A L (Serbia) v Secretary of State for the Home Department

The appeals concerned the lawfulness of a Home Office "one-off exercise" announced 24 October 2003 (amended 20 August 2004) which gave indefinite leave to remain to certain family units who had claimed asylum before 2 October 2000 but excluded persons who had arrived as unaccompanied children and were single young adults on the relevant dates. The primary legal issue was whether the difference in treatment engaged article 14 of the European Convention on Human Rights (in the context of article 8) and, if so, whether the distinction was objectively and reasonably justified and proportionate.

The House held that the policy pursued a legitimate aim — clearing an administrative and financial backlog and improving the efficiency of asylum control — and fell within the margin of appreciation afforded to the executive. The distinction as applied to single young adults was not shown to be arbitrary or deliberately targeting a protected or "suspect" class and could be justified as a proportionate administrative response that left room for individual article 8 claims to be considered. The common-law challenge of irrationality likewise failed.

Background and facts:

• The appeals arise from two Kosovo nationals who arrived in the United Kingdom as unaccompanied children (Mr Rudi arrived aged 16 in August 1999; Mr AL arrived aged 15 in January 2000), claimed asylum before 2 October 2000, and remained separated from their families. Both later became young adults and sought to rely on a Home Office "one-off exercise" announced on 24 October 2003 (updated 20 August 2004) that regularised the status of certain family units who had claimed asylum before the date in question.
• Had they been living as part of a family unit on the relevant dates they would have been eligible for the exercise; on the facts they were excluded because they were single and not part of a family unit.

Procedural posture and relief sought:

• Both appellants challenged the exclusion as discriminatory contrary to article 14 of the European Convention on Human Rights (with article 8 in the background). Mr Rudi also challenged the decision to remove him as irrational and contrary to the common-law principle that like cases should be treated alike.
• The cases reached the House of Lords on appeal from the Court of Appeal decisions: [2006] EWCA Civ 1619 and [2007] EWCA Civ 1326; Mr Rudi had also had judicial review refused at first instance in Ouseley J's judgment ([2007] EWHC 60 (Admin)).

Issues framed by the court:

1. Whether the difference in treatment between young adults who were part of family units and unaccompanied former children who were single engaged article 14 (in relation to article 8) and, if so, whether that difference was justified.
2. Whether the Secretary of State's policy was disproportionate or irrational and whether the common-law principle of non-discrimination had been breached.

Court's reasoning and conclusion:

• The House accepted the policy had a legitimate aim: to relieve administrative and financial burdens and to clear a backlog, an aim within the executive's area of responsibility. The court applied the established article 14 approach of assessing whether the classification had an objective and reasonable justification and proportionality, allowing a margin of appreciation.
• The appellants' status as single young adults fell within the residuary "other status" category of article 14 but was not of a kind that automatically required the most weighty justification (unlike race, sex or similar suspect grounds). The administrative and pragmatic reasons for favouring family units (enforcement difficulties, detention and removal costs, serial claims from family members, and public expenditure) justified the selective policy and the 2004 amendment extending coverage to some family members; unaccompanied minors were not the source of the enforcement problems the exercise aimed to address.
• Although the court recognised the force of compassionate considerations for the appellants, it concluded that overall the policy was proportionate and not irrational, and that individual article 8 claims remained open. The common-law irrationality and like-case arguments failed for the same reasons.

Appeals dismissed. The House concluded the one-off family policy pursued a legitimate administrative and financial aim and, viewed objectively, was a proportionate response within the executive's margin of judgment; it did not constitute unjustified discrimination under article 14 and the common-law irrationality claim likewise failed.

Appeals to the House of Lords from the Court of Appeal decisions [2006] EWCA Civ 1619 and [2007] EWCA Civ 1326. Mr Rudi's judicial review was earlier dismissed by Ouseley J ([2007] EWHC 60 (Admin)).