“Possession of nationality is considered essential for full participation in society and a pre-requisite for the enjoyment of the full range of human rights. Stateless people are not necessarily at risk of persecution or serious harm in their country of habitual residence, but they are potentially vulnerable to serious discrimination. They may, for example, be denied the right to own land or exercise the right to vote. They are often unable to obtain identity documents. They can be denied access to education and health services or blocked from obtaining employment.”
“The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”
“(Introductory Note) To overcome the profound vulnerability that affects people who are stateless and to help resolve the practical problems they face in their everyday lives, the Convention upholds the right of freedom of movement for stateless persons lawfully on their territory, and requires States to provide them with identity papers and travel documents. … (Preamble) Considering that the United Nations has, on various occasions, manifested its profound concern for stateless persons and endeavoured to assure stateless persons the widest possible exercise of these fundamental rights and freedoms.”
“… shall, so far as possible facilitate the assimilation and naturalisation of stateless persons. They shall in particular make every effort to expedite naturalisation proceedings and to reduce as far as possible the charges and costs of such proceedings.”
“Introductory Note … By adopting the 1961 Convention safeguards that prevent statelessness, States contribute to the reduction of statelessness over time. The Convention seeks to balance the rights of individuals with the interests of States by setting out general rules for the prevention of statelessness, and simultaneously allowing some exceptions to those rules. … Preamble THE CONTRACTING STATES, Acting in pursuance of resolution 896 (IX) adopted by the General Assembly of the United Nations on4 December 1954 , Considering it desirable to reduce statelessness by international agreement. Have agreed as follows:”
“Without nationality, individuals face an existence characterised by insecurity and marginalisation. Stateless people are amongst the most vulnerable in the world, often denied enjoyment of rights such as equality before the law, the right to work, education or healthcare. Despite the actions of many States to prevent or reduce statelessness through measures such as reform of their nationality laws, new cases of stateless continue to rise. … The status of a stateless person under national law must also reflect applicable provisions of international human rights law. The vast majority of human rights apply to all persons irrespective of nationality or immigration status, including to stateless persons. Moreover, the principle of equality and non-discrimination generally prohibits any discrimination based on the lack of nationality status.”
“The object and purpose of the 1954 Convention is to ensure stateless persons the widest possible exercise of fundamental rights and freedoms. In consequence, any restrictions on access to those rights should be construed narrowly and applied with caution, after due consideration of individual circumstances. … Throughout the world, stateless people and their dependants often face social marginalisation, discrimination and exclusion from mainstream services, as well as significant obstacles to accessing education, employment and identity documents. It will be difficult, if not impossible, for them to meet all of the requirements of immigration rules that are primarily designed to regulate the migration of non-stateless individuals and families. There are two foreseeable results from applying such rules to stateless people and their families. The first is that stateless people will be unable to access their rights under international law, frustrating the purpose of Part 14. The second is that the rules will require modification through published guidance, or as a result of litigation, frustrating the purpose of the simplification exercise.”
“Any indirect impact on the basis of race is justified as a proportionate means of achieving a legitimate aim. The proposal provides a consistent approach between refugees and stateless persons, recognising that neither can return to their country of origin to care for a dependant relative.”
“We understand that your rationale for the requested policy changes stem from a desire to ensure that only those who are stateless themselves are granted permission to stay on the stateless route which features a generous 5-year route to settlement. We also consider that your proposed changes reiterate the requirement for stateless applicants to demonstrate that they are not admissible for the purposes of permanent residence to any other relevant countries, for example the country of nationality of their spouse. Do you agree that this is an accurate reflection of your rationale for the change in policy position for dependant of stateless persons?”
“UNHCR and wider stakeholders consider that a partner or child of a stateless person will struggle to comply with the requirements under Appendix FM. Stateless persons are highly likely to have experienced marginalisation and discrimination throughout their lives and will have had limited or no access to identity documents, employment or other services. Family members are also likely to have been negatively affected by the consequences of the sponsor’s statelessness and face exceptional challenges in meeting the English language and evidentiary requirements of the Appendix FM route. UNHCR advise that in practice, this change will prevent stateless people in the UK from being reunited with their family members, and, in consequence impede their integration into UK society and the enjoyment of the fundamental human right to family life. They have raised concerns that the removal of the bespoke statelessness route is not consistent with the UK’s obligations under domestic and international law to make the best interests of a child a primary consideration.”
