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

An Article 14 discrimination claim should usually be approached simply and non-technically. The questions of the appropriate comparator, analogous situation, discriminatory ground and justification interrelate.

A time-limited immigration concession may lawfully distinguish between family units and persons outside a family unit. Although the status of an unaccompanied minor, or the absence of family membership, can constitute other status, a distinction is lawful where it pursues proper administrative, economic and social objectives and is proportionate. In such policy choices, the Executive has a wide margin of discretion. A blunt but simple policy is not unlawful merely because it produces individual anomalies, particularly where individual discretionary consideration remains available.

The appellant, a Kosovo-born national, arrived in the United Kingdom in January 2000 as an unaccompanied minor and claimed asylum. He received exceptional leave until his eighteenth birthday. His later application to extend leave was refused.

An Adjudicator rejected his appeal. The Administrative Court ordered reconsideration of whether removal breached Article 8 read with Article 14 of the European Convention on Human Rights because he had entered as an unaccompanied minor. The Asylum and Immigration Tribunal dismissed the remitted appeal on 6 January 2006.

The appellant contended that the Secretary of State’s 2003 family amnesty policy unlawfully treated him less favourably than comparable minors who had arrived with a parent. The issue was whether that differential treatment contravened Article 14.

1. Appeal dismissed unanimously. Neuberger LJ held, with whom Gage and Ward LJJ agreed, that the appellant’s exclusion from the family amnesty policy did not amount to unlawful discrimination under Article 14.

2. The Secretary of State conceded that the claim fell within the ambit of Article 8. The court held that Article 14 should normally be addressed by a simple and integrated inquiry into why the claimant was treated differently, rather than by treating comparator and justification questions as wholly separate. The guidance in R (Carson) v Secretary of State for the Home Department [2006] 1 AC 173 and Esfandiari v Secretary of State [2006] HRLR 26 supported that approach.

3. The appellant’s proposed comparison with accompanied minors was not the appropriate one. The essential feature of the policy was to benefit members of family units. A more appropriate comparator was an unaccompanied minor who was, at the material date, part of a qualifying family unit or had dependants in one. That conclusion was not decisive, because the policy was justified in any event.

4. The distinction nevertheless concerned other status. Being an unaccompanied or separated minor, and being or not being a member of a family, were personal characteristics capable of engaging Article 14. The ground was not, however, a suspect ground demanding especially exacting scrutiny. It concerned a general social and immigration policy.

5. The policy pursued proper aims. It addressed the cost and administrative burden of a substantial asylum backlog, the practical difficulties of family removals and sequential claims, and the integration of settled families. Those considerations did not apply to unaccompanied individuals to the same extent. The policy’s simple criteria and consequent anomalies were proportionate, particularly as it was not designed to exclude the appellant’s group and did not remove the possibility of individual asylum, humanitarian or discretionary consideration. Ward LJ added that the result was harsh but was a social, rather than legal, judgment.

• Court of Appeal (Civil Division): dismissed the appeal: [2006] EWCA Civ 1619.
• Asylum and Immigration Tribunal: dismissed the remitted appeal in a determination promulgated on 6 January 2006.
• Administrative Court: on 27 June 2005, Henriques J ordered reconsideration limited to the Article 8 and Article 14 issue arising from the appellant’s entry as an unaccompanied minor.
• Adjudicator: rejected the appellant’s appeal on 31 March 2005.