Bhavyesh & Ors, R (On the Application Of) v Secretary of State for the Home Department

A discrimination challenge to Immigration Rules requires a comparator class whose members are in materially analogous circumstances. Union citizens who have exercised free-movement rights may belong to a special legal regime and cannot automatically be compared with static British citizens outside that regime. If British citizens have no enforceable domestic or European right to bring in a foreign spouse, there may be no relevant difference in treatment. Any claim based on the effect of refusal on family life is fact-sensitive and must ordinarily be examined through an entry-clearance application and statutory appeal, rather than by an abstract challenge to the Rules.

The claimants challenged Immigration Rules requiring persons seeking entry clearance to join a spouse settled in the United Kingdom to demonstrate knowledge of English and the British way of life. The challenge had previously been brought on Articles 8, 12 and 14 rights grounds in R (on the application of) Chapti & Ors v Secretary of State for the Home Department, [2011] EWHC 3370 (Admin), where it failed.

The present proceedings concerned proposed gender-discrimination grounds and an EU-law discrimination argument comparing British sponsors with EU nationals and Turkish nationals benefiting from other legal regimes. The gender challenge was not properly pleaded or evidenced. The central issue was whether the proposed comparator classes were sufficiently analogous and whether there was any relevant difference in treatment.

1. Procedural challenge. The application to adjourn the gender-discrimination challenge was refused. Judicial review applicants must formulate their grounds comprehensively and as soon as practicable. The claimants had failed to plead the challenge independently, prepare evidence, or provide a proper legal basis despite having opportunities to do so. The issue could not properly be litigated in the abstract.
2. Comparator principle. A discrimination claim requires comparison with persons in materially analogous circumstances. EU nationals who had moved to the United Kingdom and exercised Treaty rights fell within a special legal regime, including the Citizens Directive, and were not an appropriate comparator for British citizens who had not exercised transnational rights. Turkish workers protected by the Ankara Agreement likewise occupied a distinct legal regime.
3. Static Union citizens. The claimants could not establish a relevant comparison with EU nationals resident in their own Member State who had not exercised free-movement rights. If the claimants possessed consequential European rights concerning residence or family admission, those rights had to be asserted and assessed through the immigration process. If they did not, they could not compare themselves with persons who possessed such rights. If neither class had such rights, both had to rely on domestic Immigration Rules and there was no relevant difference in treatment.
4. Scope of EU-law family rights. Ruiz Zambrano, C-34/09, did not establish a general reverse-discrimination right of residence. Its conclusion concerned refusal of residence or a work permit where dependent Union-citizen children would thereby be deprived of the genuine enjoyment of the substance of their Union rights. Dereci, C-256/1150, confirmed that refusal to admit a third-country family member of a static Union citizen is not precluded where that refusal does not produce such a deprivation.
5. Any wider family-life or proportionality issue was fact-sensitive and had to be determined in an entry-clearance application or statutory appeal. Permission to apply for judicial review was refused. The judgment was authorised for citation, and costs were ordered against the claimants subject to assessment of means and publicly funded costs.

The judgment records an earlier decision of the Administrative Court in R (on the application of) Chapti & Ors v Secretary of State for the Home Department, [2011] EWHC 3370 (Admin) , rejecting related Articles 8, 12 and 14 challenges. That decision was understood to be under appeal to the Court of Appeal. The present court refused permission.