. The appellants' case differs from those such as R (Clift) v Secretary of State for the Home Department [2007] 1 AC 484, where the claimant's classification as a prisoner resulted in a difference in treatment but it was not possible to say that this was because of any status. Adulthood is a status, as is the state of being not married. But the status of adults is not one which has so far been recognised as requiring particularly weighty reasons to justify their being treated differently from others, as Baroness Hale points out. The less weighty the reasons that are needed, the easier it is to regard the fact that the appellants were treated differently as falling within the discretionary area of judgment that belongs to the executive.

Third, there is nothing to indicate that single young adults were being targeted for unfavourable treatment just because of what they were. It was the fact that the group to which they belonged was not seen to create a problem in the clearing of the backlog that was decisive in their case. Other groups which were excluded fell into the same category. This was the inevitable consequence of a policy that was, for legitimate reasons, selective in its approach to securing immigration control with greater efficiency. Of course, the fact that a policy favours one group does not mean that if it deals unfavourably with another group it can escape the criticism that it is discriminatory. The absence of deliberate targeting is an important factor in judging whether there is discrimination in the enjoyment of Convention rights. Deliberate discrimination will always risk intervention by the judiciary. But a difference in treatment of people outside the so-called suspect categories which is simply a by-product of a legitimate policy will not normally do so.

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

LORD SCOTT OF FOSCOTE

My Lords,

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

BARONESS HALE OF RICHMOND

My Lords,

In October 2003, the Home Secretary, Mr David Blunkett, announced a one-off exercise to clear some long-standing asylum cases off the books by giving the claimants indefinite leave to remain in this country. Inevitably, there were winners and losers. The winners were families with children who had claimed asylum before 2 October 2000 and who were still living here as a family unit in October 2003. Among the losers were the appellants, who had arrived here as children and also claimed asylum before 2 October 2000, but were not part of a family unit. The appellants claim that to treat them less favourably than other people who arrived here as children, simply because they have no parents or children of their own in this country, is unlawful discrimination, either under the Human Rights Act or at common law.

The facts

The facts are very simple. The appellants are both from Kosovo. Mr Rudi was born on 27 January 1983 and arrived here aged 16 in August 1999. Mr AL was born on 28 April 1984 and arrived here aged 15 in January 2000. Both had been forced to flee their homes during Serb raids in 1999 and had become separated from their families during the flight. Neither knows what has become of his parents. They are either dead or cannot be found. After spending some time in Macedonia, each appellant made his way to this country and claimed asylum shortly after arrival. As an unaccompanied minor, each was at first looked after by social services. When they grew up, they found employment.

The proceedings

Although the underlying facts are the same in both cases, their legal claims have taken different routes. Mr AL's initial asylum claim was refused but on 4 January 2001 he was given limited leave to remain here until his 18th birthday. Before this expired he applied for it to be varied on asylum and human rights grounds, but only the human rights claim was pursued. It failed before the adjudicator. The Immigration Appeal Tribunal initially refused permission to appeal but this was reversed on statutory review in the High Court. However the Asylum and Immigration Tribunal dismissed the appeal as did the Court of Appeal: [2006] EWCA Civ 1619. During the course of the proceedings, Mr AL also applied unsuccessfully to the Home Office for inclusion in the one-off exercise.

Mr Rudi's initial asylum claim was refused and an appeal dismissed. He was not given any alternative form of leave. When the Human Rights Act 1998 came into force in October 2000 he applied again on human rights grounds. That too was refused and an appeal dismissed. In 2005, he too applied to be included in the one-off exercise, but this was rejected. The Secretary of State gave directions for his removal. He brought proceedings for judicial review, claiming that the decision to remove him was unlawful both at common law and under the Human Rights Act. His claim was dismissed by Ouseley J: [2007] EWHC 60 (Admin) and by the Court of Appeal: [2007] EWCA Civ 1326. The Court was unable to distinguish his case from the earlier decision in AL.

The one-off exercise

The "one-off exercise to allow families who have been in the UK for three or more years to stay" was first announced on 24 October 2003. The original criteria were (i) that the applicant had applied for asylum before 2 October 2000; and (ii) that the applicant had at least one child or step-child aged under 18 on 24 October 2003 who was financially and emotionally dependent upon him and had been living here as part of the family unit since 2 October 2000. Such families would be eligible if the asylum application had not yet been decided; or if it had been refused but was subject to appeal; or if it had been refused and there was no further avenue of appeal but for some reason the family had not yet left or been removed. Certain families were excluded, for example if a family member had a criminal conviction or anti-social behaviour order against him.

