[2024] UKUT 00236 (IAC)

Is there an objective justification for the difference in treatment?

In considering whether the difference in treatment between the Applicant and a Ukrainian national who qualified for the UFS is objectively justified, we are required to consider the questions set out by Lord Reed in Bank Mellat v H M Treasury (No 2) [2013] UKSC 39; [2014] AC 700 at §74. That is:

“(1)

whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will

contribute to its achievement, the former outweighs the latter.”

In doing so, we have to consider what margin of appreciation (or degree of deference) should be afforded the Respondent. Ms Knorr, for the Applicant, contended that although a wide margin is usually allowed to the State when it comes to immigration policy, “compelling” or “very weighty” reasons are required before a Court could decide that a difference in treatment based on nationality was compatible with the Convention.

The Strasbourg Court has held that “a wide margin is usually allowed to the state under the Convention when it comes to matters of immigration. In particular, a state is entitled, as a matter of well-established international law and subject to its treaty obligations, to control the entry of aliens into its territory and their residence there. The Convention does not guarantee the right of a foreign national to enter or to reside in a particular country”: see Pajić v Croatia (2018) 67 E.H.R.R. 12 at §58. On the other hand, the Strasbourg Court has repeatedly stated that “very weighty reasons would have to be put forward before the Court could regard a difference in treatment based exclusively on the ground of nationality as compatible with the Convention”: see e.g. Ponomaryov v Bulgaria(2014) 59 E.H.R.R. at §52 (education fees).

In R (SC) v Work and Pensions Secretary [2021] UKSC 26; [2022] AC 223, at §115, Lord Reed stated that “the court’s approach to justification generally is a matter of some complexity, as a number of factors affecting the width of the margin of appreciation can arise from “the circumstances, the subject matter and its background”. Furthermore at §159, Lord Reed observed that it was:

“ important to avoid a mechanical approach to these matters, based simply on the categorisation of the ground of the difference in treatment. A more flexible approach will give appropriate respect to the assessment of democratically accountable institutions, but will also take appropriate account of such other factors as may be relevant. As was recognised in Ghaidan v Godin-Mendoza [2004] 2 AC 557 and R (RJM) v Secretary of State for Work and Pensions [2009] AC 311, the courts should generally be very slow to intervene in areas of social and economic policy such as housing and social security; but, as a general rule, differential treatment on grounds such as sex or race nevertheless requires cogent justification”.

It might be thought that cases involving immigration policy ought to be treated in the same way as those involving social and economic policy given that they involve matters that are quintessentially governmental, and will necessarily impact on social and economic matters. Accordingly, it might be thought that cogent justification is required for differential treatment on grounds of race or nationality in the immigration context. Nevertheless, our attention was drawn to one case from Strasbourg in the immigration context – Biao v Denmark (2017) 64 E.H.R.R. 1 – where the Grand Chamber indicated that “compelling or very weighty reasons” were required to justify differential treatment on the grounds of nationality.

Biaowas concerned with a Danish nationality law which allowed a Danish national and a foreign national to qualify for family reunification in Denmark if the former had been a Danish national for 28 years. This was found to create a difference in treatment between Danish-born nationals and those who acquired Danish nationality later in life. This amounted to indirect discrimination on the basis of race or ethnic origin, as the 28-year rule had “the indirect effect of favouring Danish nationals of Danish ethnic origin, and placing at a disadvantage or having a disproportionately prejudicial effect on persons who, like the first applicant, acquired Danish nationality later in life and who were of an ethnic origin other than Danish”: see §113. The primary focus of the Grand Chamber, therefore, was on discrimination on grounds of ethnic origin, rather than nationality.

At §114, the Grand Chamber stated that:

“The burden of proof must shift to the Government to show that the difference in the impact of the legislation pursued a legitimate aim and was the result of objective factors unrelated to ethnic origin . . . Having regard to the fact that no difference in treatment based exclusively or to a decisive extent on a person’s ethnic origin is capable of being justified in a contemporary democratic society and a difference in treatment based exclusively on the ground of nationality is allowed only on the basis of compelling or very weighty reasons . . . , it falls to the Government to put forward compelling or very weighty reasons unrelated to ethnic origin if such indirect discrimination is to be compatible with Article 14 of the Convention taken in conjunction with Article 8”.

(Emphasis added). Although the reference to nationality-based discrimination was not central to the reasoning in the case – it was essentially obiter dicta – it does reflect the view that, even in the immigration context, very weighty or compelling reasons are required where nationality-based discrimination is concerned.

Against this background, therefore, we consider it appropriate to apply the stricter standard of review and examine whether the Respondent has compelling or very weighty reasons to justify the difference in treatment in the present case.

The Secretary of State advanced a number of ways in which the differential treatment was justified.

In the instant case, Ms Knorr contends that the Applicant’s claim is not a challenge to the policy of the UFS itself; rather, it is a challenge to the application of the policy to the Applicant. It seems to us that, as a matter of our analysis, this is a distinction without any real difference. The UFS contains bright lines as to who qualifies and who does not; the Applicant contends that the bright lines discriminate against him as an Afghan (or non-Ukrainian) national and cannot be justified. That argument would be available to the hundreds of other Afghan (or non-Ukrainian) nationals who were resident in Ukraine before 1 January 2022 and had a family member living in the United Kingdom. It is necessary, therefore, for us to consider the justification of the bright lines generally, and balancing that with the impact on the Applicant of failing to qualify. We also bear in mind that the impact on the Applicant is likely to be reflective of the kind of impact on many if not most others who also fail to qualify.