“… our position is that your desired approach complies with our obligations under the UN Statelessness Conventions and other international obligations, e.g. ECHR. A significant number of stateless family members may not meet the core requirements in Appendix FM, but the caseworker must also consider whether refusal would breachArticle 8 ECHR ; in practice we anticipate that most dependants will still be granted. However, a grant on the basis of human rights (rather than meeting the core requirements in Appendix FM) would put a family member on a 10-year route to settlement, in block of 30 months, rather than the current 5-year route in one block under the statelessness rules, thus requiring the individual to make more applications before settling in the UK. Whilst this is a significant change for stateless family members, and could result in significant costs for those not entitled to a fee waiver, it still provides a path to reunite or allow families to stay together.”
“We consider that any impacts on younger people are a proportionate means of achieving a legitimate aim of ensuring that the statelessness route is used only by those who are stateless given it provides a generous 5 year route to settlement. It helps ensure stateless applicants are not admissible for the purposes of permanent residence to any other relevant countries, for example the country of nationality of their spouse. As a result, we do not consider the change will result in any unlawful indirect discrimination.”
“A partner of a British citizen, settled person, certain refugees i.e. post-flight family-members of refugees. There is a different and more benevolent regime for pre-flight family-members of refugees. etc. can apply to come or stay in the UK under Appendix FM. Requiring a stateless person to sponsor family members to come or stay in the UK using the same family provisions provides some consistency of approach to allow equality of opportunity.”
“Whilst this is a tightening of approach for a partner or child of a stateless person it does align with the approach to a partner or child of a British citizen or settled person in the UK.”
“(2) Where sub-paragraph (1) above applies, the decision-maker must consider, on the basis of the information provided by the applicant, whether there are exceptional circumstances which would render refusal of entry clearance, or leave to enter or remain, a breach ofArticle 8 of the ECHR , because such refusal would result in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member whose Article 8 rights it is evident from that information would be affected by a decision to refuse the application. … GEN 3.3(1) In considering an application for entry clearance or leave to enter or remain where paragraph … GEN 3.2 applies, the decision-maker must take into account, as a primary consideration, the best interests of the relevant child.”
“… to co-operate and to make candid disclosure, by way of affidavit, of the relevant facts and (so far as they are not apparent from contemporaneous documents which have been disclosed) the reasoning behind the decision challenged in the judicial review proceedings.”
“Applications under Appendix FM entail considerable evidential and procedural complexities, which are compounded by the limited availability of legal assistance for applicants. As a result, applicants are often deterred from pursuing an application in the first place or, if they do, are much more likely to fall out of the process due to the challenges of proceeding.”
“In my experience, it would be virtually impossible for such applicants (who would previously have applied under Part 14 but must now apply under Appendix FM) to complete their application without the help of a legal adviser, largely because of the onerous and evidentially taxing substantive requirements that they need to satisfy.”
“Whilst I do not have direct experience of advising family members of stateless persons on applications under Appendix FM (given how recently the HC 246 rule change came into effect), I would expect from my experience that the vast majority of applicants who would have formerly applied for family reunion under Part 14 and now must apply under Appendix FM will not meet the substantive requirements and will need to rely on the “exceptional circumstances” discretion … an application under the exceptional circumstances route can generate further procedural obstacles to the grant of limited leave to remain (such as evidence gathering and any further appeal), the implications of which are compounded by lack of access to legal assistance.”
“These difficulties are exacerbated by the fact that, in my experience, the family members of stateless sponsors tend to be disproportionately female and/or children. … This indicates that women and children will be disproportionately impacted by the new rules and they make up the majority of dependants of stateless people. Finally, I add that stateless people’s dependants are often stateless themselves – as is typically the case, for example, with Palestinian families. Requiring stateless dependants to apply for leave to enter under Appendix FM This requirement applies only to applications for an entry clearance. It does not apply to leave to remain applications brought by those who are stateless in their own right. Although the evidence does not cover this point, my understanding is that a dependant granted leave to enter under Appendix FM and who then applies for leave to remain under Appendix Statelessness, will be granted 30 months’ leave to remain in the first instance. Having remained in the UK under the statelessness provisions for at least 5 years is the precondition for an application for ILR under those provisions. , with the administrative and other burdens that entails, only serves to prolong family separation and thus further magnifies the difficulties faced by stateless people seeking family reunion in the UK.”
