CA-2024-001818 - [2025] EWCA Civ 1273

Article 14 of the ECHR provides as follows:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The effect of that provision is that discrimination is outlawed as regards matters falling within the ambit of one of the substantive Convention rights. As already noted, in the present case the Claimant relies on article 8, which confers the right to respect for private and family life.

At para. 136 of her judgment in R (DA) v Secretary of State for Work and Pensions [2019] UKSC 21, [2019] 1 WLR 3289, Lady Hale summarised the questions raised by a claim under article 14 as follows:

“In deciding complaints under article 14, four questions arise: (i) Does the subject matter of the complaint fall within the ambit of one of the substantive Convention rights? (ii) Does the ground upon which the complainants have been treated differently from others constitute a ‘status’? (iii) Have they been treated differently from other people not sharing that status who are similarly situated or, alternatively, have they been treated in the same way as other people not sharing that status whose situation is relevantly different from theirs? (iv) Does that difference or similarity in treatment have an objective and reasonable justification, in other words, does it pursue a legitimate aim and do the means employed bear ‘a reasonable relationship of proportionality’ to the aims sought to be realised (see Stec v United Kingdom (2006) 43 EHRR 47, para 51)?”

It was common ground before Lavender J that the first two questions were to be answered in the Claimant’s favour – specifically, (i) that the effect of the policy fell within the ambit of article 8; and (ii) that being a child refugee was an “other status”. The issues related to the third and fourth questions – “differential treatment” and “justification”.

As regards differential treatment, this can, as Lady Hale’s formulation recognises, be of two kinds – (1) treating persons in (relevantly) similar situations differently and (2) treating persons who are in (relevantly) different situations the same. I will refer to the first kind as “primary discrimination” and to the second by the usual label of Thlimmenos discrimination (the reference being to the decision of the ECHR in Thlimmenos v Greece 34369/97, [2000] ECHR 162) (Footnote: ¹⁹).At the risk of spelling out the obvious, the labels “primary discrimination” and “Thlimmenos discrimination” do not mean that the discrimination in question is necessarily unlawful: that will only be the case if it is not shown to have been justified.

Authoritative guidance on the correct approach to claims under article 14 is now to be found in the judgment of Lord Reed in R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26, [2022] AC 223. For present purposes I need only note para. 37, which reads:

“The general approach adopted to article 14 by the European court has been stated in similar terms on many occasions, and was summarised by the Grand Chamber in the case of Carson v United Kingdom (2010) 51 EHRR 13, para 61 (‘Carson’). For the sake of clarity, it is worth breaking down that paragraph into four propositions:

(1)

‘The court has established in its case law that only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of article 14.’

(2)

‘Moreover, in order for an issue to arise under article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations.’

(3)

‘Such a difference of treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised.’

(4)

‘The contracting state enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of this margin will vary according to the circumstances, the subject matter and the background.’”