It is clear that the Secretary of State had to set up the Ukrainian schemes at considerable pace. The objective of providing a safe haven for persons fleeing from the Russian invasion of Ukraine was obviously a compelling one. For social and economic reasons, the Secretary of State could not offer that safe haven to all persons fleeing from Ukraine. It was necessary, therefore, for the Secretary of State to impose some restrictions on, or limitations to, those who could be offered temporary sanctuary in the United Kingdom. This made complete sense in the context where, as the Secretary of State was aware, the countries within the European Union were offering temporary protection to all of those fleeing from Ukraine. In other words, no one would be denied a safe place to move to.

In setting the restrictions or limitations, the Secretary of State focussed on Ukrainian nationals and their family members who had been living in the Ukraine on 1January 2022, shortly before the invasion, where the Ukrainian national had a family member settled in the United Kingdom. This was an entirely reasonable focus for the Secretary of State. In supporting Ukrainian nationals, the Secretary of State was providing both moral and practical support to Ukraine, a matter of geopolitical importance for the Government.

Extending the scheme to family members of those Ukrainian nationals would mean that families could stay together, improving the Ukrainian nationals’ sense of well-being and stability following their arrival in the United Kingdom. They would not worry about the whereabouts and conditions of their family members, and could support one another in their new place of residence. This was an entirely sensible approach. Given the pace at which the Ukraine schemes were, and had to be, set up and the administrative resources that the Secretary of State considered were appropriate to allocate to the qualification requirements, a generous and flexible approach was taken to assessing whether the residence requirement in Ukraine was met. This was also dictated somewhat by the absence of support on the ground in Ukraine to confirm individuals’ status, unsurprisingly given the other demands on the administration in Ukraine at the time of and after the Russian invasion.

Broadening the scheme, without changing the evidential requirements for qualification clearly ran a serious risk of abuse. The Secretary of State was entitled to be concerned that large numbers of non-Ukrainian nationals for whom other entry routes were not available would claim to have been resident in Ukraine on 1 January 2022 so as to qualify. To mitigate against this risk, the Secretary of State would have had to apply more stringent evidential requirements to all such applicants. The Secretary of State was entitled to consider that this would require the deployment of greater administrative resources than he reasonably had available to him, in circumstances where the assistance from the Ukrainian authorities could not be guaranteed given the state of record-keeping in Ukraine. Moreover, if the Secretary of State did not apply the same stringent evidential rules to Ukrainian nationals (and their family members) who were applying under the scheme, he would run the risk that that difference in treatment was challengeable under Article 14 of the Convention and might not easily be justified.

With respect to TCNs, the Secretary of State was entitled to take into account that some of them may not have the right to return to Ukraine once the conflict was over, and would seek to extend their stay in the United Kingdom. Avoiding this possible outcome was of genuine concern. For those TCNs who could not or might not be able to return their country of origin safely, the Secretary of State would have to make a determination in individual cases, and this would involve an additional allocation of administrative resources. It might also be tantamount to considering a claim for asylum, and the Secretary of State was entitled to take steps to avoid this outcome. For Afghan nationals, the Secretary of State was also entitled to decide that there was a bespoke regime already in place for consideration of their claim for entry to the United Kingdom and the limits of that regime should not be altered to accommodate those who were, or who claimed they were, fleeing from Ukraine and had been resident there on 1 January 2022.

An administratively workable scheme which adopts “bright lines” can amount to objective justification. That objective justification is not defeated merely because there are individuals whose circumstances (such as those of the Applicant) would not be excessively difficult to examine and make a determination on. There is considerable value in having the “bright lines” themselves as they enable the Secretary of State to allocate the appropriate level of resources, and send a wider message to those whose circumstances are not so easy to determine: their claims can be addressed quickly and efficiently, without too much burden on governmental resources. The harshness of the “ bright lines” can be tempered for truly exceptional circumstances and, of course, other lawful routes for family reunification may be available, including for Afghan nationals.

The “bright lines” arguments are not diminished by the fact that the need for speed in putting the measures together and making decisions at the outset was no longer present as time elapsed. The same justification would apply: there would continue to be the risk of abuse, and the consequent requirement to allocate resources to determine the validity of claims; and there would continue to be the concern that the scheme would be tantamount to considering a claim for asylum, and may be a means to get around the bespoke Afghan scheme.

In our judgment, the aims for the Ukraine scheme are clearly legitimate ones. The measures adopted by the Secretary of State are rationally connected to meet those aims. A measure that was less intrusive to the Applicant could not have been used without unacceptably compromising the achievement of the objective: it would have required eliminating or moving the “bright line” that had been established for the various reasons articulated above. Whilst Ms Knorr argues that the Minister for Safe and Legal Migration rejected many of the justifications (see the correspondence above at [27]), this does not appear to have been his final and considered view. Otherwise the scheme would not have been introduced in the way that it was, which strongly suggests that the advice of officials was ultimately accepted. The fact that the relevant Minister has expressed criticism or reservations about a particular argument does not mean that it cannot amount to a compelling or very weighty reason when examined by the Court.

When aggregated together, we consider that the various arguments for justifying the measures and the placement of the “bright lines” amount to compelling or very weighty reasons for designing the scheme in the way in which it was set up. In our judgment, these reasons clearly outweigh the disadvantage to the Applicant in not qualifying for the scheme, or not being treated as a truly exceptional case. Whilst the Applicant does have a genuine reason for wishing to be in the United Kingdom, as we explain below the family relationship with his brother is not so strong that his exclusion from the scheme is too great a hardship to him. Further, it is clear that the Applicant has temporary protection and a degree of stability in a safe place: Germany, where he has some family connection.