Category: Article 14 | Anti-Discrimination
9 October 2026 by Lance Baynham
The UK Human Rights Blog is moving to Substack.
From 19th October, all new articles will be published exclusively on our Substack, and no new content will appear on our current website.
To stay up to date with our latest articles and insights, please subscribe here: https://substack.com/@ukhumanrightsblog
The following piece was also posted here on 1 Crown Office Row’s Quarterly Medical Law Review
Birmingham Community Healthcare NHS Trust v Ibrahim [2026] EWHC 2468 (KB)
In Ibrahim, Mr Justice Soole upheld a Judge’s decision that the Defendant Trust had breached the Claimant’s rights under Article 14 of the European Convention of Human Rights (‘ECHR’) when it failed to adopt an alternative procedure for dispensing Codeine outside of daylight hours during Ramadan in 2019. In reality, the Trust’s arguments were completely undermined by the fact that no one had actually thought about the issue at the time.
Background
The Claimant was a Muslim prisoner. The Trust was responsible for providing primary healthcare at the prison. The Claimant was prescribed Codeine. This was provided each day under supervision at a medicine hatch. The hatch operated during fixed hours each morning and afternoon. Generally, there was no system for providing medication under supervision outside those hours. There were, however, separate arrangements in certain other circumstances, such as prisoners arriving at the prison late in the evening.
Unless exempt, Muslims are required to fast during daylight hours throughout the month of Ramadan. This includes not consuming oral medication. In 2019, the hatch opening times were during daylight hours. The arrangements ultimately put in place by the Trust were that the Claimant was temporarily prescribed alternative painkillers during Ramadan which he was permitted to take in his cell, rather than under supervision at the hatch. The Judge found as fact that the temporary use of these alternative painkillers had no adverse impact on the Claimant.
The claims were for an unlawful interference with the right to respect for private life under Article 8 ECHR; an unlawful interference with the right to manifest religious beliefs under Article 9 ECHR; and unlawful discrimination on the grounds of religion in violation of Article 14 ECHR, when read with Articles 8 and 9 ECHR. It is unclear why no discrimination claim was brought under the Equality Act 2010.
Judgment below
His Honour Judge Najib held that Articles 8 and 9 ECHR were engaged but not violated. The Claimant was able to and in fact did fast throughout Ramadan. He was provided with alternative medication which, ultimately, had no adverse effect. There was no challenge to these findings on appeal.
However, the Judge also held that there was a breach of Article 14 ECHR. He identified the questions to be asked as set out by Baroness Hale in R (Stott) v Secretary of State for Justice [2018] UKSC 59 at [207]:
- does the treatment complained of fall within the ambit of one of the Convention rights;
- is that treatment on the ground of some “status”;
- is the situation of the claimant analogous to that of some other person who has been treated differently; and
- is the difference justified, in the sense that it is a proportionate means of achieving a legitimate aim?
Question two was not disputed: the ground was religion. On the other issues, the Judge held that: i) the treatment complained of fell within the ambit of Articles 8 and 9 ECHR – there was a “more than merely tenuous connection” [39]; ii) the Claimant’s situation was analogous to other prisoners who had been prescribed medication which could only be taken under supervision [51]; and iii) the failure to put in place alternative arrangements was not in pursuit of the legitimate aim of ensuring security and preventing the proliferation of opiate based and other controlled substances [68], but was instead due to an ‘apparent’ lack of resources and/or a need to prioritise limited resources [69] which was not made out on the facts [76]. As such, the Article 14 ECHR claim succeeded.
Appeal
The Trust’s appeal challenged the Judge’s conclusions on ‘ambit’ and ‘objective justification’ – i.e., the first and fourth of the Stott questions.
As to the ambit issue, the challenge “centred on the Judge’s finding of fact that Mr Ibrahim had not suffered withdrawal or any other adverse symptoms in consequence of not taking Codeine” [80]. Soole J rejected this argument for the following three reasons: firstly, ‘ambit’ and ‘interference’ are separate concepts – treatment can come within the ambit of an ECHR right even if that right is not violated [89]; secondly, the appropriate test is “whether the criticised measure or treatment has a more than merely tenuous connection to the core value(s) of a substantive Article” (emphasis added) [90]; and, thirdly, it is not necessary, for ‘ambit’ purposes, to establish that the relevant treatment had an adverse effect and the Judge was right to focus on the connection between the treatment complained of and the substantive ECHR rights [91]-[92].
