18_IND and RACE DISCRIMINATION LAW

CONTENTS page INTRODUCTION THE LEGAL FRAMEWORK Race Relations Act 1976 The basic concept and the prohibition on discrimination What amounts to discrimination? 2 2 2 2 3 3 5 6 6 7 7 8 9 11 11 12 12 12 13 14 15 15 16 20

Direct discrimination Indirect discrimination The importance of differentiating What is not discrimination
Exceptions to the prohibition on discrimination

Section 19D
The need for Ministerial involvement The need for evidence to support discrimination Process and substance discrimination Monitoring the section 19D exception

Other exceptions
Complaints

Bringing a complaint Proving discrimination RRA 1976 questionnaires
General statutory duty Public law Article 14 of the ECHR OBTAINING ADVICE ON RACE DISCRIMINATION ISSUES

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INTRODUCTION 1. A large amount of the work of IND involves processing individuals on the basis of their nationality. The nature of this work means that IND needs to have a firm understanding of what does and what does not amount to unlawful race discrimination. This note summarises the relevant legal framework and discusses some relevant policy issues where appropriate. It is not meant to be comprehensive but it is hoped that it will assist with future policy development and the formulation of internal procedures on race relations issues. Advice should be sought wherever there is any doubt, and information on how to obtain advice on race discrimination issues can be found at the end of this note. THE LEGAL FRAMEWORK 2. The legal framework when considering questions of race discrimination can be broken down into three areas which will be address in turn in the following paragraphs; (i) (ii) (iii) the Race Relations Act 1976 (as amended, for example by the Race Relations (Amendment) Act 2000); public law; and Article 14 of the European Convention on Human Rights („ECHR‟).

Race Relations Act 1976 The basic concept and the prohibition on discrimination 3. The underlying concept of the Race Relations Act 1976 („RRA 1976‟) is that individuals of all racial groups are entitled to be treated equally. The law requires each person to be treated as an individual and not as a member of a group. An individual should not be assumed to hold certain characteristics because he belongs to a particular group, even if most members of the group do indeed have such characteristics (a process known as stereotyping). 4. The starting point is that section 19B(1) of the RRA 1976 makes it unlawful for a public authority in carrying out its functions to do any act which constitutes discrimination. “Public authority” includes IND. Section 27(1A) of the RRA 1976 extends the prohibition on discrimination in section 19B to acts done outside the UK in relation to granting entry clearance.

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What amounts to discrimination? 5. Section 19B prohibits discrimination. “Discrimination” means (i) racial discrimination, which is defined in section 1, and (ii) victimisation, which is defined in section 2. Victimisation is less relevant in the context of the operation of the immigration control; it is more applicable in an employment context where a person is treated less favourably as a result of making a complaint under the RRA 1976. In addition to this, section 3A defines harassment which is now a free-standing complaint in certain instances rather than an aspect of racial discrimination. Again, though, harassment is less relevant in the context of the operation of the immigration control. Therefore, this note will not deal with victimisation or harassment but will instead focus on racial discrimination, of which there are two types under the RRA 1976 – commonly referred to as direct discrimination and indirect discrimination.

Direct discrimination
6. Direct discrimination is defined in section 1(1)(a) which provides that a person discriminates against another person (X) if on racial grounds he treats X less favourably than he treats or would treat other persons. The essence of direct discrimination is therefore less favourable treatment on racial grounds. 7. A complainant must show that he has been treated less favourably than an actual or hypothetical comparator of a different racial group. Section 3(4) says that a comparison of a person of a particular racial group with that of a person not of that group must be such that the relevant circumstances in the one case are the same, or not materially different, in the other. Examples of less favourable treatment include taking substantially longer to decide a claim, asking several additional questions of an entrant and charging a greater fee in respect of an application. 8. “Racial grounds” is defined in section 3 to mean “colour, race, nationality or ethnic or national origins”. Nationality includes citizenship. Nationality and national origins have different meanings; for instance, English and Scottish people have different national origins but the same nationality. As regards ethnic origins, an ethnic group must have a long, shared history whose memory it keeps alive and which distinguishes it from other groups and cultural traditions of its own. Sikhs, Jews and Roma have been held by the courts to be ethnic groups, but the courts have said that Rastafarians are not.

