The 3million Ltd, R (On the Application Of) v Secretary of State for the Home Department

The claimant sought permission for judicial review of the Secretary of State's decision to move to a "digital only status" for beneficiaries of the EU Settlement Scheme (EUSS) from 1 July 2021. The principal legal issues were whether the decision breached the public sector equality duty (PSED) in section 149(1)(a) and (b) of the Equality Act 2010, whether it amounted to unlawful indirect discrimination contrary to sections 19 and 29 of the Equality Act 2010 (and/or the Withdrawal Agreement), and whether the decision was irrational.

The court held that the renewed permission application was premature. The defendant had implemented a grace period and was actively developing and improving the "view and prove" digital service, accessibility measures, a Settlement Resolution Centre telephone service and a telephone verification exception to mitigate disadvantage to older people, some disabled people and some Roma people. Because the final form of the scheme and the real-world impact on numbers and severity of disadvantage were not yet known, the court refused permission to proceed. The court applied the Bank Mellat proportionality framework and concluded that the proportionality and indirect discrimination issues could not fairly be determined until the factual matrix had developed.

Background and parties: The claimant, The 3million Ltd, an organisation representing EU citizens in the United Kingdom, applied for judicial review of the defendant Secretary of State for the Home Department's policy to cease issuing physical immigration documents to persons granted status under the EU Settlement Scheme (EUSS) and to move to a "digital only" method of proving status using a "view and prove" service. The defendant is the Home Office. Permission had been refused on the papers by Eady J on 30 March 2021; the renewed permission application was heard by Linden J on 28 April 2021 and decided on 5 May 2021.

Relief sought: Permission to bring judicial review challenging the policy and its implementation on the grounds that it breached the PSED (Equality Act 2010 s.149(1)(a),(b)), was indirectly discriminatory (Equality Act 2010 ss.19 and 29 and/or contrary to the Withdrawal Agreement), and was irrational.

Issues framed: (i) whether the defendant failed to have due regard under the PSED when adopting the policy; (ii) whether the policy is indirectly discriminatory against older people, some disabled people and some Roma people, including whether it could be objectively justified; and (iii) whether the decision was irrational. The court was also required to consider whether the challenge was premature because the policy had a built-in grace period and implementing mitigations were still under development.

Facts and evidential posture: The policy would take effect on 1 July 2021. The defendant had instituted a grace period and deployed a view-and-prove digital service, accessibility features, a Settlement Resolution Centre (SRC) telephone helpline and a telephone verification exception (whereby the SRC could share verification with third parties or generate share codes). The defendant had also funded organisations to support hard-to-reach applicants and was working to reduce the number of situations in which the view-and-prove service would be required (for example via departmental data-sharing and automated checks for some public services). Statistical evidence about the number and demographic profile of those ultimately granted status, and the frequency and severity of the need to prove status, was incomplete prior to the EUSS application cut-off.

Court's reasoning and disposition: Linden J agreed with Eady J that the claim was premature. The court accepted that detailed consideration had been given to equality issues and that mitigation measures were in active development. The PSED complaint was described as unlikely to succeed at this stage because the telephone verification exception and other mitigations flowed from the original decision and any complaint would properly challenge the sufficiency of mitigation rather than purport to trigger a fresh PSED duty at this late stage. On indirect discrimination and proportionality the court held that application of the Bank Mellat proportionality test required full factual evidence about numbers affected, frequency of status checks and the real-world operation of mitigations; those facts had not yet "happened" and therefore would not support a fair resolution. For those reasons the renewed application for permission was refused as premature.

The renewed application for permission to apply for judicial review is refused. The court found the challenge premature because the policy was subject to a grace period and further implementing decisions and mitigations (including accessibility measures and a telephone verification exception) had yet to be finalised and experienced; accordingly it was not possible fairly to determine PSED compliance, indirect discrimination or proportionality under Bank Mellat at this stage.

Permission was refused on the papers by Eady J on 30 March 2021. The claimant brought a renewed application for permission which was heard by Linden J on 28 April 2021 and refused on 5 May 2021 ([2021] EWHC 1159 (Admin)).