It will be noted that neither Mr Rudi nor Mr AL would have qualified under the exercise as initially announced had they arrived here with their parents. Mr Rudi turned 18 on 27 January 2001 and Mr AL turned 18 on 28 April 2002. Thus they were both over that age when the policy was announced on 24 October 2003. However, on 20 August 2004 the eligibility criteria were "updated to remove a number of anomalies" (Letter from Home Office Minister Des Browne to all MPs). The relevant change for our purposes was that the policy was extended to families with dependent children aged under 18 either on 2 October 2000 or on 24 October 2003. Thus families who had arrived and claimed asylum before 2 October 2000 but whose children had reached 18 after that date and before the announcement of the policy were now covered. Furthermore, a broad view was taken of whether a dependant who had left the family home before 24 October 2003 was still part of the family unit. Had Mr AL and Mr Rudi been here with their parents, they would have been covered by the amended policy.

Also relevant is the Home Office policy towards unaccompanied minors. It is acknowledged that unaccompanied asylum seeking children need especially sensitive treatment. The policy is not to remove them while they are children unless suitable arrangements can be made for their reception in their home country. If this is not possible, the policy before 8 November 2001 was to give them four years exceptional leave to remain, which would ordinarily lead to indefinite leave to remain thereafter. From 8 November 2001, the policy was to give them limited leave to remain for four years or until their 18th birthday, whichever was shorter. If they had not had the full four years, applications to remain would be dealt with on their merits (evidence given by Dr McLean in the case of EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41). Mr AL, however, was only given leave until his 18th birthday in January 2001.

Article 14 of the European Convention on Human Rights

Both appellants claim that they have been the victims of discrimination contrary to article 14 of the European Convention on Human Rights. Mr Rudi additionally claims that the decision to remove him was irrational on ordinary judicial review principles as well as contrary to the common law principle that like cases must be treated alike. It is convenient to consider the human rights claim first. Article 14 provides:

"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

This deceptively simple provision has many times been explained by the European Court of Human Rights. Several important points emerge.

First, as was said in Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471, at para 71:

". . . Article 14 complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to 'the enjoyment of the rights and freedoms' safeguarded by those provisions. Although the application of article 14 does not necessarily presuppose a breach of those provisions - and to this extent it is autonomous - there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter."

This instantly makes the article 14 right different from the open-ended guarantees of the "equal protection of the laws", such as are contained, for example, in the 14th Amendment to the United States' Constitution and in the 12th Protocol to the European Convention (to which the United Kingdom is not a party). Whether the difference in treatment "falls within the ambit" of a Convention right is not always straightforward: see the helpful explanation of Lord Nicholls of Birkenhead in M v Secretary of State for Work and Pensions [2006] UKHL 11, [2006] 2 AC 91, at paras 13 to 16. In this case, it is common ground that the "one-off exercise" fell within the ambit of the rights protected by article 8 of the Convention. Quite how it did so has not, therefore, been explored in argument before us. However, it does seem to me to be relevant, in a way which I shall try to explain when discussing the issue of justification.

Secondly, as the Court first explained in the Belgian Linguistics Case (No 2) (1968) 1 EHRR 252, 284, at para 10:

"In spite of the very general wording of the French version ('sans distinction aucune'), article 14 does not forbid every difference in treatment in the exercise of the rights and freedoms recognised. . . . The competent national authorities are frequently confronted with situations and problems which, on account of the differences inherent therein, call for different legal solutions; moreover certain legal inequalities tend only to correct factual inequalities."

The Court then went on to "look for the criteria which enable a determination to be made as to whether or not a given difference in treatment . . . contravenes article 14". They found these in the principle which they articulated then and has since been repeated many times over. A recent example is in Stec v United Kingdom (2006) 43 EHRR 47, at para 51:

"A difference of treatment is, however, discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment."

This instantly makes the article 14 right different from our domestic anti-discrimination laws. These focus on less favourable treatment rather than a difference in treatment. They also draw a distinction between direct and indirect discrimination. Direct discrimination, for example treating a woman less favourably than a man, or a black person less favourably than a white, cannot be justified. This means that a great deal of attention has to be paid to whether or not the woman and the man, real or hypothetical, with whom she wishes to compare herself are in truly comparable situations. The law requires that their circumstances be the same or not materially different from one another.

It will be noted, however, that the classic Strasbourg statements of the law do not place any emphasis on the identification of an exact comparator. They ask whether "differences in otherwise similar situations justify a different treatment". Lord Nicholls put it this way in R (Carson) v Secretary of State for Work and Pensions [2006] 1 AC 173, at para 3:

". . . the essential, question for the court is whether the alleged discrimination, that is, the difference in treatment of which complaint is made, can withstand scrutiny. Sometimes the answer to that question will be plain. There may be such an obvious, relevant difference between the claimant and those with whom he seeks to compare himself that their situations cannot be regarded as analogous. Sometimes, where the position is not so clear, a different approach is called for. Then the court's scrutiny may best be directed at considering whether the differentiation has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not disproportionate in its adverse impact."