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9. Direct discrimination does not require an intention to discriminate on the part of the alleged discriminator. This is apparent from the case of European Roma Rights Centre v Immigration Officer at Prague Airport. That case concerned an operation set up at Prague airport whereby immigration officers were stationed in Prague and were permitted to give or refuse leave to enter to passengers before they boarded aircraft for the UK. The operation was set up in response to an influx of asylum-seekers from the Czech Republic, the overwhelming majority of who were Roma. The operation was judicially reviewed; one of the arguments being that the operation amounted to direct discrimination against Roma. The House of Lords found that immigration officers had discriminated against Roma who were seeking to travel from Prague to the UK by treating them less favourably on racial grounds. The immigration officers had treated Roma, because they were Roma, more sceptically than they had treated non-Roma. The evidence showed that Roma were 400 times more likely to be refused leave to enter than non-Roma. The court commented that the objective of the operation created a high risk that immigration officers would, consciously or unconsciously, treat Roma more sceptically and that clear instructions should have been in place to ensure all would-be passengers were treated in the same way. So if a person acts on racial grounds, the reason why he does so is irrelevant (and the absence of an intention to discriminate does not automatically mean that there is no direct discrimination). The test is an objective one; would the person have received the same treatment but for his colour, race, nationality or ethnic or national origins? Further, colour, race, nationality etc. need not be the only ground for the acts complained of; it is sufficient if it is a substantial and effective cause of the discriminator‟s actions.

Indirect discrimination
10. The test for indirect discrimination was amended by the Race Relations Act 1976 (Amendment) Regulations 2003 which were introduced to implement the provisions of the EC Race Directive (2000/43/EC). This has slightly complicated the legal position as regards indirect discrimination in that the test is different depending on what the alleged ground of discrimination is and the field in which the alleged discrimination has occurred. In respect of the racial grounds of nationality and colour (and in respect of the racial grounds of race and ethnic or national origins in several fields) the test is set out in section 1(1)(b). This provides that a person discriminates against another person (Y) if he applies to Y a requirement or condition which he applies or would apply equally to persons not of the same racial group as Y but – (i) which is such that the proportion of persons of the same racial group as Y who can comply with it is considerably smaller that the proportion of persons not of that racial group who can comply with it; and (ii) (iii) which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origins of Y; and which is to the detriment of Y because he cannot comply with it.

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11. Indirect discrimination is therefore concerned with requirements or conditions which have the effect, though not the intention, of discriminating against a particular racial group. The concept came from the US case of Griggs v Duke Power Company. In that case, the Duke Power Company required job applicants and existing employees who wished to be promoted to pass an intelligence test or have attended high school. This condition disqualified black workers at a much higher rate than white workers. The condition was not significantly related to successful job performance. imposition of the condition was unlawful. 12. Indirect discrimination is complex, and the courts have struggled with the concept. In particular, they have had difficulty defining exactly what a “condition or requirement” is and deciding what is meant by “considerably smaller”. The accepted definition of “justifiable” was set out by the European Court of Justice in Bilka-Kaufhaus GmbH v Weber von Hartz, where it was said that the relevant questions for the court are; (i) is the requirement or condition imposed other than in order to discriminate on racial grounds? (ii) do the means selected to achieve the chosen aim correspond to a real need? (iii) are they appropriate to achieve that aim? and (iv) are they necessary to achieve that aim? 13. The amended version of the test for indirect discrimination, which applies in respect of the racial grounds of race and ethnic or national origins in several fields (e.g. employment and health care) is set out in section 1A. It is slightly confusing that there should now be two different tests for indirect discrimination. They largely overlap but the Race Relations Act 1976 (Amendment) Regulations 2003 have introduced, in section 1A, the European law concepts of “proportionality” and “legitimate aim”. The US Supreme Court ruled that the

The importance of differentiating
14. It is important to identify whether a proposed operation or policy amounts to direct or indirect discrimination because indirect discrimination can be justified (see above), and if justified is not unlawful, whereas direct discrimination can never be justified and is always unlawful unless one of the specific exceptions in the RRA 1976 apply.

