“The Refugee Convention does not impose an obligation on Contracting States to grant leave to enter or leave to remain in order to achieve family reunion with a sponsor who has been granted refugee status in the host state, but the UN Human Rights Committee exhorts Contracting States to do this.”
“THE CONFERENCE, CONSIDERING that the unity of the family, the natural and fundamental group unit of society, is an essential right of the refugee, and that such unity is constantly threatened, and NOTING with satisfaction that, according to the official commentary of the ad hoc Committee on Statelessness and Related Problems (E/1618, p. 40), the rights granted to a refugee are extended to members of his family RECOMMENDS Governments to take the necessary measures for the protection of the refugee's family, especially with a view to: (1) Ensuring that the unity of the refugee's family is maintained particularly in cases where the head of the family has fulfilled the necessary conditions for admission to a particular country; (2) The protection of refugees who are minors, in particular unaccompanied children and girls, with special reference to guardianship and adoption.”
“In accordance with the principles referred to above, the following types of family reunification should receive the support of UNHCR: (a) Reunification of the "nuclear family", consisting of husband and wife and their dependent children. There is a virtually universal consensus in the international community concerning the need to reunite members of this family nucleus. The following points should be noted in this connection: (i) Husband and wife. Besides legally married spouses, couples who are actually engaged to be married, who have entered into a customary marriage, or who have lived together as husband and wife for a substantial period can be considered eligible for UNHCR assistance. The same applies in principle to spouses in a polygamous marriage if it was validly contracted in the country of origin. On the other hand, estranged spouses who do not intend to live as a family unit in the country of asylum are not normally eligible for UNHCR assistance for reunification with each other, they may however qualify for reunification with their children. (ii) Parents and children. Although some countries of asylum make a distinction between minor children and those who have come of age, it is UNHCR policy to promote the reunification of parents with at least those dependent, unmarried children, regardless of age, who were living with the parents in the country of origin. (iii) Reunification of unaccompanied minor children with their parents and siblings. An unaccompanied minor child should be reunited as promptly as possible with his or her parents or guardians as well as with siblings. If the minor has arrived first in a country of asylum, the principle of family unity requires that the minor's next-of-kin be allowed to join the minor in that country unless it is reasonable under the circumstances for the minor to join them in another country. Because of the special needs of children for a stable family environment, the reunification of unaccompanied minors with their families, whenever this is possible, should be treated as a matter of urgency. Any unjustified delays should be reported to Headquarters. ( … ) (b) Reunification of other dependent members of the family unit. It is the position of UNHCR that the reunification of the following categories of persons of particular concern is also required by the principle of family unity: (i) Dependent parents of adult refugees. Humanitarian and economic considerations militate in favour of reunification of dependent parents who originally lived with the refugee or refugee family, or who would otherwise be left alone or destitute. (ii) Other dependent relatives. Where persons such as single brothers, sisters, aunts, cousins, etc. were living with the family unit as dependents in the country of origin, or where their situation has subsequently changed in such a way (e.g., by the death of a spouse, parent or bread-winner) as to make them dependent upon refugee family members in the country of asylum, they should also be considered eligible for family reunification. (iii) Other dependent members of the family unit. Sometimes families have taken in and cared for other unattached persons, such as friends or foster children, to whom they are not actually related by blood. If such persons are in the same situation as the relatives mentioned under (ii) above, they should also be considered eligible for UNHCR assistance with reunification. Care should however be taken to verify beforehand the true situation of such persons. (c) Other relatives in need of resettlement. In certain cultures the basic family unit also includes grandparents, grandchildren, married brothers and sisters, their spouses and children, etc. For practical reasons, however, it is not the policy of the Office actively to promote the reunification of members of the extended family or other relatives who are still in the country of origin unless they come within the categories of persons defined in sections (a) and (b) above. On the other hand, UNHCR strongly supports the adoption by States of broad and flexible criteria of “family reunification” with respect to the selection of refugees for resettlement from countries of temporary sojourn. Efforts should be made to preserve the integrity of family groups in the course of resettlement operations and to promote the admission of refugees who need to be resettled into countries where they have relatives or other personal ties.”