“In short, the 10-year route serves to prevent and inhibit integration of applicants and their families by placing obstacles in their way across a range of spheres, including education, employment, health and financial security. It can trap people in poverty and prevents them from reaching their full potential. The harmful impacts of the 10-year route are, in my experience, visited particularly acutely on vulnerable and disadvantaged groups with protected characteristics based on race, sex or disability but especially so on women, children and young people.”
“Being subject to Appendix FM and the 10-year route may therefore have a negative impact on the family of a stateless person by requiring them to engage in a more onerous and protracted process for entering and achieving settled status. This has implications and presents obstacles to them obtaining settlement and integrating into society.”
“We consider that the impacts on younger people are a proportionate means of achieving a legitimate aim of ensuring that the statelessness route is used only by those who are stateless given that it provides a generous 5-year route to settlement. It helps ensure stateless applicants are not admissible for the purposes of permanent residence to any other relevant countries, for example the country of nationality of their spouse. As a result, we do not consider the change will result in any unlawful indirect discrimination.”
“We consider that whilst stateless persons may share some characteristics which make it more challenging for them to meet the Appendix FM requirements, those who are stateless and who are present in the UK can apply to remain on the statelessness route. For dependants who are stateless or who wish to apply as dependants, the grant of permission to stay to the stateless sponsor which provides the latter with stateless documents, the right to work etc. goes some way to addressing some of the disadvantages a stateless person might otherwise have. Moreover, even where it is not possible to meet the Appendix FM criteria, consideration is given to whether Article 8 requires the application to be granted or whether there are sufficiently compelling circumstances which require the application to be granted. Even if this places them on a more uncertain path to settlement requiring for example, renewal of applications, paying fees, steps are in place which can be accessed to mitigate those difficulties (for example, securing fee waivers if needed). … Any indirect impact on the basis of race is justified as a proportionate means of achieving a legitimate aim of ensuring that the statelessness route is utilised by stateless persons only. A route for a partner and children will still be available under the family route in Appendix FM and this is consistent with other sponsors also on the route ensuring that they have a route for family reunification.”
“… the treatment accorded to stateless persons in the United Kingdom does not differ from that accorded to refugees and Her Majesty’s Government see no objection in principle to applying the provisions of the [1951 Convention] to stateless persons who are not refugees insofar as these provisions are susceptible of application to such stateless persons.”
“Mr Husain was at pains to stress that the claimant was not inviting me to adjudicate on the United Kingdom's compliance with its international obligations. I will refer to certain international material merely by way of context. I note, however, that neither the 1951 Refugee Convention nor the 1967 Protocol provide for refugees to have a right to family reunion. As Sales LJ said in paragraph 13 of his judgment in Mosira v Secretary of State for the Home Department[2017] EWCA Civ 407 : "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 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.”
“… found to be partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men …”
“I see no possible basis in sense or justice for a requirement which will automatically disqualify from admission under the rule virtually all those from the poorer countries of the world, irrespective of whatever compassionate circumstances may surround their case.”
“This traditional concept of indirect discrimination is not the same concept as treating different cases differently. In the latter, the core of the applicant’s complaint is not that a rule is imposing a barrier and cannot be justified; rather, the complaint is that even accepting the rule can be justified in its application to others, it ought not to be applied to the applicant because his or her situation is materially different, and that difference ought to be recognised by the adoption of a different rule, which may take the form of an exemption from the general rule. The complaint is not that the single rule adopted is inappropriate because discriminatory and unjustified; it is that it is the circumstances require that there should be more than one rule.”
“… States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.”
“The second ground on which the Lord Chancellor's Decision is challenged encompasses a number of arguments falling under the general head of "irrationality" or, as it is more accurately described, unreasonableness. This legal basis for judicial review has two aspects. The first is concerned with whether the decision under review is capable of being justified or whether in the classic Wednesbury formulation it is "so unreasonable that no reasonable authority could ever have come to it": see Associated Picture Houses Ltd v Wednesbury Corp[1948] 1 KB 223 , 233-4. Another, simpler formulation of the test which avoids tautology is whether the decision is outside the range of reasonable decisions open to the decision-maker: see e.g. Boddington v British Transport Police[1998] UKHL 13 ;[1999] 2 AC 143 , 175 (Lord Steyn). The second aspect of irrationality/unreasonableness is concerned with the process by which the decision was reached. A decision may be challenged on the basis that there is a demonstrable flaw in the reasoning which led to it – for example, that significant reliance was placed on an irrelevant consideration, or that there was no evidence to support an important step in the reasoning, or that the reasoning involved a serious logical or methodological error.”