The more substantial challenge was to the conclusion on objective justification. The Trust’s arguments all centred on the allocation of resources – that the Judge “failed to identify the allocation of scarce resources as a legitimate aim; and thus failed to take resources into account when considering proportionality” [105]. Moreover, to the extent that the Judge did consider the allocation of resources, he wrongly held that the Trust’s evidence that alternative procedures would have been impractical amounted to no more than a ‘bare assertion’ [97].
In rejecting these arguments, Soole J first sounded a warning against “the dangers of undue textual criticism” in the context of a necessarily lengthy judgment [106]. Giving a fair reading to the judgment as a whole, Soole J held that the Judge had indeed considered the allocation of resources. His rejection of this issue was based not on principle, but on the facts.
The reality was that no one had in fact turned their mind to the possibility of providing the Claimant with his medication by some alternative procedure. The evidence of Trust witnesses on resources and practicality “did not reflect the actual reasoning of anyone at the time”, but simply their beliefs that it would have been difficult if anyone had thought about it. This belief was itself “undermined” by the fact that alternative arrangements were made in other situations, e.g., for prisoners arriving at the prison late. In such circumstances, the Judge was entitled to conclude that the Trust’s evidence amounted to a ‘bare assertion’ and, in fact, it was “difficult to see how the Judge could have reached any other conclusion” [114].
It followed from this central finding that the resources had not formed any part of the Trust’s aim in not making alternative arrangements for the Claimant. As such, it was not necessary to consider proportionality but, had it been, the same finding of fact “would or should equally have compelled the conclusion that the test of proportionality was not met” [125].
Comment
There are some useful illustrations of principle in Soole J’s judgment, particularly on the ‘ambit’ issue. Firstly, that the appropriate test is whether the criticised measure or treatment has a “more than merely tenuous connection” to the core value(s) of a substantive ECHR Article. Secondly, that it is not necessary to establish that the relevant treatment had any adverse effect.
However, this was a case where “the very particular facts and circumstances” [126] carried the day. In some ways, this counted against the Claimant. The Article 8 and 9 ECHR claims were dismissed on the basis that the Claimant had been able to fast and did not experience any real issues as a result of temporarily not taking Codeine or having to take an alternative painkiller. The position would inevitably be very different if a Muslim prisoner was receiving some other medication such that this would have been a problem – i.e., so that they would effectively need to choose between their religion and their health.
The central finding of fact though was the “overall failure by anyone to apply their mind to [the issue]” [118]. The practical lesson for institutions is that it will be very difficult to justify discriminatory treatment as a proportionate means of achieving a legitimate aim, if the legitimate aim has been retrospectively manufactured. Before the question of whether issues of practicality and resources might amount to a legitimate aim in principle, there is the preliminary question of whether such issues were in fact the reason for the discriminatory treatment. If, in reality, the reason was simply that no one thought about it, then evidence of hypothetical impracticality or resource constraints is unlikely to carry much weight. Had the Trust taken even some perfunctory steps to investigate whether alternative arrangements would have been feasible, it seems likely that it would have been given a reasonably wide margin of appreciation. However, having taken none, it was “in an inherently weak position on its margin of appreciation” [121]. A further practical point is that, where a claim relates to a failure to make an exception, then other exceptions – such as for late-arriving prisoners in this case – are likely to carry significant weight and will need to be carefully explained.
Lance Baynham is a barrister at 1 Crown Office Row.
23 September 2026 by Guest Contributor
The UK Human Rights Blog is moving to Substack.
From 19th October, all new articles will be published exclusively on our Substack, and no new content will appear on our current website.
To stay up to date with our latest articles and insights, please subscribe here: https://substack.com/@ukhumanrightsblog
The UK Human Rights Blog is grateful to Dr Lewis Graham, the author, and to the Administrative Court Blog (where this post first appeared) for permission to reproduce the below.
The Supreme Court has, once again, rejected a challenge to the compatibility of primary legislation with the ECHR. It has ruled that section 128(1) of the Police, Crime, Courts and Sentencing Act 2022 (amending the Crime (Sentences) Act 1997) is compatible with Articles 5, 7 and 14 of the Convention. The case is R (Quaye) v Secretary of State for Justice [2026] UKSC 34.