Nevertheless, as the very helpful analysis of the Strasbourg case law on article 14, carried out on behalf of Mr AL, shows, in only a handful of cases has the Court found that the persons with whom the complainant wishes to compare himself are not in a relevantly similar or analogous position (around 4.5%). This bears out the observation of Professor David Feldman, in Civil Liberties and Human Rights in England and Wales, 2nd ed (2002), p 144, quoted by Lord Walker in the Carson case, at para 65:

"The way the court approaches it is not to look for identity of position between different cases, but to ask whether the applicant and the people who are treated differently are in 'analogous' situations. This will to some extent depend on whether there is an objective and reasonable justification for the difference in treatment, which overlaps with the questions about the acceptability of the ground and the justifiability of the difference in treatment. This is why, as van Dijk and van Hoof observe,… 'in most instances of the Strasbourg case law . . . the comparability test is glossed over, and the emphasis is (almost) completely on the justification test'."

A recent exception, Burden v United Kingdom, app no 13378/05, 29 April 2008, is instructive. Two sisters, who had lived together for many years, complained that when one of them died, the survivor would be required to pay inheritance tax on their home, whereas a surviving spouse or civil partner would not. A Chamber of the Strasbourg Court found, by four votes to three, that the difference in treatment was justified. A Grand Chamber found, by fifteen votes to two, that the siblings were not in an analogous situation to spouses or civil partners, first because consanguinity and affinity are different kinds of relationship, and secondly because of the legal consequences which the latter brings. But Judges Bratza and Björgvinsson, who concurred in the result, would have preferred the approach of the Chamber; and the two dissenting judges thought that the two sorts of couple were in an analogous situation. This suggests that, unless there are very obvious relevant differences between the two situations, it is better to concentrate on the reasons for the difference in treatment and whether they amount to an objective and reasonable justification.

Thirdly, of course, the difference of treatment has to be on a prohibited ground. Article 14 does not purport to challenge all possible classifications and distinctions made by the law or government policy. The list of prohibited grounds is long and open-ended, but it must be there for a purpose and cannot therefore be endless: see R (S) v Chief Constable of the South Yorkshire Police [2004] UKHL 39, [2004] 1 WLR 2196; and further in R (Clift) v Secretary of State for the Home Department [2006] UKHL 54, [2007] 1 AC 484. In general, the list concentrates on personal characteristics which the complainant did not choose and either cannot or should not be expected to change. The Carson case is therefore unusual, because it concerned discrimination on the ground of habitual residence, which is a matter of personal choice and can be changed.

There are, also, as Lord Walker recognised in Carson, dangers in regarding differences between two people, which are inherent in a prohibited ground and cannot or should not be changed, as meaning that the situations are not analogous. For example, it would be no answer to a claim of sex discrimination to say that a man and a woman are not in an analogous situation because one can get pregnant and the other cannot. This is something that neither can be expected to change. If it is wrong to discriminate between them as individuals, it is wrong to focus on the personal characteristics which are inherent in their protected status to argue that their situations are not analogous. That is the essential reason why, in Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557, the argument that same sex couples were not in an analogous position to opposite sex couples, because they could not have children together, did not succeed.

I say all this because so much argument has been devoted in this case, and in too many others, to identifying the precise characteristics of the persons with whom these two young men should be compared. This is an arid exercise. They complain that they, who arrived here as children without their families and are still without their families, have been treated differently from other people who arrived here as children with their families and are still with their families. That is obviously correct. It matters little whether this is described as being "parentless and childless" (as the appellants would have it) or as "not being part of a family unit" (as the Secretary of State would now have it). It is common ground that their condition, however described, falls within the residuary category of "other status" for the purposes of article 14.

What does matter is whether this condition falls within the class for which "very weighty reasons" are required if a difference in treatment is to be justified. Thus, for example, Strasbourg has said that where a "difference of treatment is based on race, colour or ethnic origin, the notion of objective and reasonable justification must be interpreted as strictly as possible" (DH v Czech Republic [2007] ECHR 922, App No 57325/00, Judgment of 13 November 2007, para 196), while "very convincing and weighty" reasons are required to justify a difference in treatment based on sex (eg Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471, para 78), or sexual orientation (eg EB v France [2008] ECHR 55, app no 43546/02, 22 January 2008, para 91), or birth or adopted status (eg Inze v Austria (1987) 10 EHRR 394, para 41; Pla v Andorra (2006) 42 EHRR 25, para 61), or nationality (eg Gaygusuz v Austria (1996) 23 EHRR 364, para 42).