“The requirements to be met by a person seeking leave to enter or remain in the United Kingdom as the partner of a person granted refugee status are that: (i) the applicant is the partner of a person who currently has refugee status granted under the Immigration Rules in the United Kingdom; and (ii) the marriage or civil partnership did not take place after the person granted refugee status left the country of their former habitual residence in order to seek asylum or the parties have been living together in a relationship akin to marriage or a civil partnership which has subsisted for two years or more before the person granted refugee status left the country of their former habitual residence in order to seek asylum; and (iii) the relationship existed before the person granted refugee status left the country of their former habitual residence in order to seek asylum; and (iv) the applicant would not be excluded from protection by virtue of paragraph 334(iii) or (iv) of these Rules or Article 1F of the Refugee Convention if they were to seek asylum in their own right; and (v) each of the parties intends to live permanently with the other as their partner and the relationship is genuine and subsisting; (vi) the applicant and their partner must not be within the prohibited degree of relationship; and (vii) if seeking leave to enter, the applicant holds a valid United Kingdom entry clearance for entry in this capacity.”
“The requirements to be met by a person seeking leave to enter or remain in the United Kingdom in order to join or remain with the parent who currently has refugee status are that the applicant: (i) is the child of a parent who currently has refugee status granted under the Immigration Rules in the United Kingdom; and (ii) is under the age of 18; and (iii) is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and (iv) was part of the family unit of the person granted asylum at the time that the person granted asylum left the country of their habitual residence in order to seek asylum; and (v) the applicant would not be excluded from protection by virtue of paragraph 334(iii) or (iv) of these Rules or Article 1F of the Refugee Convention if they were to seek asylum in their own right; and (vi) if seeking leave to enter, holds a valid United Kingdom entry clearance for entry in this capacity.”
“Nothing in these Rules shall be construed as permitting a person to be granted entry clearance, leave to enter, leave to remain or variation of leave as a spouse or civil partner of another if either the applicant or the sponsor will be aged under 18 on the date of arrival in the United Kingdom or (as the case may be) on the date on which the leave to remain or variation of leave would be granted. In these rules the term “sponsor” includes “partner” as defined in GEN 1.2 of Appendix FM.”
“This guidance tells you about our refugee family reunion policy, which allows a spouse or partner and children under the age of 18 of those granted refugee status or humanitarian protection in the UK to reunite with them here, providing they formed part of the family unit before the sponsor fled their country of origin or habitual residence. It must be used by caseworkers considering whether to grant entry clearance or leave to enter or remain for the purpose of family reunion in accordance with paragraphs 352A to 352FJ of Part 11 of the Immigration Rules.”
“Application in respect of children The duty insection 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the need to safeguard and promote the welfare of children in the UK means that consideration of the child’s best interests is a primary, but not the only, consideration in immigration cases. This guidance and the Immigration Rules it covers form part of the arrangements for ensuring that this duty is discharged. Although Section 55 only applies to children in the UK, the statutory guidance, Every Child Matters - Change for Children, provides guidance on the extent to which the spirit of the duty should be applied to children overseas. Caseworkers considering overseas applications must adhere to the spirit of the Section 55 duty and make enquiries when they suspect that a child may be in need of protection, or where there are safeguarding or welfare needs that require attention. In some instances, international or local agreements are in place that permit or require children to be referred to the authorities of other countries. Caseworkers must abide by these arrangements and work with local agencies in order to develop arrangements that protect children and reduce the risk of trafficking and exploitation. Caseworkers must carefully consider all of the information and evidence provided as to how a family member in the UK who is a child will be affected by a decision and this must be addressed when assessing whether an applicant meets the requirements of the Rules. The decision notice or letter must demonstrate that all relevant information and evidence provided about the best interests of a child in the UK have been considered. Caseworkers must carefully assess the quality of any evidence provided. Original documentary evidence from official or independent sources must be given more weight in the decision-making process than unsubstantiated statements about a child’s best interests. Where it is relevant to a decision, caseworkers dealing with overseas applications must make it clear in their decision letter that the child’s welfare has been considered in the spirit of section 55 without stating that it is a duty to do so. Where an applicant does not meet the requirements of the Rules for entry clearance or leave to remain, caseworkers must, in every case, consider the ‘Family life (as a partner or parent), private life and exceptional circumstances’ guidance or consider whether there are any compassionate factors which may warrant a grant of leave outside the Immigration Rules.”
