[2024] UKUT 00236 (IAC)

The Applicant’s case is that the refusal of the visa under the UFS is discriminatory and in breach of Article 14 of the Convention read with Article 8 (Footnote: ³). Applying the approach set out in In re McLaughlin [2018] UKSC 48; [2018] 1 WLR 4250 at §15, the Applicant contends that (i) the circumstances fall within the ‘ambit’ of Article 8 of the Convention as it concerns a visa scheme set up by the Respondent that allows those fleeing war to join family in the United Kingdom; (ii) the Applicant is in an analogous situation to a Ukrainian national who falls within the UFS; (iii) the difference of treatment with the Ukrainian national is on grounds of nationality; and (iv) there is no objective justification for the difference of treatment. We take each of these contentions in turn.

In order to fall within the ambit of a Convention right for the purposes of a claim under Article 14 it is not necessary for the measure in question to engage a substantive Convention right. It is sufficient if “the subject matter of the disadvantage constitutes one of the modalities of the exercise of the right guaranteed” or the measures are “linked to the exercise of a right guaranteed” under the Convention: see e.g. Petrovic v Austria(2001) 33 EHRR 14 at §28.

In Petrovic, the Strasbourg Court held that the refusal to grant the applicant a parental leave allowance did not constitute a failure to respect family life, as Article 8 did not impose any positive obligation on States to provide this kind of financial assistance. Nevertheless, it was held that the allowance was intended to promote family life and necessarily affects the way family life is organised. By granting parental leave allowance, it was held that the State demonstrated its respect for family life, and so the payment of the allowance came within the scope or ambit of Article 8 for the purposes of an Article 14 challenge.

Similarly here. To qualify for the UFS, an applicant must have a family connection with a person settled in the United Kingdom whether directly (as a relative of the person settled in the United Kingdom) or indirectly (as a relative of the person who has the direct family connection). The UFS is not open to anyone who simply has a connection with a person settled in the United Kingdom. The aim of the UFS is to keep families, defined quite broadly, together following their departure from Ukraine as a result of the Russian invasion. In our judgment, the UFS is therefore intended to promote family life. In the language of the Strasbourg Court, the UFS is “one of the modalities of the exercise” of Article 8 of the Convention.

Accordingly, the circumstances fall within the ambit of Article 8 for the purposes of an Article 14 claim. It is not necessary, therefore, for us to consider for these purposes whether the Applicant did enjoy family life with his brother who was settled in the United Kingdom so as to engage Article 8.

Article 14 safeguards individuals, placed in analogous situations, from discrimination. The comparator groups do not need to be identical, but there needs to be a “relevantly similar” situation between them for this requirement to be satisfied: see e.g. Hode and Abdi v United Kingdom(2013) 56 E.H.R.R. 27 at §45, 50. The “analogous situation” requirement must be judged “in the context of the measure in question and its purpose, in order to ask whether there is such an obvious difference between the two persons that they are not in an analogous situation”: Re McLaughlin at §26.

As Baroness Hale explained in AL (Serbia) v Secretary of State for the Home Department [2008] UKHL 42; [2008] 1 WLR 1434 at §25: “in only a handful of cases has the court found that the persons with whom the complainant wishes to compare himself are not in a relevantly similar or analogous position… unless there are very obvious relevant differences between the two situations, it is better to concentrate on the reasons for the difference in treatment and whether they amount to an objective and reasonable justification”.

We agree with the Applicant that he is in an analogous, or relevantly similar, situation to a Ukrainian national who qualifies for the UFS because he was ordinarily resident in Ukraine immediately before 1 January 2022, and is a family member of a person settled in the United Kingdom. If the Applicant was a Ukrainian national, he would have qualified for the UFS. There are undoubtedly differences between the Applicant and a Ukrainian national who qualifies – such as whether he will be able to return to Ukraine after the conflict has concluded and remain there – but these are differences that are more relevant to the question of justification (to which we will come), rather than to whether they are in relevantly similar situations. Both the Applicant and the Ukrainian national who qualifies were impacted by the Russian invasion and wished to flee to the United Kingdom where they had a family member with settled status.

There is no dispute between the parties that there is a difference in treatment between the Applicant and his comparators on grounds listed in Article 14: race or nationality. The discrimination is direct: if the Applicant had had Ukrainian nationality he would have qualified under the UFS, given that he was resident in Ukraine immediately before 1 January 2022 and has a family member with settled status in the United Kingdom.