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

A judicial review challenge to a policy may be refused as premature where the policy has not yet taken effect and its practical impact remains uncertain. This is particularly so where the claim depends on predictions about disadvantage and proportionality, and the defendant is still developing mitigation measures.

The court must have sufficient evidence about the affected population, the frequency and seriousness of any disadvantage, the operation of exceptions and the effectiveness of mitigation before applying the proportionality test for indirect discrimination. The same evidential considerations may bear on rationality. A final policy decision does not prevent its implementation arrangements from continuing to develop.

The claimant, an organisation representing EU citizens, sought permission to challenge the defendant’s decision to introduce a digital-only method of proving immigration status for people granted leave under the EU Settlement Scheme. The challenge relied on the public sector equality duty under section 149 of the Equality Act 2010, indirect discrimination under sections 19 and 29, and irrationality.

Permission had been refused on the papers by Eady J, who considered the claim premature. The central issue on the renewed application was whether the challenge could fairly be determined before the policy took effect, while its digital service, telephone verification exception and other mitigating arrangements remained subject to development.

1. Permission refused. The policy had not yet taken effect and the overall provision, criterion or practice remained subject to modification. The defendant’s continuing development of mitigation measures did not convert the implementation arrangements into a wholly fresh equality decision. The public sector equality duty under section 149 of the Equality Act 2010 could still be discharged in relation to the developing arrangements before implementation.
2. The indirect discrimination claim could not fairly be determined on the evidence then available. Particular disadvantage had to be assessed comparatively. A system requiring digital or telephone verification, with third-party assistance, would not inevitably disadvantage every protected group merely because verification might be more complicated for everyone.
3. The proportionality assessment under Bank Mellat v HM Treasury (No 2) [2014] AC 700 required consideration of the importance of the objective, rational connection, less intrusive measures and the balance between effects and benefits. Those questions depended on evidence about the affected cohort, frequency of verification, seriousness of disadvantage, available mitigation and the operation of the final system. It would be unfair to apply the test before those facts had emerged.
4. The approach in R (Unison) v Lord Chancellor [2014] ICR 498 was materially analogous. The court could properly decline relief where disputed predictions could be tested after implementation. The observations of Underhill LJ in R (Unison) v Lord Chancellor [2016] All ER 25 that the claim was not formally premature were obiter, although he agreed with refusing relief because the evidence was inadequate.
5. The irrationality challenge also depended on the evidence as a whole. The distinctions concerning physical proof and paper applications had an apparently rational explanation, and the challenge could not properly be determined before the end of the grace period. The renewed application for permission was therefore refused. The claimant accepted liability for the defendant’s costs of preparing the acknowledgment of service, subject to the amount being agreed or assessed.

First-instance judicial review permission decision. Permission had previously been refused on the papers by Eady J on 30 March 2021. The renewed application was refused by the Administrative Court.