“Parents and siblings of a child recognised as a refugee The parents and siblings of a child who have been recognised as refugees are not entitled to family reunion under the Immigration Rules. Where an application does not meet the requirements of the Immigration Rules, the caseworker must consider the ‘Family life (as a partner or parent), private life and exceptional circumstances’ guidance or consider whether there are any compassionate factors which may warrant a grant of leave outside the Rules. Each case must be considered on its individual merits and include consideration of the best interests of the child in the UK. As the Immigration Rules are specifically designed to meet our obligations under the European Convention on Human Rights (ECHR) in respect of family or private life, it is not expected there will be significant numbers granted outside the Rules. However, it is important that evidence relating to exceptional circumstances is carefully considered on its individual merits.”
“Exceptional circumstances or compassionate factors Where a family reunion application does not meet the requirements of the Immigration Rules, caseworkers must consider whether there are any exceptional circumstances or compassionate factors which may justify a grant of leave outside the Immigration Rules. There may be exceptional circumstances raised in the application which make refusal of entry clearance a breach ofECHR Article 8 (the right to respect for family life) because refusal would result in unjustifiably harsh consequences for the applicant or their family. Compassionate factors are, broadly speaking, exceptional circumstances, which might mean that a refusal of leave to remain would result in unjustifiably harsh consequences for the applicant or their family, but not constitute a breach ofECHR Article 8 . It is for the applicant to demonstrate as part of their application what the exceptional circumstances or compassionate factors are in their case. Each case must be decided on its individual merits. Entry clearance or a grant of leave outside the Immigration Rules is likely to be appropriate only rarely and consideration should be given to interviewing both the applicant and sponsor where further information is needed to make an informed decision. …”
“We found no evidence to support the Government’s argument that the prospect of family reunification could encourage families to send children into Europe unaccompanied in order to act as an “anchor” for other family members. …”
“We recommend that the UK Government reconsider its restrictive position on family reunification. …”
“The Government believes that the reunion measures suggested in the recommendation will lead to more children setting out on unaccompanied journeys that will put their lives at risk. The Home Affairs Select Committee (HASC) acknowledged this in their recent report on the migration crisis published in August. We support the principle of family unity and have several routes for families to be reunited safely without the need for children to travel here illegally. Our family reunion policy allows those granted refugee status or humanitarian protection in the UK to sponsor their spouse or partner and children under the age of 18, who formed part of the family unit before the sponsor fled their country, to reunite with them here. Under this policy, we have granted over 22,000 family reunion visas over the past five years – reuniting many refugees with their immediate family. Where family members cannot meet the requirements of the Rules we consider whether there are exceptional circumstances or compassionate reasons to justify granting a visa outside the Rules. This caters for parents of unaccompanied children in exceptional circumstances. On 27 July we published revised Home Office policy guidance on family reunion to provide more clarity for applicants and their sponsors so that they can better understand the process and what is expected of them. The revisions include further guidance on the types of cases that may benefit from a grant of leave outside the Rules. Our family reunion policy meets our international obligations and we believe it strikes the right balance between reuniting families and ensuring that our Rules are not more generous than other European countries. We believe that allowing children to sponsor parents under the Rules would create perverse incentives for them to be encouraged, or even forced, to leave their family and risk hazardous journeys to the UK to sponsor relatives. This plays into the hands of criminal gangs who exploit vulnerable people and goes against our safe guarding responsibilities.”
“To ask Her Majesty’s Government what children’s best interest evaluation has been made of their policy to refuse children entitled to asylum in the UK the family reunion rights granted to adults since the removal of the UK’s immigration reservation to the 1989 UN Convention on the Rights of the Child in 2008.”
“The UK are currently reviewing the policy on refugee Family Reunion and listening to the concerns from Non-Government Organisation’s [sic] that the current policy and the Immigration Rules on family reunion are too narrow. This work is part of our wider asylum and resettlement strategy. We are gathering evidence on whether changes to policy creates a “pull factor” that may lead to more people risking dangerous journeys to Europe, and on the number of refugee family reunion applications that could be expected with associated analysis of the impact of the cost on public services.”
