H, R (on the application of) v H

Article 14 discrimination requires different treatment of like cases. An EU citizen exercising free-movement rights in another Member State is not in a like situation to a citizen living in the home Member State, whose position is governed by national immigration law. Directive 2004/38/EC is directed to removing obstacles to movement and does not govern purely internal situations or enlarge the scope of EU law. The resulting difference between EU and domestic regimes is not discrimination. Where a very young child can accompany a parent removed abroad, the removal does not, on these facts, amount to a prima facie breach of Article 8.

The claimant, a British child, challenged removal directions issued against his Turkish mother. The mother’s appeal against the removal decision was dismissed by the Asylum and Immigration Tribunal, and reconsideration was refused. Sullivan J refused judicial review permission in the Administrative Court. The claimant argued that the difference between the residence rights available to an EU citizen exercising free-movement rights in another Member State and those available to a British citizen living in the United Kingdom constituted discrimination under Article 14 taken with Article 8. The central issues were whether Article 8 was engaged and whether the two situations were comparable.

1. Disposition. The appeal was dismissed. The free-standing Article 8 challenge failed. The child was very young and could simply accompany his mother to Turkey. Her removal therefore did not amount to a prima facie violation of his Article 8 rights. No proportionality issue under paragraph 2 of Article 8 arose. Alternatively, having regard to the history and the child’s age, removal would plainly have been proportionate to immigration control.
2. Article 8 ambit. Laws LJ considered that it was uncertain whether the removal decision touched the child’s Article 8 family-life rights at all. The court assumed, without deciding, that the decision fell within the ambit of Article 8 so that the Article 14 argument could be considered. If that issue had been critical, it would have required fuller argument. May LJ agreed that the court should reach neither a positive nor a negative final conclusion on the ambit issue.
3. Article 14 comparison. Discrimination requires different treatment of like cases. An EU citizen living in another Member State is exercising free-movement rights, to which family residence rights may be an adjunct. An EU citizen living in his own Member State is in a purely internal situation. The two situations are therefore critically different, not like cases.
4. Scope of EU law. The free-movement provisions, including Directive 2004/38/EC, are bounded by their purpose of removing obstacles to movement. They do not govern persons who are not exercising or seeking to exercise free-movement rights. National immigration law consequently governs the purely internal situation. This was consistent with Uecker and Jacquet v Land Nordrhein-Westfalen [1997] ECR 1-3 171. The court noted the qualification concerning lawful residence discussed in SSHD v Akrich [2004] QB 756 and the reliance on Yunying Jia v Migrationsverket [2007] QB 545, but did not need to resolve that issue. Zhu and Chen v SSHD [2005] QB 325 concerned a child with another Member State’s nationality and therefore did not concern a purely internal situation.
5. Conclusion. Nationality formed part of the context, but the operative difference was between immigration status under national law and the exercise of EU free-movement rights. The difference between the two legal regimes did not constitute Article 14 discrimination. Convention rights may influence EU law within its proper scope, but they do not enlarge that scope. The court did not determine whether judicial review should also have been refused as a matter of discretion.

1. Court of Appeal (Civil Division): dismissed the appeal against the Administrative Court’s refusal of judicial review permission.
2. Administrative Court: Sullivan J refused judicial review permission after hearing argument on notice.
3. Asylum and Immigration Tribunal: dismissed the mother’s appeal against the removal decision; reconsideration was refused.