“We accept that in principle it was open to the Lord Chancellor to adopt a policy response which did not directly correspond to the problem which it was designed to meet. A policy-maker may reasonably decide that the disadvantages of a finely tuned solution to a problem outweigh its advantages and that a broader measure is preferable, even if the broader measure is both over- and under-inclusive in that it catches some cases in which there is no or no significant problem and fails to catch some cases in which the problem occurs. Such an approach is in any event consistent with the nature of the Scheme, which uses criteria such as PPE as proxies for the complexity of cases. It is inherent in the use of such proxies that they will result in under-compensation in some cases. But this does not cause unfairness if it is off-set by over-compensation in other cases. What matters is that overall a reasonable balance is struck.”
“We need to consider what are the disadvantages of deciding not to “fine-tune” the Regulations thereby allowing the non-banking day salary shift problem to persist unresolved; what are the disadvantages of adopting a solution to the non-banking day salary shift problem; would a solution be consistent or inconsistent with the nature of the universal credit regime; and has a reasonable balance been struck by the SSWP – or rather is it possible to say that no reasonable Secretary of State would have struck the balance in the way the SSWP has done in this case?”
“As the Divisional Court made clear in that passage, the classic formulation of unreasonableness as a ground for judicial review has always had two aspects which were to be found in the seminal judgment of Lord Greene MR in the Wednesbury case. The first is concerned with the process by which a decision is reached and not with the substantive outcome. To some extent this aspect of unreasonableness may well overlap with other familiar grounds of judicial review, for example that all relevant considerations must be taken into account and irrelevant considerations must not be taken into account. The second aspect is that, even if the process cannot be legally impugned in any way, the resulting decision may be so unreasonable that no reasonable decision maker could have arrived at it. As the Divisional Court put it in Law Society (No 2), a better formulation of this test, which avoids tautology, is to ask whether the decision is outside the range of reasonable decisions open to the decision-maker.”
“I do not think that it much matters whether this state of affairs is described as one in which there is no evidence to support the determination or as one in which the evidence is inconsistent with and contradictory of the determination or as one in which the only true and reasonable conclusion contradicts the determination. Rightly understood, each phrase propounds the same test.”
“55 Duty regarding the welfare of children (1) The Secretary of State must make arrangements for ensuring that— (a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, …”
“Whilst the proposed changes do disadvantage child dependants as they will have to meet a more strenuous set of requirements in order to be granted permission to stay in the UK, we consider that our obligations under section 55 … continue to be met given that there will be a route to settlement in the UK available for children of stateless persons. Furthermore, the transitional arrangements will ensure that children already on the statelessness route (or children of parents who are already on the statelessness route) at the time of the introduction of Part 14 will be treated favourably, thus showing our consideration of the best interests of children.”
“9 Race (1) Race includes— (a) colour; (b) nationality; (c) ethnic or national origins. (2) In relation to the protected characteristic of race— (a) a reference to a person who has a particular protected characteristic is a reference to a person of a particular racial group; (b) a reference to persons who share a protected characteristic is a reference to persons of the same racial group. (3) A racial group is a group of persons defined by reference to race; and a reference to a person's racial group is a reference to a racial group into which the person falls. …”
“10 Religion or belief (1) Religion means any religion and a reference to religion includes a reference to a lack of religion. (2) Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.”
“13 Direct discrimination (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”
“19 Indirect discrimination (1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's. (2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if— (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b)it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim.”