“reviewing the approach to Family Reunion as part of the wider asylum and resettlement strategy. As part of this review, consideration is being given to the recent debates on Refugee Family Reunion in the context of two Private Members’ Bills (Baroness Hamwee’s in the Lords, and Angus MacNeil’s in the Commons). The passage of these Bills will be followed closely whilst productive discussions with key Non-Governmental Organisations (NGOs) in this area continue. Family Reunion policy development remains a high priority and the guidance will be updated once a firm position has been reached.”
“To ask the Secretary of State for the Home Department, what assessment he has made of the of the potential merits of (a) allowing child refugees to sponsor their close family and (b) changing the definition of family to include young people over the age of 18 and elderly people under the age of 65 so that families can be reunited in the UK.”
“… in part to “think holistically about this route and implications for policy development across the asylum and resettlement system” and also driven by increasing stakeholder and political interest.”
“The Asylum Decisions Policy Team and the Asylum Strategy Team, both managed by the same grade 6, retained some responsibilities for family reunion-related issues. The former told inspectors that it aimed to review family reunion policy every 12 months, but until the outcome of the two Private Members’ Bills was known there was nothing specifically to review. …”
“Home Office policy staff told inspectors that most major decisions about family reunion policy were made by ministers and “sometimes decisions taken are inevitably political. That is out of our control ultimately.”
“If children were allowed to sponsor parents, this would risk creating incentives for more children to be encouraged, or even forced, to leave their family and risk hazardous journeys to the UK. This plays into the hands of criminal gangs who exploit vulnerable people and goes against our safeguarding responsibilities. This position supports our commitment to protecting vulnerable individuals.”” “If children were allowed to sponsor parents, this would risk creating incentives for more children to be encouraged, or even forced, to leave their family and risk hazardous journeys to the UK. This plays into the hands of criminal gangs who exploit vulnerable people and goes against our safeguarding responsibilities. This position supports our commitment to protecting vulnerable individuals.””
“The Home Office did not provide any supporting evidence for this assessment. …”
“… the Home Office told inspectors that “it was difficult to disaggregate the relative impact of varying pull factors and it was difficult to directly compare other EU country policies on family reunion – other countries vary in their criteria and those who are eligible for refugee family reunion.””
“Home Office staff told inspectors that child sponsors was a “ministerial red line”
“Pending any new legislation, clarify the Home Office’s position (with supporting evidence) in relation to those areas of the present policy that have been the subject of Parliamentary and stakeholder interest, in particular: child sponsors; dependent family members over 18 years of age; …”
“4.3 The Government has made clear in the past its concern that allowing children to sponsor parents would risk creating incentives for more children to be encouraged, or even forced, to leave their family and attempt hazardous journeys to the UK. This would play into the hands of criminal gangs, undermining our safeguarding responsibilities. 4.4 Government policy is not designed to keep child refugees away from their parents, but in considering any policy we must think carefully about the wider impact to avoid putting more people unnecessarily into harm’s way. There is a need to better understand why people choose to travel to the UK after reaching a safe country. It is important that those who need international protection should claim asylum in the first safe country they reach – that is the fastest route to safety.”
“Family reunification must generally be regarded as being in the best interests of the child, but a full assessment must be made of this taking into account the child’s individual circumstances and recorded on the file. Possible locations for family reunification must be taken fully into account. There may, however, be instances where family reunification is not in the child’s best interests. This may be when the material facts of the claim for protection involve elements of persecution or ill treatment at the hands of family.”
“… in general terms, the Defendant recognises that it will usually be in the best interests of children not to be separated from their parents and siblings.”
“No application for judicial review shall be made unless the leave of the High Court has been obtained in accordance with rules of court; and the court shall not grant leave to make such an application unless it considers that the applicant has a sufficient interest in the matter to which the application relates.”
“… It is true that the requirement for a “sufficient interest” has been applied liberally, particularly in cases where non-governmental organisations and others representing the public interest have challenged decisions by which they cannot claim to be personally affected, generally in the absence of other better placed actual or potential challengers: see eg R (McCourt) v Parole Board[2020] EWHC 2320 (Admin) , [31]-[32]. There are important reasons for this, as Lord Reed’s judgment in Axa shows. But the present claimant is not an NGO and does not claim to represent any interest other than his own. Moreover, it is not and could not be said that there are no challengers directly affected by the policy who could realistically be expected to litigate. To start with, there are at least two other challenges to the same policy in which the claimant is represented by JS’s legal team. These claims were stayed behind this one by Farbey J.”