The legislation under challenge
Children who commit murder are not given the same life sentences as adults. Instead, they are sentenced to detention at His Majesty’s pleasure (DHMP). As part of the sentencing procedure, the trial judge sets a minimum term which must be served before the offender can apply to the Parole Board for release. Prior to changes made in 2021, the Secretary of State operated a policy whereby at a certain point (halfway through the minimum term) the offender could apply to them for a review of that term, with the possibility of achieving early release. This policy was amended in 2021, and was put on a statutory footing in 2022, via the Police, Crime, Courts and Sentencing Act 2022, section 128(1). The effect of this provision was to remove any opportunity for child offenders sentenced to DHMP to seek a review of the minimum term if the offender was sentenced after they became an adult (i.e. after their 18th birthday).
The result of the legislation, therefore, was to separate child offenders into two categories: firstly, those who committed a crime as a child (under the age of 18), and who were sentenced as a child; secondly, those who committed a crime as a child (under the age of 18) but who were sentenced after their 18th birthday. The former category remain entitled to seek review of the minimum term by the Secretary of State; the latter category, thanks to section 128(1), do not.
The claimant in this case fell into the latter category. He committed murder before his 18th birthday, but was sentenced after he turned 18; section 128(1) therefore applied, and he was not entitled to have his sentence reviewed. He sought to challenge the legislation via judicial review, arguing that section 128(1) breached his rights under Articles 5, 7 and 14 of the ECHR.
The courts below
The High Court (William Davis LJ and May LJ) upheld, in part, the claimant’s challenge: see [2024] EWHC 211 (Admin). It ruled that depriving child offenders of the opportunity to have their sentences reviewed by the Secretary of State gave rise to the possibility of arbitrary detention, contrary to Article 5 of the Convention. The Court noted, in this respect, that prior to the legislative change, some child offenders successfully convinced the Secretary of State to reduce their minimum term. To deny them the opportunity to show that their rehabilitation was complete, and that the sentence is no longer necessary, was to breach their Article 5 rights: see [59] of that case. The High Court also upheld the challenge based on Article 14 of the Convention. It found that the provisions treated two groups differently based on their age, and that the justifications put forward by the defendant – the protection of those under 18 at the time of sentence and the need to promote the interests of victim families – did not justify the arbitrary differentiation between those who were 18 at the time of sentencing and those who were not: see [46]-[58] of the High Court’s judgment. The High Court did not consider it necessary to rule on the legislation’s compatibility with Article 7: see [62] of its judgment.
The Court of Appeal (Sharp P, Lewis LJ and Cobb J) overturned the High Court’s judgment: see [2025] EWCA Civ 226. It found that section 128(1) of the 2022 Act did not breach Articles 5, 7 or Article 14 of the Convention. The claimant’s lack of opportunities for review of his sentence did not render the sentence arbitrary for the purposes of Article 5: see [87] of that judgment. The changes made by the 2022 Act were “concerned with the manner of execution or enforcement of the sentence” rather than changing the sentence itself, so Article 7 was not violated: see [102] of that judgment. Finally, emphasising the significant margin of appreciation applicable in this context, the Court concluded that the decision to treat offenders differently depending on their age at the time of sentence was not disproportionate, and that a fair balance had been struck between the rights of the offender and the interests of the victims’ families: see [118]-[143], and especially [142]-[143], of that judgment.
The Supreme Court’s judgment
The Supreme Court, in a judgment jointly written by Lord Stephens and Lady Simler (with which Lords Sales, Briggs and Hamblen expressed agreement), dismissed the claimant’s appeal. It ruled, like the Court of Appeal below it, that section 128(1) of the 2022 Act did not breach any Convention rights.
Article 5 ECHR
The Supreme Court strongly disagreed with the High Court’s findings relating to Article 5. The High Court fell into error, said the Supreme Court, by taking as its “starting point” the position that the 2022 legislation “did not change the essential nature of a sentence of [DHMP] and that an inherent element of the sentence was the requirement of continuing review”: [59]. Legislation had already governed the field since at least the year 2000 and, in any case, the combined effect of legislative intervention, up to and including section 128(1) of the 2022 Act, had created a complete code governing DHMP, or as the Court put it at [61]: “Since 2022 the scheme for sentencing persons who commit murder as children to detention at His Majesty’s pleasure is an entirely statutory one”.