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What is not discrimination
15. Before looking at those exceptions, it is perhaps worth giving some examples of cases where there is no direct discrimination. The following are examples; (i) (ii) (iii) (iv) Additional scrutiny of a particular application where documentation presented by the applicant prompts the additional enquiries. More rigorous scrutiny of all applications under a certain category of the Immigration Rules, irrespective of nationality. More rigorous scrutiny of one in ten applications under a certain category of the Immigration Rules, irrespective of nationality. Additional scrutiny of all passengers on a flight or vessel where it is the flight or vessel which is under surveillance.

Exceptions to the prohibition on discrimination

Section 19D
16. Of most relevance to IND is the exception in section 19D of the RRA 1976. Section 19D says that section 19B (the prohibition on discrimination discussed above) does not make it unlawful for a Minister of the Crown acting personally or another person acting in accordance with a relevant authorisation to discriminate against another on grounds of nationality or ethnic or national origins in carrying out immigration functions. A relevant authorisation means a requirement imposed or express authorisation given(i) (ii) with respect to a particular case or class of case, by a Minister of the Crown acting personally; with respect to a particular class of case – (a) by any of the enactments mentioned in section 19D(5) (these are (1) the Immigration Acts, except sections 28A to 28K of the Immigration Act 1971 and section 14 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, (2) the Special Immigration Appeals Commission Act 1997, (3) provision made under section 2(2) of the European Communities Act 1972 which relates to immigration and asylum, and (4) any provision of Community law which relates to immigration or asylum), or (b) by any instrument made under or by virtue of any of those enactments.

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17. There are several things to note about the ambit of the exception in section 19D. First, discrimination on the basis of race or colour can never be authorised. Only discrimination on the grounds of nationality or ethnic or national origins can be authorised under section 19D. Second, “immigration functions” are IND‟s statutory functions and don‟t cover things like employment. Third, the exception does not apply to acts carried out by the Immigration Service in respect of the investigation or prosecution of criminal offences. The effect of this is to place the Immigration Service in the same position as the police in respect of the investigation and prosecution of offences. 18. In the past, section 19D Ministerial authorisations have only been obtained where the policy or operation proposed has sought to directly discriminate on the basis of nationality or ethnic or national origin. Authorisations have not been sought where what is proposed amounts to indirect discrimination. This is because, as explained above, a policy or operation which indirectly discriminates will not be unlawful under the RRA 1976 if it can be justified irrespective of racial grounds. The need for Ministerial involvement 19. The first Ministerial authorisation to be made under section 19D was challenged successfully by way of judicial review in the case of R (Tamil Information Centre) v SSHD. The successful challenge was to the main ports authorisation which allowed immigration officers to subject passengers of certain nationalities to more rigorous scrutiny when examining them under paragraph 2 of Schedule 2 to the Immigration Act 1971. The authorisation enabled an immigration officer to subject a passenger to more rigorous scrutiny by reason of the passenger‟s nationality if one of two conditions were met. The first condition was that there was statistical evidence showing a pattern or trend of breach of the immigration laws by persons of that nationality. The second condition was that there was specific intelligence or information which suggested that a significant number of persons of that nationality had breached or would attempt to breach the immigration laws. The authorisation was challenged on the basis that it delegated the task of deciding who to discriminate against to the immigration officer and the statute required the Minister to be more closely in control. Forbes J. said; “In the present case, as it seems to me, although he has given some widely defined criteria for the identification of appropriate cases or classes of case, the Secretary of State has delegated the essential task of actually identifying and defining any such case or class of case entirely to the decision-making of immigration officials and, what is more, by reference to their standards and/or thresholds rather than his own. In my view, this approach is clearly ultra vires section 19D of the 1976 Act, as amended. [A] licence to discriminate, such as that envisaged by section 19D, can be expected to be subject to strict control and … in the present case, Parliament has made it clear by the express terms of the section that the necessary control is to be by the democratic process, namely by every essential aspect of the power being clearly exercised personally by a minister accountable to Parliament.” 7