“The status of the immigration rules is rather unusual. They are not subordinate legislation but detailed statements by a minister of the Crown as to how the Crown proposes to exercise its executive power to control immigration. But they create legal rights: …”
“The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances; …”
“… If a statement laid before either House of Parliament under this subsection is disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying (and exclusive of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days), then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of forty days beginning with the date of the resolution (but exclusive as aforesaid).”
“… The duty imposed by section 55 of the 2009 Act stands on its own feet as a statutory requirement apart from the HRA or the Convention. It applies to the performance of any of [the] Secretary of State’s functions including the making of the [Immigration] Rules.”
“(i) Section 55 was enacted to give effect in domestic law, as regards immigration and nationality, to the UK's international obligations under article 3 of the 1989 United Nations Convention on the Rights of the Child (UNCRC). The UK is a party to the UNCRC and in 2008 withdrew its reservation in respect of nationality and immigration matters. Article 3 provides that: "In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration". Although section 55 uses different language, it is conventional and convenient to refer to a duty under section 55 as being to have regard, as a primary consideration, to the best interests of the child. (ii) The duty is imposed on the Secretary of State. She is bound by it, save to the extent (if any) that primary legislation qualifies it; we were not referred to any qualifying legislation. (iii) The duty applies not only to the making of decisions in individual cases but also to the function of making subordinate legislation and rules (such as the Immigration Rules) and giving guidance. The fact that subordinate legislation or rules are subject to the affirmative vote of either or both Houses of Parliament does not qualify the Secretary of State’s statutory duty under section 55. (iv) The best interests of the child are a primary consideration, not the primary consideration, still less the paramount consideration or a trump card. This does, however, mean that no other consideration is inherently more significant than the best interests of the child. The question to be addressed, if the best interests point to one conclusion, is whether the force of other considerations outweigh it. (v) This in turns means that Secretary of State must identify and consider the best interests of the child or, in a case such as the present, of children more generally and must weigh those interests against countervailing considerations.”
“… that in establishing and maintaining a position under the Immigration Rules and relevant published policy whereby (i) parents and siblings of refugee children are not entitled to family reunion under the Immigration Rules, (ii) on the same basis as the spouses and children of adult refugees under the Immigration Rules, the Secretary of State has (a) failed to discharge her duties undersection 55 of the Borders, Citizenship and Immigration Act 2009 ; …”
“9. The Secretary of State is not aware of any occasion since s.55 came into force (2 November 2009 ), when the relevant decision makers (namely Home Office Ministers or the Secretary of State) decided to review the Immigration Rules in order to consider providing a route to family reunion for child refugees (i.e. introducing criteria within the Rules governing decisions whether or not to grant leave to enter to the parents and siblings of refugee children). 10. Records since 2015 indicate that the consistent position of the relevant decision makers, as communicated to officials, has been that they are not prepared to change the existing and long-standing policy of considering applications for leave to enter by immediate family members of child refugees on a case-by-case basis outside the Immigration Rules. Thus, for example, Ministers were clear that changing that policy was not one of the options to be included in 2021 consultation on the New Plan for Immigration (which fulfilled the statutory obligation to review legal routes to the UK from the European Union (EU) for protection claimants, set out in theImmigration and Social Security Co-Ordination (EU Withdrawal) Act 2020 ). 11. As to the position before 2015, a search has been conducted, but the Secretary of State been unable to find relevant communications from Ministers to officials dating back beyond that date. To the best of the Secretary of State’s knowledge, even prior to 2015, the relevant decision makers were consistent in their position that they intended to maintain the existing policy, as summarised above. This is supported by Family Reunion Guidance from 2007 to 2011 (see Jason Büültjens’ witness statement, para 7).”
“All relevant records have been checked. Records since 2015 indicate Ministers have been consistent in their position not to change the existing and long-standing policy position regarding child refugees. A search has been conducted for Ministerial communications to officials on the subject prior to 2015 but we have not been able to find relevant records. Nonetheless, we have found that Family Reunion guidance from 2007 to 2011 makes clear that minors were not eligible sponsors under the Immigration Rules.”
