AM (Somalia) v Entry Clearance Officer

Article 14 may require different treatment where persons’ situations are significantly different because of disability. However, the ordinary proportionality test applies where a claimant seeks an exception from a uniformly applied immigration rule, rather than challenging direct disability discrimination. A self-sufficiency requirement for entry under the Immigration Rules was justified by immigration control, administrative workability, protection of public funds and the availability of compassionate discretion. The rule therefore required no general disability exception. The exclusion of promised third-party maintenance was also proportionate because such funding could be precarious and difficult to verify.

The appellant, a Somali citizen, sought settlement in the United Kingdom as the spouse of a British citizen who was disabled and dependent on public funds. The marriage was accepted as genuine, but the application failed under paragraph 281(v) of the Immigration Rules because the couple could not maintain themselves without public funds. The Asylum and Immigration Tribunal also rejected the Article 8 claim. On statutory review, Dobbs J referred the case to the Court of Appeal under section 103C(i) of the Nationality, Immigration and Asylum Act 2002. The appeal concerned whether applying paragraph 281(v), without a disability exemption or allowance for promised third-party support, infringed Article 14 taken with Article 8.

The appeal was dismissed. Lord Justice Maurice Kay gave the leading judgment. Lord Justice Elias agreed with the result and developed the analysis of indirect discrimination. Lord Justice Mummery agreed with both judgments.

1. Article 14 applies only to discrimination within the ambit of a Convention right and on a listed ground or other status. Disability is capable of being an other status, and the refusal of entry to join a spouse falls within the ambit of Article 8.
2. The Article 14 principle in Thlimmenos v Greece applies where a state fails, without objective and reasonable justification, to treat differently persons whose situations are significantly different. The existence of other people unable to meet the maintenance requirement for reasons unrelated to disability does not prevent a prima facie case; it is relevant to justification.
3. Elias LJ distinguished traditional indirect discrimination, where the rule itself requires justification, from a claim that a justified general rule should contain a special exception. In the latter case, the issue is whether the failure to draw the distinction is justified. The heightened requirement for weighty reasons was not appropriate where a neutral rule was applied equally and the claimant sought more favourable treatment.
4. Paragraph 281(v) pursued the legitimate aim of effective immigration control and was proportionate without a general exemption for disabled sponsors unable to work. Disability varies greatly, hardship does not itself establish disproportionality, and bright-line rules remain legitimate in social policy. Administrative burdens, uncertain costs and the discretion available in compassionate cases reinforced that conclusion.
5. The refusal to recognise promised third-party maintenance was also proportionate. Such arrangements were potentially precarious and difficult to verify, with a continuing risk of public expenditure and administrative cost. The AIT’s failure to address Article 14 was therefore not a material error of law.

• Court of Appeal (Civil Division): dismissed the appeal and held that the AIT’s failure to address Article 14 did not amount to a material error of law.
• High Court: on 14 April 2008, Dobbs J referred the statutory review to the Court of Appeal under section 103C(i) of the Nationality, Immigration and Asylum Act 2002.
• Asylum and Immigration Tribunal: accepted that the marriage was genuine but found paragraph 281(v) unsatisfied, disregarded promised third-party support, and rejected the Article 8 claim.