20. As a result of this judgment the main ports authorisation was amended and the process changed so that the Minister now personally approves on a monthly basis the list of nationalities to whom the authorisation applies. The authorisation itself lays down the criteria for including nationalities on the list, but the actual statistics are considered by the Minister monthly. As a consequence of the judgment in this case, care has been taken when drafting subsequent authorisations to ensure that there is high level of Ministerial involvement and that the decision to discriminate is not over-delegated. The need for evidence to support discrimination 21. Where IND is contemplating discriminating against a specific group on the basis of nationality or ethnic or national origin the first question to address is why IND wishes to select that particular group for less favourable treatment. There must be good reason for the differential treatment that usually, if targeted at a category believed to be abusive, is based on statistics or intelligence. The evidence should demonstrate that there is a need for differential treatment of a particular group in comparison to other groups in the same position. Therefore, evidence should be as comparative as possible. If IND wanted to target a certain nationality, for example Kenyans, then the production of evidence which only concentrated on Kenyans would not be useful in establishing why Kenyans required differential treatment. If IND could show that Kenyans were by far the worst offenders in terms of abuse in certain categories compared with other nationalities then this would be evidence capable of supporting a section 19D authorisation and minimising the risk of challenge. 22. If there is no evidence which justifies the proposed policy or operation then the Minister, if he makes a section 19D authorisation, will be at risk of acting in breach of the public law principles set out in paragraphs 35 and 36 below and in breach of the ECHR, and the making of the authorisation may be unlawful. This is a different situation from that where evidence to justify the proposed policy or operation does exist but is not as comprehensive or as strong as would be liked. In that kind of case, the making of the authorisation would not be unlawful per se, but the authorisation would be susceptible to successful legal challenge. 23. It may be useful to look at two examples of where less favourable treatment on racial grounds has been mooted and why it was decided that there was or was not sufficient evidence to support a section 19D authorisation in these cases.

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24. First, one past proposal was to subject to more rigorous scrutiny applications to switch into student categories and applications for extension of stay as a student from four specific nationalities that were considered abusive. The evidence that was submitted in support of the proposal was the most recent monthly nationality risk assessment prepared by INDIS. However, the INDIS assessment did not form an evidential basis for the proposed student exercise because it only recorded “refused extension/settlement” decisions per nationality and not the different categories those decisions were made under. In any event, the four proposed nationalities were not the worse offenders in the “refused extension/settlement” category. In order to support an authorisation, evidence was required that the four nationalities that had been selected represented the worst abusers of the rules on students. This shows that the evidence put forward to support a discriminatory policy or operation needs to be comparative and focused on the relevant category. This will ensure that any discrimination is targeted and proportionate to the aim of reduction of abuse. What would have been useful in the student example was attendance records for those here in student categories or evidence of illegal working by students or specific intelligence. 25. Second, a successful appeal on race discrimination grounds against the refusal of entry clearance to a Bangladeshi working holiday-maker applicant raised the issue of whether UKvisas subjected certain nationalities to different procedures when applying in the same category. The current ports authorisation was intended to apply only to immigration officers examining persons under paragraph 2 of Schedule 2 to the Immigration Act 1971, and not also to entry clearance officers. UKvisas is looking into what differential treatment it requires and why. The question has arisen as to why the format of the current ports authorisation cannot be extended to the actions of entry clearance officers when considering applications for entry clearance. The answer is that it may be able to but it depends on what UKvisas wants to do. If UKvisas wants to treat all applications for entry clearance from a specific nationality in a less favourable way then it may be able to rely on the current risk assessment, subject to further consideration as to whether the statistics provide a proper basis for that treatment. However, if UKvisas wishes only to treat those in certain categories (e.g. working holiday-makers) in a less favourable way, then it will need more targeted evidence to support that.

