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

Academic public-law claims should ordinarily not be heard unless there is a good reason in the public interest. In assessing nationality discrimination, the court must look behind immigration status to the underlying reason for differential treatment. A scheme may nevertheless be lawful where the relevant racial distinction is drawn by primary legislation and the statutory exemptions in the Equality Act 2010 apply. Officials may act for a Secretary of State under the Carltona principle unless Parliament has clearly excluded that arrangement.

The claimant, a Georgian national, challenged the issue of a Notice of Letting to a Disqualified Person under the right-to-rent scheme. The notice was withdrawn after the Secretary of State accepted that she had continuing leave under section 3C of the Immigration Act 1971.

The remaining issue was whether issuing the notice amounted to unlawful direct or indirect nationality discrimination under the Equality Act 2010, and whether the now-academic claim should be determined.

1. The withdrawal of the notice meant that no live dispute remained. Applying R v SSHD ex p Salem [1999] 1 AC 450, the court held that an academic public-law claim should not ordinarily be heard without a good reason in the public interest. The claim was therefore not entertained.
2. The judge nevertheless gave obiter views on the substantive issues. The court had to look behind the claimant’s immigration status and examine the underlying reason for the differential treatment. Comparison with an EEA national without leave showed that the distinction was nationality-based, and therefore concerned race under sections 4 and 9 of the Equality Act 2010.
3. Paragraph 17(2) of Schedule 3 removed section 29 from acts done by a relevant person in exercising functions under a relevant enactment. Section 33D(2) of the Immigration Act 2014 expressly authorised the Secretary of State to issue the relevant notice. Paragraph 2 of Schedule 3 and paragraph 1 of Schedule 23 reinforced the conclusion that the statutory scheme was exempt.
4. The issuing of the notice did not require personal ministerial action. Applying the Carltona principle as explained in R v Secretary of State for the Home Department, Ex p Oladehinde [1991] 1 AC 254, officials of suitable seniority could act for the Secretary of State. Hampson v Department of Education and Science [1991] 1 AC 171 was distinguishable because it concerned an exemption under a statutory instrument, whereas this case concerned express authorisation in primary legislation.
5. The claim was dismissed.