“149 Public sector equality duty (1) 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. (2) A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1). (3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to— (a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic; (b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it; (c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low. (4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons' disabilities. (5) Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to— (a) tackle prejudice, and (b) promote understanding. (6) Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act. (7) The relevant protected characteristics are— • age; • disability; • gender reassignment; • pregnancy and maternity; • race; • religion or belief; • sex; • sexual orientation. (8) A reference to conduct that is prohibited by or under this Act includes a reference to— (a) a breach of an equality clause or rule; (b) a breach of a non-discrimination rule. (9) Schedule 18 (exceptions) has effect.” (8) A reference to conduct that is prohibited by or under this Act includes a reference to— (a) a breach of an equality clause or rule; (b) a breach of a non-discrimination rule. (9) Schedule 18 (exceptions) has effect.”
“It is the clear purpose of section 71 to require public bodies to whom that provision applies to give advance consideration to issues of race discrimination before making any policy decision that may be affected by them. This is a salutary requirement, and this provision must be seen as an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation. It is not possible to take the view that the Secretary of State’s non-compliance with that provision was not a very important matter.”
“77. Contrary to a submission advanced by Ms Mountfield, I do not accept that this means that it is for the court to determine whether appropriate weight has been given to the duty. Provided the court is satisfied that there has been a rigorous consideration of the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then as Dyson LJ in Baker (para 34) made clear, it is for the decision maker to decide how much weight should be given to the various factors informing the decision. 78. The concept of "due regard" requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision maker. In short, the decision maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors. If Ms Mountfield's submissions on this point were correct, it would allow unelected judges to review on substantive merits grounds almost all aspects of public decision making.”
“(1) As stated by Arden LJ in R (Elias) v Secretary of State for Defence[2006] 1 WLR 3213 ;[2006] EWCA Civ 1293 at [274], equality duties are an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti-discrimination legislation. (2) An important evidential element in the demonstration of the discharge of the duty is the recording of the steps taken by the decision maker in seeking to meet the statutory requirements: R (BAPIO Action Ltd) v Secretary of State for the Home Department[2007] EWHC 199 (QB) (Stanley Burnton J (as he then was)). (3) The relevant duty is upon the Minister or other decision maker personally. What matters is what he or she took into account and what he or she knew. Thus, the Minister or decision maker cannot be taken to know what his or her officials know or what may have been in the minds of officials in proffering their advice: R (National Association of Health Stores) v Department of Health[2005] EWCA Civ 154 at [26 – 27] per Sedley LJ. (4) A Minister must assess the risk and extent of any adverse impact and the ways in which such risk may be eliminated before the adoption of a proposed policy and not merely as a “rearguard action”, following a concluded decision: per Moses LJ, sitting as a Judge of the Administrative Court, in Kaur & Shah v LB Ealing[2008] EWHC 2062 (Admin) at [23 – 24]. (5) These and other points were reviewed by Aikens LJ, giving the judgment of the Divisional Court, in R (Brown) v Secretary of State for Work and Pensions[2008] EWHC 3158 (Admin) , as follows: (i) The public authority decision maker must be aware of the duty to have “due regard” to the relevant matters; (ii) The duty must be fulfilled before and at the time when a particular policy is being considered; (iii) The duty must be “exercised in substance, with rigour, and with an open mind”
“60. In the end, drawing together the principles and the rival arguments, it seems to me that the 2010 Act imposes a heavy burden upon public authorities in discharging the PSED and in ensuring that there is evidence available, if necessary, to demonstrate that discharge. It seems to have been the intention of Parliament that these considerations of equality of opportunity (where they arise) are now to be placed at the centre of formulation of policy by all public authorities, side by side with all other pressing circumstances of whatever magnitude. … 69. The Judge decided that even had he reached the conclusion that the PSED had not been discharged, he would have confined the relief to an appropriate declaration. He took that view because (as he put it) “A number of significant developments remain outstanding” (paragraph 56 of the judgment). It is probably my fault, but I am not clear what he meant by this. It seems to me that if a decision is reached without due regard to the PSED then it is an unlawful decision and, subject to any overarching discretionary features, the decision should be quashed. That is the course that I would adopt in this case and, if my Lords agree, I would allow the appeal and quash the decision now under challenge.”
“In the present case the protected characteristic is that of “race” as defined. Since “race” includes national origins, and a racial group may be made up of two or more distinct sub-groups, non-UK nationals are a class of people sharing a racial characteristic. It is also possible, of course, to define [A’s] protected characteristic differently. As well as being a non-UK national, he is also a non-UK/EEA national, a Turkish national, and a person of Kurdish ethnicity. Each of these could be described as a protected characteristic.”