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Process and substance discrimination

26. In the main, the section 19D authorisations which have been made to date have enabled IND to discriminate by way of process. For example, the main ports authorisation discussed above allows immigration officers to examine passengers of certain nationalities more rigorously than others. The less favourable treatment being authorised is more rigorous examination (e.g. a longer interview with more questions). Immigration officers still have to apply the Immigration Rules at the end of the examination and leave to enter or remain is given or refused on the basis of the Rules and not on the basis of a racial ground. This is process discrimination and perceived to be a less invidious form of discrimination than substance discrimination. Substance discrimination would be, for instance, where an individual was refused leave to enter or remain solely on the basis of his nationality. Process discrimination is more amenable to justification than substance discrimination.

Monitoring the section 19D exception 27. One final point on section 19D; the section 19D exception is scrutinised by an independent monitor appointed by the Secretary of State under section 19E. The monitor reports annually to the Secretary of State and a copy of the report is laid before Parliament.

Other exceptions
28. Part VI of the RRA 1976 contains various other exceptions. Amongst these is section 42 which provides an exception for acts done for the purpose of safeguarding national security, provided the doing of the act was justified by that purpose. Section 41 also provides an exception for, amongst others, acts done in pursuance of any enactment or any instrument made under any enactment by a Minister of the Crown or in order to comply with any condition or requirement imposed by a Minister of the Crown by virtue of any enactment.

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Complaints

Brining a complaint
29. There are two ways in which a person who believes IND has discriminated against him can seek redress – (i) in the county (or, in Scotland, sheriff) court, and (ii) in the context of an appeal under the Immigration Acts (e.g. before the AIT). However, section 57A of the RRA 1976 provides that proceedings cannot be brought in the county/sheriff court if – (i) the act complained of was done in the taking by IND of a decision relating to the entitlement of the complainant to enter or remain in the UK and the complainant has raised or could raise the race discrimination issue in an appeal under the Immigration Acts which is pending or could be brought; or (iii) there has been a finding in an appeal under the Immigration Acts that the act complained of did not amount to unlawful discrimination. 30. Where there has been a finding in the context of an appeal under the Immigration Acts of unlawful racial discrimination a complainant may then bring a claim in the county/sheriff court for damages and the court will not go behind the previous finding of discrimination. In general, the county/sheriff court procedure should be used by people who are satisfied with an immigration/asylum decision but wish to complain about the way they were treated. Proceedings in the county/sheriff court must be brought within six months of the act complained of. Damages in respect of unlawful discrimination may include compensation for injury to feelings and personal injury (including physical and psychiatric injury). A claim alleging racial discrimination brought by way of judicial review will be unusual because judicial review is not an appropriate forum for the resolution of factual issues. However, where the challenge is to the institution of a policy or practice that is alleged to be discriminatory then a challenge by way of judicial review can be made (e.g. the case concerning the operation at Prague Airport referred to above at paragraph 9).

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Proving discrimination
31. It is for the complainant to prove on the balance of probabilities that that he has been unlawfully discriminated against. However, the courts have pointed out in numerous cases that it will be unusual to find direct evidence of racial discrimination. Therefore, in relation to direct discrimination, the courts have said that once the complainant has proven less favourable treatment, it is for the alleged discriminator to provide an explanation. If there is no satisfactory explanation it is legitimate to infer that the less favourable treatment is on racial grounds. In relation to indirect discrimination, once the claimant has proven that a requirement or condition impacts disparately on him as a member of a particular racial group, and that it is to his detriment because he cannot comply with it, it is for the alleged discriminator to prove that its imposition is justifiable irrespective of racial grounds. This principle, established by case law, has now been formalised in respect of proceedings in the county/sheriff court concerning discrimination on the basis of race and ethnic or national origins (but not nationality and colour) in certain fields by the Race Relations Act 1976 (Amendment) Regulations 2003, which inserted a new section 57ZA into the RRA 1976. Section 57ZA provides that once the complainant proves facts from which the court could conclude in the absence of an adequate explanation that the alleged discriminator has committed an act of discrimination the court shall uphold the claim unless the alleged discriminator proves that he did not commit that act. 32. This all shows the importance of IND keeping statistics and monitoring operations and policies so that it can produce evidence if challenged. In the Prague Airport case (see paragraph 9 above) for instance, the complainants produced evidence which suggested that a person of Roma ethnicity was 400 times more likely to be refused leave to enter at Prague Airport than a person of non-Roma ethnicity. IND was not able to produce any evidence to contradict this, as IND was not monitoring the ethnic origin of those refused leave to enter at Prague Airport or subjected to additional questioning. This highlights the importance of monitoring operations and keeping statistics, so that IND is in a better position to defend race discrimination challenges. Whilst the House of Lords judgment does not go so far as to assert a positive duty on IND to monitor, it does suggest that in refuting allegations of discrimination IND may be hampered by the fact that such statistics are not available.

