AL Serbia (FC) (Appellant) v Secretary of State for the Home Department (Respondent)R (On the application of Rudi) (FC) (Appellant) v Secretary of State for the Home Department (Respondent)

Article 14 of the European Convention on Human Rights does not require an exact comparator in every case. Unless an obvious relevant difference resolves the issue, the court should concentrate on whether differential treatment has an objective and reasonable justification. This requires a legitimate aim and a reasonable relationship of proportionality.

A selective immigration concession may distinguish between family groups and unaccompanied young adults where it addresses genuine administrative and financial difficulties, does not target a suspect status and preserves individual consideration of compelling claims. The intensity of review depends partly on the ground of distinction. Where Article 14 is engaged, common-law equality and irrationality principles provide no additional ground if the same differentiation is objectively and reasonably justified.

These conjoined appeals concerned two Kosovans who arrived in the United Kingdom as unaccompanied children, claimed asylum and later became young adults. A one-off policy granted indefinite leave to qualifying asylum-seeking family units. Following its 2004 extension, each appellant would have qualified had he been living with his parents, but neither qualified as a single adult without a family unit.

In AL (Serbia) (FC) v Secretary of State for the Home Department, the Asylum and Immigration Tribunal dismissed the human-rights appeal and the Court of Appeal dismissed a further appeal: [2006] EWCA Civ 1619. In R (on the application of Rudi) (FC) v Secretary of State for the Home Department, Ouseley J dismissed judicial-review proceedings: [2007] EWHC 60 (Admin). The Court of Appeal dismissed the appeal: [2007] EWCA Civ 1326.

It was common ground that the policy fell within Article 8 of the European Convention on Human Rights and that the distinction concerned “other status”. The central issue was whether excluding unaccompanied young adults was objectively and reasonably justified under Article 14. Rudi also alleged common-law irrationality and breach of the principle that like cases should be treated alike.

1. Disposition. The House of Lords unanimously dismissed both appeals. Baroness Hale gave the detailed analysis and Lord Scott agreed with her in full. Lord Hope and Lord Brown gave additional reasons supporting justification. Lord Bingham reached the same conclusion as Baroness Hale, while expressly relying on the reasons of Lord Hope and Lord Brown.

2. Article 14 framework. Per Baroness Hale, Article 14 of the European Convention on Human Rights has no independent existence, although its application does not require a breach of the substantive Convention right. The classic inquiry is whether differential treatment in otherwise similar situations rests on a prohibited ground and lacks objective and reasonable justification. Justification requires a legitimate aim and a reasonable relationship of proportionality. An exact-comparator inquiry is often arid. Unless an obvious relevant difference disposes of the matter, attention should ordinarily be directed to the reasons for the distinction and whether they withstand scrutiny.

3. Status and intensity of review. Per Baroness Hale and Lord Hope, some grounds, including race and sex, require particularly weighty justification. Differential treatment between children according to whether they had parental support might require especially careful scrutiny. The appellants, however, challenged treatment received as young adults. Their status as adults without a family had not been recognised as requiring particularly weighty reasons, although the proportionality test remained applicable.

4. Justification of the policy. Per Lord Hope and Lord Brown, the policy pursued the legitimate aim of improving immigration control by reducing a serious administrative and financial backlog. Removing families with children created difficulties and expense which did not ordinarily arise when removing single young adults. Selectivity and bright lines were inherent in a concession designed to address that particular problem. The appellants were not targeted because of a suspect characteristic; their exclusion was a by-product of the policy’s legitimate focus on family units.

5. Per Lord Bingham, the policy was proportionate because compelling Article 8 claims falling outside it could still be recognised individually. Baroness Hale expressed misgivings about extending the policy to family units containing young adults and acknowledged the appellants’ strong compassionate circumstances. She nevertheless concluded that the policy’s essence was administrative efficiency rather than the identification of the most deserving cases. It therefore withstood Article 14 scrutiny.

6. Common law. Per Baroness Hale, Lord Hope and Lord Brown, the common-law claims added nothing material. Because the differentiation was objectively and reasonably justified under Article 14, it was neither irrational nor contrary to the common-law requirement that like cases be treated alike.

1. House of Lords: In [2008] UKHL 42, the House unanimously dismissed both appeals and upheld the rejection of the human-rights and common-law challenges.
2. Court of Appeal—AL: In [2006] EWCA Civ 1619, the court dismissed AL’s appeal from the Asylum and Immigration Tribunal.
3. Court of Appeal—Rudi: In [2007] EWCA Civ 1326, the court dismissed Rudi’s appeal, holding that his case could not be distinguished from AL’s.
4. Asylum and Immigration Tribunal: Following a successful statutory review of the initial refusal of permission, the Tribunal dismissed AL’s human-rights appeal.
5. High Court—Rudi: Ouseley J dismissed the judicial-review claim challenging the removal decision at common law and under the Human Rights Act 1998: [2007] EWHC 60 (Admin).