Article 14 and the Right to Non-Discrimination: Analyzing R (SWP) v Secretary of State for the Home Department

As an immigration and human rights lawyer, I have seen personally how important Article 14 of the European Convention on Human Rights (ECHR) is for protecting the rights of immigrants. Article 14 is an important rule that makes sure everyone is treated the same and without bias, no matter what their nationality or immigration situation is.

Article 14 of the European Convention on Human Rights (ECHR) prohibits discrimination in the enjoyment of the rights and freedoms outlined in the Convention. It states: "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 opinions, national or social origin, association with a national minority, property, birth or other status.”

This means that everyone whom the Convention covers should be able to use their rights and freedoms without being treated differently for any of the reasons listed in Article 14. In practice, this means that if a person's human rights have been breached and they have been treated unfairly because of one of the reasons listed in Article 14, they can use this article to get justice for the unfair treatment.

Article 14 is one of the most important parts of the Convention as it applies to all of the rights and freedoms in it. This means that if a person's rights under the Convention have been broken and they have been treated unfairly because of one of the reasons in Article 14, they can use this article to get their rights back.

I am sure if you are reading this article the chances are you are a practising lawyer and quite familiar with the 101 of article 14. Chances are in many of the appeals you have worked on you probably used Article 14 to reforge your Article 8 or even Article 6 submissions. I for one many times used Article 14 to provide a gentle reminder to the tribunal but in all honesty, it is not very common in the UK to use active discrimination. I am not saying it does not happen but it happens on rare occasions and often as an unforeseen or undesirable outcome of the implementation of an immigration rule (I am writing as an immigration lawyer). When it happens this often becomes a very complex and extremely interesting legal (perhaps also scholarly) platform where you get to see Article 14 in operation and the best of the UK’s legal minds (our judges) tackling this most proficiently and substantially.?

This happened in the case of R (SWP) v Secretary of State for the Home Department [2022] EWHC 2067 (Admin).

Background of the case

The appellant is an Indian citizen who moved to the UK with her husband and son, who had a Tier 2 migrant visa. Her husband was on a Tier 2 migrant visa. In July 2021, her husband attempted to suffocate her and sexually abuse her, prompting her to leave with her son and seek assistance from a women's help centre. Her immigration situation was at the end of her leave to remain approached, she explored the possibility of work sponsorship as a primary school teacher but learned that primary school teachers had been taken off the shortage occupation list in 2020 and therefore she could not find a relevant sponsor. She applied for a Domestic Violence and Concession application, but it was refused by the Home Office on the basis that her husband’s leave to remain was not one of the types specified in the DDVC and DVILR. A claim for judicial review was lodged, but it was dismissed by the judge on 2 August 2022.?

This matter was moved to the Court of Appeal on the basis that the difference in treatment was not objectively justifiable under Article 14 as read with Article 8.

On 25 April 2023, the Court of Appeal has given its decision. It upheld the judgement of the High Court.?

In essence, the judges agreed that there was no discrimination in the application of the original rules by the Home Office. Also, this has effectively reaffirmed that the domestic violence provisions in the immigration rules are restricted to certain categories of partners and are not open to partners of Points-Based System dependants.

However, the most interesting part was how the Court of Appeal reached this decision are determined that the Approach adopted by the Home Office and the immigration rules do not breach Article 18. So the judges started with sighting Lord Reed PSC’s approach to Article 14 in the Supreme Court in the case of R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26; [2022] AC 223, at para. 37, where he summarised the general approach taken by the European Court of Human Rights (Grand Chamber) in Carson v United Kingdom (2010) 51 EHRR 13, at para. 61, in the following 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.’”?