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RRA 1976 questionnaires
33. In relation to complaints, it is also worth bearing in mind section 65 of the RRA 1976. This obliges the Secretary of State to prescribe forms (i.e. questionnaires and answer sheets) to help a person who considers he may have been unlawfully discriminated against to decide whether to institute proceedings and, if he does so, to formulate and present his case in the most effective way. Forms have been prescribed under this section. Questions asked in, and replies given in response to, a section 65 questionnaire are admissible in evidence in any subsequent proceedings. If it appears to the court that a person who received a questionnaire deliberately, and without reasonable excuse, omitted to reply within a reasonable period (or eight weeks in cases where the alleged discrimination is on the grounds of race or ethnic or national origins) or that his reply is evasive or equivocal, the court may draw any inference from that fact that it considers just and equitable to draw, including an inference that he committed an unlawful act. This is subject only to a limited exception regarding the carrying out of criminal investigations. Therefore, it is important if a member of IND is served with a section 65 questionnaire that it is responded to as quickly and as fully as possible, in conjunction with the unit responsible for race policy (Social Policy Unit) to ensure a consistent line is taken on race discrimination issues. General statutory duty 34. One other provision of the RRA 1976 to mention is section 71(1). This imposes a duty on specified public authorities, in carrying out their functions, to have due regard to the need to eliminate unlawful racial discrimination and to promote equality of opportunity and good relations between persons of different racial groups. In relation to the carrying out of its immigration and nationality functions, IND is exempt from the duty to promote equality of opportunity between persons of different racial groups, but is subject to the rest of the duty. This exemption reflects the unique nature of IND‟s business which involves legitimately denying opportunity to some which IND provides to others in relation to the control of immigration. By virtue of section 71(2), the Secretary of State has the power to impose by order such additional duties as he thinks appropriate for the purpose of ensuring better performance of the section 71(1) general duty. An order has been made using this power which requires specified public authorities, including the Home Office, to produce (and review at least every three years) a Race Equality Scheme showing how they intend to fulfil their duties under the section. The Home Office has produced such a scheme. The scheme covers issues such as procedures for assessing the impact of new policy proposals, monitoring arrangements, staff training arrangements and complaints procedures.

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Public Law 35. Overarching the more detailed anti-discrimination provisions of the RRA 1976 are the basic tenets of public law, and in particular the over-riding obligation on the Secretary of State to act reasonably (usefully summarised in the Cabinet Office publication “The Judge Over Your Shoulder”, available at http://www.tsol.gov.uk/Publications/judge.pdf). In summary, decisions should be made according to the following logical principles (identified in the case of Associated Provincial Picture Houses v Wednesbury Corporation); (i) irrelevant considerations should not be taken into account, (ii) conversely, all relevant considerations should be taken into account, and (iii) the decision should be within the range of responses open to a reasonable decision-maker (i.e. it should not be irrational). So, for example, where a policy amounts to less favourable treatment on racial grounds, even though it will not be unlawful under the RRA 1976 if it is the subject of a section 19D authorisation, it could still be challenged successfully on public law reasonableness grounds if, on the evidence available, the decision to implement the policy was beyond the range of responses open to a reasonable decision-maker. 36. Although the Secretary of State has a wide margin of discretion that does not mean that all policy decisions are reasonable. Policy should, where possible, be evidence-based and be an appropriate and proportionate means of addressing the issue. For example, if the justification for a policy is said to be evidence of particular abuse, but there is no such evidence, or the policy is not aimed at that abuse, or is unlikely to address it, or is disproportionate in effect, then the policy is unlikely to be reasonable. It is therefore important that where there is an evidence-based need for a policy that the evidence is available to support that change before the change is made. Where a policy is intended to address a potential, as opposed to existing, problem (and being proactive is a legitimate approach for IND to adopt) the policy needs to be justifiable on that basis. Article 14 of the ECHR 37. The Human Rights Act 1998 („HRA 1998‟) brought into domestic law the main provisions of the ECHR. Section 6 of the HRA 1998 provides that “It is unlawful for a public authority to act in a way which is incompatible with a Convention right”. The Home Secretary and the Home Office are “public authorities” for the purposes of section 6. The anti-discrimination provision in the ECHR is set out in Article 14 which 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 opinion, national or social origin, association with a national minority, property, birth or other status.”

