BK, R (on the application of) v Secretary of State for Work and Pensions & Anor

Administrative arrangements for allocating a National Insurance number do not, without more, fall within the ambit of article 14 read with article 1 of Protocol 1 or article 8 of the Convention. A person excluded from a scheme placing a National Insurance number on a biometric residence permit must show a relevant difference in treatment from persons in an analogous situation. Distinct immigration purposes, leave periods and verification processes may prevent such comparability. In any event, decisions about the prioritisation and allocation of administrative resources attract substantial judicial restraint, particularly in immigration and welfare administration. Even where sex or another suspect ground is relied upon, the state may justify the difference by very weighty reasons. The court should assess the welfare system overall and should not micro-manage executive administration.

The claimant, a Bangladeshi national granted three months’ leave under the Destitute Domestic Violence Concession, received a biometric residence permit without a National Insurance number. She challenged the exclusion of the Destitute Domestic Violence cohort from the National Insurance Number Alignment Scheme, under which numbers were placed on the permits of Skilled Workers and refugees or others granted protection.

She alleged discrimination contrary to article 14 read with article 1 of Protocol 1 and article 8 of the Convention. She relied on alleged delays in Universal Credit, advance payments, housing benefit and access to employment. The central issues were whether the complaint fell within the ambit of the substantive Convention rights, whether the claimant was in a relevantly similar situation to those within the Scheme, and whether any difference in treatment was justified.

1. The claim was dismissed. The claimant had received all Universal Credit due to her, and the alleged delay had caused no diminution in the amount paid. No relief therefore arose.
2. Following R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26, an article 14 claim requires consideration of ambit, status, relevant difference in treatment, justification and the margin of appreciation. These elements are legally distinct, but a court need not always examine them separately.
3. The allocation of National Insurance numbers is an administrative reference process. It creates no enforceable right to a number or to have an application processed in a particular way. It had only a tenuous connection with the core values protected by article 1 of Protocol 1 and article 8, and therefore fell outside their ambit.
4. The claimant was not in an analogous or relevantly similar situation to Skilled Workers. The Scheme supported the purpose of work-related immigration by enabling visa holders to work and pay National Insurance contributions. The Destitute Domestic Violence Concession served a protective and temporary purpose. Nor were the claimant and refugees shown to share the same immigration history, path to settlement or verification circumstances. The DDVC cohort was already prioritised for speedy allocation of a National Insurance number.
5. Any difference in treatment was justified. Immigration control, the fair and humane administration of welfare benefits, and the allocation of administrative resources were important public interests. The executive was entitled to identify priority groups and operate workable systems. The court should be slow to intervene in multifactorial social and economic administration and should not micro-manage departmental processes.
6. The asserted detriments did not alter the conclusion. The evidence did not establish that inclusion in the Scheme would materially accelerate Universal Credit or advance payments; housing benefit difficulties concerned an unjoined local authority and were speculative; and a National Insurance number was not itself proof of a right to work. The defendants had shown very weighty reasons and cogently justified the arrangements.