The core question, then, was “whether by excluding any opportunity to review the minimum term for those aged 18 and over when sentenced to detention at His Majesty’s pleasure, section 27A(11) gives rise to a risk of arbitrary detention under article 5 ECHR”: [62]. The Supreme Court agreed with the Court of Appeal that Article 5 does not require there to be an opportunity for review in this sense, either for sentences in general or for DHMP: [64], [68], [69]. Article 5 simply required there to be a sufficient connection between the conviction and the sentence actually imposed; this test was clearly met on the facts: [67]. Being sentenced to a minimum term, without the opportunity to petition the Secretary of State to reduce that sentence, was not arbitrary: [69].
Article 7 ECHR
The Supreme Court drew upon the familiar distinction, in the context of Article 7, between the retrospective modification of a sentence (or “penalty”) and changes made to the “execution” or “enforcement” of a sentence. The former is prohibited under Article 7; the latter is not: [129]. The Court agreed with the Court of Appeal in finding that the changes made by section 128(1) fell into the latter, rather than the former category: [144]. The changes related “exclusively to a change in the regime for early release on licence”: [143]. The sentence imposed on the claimant was DHMP, and it remained so after the changes made by the 2022 Act took effect: [142]. Article 7 was not breached by the relevant provisions of the 2022 Act: [144].
Article 14 ECHR
The Court also ruled that the provisions did not breach Article 14 of the Convention. Whilst the effect of section 128(1) was to create two categories of offender, which were treated differently based on a protected status (age) – see [114] – the Court found that the difference in treatment pursued a legitimate aim, the effect of which was to constitute a proportionate interference with the claimant’s rights.
The aim behind the legislation was the protection of the victim’s family members. In particular, the Court highlighted that victim families are contacted every time an application to vary the minimum term is made: [98]. Repeated engagement with this process caused “obvious and inevitable” distress for them: [100]. The desire to reduce this distress was “a consideration Parliament was entitled to regard as powerful”: [99]. The aim behind the legislation was therefore a legitimate one: [101]. There was a rational connection between the pursuit of that aim and the legislation in question: [115].
As to proportionality, the Court applied “low intensity of review” [79] for five reasons: first, the discrimination in this case was based on the ground of age, which is not a suspect category calling for heightened scrutiny: [80]; second, the provision under review is primary legislation: [88]; third, the legislation involves considerations of “social policy”: [89]; fourth, there is no European consensus on the issue at hand: [93]; fifth, the legislation in question involves consideration of “competing interests”: [94]. All of this meant that the legislature was in a stronger position than the court when it came to determining the proportionality of the measure, and the court should be slow to intervene in its judgment: [124]-[125]. The legislation did not breach Article 14: [126].
Comment
This judgment provides yet another instance of the Supreme Court rejecting a human rights challenge to legislation. In doing so, the Court applied a relatively orthodox understanding of what protection from arbitrariness requires in the context of Article 5, and was unwilling to recognise any wider principle that the needs of child prisoners to be protected from arbitrary detention mandates that their sentences be kept under review (at least in part because there existed no explicit Strasbourg authority to this effect: [64]).
The Court’s reasoning in relation to Article 14 is also noteworthy. By largely approving the reasoning of Sharp P in the Court of Appeal (see our blog on that judgment here) the Court once again applies a very deferential approach to discrimination issues in human rights law. Whilst the Court at least accepts that the intensity of review to be applied in Article 14 cases “varies according to the circumstances, the subject matter and the background” ([78]), the Court goes on to provide five reasons as to why a low intensity review is justified in the present case. These reasons are familiar and, as I have argued elsewhere, largely fail to convince. For example, almost all legislation – and certainly any legislation which involves differential treatment capable of engaging Article 14 issues – will involve “competing interests”. And the courts have interpreted “social policy” so widely that it has come to encompass almost any kind of legislative issue.
We also see in this judgment some now-expected language emanating from the case of SC: “the assessment of proportionality in this case ultimately depends on whether Parliament made the right judgement… this question cannot be answered by a process of legal reasoning because there are no legal standards by which a court can decide where the balance should be struck”: [124]. I have argued elsewhere that in some cases, this language has been used to justify an abdication of the duty of the courts to perform the required proportionality assessment (“there are no legal standards…”). This interpretation was rejected recently in the case of LMN, where the Court of Appeal confirmed that SC should not be treated as authority for the position that in some cases a proportionality assessment should not be carried out at all. Thankfully, the Supreme Court appears to confirm this in Quaye. After setting out the above passage, the Court confirms: “it follows that the court should be slow to substitute its own view for the political judgement of Parliament in this respect”. The message, therefore, is that courts should apply a low intensity review, rather than no review at all. This is a subtle but important difference, and a welcome clarification that SC is not to be treated as authorising the courts to abandon the proportionality test altogether in cases involving social and political controversy.