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Note that whilst Article 14 refers to “race” and “national or social origin”, “other status” has been held to include nationality. 38. In Johnston v Ireland the European Court of Human Rights said that the purpose of Article 14 is to “safeguard[s] persons who are placed in analogous situations against discriminatory differences of treatment in the exercise of the rights and freedoms recognised by the Convention”. 39. The first point to make about Article 14 is that it is not a free standing prohibition of discrimination, but only applies to discrimination in the enjoyment of Convention rights. When relying upon Article 14, although it is not necessary to demonstrate a breach of another Convention right, it is necessary to show that the facts at issue fall “within the ambit” of another right (Petrovic v Austria). The courts have had difficulty defining exactly what this means and there have been a number of apparently inconsistent decisions. 40. In the immigration and asylum context, people who allege that IND has discriminated against them contrary to Article 14 are most likely to argue that the facts fall within the ambit of either Article 3, 5 or 8. Since an asylum claim will almost invariably include a claim to Article 3 protection, the processing of asylum claims is likely to fall within the ambit of Article 3. Detention is likely to fall within the ambit of Article 5 and/or Article 8. Restricting access to those lawfully in the UK for dependants or visitors, in the context of immigration control and the entry clearance system, is likely to fall within the ambit of Article 8. 41. The House of Lords in R (S) v Chief Constable of South Yorkshire Police set out a framework for considering questions of discrimination under Article 14 in the form of five questions (known as the Michalak analysis, after an earlier case where this framework was first put forward); (i) (ii) (iii) (iv) (v) Do the facts fall within the ambit of one or more of the Convention rights? Was there a difference in treatment in respect of that right between the complainant and others put forward for comparison? If so, was the difference in treatment on one or more of the proscribed grounds under Article 14? Were those others in an analogous situation? Was the difference in treatment objectively justifiable in the sense that it had a legitimate aim and bore a reasonable relationship of proportionality to that aim?

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42. However, in the more recent case of R (Carson and Reynolds) v Secretary of State for Work and Pensions the House of Lords said that the Michalak analysis is not always the best approach to Article 14 cases. In particular, whether questions (iv) and (v) can actually be separated out in this way in all cases was called into question. The move appears to be away from a rigid step-by-step approach to a much more “simple and non-technical” approach (Lord Nicholls). Lord Nicholls said; “Article 14 does not apply unless the alleged discrimination is in connection with a Convention right and on a ground stated in article 14. If this prerequisite is satisfied, the essential question for the court is then whether the alleged discrimination … can withstand scrutiny.” 43. The opinions of the other judges lend support to this approach. Lord Hoffman, for instance, suggests that once the court has addressed whether the alleged discrimination is in connection with/within the ambit of a Convention right and on a ground stated in Article 14 (i.e. Lord Nicholls‟ “prerequisite”) the remaining issue is simply whether there is discrimination. “Discrimination means a failure to treat like cases alike. There is obviously no discrimination when the cases are relevantly different … There is only discrimination if the cases are not sufficiently different to justify the difference in treatment. The Strasbourg court sometimes expresses this by saying that the two cases must be in an „analogous situation‟…” Lord Hoffman went onto say that whether cases are sufficiently different is “partly a matter of values and partly a matter of rationality”. He indicated that it is necessary to differentiate between cases where the ground of alleged discrimination prima facie appears to offend our notions of respect due to the individual (e.g. race, gender, sexual orientation) and cases where the ground of alleged discrimination merely requires some rational justification (e.g. education, wealth, occupation). Although he accepted that there may be borderline cases (the example he gave was age) he said that there will usually be no difficulty in decided whether one is dealing with “a case in which the right to respect for the individuality of a human being is at stake or merely a question of general social policy.” Nationality falls into the first category, along with race. Lord Hoffman explained the importance of this classification as follows: discrimination in the first category cannot be justified on utilitarian grounds whereas discrimination in the second category usually depends upon considerations of the general public interest. He said; “while the courts, as guardians of the right of the individual to equal respect, will carefully examine the reasons offered for any discrimination in the first category, decisions about the general public interest which underpin difference in treatment in the second category are very much a matter for the democratically elected branches of government.”

