Difference in immigration policy is justified

July 1, 2008 at 8:16 pm | Posted in Uncategorized | Leave a comment

AL (Serbia) v Secretary of State for the Home Department Regina (Rudi) v Same

Before Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Scott of Foscote, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood

Speeches June 25, 2008

The Home Secretary’s policy to grant indefinite leave to remain to certain families living as a unit with children and young adults was a proportionate response to particular administrative and financial problems represented by that group; accordingly, the different treatment of single young adults, who were excluded because they were parentless and childless, was justified.

The House of Lords so held in dismissing appeals by:

(i) AL from the Court of Appeal ([2006] EWCA Civ 1619) which upheld the immigration appellate authorities’ dismissal of his appeal from the secretary of state who had, inter alia, refused to apply the policy to him; and

(ii) Mifail Rudi from the Court of Appeal ([2007] EWCA Civ 1326) which dismissed his appeal from Mr Justice Ouseley (\ EWHC 80 (Admin)) who had rejected his judicial review claim that it was contrary to common law and in breach of the anti-discrimination provisions of article 14 of the European Convention on Human Rights for the secretary of state to exclude him from the policy.

Mr Rabinder Singh, QC, Ms Nicola Rogers and Ms Joanna Stevens for AL; Mr Andrew Nicol, QC and Mr Mark Henderson for Mr Rudi; Ms Monica Carss-Frisk QC, Ms Lisa Giovannetti and Mr Rory Dunlop for the Home Secretary in both cases.

LORD HOPE said that the policy had a legitimate aim in that it was directed to those areas where savings could best be achieved, to clearing the backlog and to improving the system of immigration control in the general public interest. The problems to which it was directed lay peculiarly within the executive’s area of responsibility.

Once it was decided that the policy could not be unlimited in scope, it was inevitable that some groups could not be included. Single young adults as such were not targeted for unfavourable treatment. It was the fact that the group to which they belonged was not seen as creating the problems addressed by the policy that was decisive.

Other excluded groups fell within the same category. Overall the policy was a proportionate response to the practical problem it addressed.

Lord Bingham and Lord Brown agreed.

LADY HALE, referring to the differential treatment between the claimants and single young adults with parents, said that it was the family life of the latter which was in play whereas it was the private life of the former which might be in play.

Although both were protected by article 8, the differential treatment was not in relation to exactly the same Convention right. That made it very different from the usual article 14 case.

Whether one regarded it as a case in which the individuals were not in an analogous situation, or as a case of justification, the policy could withstand scrutiny in the sense explained in R (Carson) v Secretary of State for Work and Pensions ([2006] 1 AC 173, paragraph 3), and accordingly there was no violation of article 14.

Lord Scott agreed.