Dr Lewis Graham is a Lecturer in Human Rights Law at the University of Manchester and an editor of the Administrative Court Blog.
5 August 2026 by Guest Contributor
By Matthew Howarth
In R (Al Hashimi) v Secretary of State for the Home Department [2026] EWCA Civ 943, the Court of Appeal held that a woman living in the United Arab Emirates could not invoke Articles 8 and 14 of the European Convention on Human Rights (“ECHR”) to challenge sex discrimination in UK nationality legislation. The preliminary obstacle was Article 1: she was not within the United Kingdom’s jurisdiction for Convention purposes (§1).
The decision is a clear restatement of the territorial limits on the ECHR. A decision taken in the UK, even one that substantially affects the interests of a person abroad, does not itself establish jurisdiction over that person (§§28-29, 39).
Continue reading →
24 August 2020 by Conor Monighan
Conor Monighan brings us the latest updates in human rights law
In the News:
Internationally there were a number of developments which have significant consequences for human rights. In Russia a prominent critic of Vladimir Putin has allegedly been poisoned. Alexei Navalny, who is known for exposing corruption within the country, suddenly fell ill last week after drinking tea.
Supporters claim the Russian state has tried to silence Mr Navalny’s criticism of President Putin, and then attempted to cover up its actions by stopping Mr Navalny from being treated abroad. Despite initial resistance from doctors, who said that Mr Navalny was too ill to be moved, the leader has now been flown out of Russia. Critics say the developments are part of a wider crackdown on freedom of speech within the country.
Continue reading →
13 January 2020 by Conor Monighan
Conor Monighan brings us the latest updates in human rights law
In the News:
ICCSA, the Independent Inquiry into Child Sexual Abuse, published its report into protecting children who live outside the UK.
It described how there has been “extensive” sexual abuse of children by British nationals whilst abroad. Between 2013 – 2017, 361 UK nationals requested consular assistance between 2013 – 2017 for being arrested for child sex offences. The inquiry suggested this was likely to be a small proportion of offenders committing crimes abroad.
The report highlights the case of Gary Glitter, who was able to travel abroad and abuse vulnerable children even after he had been convicted. Glitter was later sentenced again for abusing two girls, aged 10 and 11, in Vietnam.
ICCSA concluded that travel bans should be imposed more frequently to prevent this behaviour. It noted that Australia bans registered sex offenders from travelling overseas. ICCSA’s report also argued that the burden of proof for imposing travel bans should be reduced, saying that the need for evidence is often overstated by courts and the police.
The inquiry described the global exploitation of children as worth an estimated £27.7 billion, with developing countries being particularly at risk.
The full report can be read here. More from the BBC here.
Continue reading →
18 October 2019 by Guest Contributor
Gilham (Appellant) v Ministry of Justice (Respondent) [2019] UKSC 44 – read judgment
The UK Supreme Court has unanimously granted an appeal by a district judge against the Court of Appeal’s decision that she did not qualify as a “worker” under the Employment Rights Act 1996 (the “1996 Act”), and therefore could not benefit from the whistleblowing protections it conferred.
In reaching its judgment, the Court held that the failure to extend those whistleblowing protections to judges amounted to a violation of the appellant’s right under Article 14 ECHR not to be discriminated against in her enjoyment of the Convention rights (in this case, her right to freedom of expression under Article 10 ECHR).
Continue reading →
15 October 2019 by Conor Monighan
This post, and those that follow, summarise some of the main points of interest arising from the ALBA Conference 2019.
Article 14 ECHR discrimination challenges to social welfare measures: the second benefit cap case in the Supreme Court: Raj Desai
Introduction: The ‘Benefit Cap’
Mr Desai examined Article 14 ECHR through the prism of two ‘benefit cap’ cases: R (on the application of DS and others) (Appellants) v Secretary of State for Work and Pensions (Respondent) [2019] UKSC 21 (“DA & DS”) and R(SG and ors) v Secretary of State for Work and Pensions [2015] UKSC 16 (“SG”).