It is obvious that discrimination on some grounds is easier to justify than others. In Carson, at paras 15-17, Lord Hoffmann explained that some grounds of distinction are so offensive to "our notions of respect due to the individual" that they are seldom if ever acceptable grounds for differences in treatment. The mere fact that it might be rational to distinguish, for example, between men and women because most women are not as strong as most men, is not sufficient to justify assuming that all women are weaker than all men, and thus refusing to consider the individual woman on her merits. He went on to say that other grounds of distinction do not fall within this "suspect" category. They usually depend upon considerations of the general public interest and might only require some rational explanation. And some grounds of discrimination might fall on the borderline between the two.

However, as Lord Walker pointed out (at para 55), the doctrine of "suspect" grounds is drawn from the United States' jurisprudence, although something similar is to be found in Strasbourg. But there are important differences between the 14th Amendment and article 14 which mean that it cannot simply be transplanted to the European situation. The American jurisprudence has had to devise a hierarchy of classifications because of the completely open-ended text of the 14th amendment. It applies to all the laws and to all types of classification. The courts have had to find some way of separating off the type of law, together with the type of classification, for which no more than a rational explanation is required. Even so, the Americans have always subjected differences in treatment in respect of fundamental rights to closer scrutiny than differences in treatment in other areas of the law. Furthermore, their ideas of what amounts to a "suspect class" are not identical to the grounds of discrimination for which particularly weighty justification is required by Strasbourg: sex, for example, is in an intermediate class. The Strasbourg grounds, largely focussing on the personal characteristics of the individual which he cannot or should not be asked to change, are more likely to require more than just a rational explanation. Nor has Strasbourg ever substituted a simple "rational explanation" test for the proportionality test which has been its "clear and consistent jurisprudence" since first articulated in the Belgian Linguistics case.

Mr Rabinder Singh QC, on behalf of Mr AL, argues that being parentless or without a family requires very weighty reasons to justify a difference in treatment. Being without a family may not be immutable, like sex and race, but it is something over which the young person has no control. There is quite a close, though not exact, analogy between the state of being without parents in fact and the status of being without parents in law. Birth status has long been recognised as a prohibited ground under article 14 (Marckx v Belgium (1979) 2 EHRR 330) and particularly weighty reasons are needed to justify any discrimination, either against the child (Inze v Austria (1987) 10 EHRR 394) or the father (Sahin v Germany (2003) 36 EHRR 43, [2003] 2 FLR 671, para 57). If anything, children who arrived here without a family required more protection than those who arrived with the support of their families. International law recognises that children who are separated from their families need special protection. The United Nations Convention on the Rights of the Child (UNCRC), article 2(2) prohibits discrimination on the basis of, among other things, the birth or other status of the child or his family; the UN Committee on the Rights of the Child has emphasised that this prohibits any discrimination on the basis of the status of the child being unaccompanied or separated (General Comment No 6, 2005); UNCRC article 22 requires appropriate protection and humanitarian assistance in the enjoyment of applicable rights for all asylum-seeking children, whether or not accompanied.

The United Kingdom does, of course, have special policies designed to cater for the special needs of unaccompanied asylum- seeking children. In some respects they may be better treated than children who arrive here with their families. This can be justified, as the Strasbourg court explained in Stec v United Kingdom (2006) 43 EHRR 47, at para 51:

"Article 14 does not prohibit a Member State from treating groups differently in order to correct 'factual inequalities' between them; indeed in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of the article (see Belgian Linguistics Case (No 2) (1968) 1 EHRR 252, para 10; Thlimmenos v Greece, (2001) 31 EHRR 15, para 44)."

I am quite prepared to accept that, in certain circumstances, a difference in treatment between children who did or did not have parents to look after them, unless designed to correct the factual inequalities between them, would require particularly careful scrutiny. To deny a benefit to a child whose parents were dead, had disappeared, or were incapable of looking after him, which was available to a child who had parents available to look after him, might be very hard indeed to justify. Not all asylum-seeking children fall into this category. Some do have parents who may be traced and their children reunited with them in due course. But we are assuming for the sake of argument that that is not the case here. Had this policy discriminated between the children while they were children it would have been particularly hard to justify.

What difference does it make that the complaint is that the policy discriminates, not between children, but between young adults? On the one hand, the special care and protection which all children both need and deserve is in general no longer needed once they have grown up. On the other hand, the status which differentiates them, that of being without parents or family, remains with them for life (or until their parents can be found), just as does the status of being illegitimate or adopted. But it is not one which has so far been recognised as requiring particularly weighty reasons if a difference in treatment is to be justified.

Reasons for the policy

Against this background, it is necessary to turn to the reasons put forward for this policy. One point should be made at the outset. The fact that the policy was a special favour, going beyond anything which the state might be required to do to respect the rights protected by article 8 of the Convention, makes no difference. This was the whole point of the decision in Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471, where it was said, in para 82:

"The notion of discrimination within the meaning of article 14 includes in general cases where a person or group is treated, without proper justification, less favourably than another, even though the more favourable treatment is not called for by the Convention."