Goloshvili, R (On the Application Of) v Secretary of State for the Home Department

The claimant challenged the issue by the Home Office of a "Notice of Letting to a Disqualified Person" (NLDP) concerning her tenancy, alleging direct and indirect discrimination under the Equality Act 2010. The court found that, looked at substantively, the NLDP amounted to direct discrimination on grounds of nationality (a component of "race" under section 9), because a non-EEA national without leave was treated less favourably than an EEA national in the same position. However, the judge held that the discrimination was authorised by primary legislation: paragraph 17 of Schedule 3 to the Equality Act 2010 and the Immigration Act 2014 (notably section 33D read with section 21) operate to exclude section 29 of the Equality Act from applying to functions exercisable by the Secretary of State in respect of immigration and nationality. The Carltona principle permitted officials to act for the Secretary of State. The claim was therefore dismissed.

Background and parties: The claimant, a Georgian national, had been granted limited leave in 2008 but the decision was not properly communicated; she therefore had leave under section 3C of the Immigration Act 1971. In October 2017 she took an assured shorthold tenancy. The landlord contacted the Home Office and a NLDP was issued on 19 October 2017. The landlord relied on that notice in possession proceedings. The NLDP was later withdrawn once the Home Office accepted the claimant had section 3C leave. The claimant brought judicial review proceedings alleging (inter alia) direct and indirect discrimination under the Equality Act 2010; Liberty intervened in relation to procedural fairness but that element became academic.

Nature of the claim and relief sought: The claimant sought quashing of the NLDP and declarations that the scheme (the Right to Rent scheme established by Immigration Act 2014 sections 20–37 and associated notices) and the issue of NLDPs amounted to unlawful discrimination contrary to the Equality Act 2010.

Procedural posture: Permission was initially refused on the papers but subsequently granted by a deputy High Court judge on limited grounds. The defendant later withdrew the NLDP and accepted the claimant had section 3C leave; possession proceedings settled. The Administrative Court considered whether the claim, now academic, should nonetheless be heard in the public interest and gave obiter consideration to the substantive discrimination issue.

Issues framed:

• Whether the issue of a NLDP constitutes direct discrimination on grounds of nationality (and therefore race under the Equality Act 2010).
• If so, whether that discrimination is excluded or authorised by the Equality Act 2010 (Schedule 3, paragraph 17 and Schedule 23 exceptions) and/or by the Immigration Act 2014 (notably section 33D and section 21).
• Whether acts done by Home Office officials are acts of a Minister of the Crown "acting personally" within Schedule 3, or else are authorised by statute or by the Carltona principle.
• Whether the court should entertain an academic public law claim.

Court's reasoning: The judge applied authority showing that where a measure treats non-nationals less favourably for reasons connected to nationality it is direct discrimination on a protected ground. The judge accepted that comparing a non-EEA national without leave with an EEA national in a similar factual position demonstrates the nationality-based differential treatment. But the judge held that the effect of paragraph 17 of Schedule 3 to the Equality Act 2010 is that section 29 (provision of services) does not apply to acts done by a "relevant person" in the exercise of functions conferred by a "relevant enactment" (which includes the Immigration Acts). Section 33D(2) of the Immigration Act 2014 was interpreted as expressly authorising notices such as NLDPs, so the discrimination was drawn by legislation and therefore excluded from the scope of section 29. The Carltona principle permitted officials of the Home Office to give effect to functions of the Secretary of State for these purposes. The court further considered authorities on construction of statutory exemptions and on ministerial authorisation but concluded that the present statutory scheme expressly authorised the NLDP mechanism and that this was within Parliament's intention. Finally, although the judge indicated he would not have entertained the academic claim if it had been heard alone, he gave these substantive (obiter) conclusions and dismissed the claim.

The claim is dismissed. The court held (obiter on the substantive point because the decision had been withdrawn) that the issue of the NLDP amounted to direct discrimination on the ground of nationality but that section 29 of the Equality Act 2010 did not apply because paragraph 17 of Schedule 3 excludes application of section 29 to acts done by a relevant person exercising functions by virtue of a relevant enactment. Section 33D of the Immigration Act 2014 was read as authorising the issue of such notices and the Carltona principle allowed officials to act for the Secretary of State; accordingly the discrimination was authorised by statute and not unlawful under the Equality Act 2010.

Permission to apply for judicial review was initially refused on the papers on 28 June 2018. Permission was renewed and granted by Roger ter Haar QC sitting as a Deputy High Court Judge on 24 July 2018 on grounds limited to a public law challenge and discrimination under the Equality Act 2010. The defendant's application to set aside that grant of permission was refused by Richard Clayton QC on 22 August 2018. Dove J gave case management directions on 8 May 2018. The substantive hearing was in the Administrative Court before Martin Spencer J on 18–21 December 2018. The court heard this claim with the related JCWI claim ([2019] EWHC 452 (Admin)).