“62. The next disputed issue, which it is necessary to resolve, is the legal test applicable to determine when “the grounds to make the claim” for judicial review of the 2013 DSO and the May 2018 Review Decision “first arose”, in the language ofCPR 54.5 (1). Before us the parties are agreed, as they were before the Judge, that the correct approach is that expressed by the Divisional Court in DSD at [167] as follows: “167. … We agree with the claimants that there is a distinction between cases where the challenge is to a decision taken pursuant to secondary legislation, where the ground to bring the claim first arises when the individual or entity with standing to do so is affected by it, and where the challenge is to secondary legislation in the abstract. Cases falling into the first category include R v Secretary of State for the Home Department, Ex p Leech[1994] QB 198 (where the point was not taken on behalf of the Secretary of State, but would have been had it possessed merit), R v Secretary of State for the Home Department, Ex p Saleem[2001] 1 WLR 443 and R (T) v Chief Constable of Greater Manchester Police (Liberty intervening)[2015] AC 49 ; an example of a case falling into the second category is R (Cukurova Finance International Ltd) v HM Treasury[2008] EWHC 2567 (Admin) .” 63. It is convenient to refer to those two categories, as specified in DSD, as “the person specific category” and “the abstract category”
“A public authority must, in the exercise of its functions, have due regard to the need to— (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act; (b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.”
“Some examples of the factual and legal issues that the pleadings and the evidence appear to leave unanswered can be readily identified. First, the duty is a duty on the public authority to have due regard to certain matters “in the exercise of its functions”
“242. In our judgment, the Defendant's submission is correct. The "exercise of the [public authority's] functions" for the purposes of s149(1) consists of the implementation of the measures that the public authority decides upon. In the present case, these were the steps that were taken to change the rule relating to SSP, and to introduce the JRS, in order to combat the effects of the coronavirus pandemic. A public authority must have regard to the equalities implications of the steps that it intends to take. It need not have regard to the equalities implications of other steps, which it is not taking, and is not even considering. Otherwise, the PSED would indeed go on ad infinitum. A public authority would not only have to comply with the PSED in relation to the decision which it takes, but also in relation to the infinite spectrum of other decisions which it might have taken instead. 243. The fact that the PSED duty is ongoing does not mean that public authorities have constantly to conduct EIAs in relation to a wide range of other options that they might have adopted instead of the option that the authority did adopt.”
“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.”
“In deciding complaints under article 14, four questions arise: (i) Does the subject matter of the complaint fall within the ambit of one of the substantive Convention rights? (ii) Does the ground upon which the complainants have been treated differently from others constitute a “status”? (iii) Have they been treated differently from other people not sharing that status who are similarly situated or, alternatively, have they been treated in the same way as other people not sharing that status whose situation is relevantly different from theirs? (iv) Does that difference or similarity in treatment have an objective and reasonable justification, in other words, does it pursue a legitimate aim and do the means employed bear “a reasonable relationship of proportionality” to the aims sought to be realised (see Stec v United Kingdom(2006) 43 EHRR 47 , para 51)?”
“The general approach adopted to article 14 by the European court has been stated in similar terms on many occasions, and was summarised by the Grand Chamber in the case of Carson v United Kingdom(2010) 51 EHRR 13 , para 61 (“Carson”). For the sake of clarity, it is worth breaking down that paragraph into 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.””
“Kugathas[2003] EWCA Civ 31 describes the requirements for proving family life between adults in the context of immigration control. At para 14, Sedley LJ cited with approval the report of the European Commission of Human Rights in S and S v United Kingdom 40 DR 196, para 198: “Generally, the protection of family life under article 8 involves cohabiting dependents, such as parents and their dependent, minor children. Whether it extends to other relationships depends on the circumstances of the particular case. Relationships between adults … would not necessarily acquire the protection ofarticle 8 of the Convention without evidence of further elements of dependency, involving more than the normal emotional ties.”” “Generally, the protection of family life under article 8 involves cohabiting dependents, such as parents and their dependent, minor children. Whether it extends to other relationships depends on the circumstances of the particular case. Relationships between adults … would not necessarily acquire the protection ofarticle 8 of the Convention without evidence of further elements of dependency, involving more than the normal emotional ties.””