Then they broke the facts and the issues of the cases. I will try to simplify them below

• The judges recognised that the applicant cannot rely on the original rules as her husband was not a British citizen or a settled person. ?
• The applicant cannot rely on the fact that her husband was on refugee status. They signed?Lady Dorrian’s decision in?A v Secretary of State for the Home Department, where she observed that the status of refugee is one which is required by international law and 95 per cent of refugees with limited leave went on to be given ILR. In fact, until 2005, a person who was recognised as a refugee in this country was given ILR straightaway. This means it is only reasonable that the dependent of a person with Refugee status should enjoy the same benefit of the original rules.
• The only category of persons with limited leave to which this case could be compared is where the Appellant is the partner of a person who has pre-settled status under the EUSS, a category which was created in 2020.
• Then the judges identified the issue which arises is whether the Respondent’s failure to give the Appellant (and others in her situation) the benefit of the DDVC, when it is given to others (in particular those who fall within the EUSS) is compatible with Article 14. It is that difference in treatment which needs to be justified under Article 14. The appellant’s argument was the difference in treatment was due to the lack of the correct interpretation of the policy. In fact, both matters should have been traced in a similar manner. To simplify victims of domestic violence who are dependent on PBS should be allowed the enjoy the same rights under the Domestic Violence and Concession policy as it is enjoyed by the victims of domestic violence who are dependent on a person with EUSS (Pre-settled status).
• This was an interesting argument as it is argued that the UK has left the EU and yet the dependents of citizens of the EU with EUSS are enjoying preferential treatment. However, the judges did not accept this argument on the basis that the rights that arose through the withdrawal treaty and this situation can be regarded as ‘unique’ and thus there was an objective justification for that difference of treatment, arising from the “unique phenomenon” of the UK’s withdrawal from the EU. Also, they highlighted the European Court of Human Rights in Ponomaryov, at para. 54, where the Court said that there may be certain circumstances where preferential treatment can be given to nationals of the Member States of the European Union because the Union forms “a special legal order”.
• The next argument was based on Lieven J in R (AM) v Secretary of State for the Home Department [2022] EWHC 2591 (Admin); [2023] 1 WLR 732. In that case, after her spousal visa had expired, the claimant’s husband effectively forced her to travel to Pakistan with him and then disappeared with their two-year-old daughter, leaving the claimant in Pakistan. The claimant was therefore the victim of a phenomenon known as “transnational marriage abandonment”. She applied for indefinite leave to enter the UK as a victim of domestic abuse. She received no decision on that application but was issued a visa for six months’ leave to enter outside the Immigration Rules, with no recourse to public funds. She sought to challenge that decision by way of judicial review, contending that Section DVILR of Appendix FM to the Immigration Rules was unlawful because it discriminated against victims of transnational marriage abandonment, contrary to Article 14 of the ECHR read with Article 8. Lieven J granted the claim for judicial review.
• However, the judges distinguished this case referred to as Lieven J said at para. 71, if the claimant, in that case, had been the victim of spousal abandonment in the UK, she would have been able to rely on the DVILR. Such a person will have suffered the same form of domestic abuse, with the only difference being that one is in the UK and the other is not at the time of abandonment. The policy issues in terms of such women having an expectation of a right to settlement, and the defendant’s wish to protect such victims of abuse, were the same. Lieven J went on to find that the difference, being present or otherwise in the UK, was not justified because there had in fact been no consideration given to the issue in the making of the Rules.
• The Home Office agreed that a person who entered the UK as the partner of a person with limited leave on a Tier 2 Migrant Worker Visa was not in an analogous position to a person who enters the UK as the partner of an EEA national granted pre-settled status under the EU Settlement Scheme. Therefore, this matter should have been dismissed.
• The judges eloquently highlighted?Lord Nicholls of Birkenhead in R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37; [2006] 1 AC 173, at para. 3. And ruled that the Judge was entitled to take the “reasonably broad brush” approach to reach the question of justification on the assumption (without deciding the point) that there was a sufficiently close analogy between the Tier 2 worker and the EAA national with pre-settled status so that the question of justification had to be addressed.

If you are interested please read the full judgment where the judges refused the Home Office’s submissions regarding submitting fresh evidence and made observations as to the requirements of submission of fresh evidence at this stage of the trial.

Many immigration lawyers are seeing the Court of Appeal’s decision on?R (SWP) v Secretary of State for the Home Department [2022] EWHC 2067 (Admin) as the reaffirmation of the fact that the domestic violence provisions in the immigration rules are restricted to certain categories of partners and are not open to partners of Points-Based System dependants. However, this judgement goes beyond that., It showed the unique position of the EUSS status. The fact that if this case was before BREXIT this analogy would not even exist. This case gives insight into when Article 14 will be engaged and provides an eloquent example of how the judges carried out their observation.?