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44. Lord Walker supported this approach, reiterating that an allegation of discrimination in the first category calls for “severe scrutiny”. So, cogent/very weighty reasons will be needed to justify differential treatment on grounds such as race or nationality, as the European Court of Human Rights has also emphasised. 45. It is clear that there is some overlap between the concept of reasonableness in a public law sense (set out in paragraphs 35 and 36 above) and the concept of justification in the context of Article 14. The Article 14 test, as far as nationality, race etc. are concerned, can be described as more stringent than the public law test and the justification required is akin to that required to justify indirect discrimination under the RRA 1976 (see paragraph 12 above). 46. Therefore, Article 14, like public law reasonableness, can be seen as an additional layer on top of the RRA 1976 which must be considered in all cases. For example, where a policy amounts to X being treated less favourably than Y on racial grounds, even though it will not be unlawful under the RRA 1976 if it is the subject of a section 19D authorisation, it could still be challenged successfully in reliance of Article 14 if the facts fall within the ambit of another Convention right and there is not a sufficient difference between X and Y to justify different treatment. OBTAINING ADVICE ON RACE DISCRIMINATION ISSUES 47. The informal procedure developed by LAB and Social Policy Unit (SPU) is as follows; (i) Where the question arises in the course of policy development or operational activities about whether something does or does not amount to racial discrimination, the query should be referred in the first instance to SPU. SPU will be able to give advice on whether what is proposed amounts to direct or indirect discrimination. If SPU requires specific legal advice on this question, it can refer the issue to LAB. Having one point of reference ensures that there is consistency in how race discrimination matters are dealt with in IND. (ii) If what is proposed could amount to indirect discrimination further advice will be given on whether there is sufficient evidence to justify the proposal and whether any more evidence is necessary. If what is proposed amounts to direct discrimination, then in order to proceed a section 19D Ministerial authorisation must be obtained (unless legislation covers the proposal). This requires advice from SPU (and LAB if necessary) on the appropriate evidence required to justify the making of an authorisation followed by scrutiny of the evidence to assess whether it justifies what is proposed. Consideration should be given to the length of time that the discrimination should be authorised for. This should be no longer than is necessary to achieve the objective of the policy or operation. 17

(iii)

Once SPU and LAB have advised that a Ministerial authorisation can be justified and set out the associated risks, the process of obtaining a Ministerial authorisation requires LAB to prepare a draft which is attached to a submission from SPU setting out the background, analysis of the evidence and explanation of the authorisation. The Minister must then agree the authorisation and sign and date it. A Ministerial authorisation is not a statutory instrument and therefore is not required to be laid before Parliament, although the convention has been to announce it by parliamentary question/statement. A copy of the authorisation is sent to the Commission for Racial Equality (CRE), the Immigration Law Practitioners‟ Association (ILPA) and the Race Monitor with an accompanying explanation of what it authorises and why it is necessary. The original copies of signed Ministerial authorisations are kept by SPU.

First edition: 26 January 2005 Revised version: 22 May 2006

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