Both were decisions of the Supreme Court concerning the benefit cap. This provides that a household’s total entitlement to welfare benefits cannot exceed an annual limit. The cap is disapplied if a certain amount of relevant work is completed.
In common with many Article 14 ECHR claims, both cases raise complex issues about the proper constitutional role of the courts. SG (the first benefit cap case)
Continue reading →
10 December 2018 by Conor Monighan
Conor Monighan brings us the latest updates in human rights law
In the News:
This week saw a novel legal challenge which may have significant consequences for the Equality Act 2010. The case arose following the dismissal of Jordi Casamitjana by the League Against Cruel Sports on the grounds of gross misconduct. This was because he released information showing that the pension fund of employees was being invested in firms engaging in animal testing. However, Mr Casamitjana claims he was discriminated against by his former employer because he is vegan.
Mr Casamitjana alleges that he first raised his concerns about the pension investments internally. He says the charity responded by offering staff an alternative ‘ethical’ investment strategy with lower rates of return. Mr Casamitjana subsequently wrote to colleagues saying that their money was still being invested in non-ethical funds, and that there were other alternative investments available with good financial outcomes.
Mr Casamitjana argues that his sacking was due to the charity discriminating against his belief in ‘ethical veganism’. The League strongly deny the allegations and have stated Mr Casamitjana was dismissed purely because of gross misconduct.
The dispute means that an employment tribunal will have to decide whether veganism is a ‘belief’ which should be protected by the Equality Act 2010. It is thought to be the first time this issue has been raised. The ruling could have significant consequences for the provision of goods and services, as well as on employment rights more generally. However, others have warned that recognising too many views as protected characteristics would be excessively restrictive.
Continue reading →
3 December 2018 by Eleanor Leydon
In the Courts:
Conway, R (on the application of) v Secretary of State for Justice [2018] UKSC B1: The Supreme Court has refused to hear an appeal from a sufferer of motor neurone disease, in the latest of a line of challenges to the UK’s ban on assisting suicide. The applicant was contesting the Divisional Court’s refusal to declare the statutory ban on assisting suicide to be incompatible with his article 8 rights.
The question for the court was whether his case raised “an arguable point of law of general public importance” which ought to be heard by the Supreme Court at this time. Whilst the points of law were undoubtedly arguable, and the public importance obvious, the court concluded “not without some reluctance” that the applicant’s prospects of success did not justify granting permission to appeal. Rosalind English has more detail here.
Stott, R (on the application of) v Secretary of State for Justice [2018] UKSC 59: The appellant was a prisoner who had been classed as ‘dangerous’ and accordingly given an Extended Determinate Sentence (EDS), under which he would become eligible for parole only after serving two-thirds of the appropriate custodial term. This was in various ways narrower than the ordinary parole eligibility of other categories of prisoner. The appellant claimed unlawful discrimination under Article 14 ECHR, combined with Article 5 (the right to liberty).
Continue reading →
8 October 2018 by Conor Monighan
Conor Monighan brings us the latest updates in human rights law
Credit: The Guardian
In the News:
The Government has announced that civil partnerships will be available to all couples, not just those which are same-sex. The government has said the move will address the “imbalance” of the current system. It will also provide a way of giving couples and their families greater security.
Concerns have previously been raised about the precarious state of cohabiting couples, many of whom incorrectly believe they possess similar rights to married couples. Widening access to civil partnerships may go some way to solving this issue.
Civil partnerships were originally created in 2004, and offer homosexual couples legal and financial benefits resembling those available under a marriage. Marriage for same-sex couples was subsequently legalised by the Marriage (Same Sex Couples) Act 2013, giving them a free choice between the two.
The proposed change comes in response to R (on the application of Steinfeld and Keidan) (Appellants) v Secretary of State for International Development, which was decided by the Supreme Court in June. There, the court ruled that precluding mixed-sex couples from entering into a civil partnership was incompatible with Article 14 ECHR (when read in conjunction with Article 8). The Civil Partnership Act 2004 will, therefore, need to be amended or replaced.
Continue reading →
30 April 2018 by Eleanor Leydon
Image Credit: Guardian
The National Council for Civil Liberties (Liberty), R (On the Application Of) v Secretary of State for the Home Department & Anor: Liberty’s challenge to Part 4 of the Investigatory Powers Act, on the ground of incompatibility with EU law, was successful. In particular, Liberty challenged the power bestowed on the Secretary of State to issue ‘retention notices’ requiring telecommunications operators to retain communications data for up to 12 months (detail at [22]). This engaged three EU Charter rights: the right to private life, protection of personal data, and freedom of expression and information.
Continue reading →
19 March 2018 by Eleanor Leydon
Image credit: Guardian
DA & Orss, R (On the Application Of) v The Secretary of State for Work and Pensions: The Court of Appeal by a 2:1 majority allowed the government’s appeal against a ruling that their benefits cap unlawfully discriminated against lone parents with children under the age of two.
Whilst it was not disputed that Article 14 was engaged both through A1P1 and Article 8, Sir. Patrick Elias did not find that the claimants were in a significantly different situation to that of lone parents with older children such as to constitute indirect discrimination under the Thlimmenos principle [135]. He concluded:
the question is ultimately a narrow one. Are the circumstances of single parents with children under two sufficiently different from other lone parents as to require an exception to be made to the imposition of the benefit cap?… I do not accept that the problems are sufficiently proportionately disabling to these lone parents to make it unjust not to treat them differently.
Continue reading →
5 March 2018 by Eleanor Leydon
Photo credit: Guardian
In the News
UK charity Migrants Rights Net have been granted permission to proceed with their challenge to the data-sharing agreement between the Home Office, the Department of Health and NHS Digital. The agreement has meant that the Home Office may require the NHS to hand over patients’ personal non-clinical information, such as last known address, for immigration enforcement purposes.
Currently, the Home Office makes thousands of requests per year, of which only around 3% are refused. A joint response from Home Office and health ministers suggested that opponents of the agreement had downplayed the need for immigration enforcement, and that it was reasonable to expect government officers to exercise their powers to share this kind of data, which ‘lies at the lower end of the privacy spectrum.’ However, critics of the agreement argue that it compromises the fundamental principle of patient confidentiality, fails to consider the public interest, and results in a discrepancy in operating standards between NHS Digital and the rest of the NHS. The good news for Migrants Rights Net was twofold: the challenge will proceed to a full hearing with a cost-capping order of £15,000.
Continue reading →
27 February 2017 by Thomas Beamont
Immigration law featured heavily in courts in the past week, with judgments in two cases handed down by the justices.
The first, MM and others, concerned the Minimum Income Rule, which requires a minimum income of £18,600 to sponsor a foreign spouse’s visa to live in the UK.
The second, R (on the application of Agyarko), saw the Supreme Court uphold the treatment of those unlawfully in the UK who have formed relationships with British citizens.
Continue reading →
1 June 2016 by Fraser Simpson
Photo credit: The Guardian
Hunter, Re Judicial Review, [2016] CSOH 71 – read judgment.
The Outer House of the Court of Session has held that the restriction of student loans to individuals under 55 years old in Scotland is unjustifiably discriminatory. Additionally, the Scottish Ministers breached their public sector equality duty under the Equality Act 2010 by failing to assess the discriminatory effects that the regulation imposing this age restriction would have.
by Fraser Simpson
Background
The petitioner, Elizabeth Hunter, applied for a student loan from the Students Awards Agency for Scotland (“SAAS”) in order to allow her to pursue a course in Hospitality Management. At the time of applying for this loan, in 2014, the petitioner was aged 55. In line with Regulation 3(2)(b)(ii), Education (Student Loans) (Scotland) Regulations 2007, she was refused the loan. Regulation 3(2)(b)(ii) limits eligibility for student loans to individuals under 55.
The petitioner claimed that this decision, and the relevant regulation, unlawfully discriminated against her in violation of Article 14, ECHR. Additionally, she also claimed that the Scottish Ministers had failed to consider the potentially discriminatory effect that these regulations could have and, therefore, failed to satisfy their public sector equality duty (“PSED”) imposed by section 149, Equality Act 2010.
Article 14, which protects against discrimination on the basis of age, amongst other characteristics, is not a “free-standing” right. Instead, it is only applicable when the facts of the case fall within the scope of one of the Convention’s substantive provisions. Accordingly, the first issue for Lady Scott was to assess whether one of the substantive Convention rights was engaged in this situation. The petitioner submitted that either Article 1, Protocol 1, which includes the right to property and possessions, or, alternatively, Article 2, Protocol 1, which protects the right to education, was of relevance.
Continue reading →
Recent comments