Chen, R (On the Application Of) v Secretary of State for the Home Department

Part VI of the Immigration and Asylum Act 1999 (“the 1999 Act”) contains a scheme for the support and subsistence of those who apply for asylum in the United Kingdom who appear to be or to be likely to become destitute and the dependants of such persons. Such support is provided by the National Asylum Support Service (hereafter “NASS”), a section of the United Kingdom Border Agency. The claimant, Cai Juan Chen, a national of the People’s Republic of China, is a person whose application for asylum has been refused but who continues to receive support and subsistence under section 95 of the 1999 Act because she has a dependant child under eighteen in the United Kingdom. She is in what can loosely described as an “off/on” relationship with Wen Bun Wu, another national of the People’s Republic of China whose application for asylum has been refused.

In these proceedings, launched on 16 May 2011, the claimant challenges the decision of the Social Entitlement Chamber (Asylum Support) of the First Tier Tribunal on 1 March 2011 dismissing her appeal against the refusal of the Secretary of State to treat Mr Wu as her dependant for the purposes of the law on asylum support. If he is treated as her dependant, the Secretary of State will be obliged to provide her with additional support, including, it is submitted on her behalf, permitting him to reside with her at the accommodation provided to her by NASS. Amended grounds were filed on her behalf on 7 November, and, at a hearing on 30 January 2012, permission was given by HHJ Cooke.

In general (see for example MK and TM v Secretary of State for the Home Department [2010] EWHC 1002 (Admin) at [8] – [10], affirmed [2011] EWCA Civ 671) support and subsistence under section 95 of the 1999 Act is only provided for asylum seekers pending the determination of their application for refugee status. By section 95(4) the dependants of a person who is in receipt of support under section 95 are also entitled to the benefit of that support. After an individual’s application for refugee status has been refused, in general he or she will only be entitled to a more restricted level of support pursuant to section 4 of the 1999 Act. The support under section 4 is restricted in order to minimise the incentive for those whose applications for asylum have been rejected to remain in the United Kingdom although they have no legal right to do so. It was established as an alternative to detention for such persons where there is a temporary barrier to removal.

Section 94(1)(a) and (b) of the 1999 Act providethat spouses and dependant children under 18 are to be treated as dependants. Section 94(1)(c) enables further categories of “dependant” to be to be added by regulations. Six additional categories have been added by the Asylum Support Regulations 2000 SI 2000 No 704 (“the 2000 Regulations”). One of those is a person in the United Kingdom who “had been living with [the asylum-seeker or supported person] as a member of an unmarried couple for at least two of the three years before the relevant time”: see regulation 2(4)(f) of the 2000 Regulations. The “relevant time” is (see regulation 2(5)) the time a person in receipt of section 95 support applies for the other person to be treated as a dependant. It is common ground that Mr Wu does not qualify as the claimant’s dependant under 94(1)(a) or on any ordinary reading of the 2000 Regulations, in particular regulation 2(4)(f).

The question for determination is whether the ordinary (common law) interpretation of regulation 2(4)(f) complies with the the requirements of Articles 8 and 14 of the European Convention on Human Rights (“the ECHR”), and, if it does not, whether Parliament has required the court, by virtue of section 3 of the Human Rights Act 1998, to read the provision so as to make it comply with the Convention.

After the substantive hearing on 9 July, the parties made further written submissions in the light of the 18 July 2012 decision of Eady J in Laurie Swift v Secretary of State for Justice [2012] EWHC 2000 (QB). In the claimant’s submissions, my attention was also drawn to the 13 July 2010 decision of the Strasbourg court in Clift v United Kingdom [2010] ECHR 1106 which differed from the House of Lords as to whether the difference of treatment in that case was on a ground protected by Article 14 of the ECHR.

The claimant arrived in the United Kingdom on 29 September 2007 and applied for asylum. Her application was refused in March 2008. In July 2009 she gave birth to a son, now aged three. She maintains that Mr Wu is the father of this child. Although the Secretary of State did not formally concede that he is, the case before me largely proceeded on the assumption that he is. For the purposes of these proceedings I also assume that he is. After the birth of her son, the claimant made further submissions in support of her claim to asylum. Those submissions were refused in April 2010. Her appeal against that decision was dismissed by the Immigration and Asylum Chamber of the First Tier Tribunal in October 2010.

Mr Wu entered the United Kingdom clandestinely after the claimant. At his asylum appeal he claimed to have arrived at Glasgow airport on 2 December 2007. He worked illegally until he was arrested on 7 September 2010. He applied for asylum the next day but his application was refused on 1 October 2010. His appeal against that refusal was dismissed by the Immigration and Asylum Chamber of the First Tier Tribunal on 22 December 2010. In the period between 8 September and 22 December 2010, while Mr Wu was an applicant for asylum, he was provided with his own support under section 95. That support included accommodation 23 St Paul’s Road, Nottingham, at the address at which the the claimant was also provided with accommodation under section 95. Mr Wu’s position changed after his application for asylum was refused and his appeal was dismissed. He was informed that his own support under section 95 was to be discontinued on 21 February 2011. Jumping ahead in the chronology, after these proceedings were brought, on 20 June 2011, Mr Wu applied for the more limited support under section 4 of the 1999 Act. The application was refused on the same day.

For both the claimant and Mr Wu, absent the applicability of an exception to the general rule (to which I have referred at [3]), they were entitled to asylum support under section 95 of the 1999 Act until the determination of their applications for asylum. Thereafter they were not. It is clear that the claimant falls within the exception to the general rule in section 94(5) of the 1999 Act because she is a person who has a dependant minor child in the United Kingdom. Section 94(5) provides that such a person is to be treated as continuing to be an asylum-seeker for support purposes, so long as the child is under eighteen and the person and the child remain in the United Kingdom. The claimant has been provided with accommodation and subsistence support under section 95 since shortly before the birth of her son in July 2009.

If Mr Wu qualifies under the legislative scheme as the claimant’s dependant, although his own independent support under section 95 of the 1999 Act ceased on 21 February 2011 he would fall within section 95(4). As such, although he is a failed asylum-seeker, he would be entitled to support under section 95 by virtue of that dependancy. He would thus fall within what might be described as another exception to the general rule. The difficulty facing this view of the position is that Mr Wu is not married to the claimant and his relationship with her has not been a consistent one. There is a dispute as to its history and extent, and the decisions of both the Immigration and Asylum Chamber and the Social Entitlement Chamber (Asylum Support) of the First Tier Tribunal put into question his and the claimant’s credibility.

There is no agreement as to the underlying factual position. Mr Manknell, on behalf of the Secretary of State, relied on the findings made by the Tribunals which have considered the cases of the claimant and Mr Wu. Those Tribunals rejected a number of the important parts of the evidence in support of the claimant’s case and made adverse credibility findings in respect of both of them.

The claimant’s evidence in these proceedings is that she and Mr Wu lived together in China as a couple for around three years from 2004, had one child and adopted another, but separated in early 2007 due to arguments. Her evidence is that they were reunited in the United Kingdom in December 2007 and lived together, but separated again in February or March 2008. She also stated that Mr Wu stayed with her at 23 St Paul’s Road for two or three nights a week between June and September 2009, and that they became reconciled in September 2010, the month in which he was arrested, since when they have been living together at 23 St Paul’s Road. Since the March 2011 decision of the Social Entitlement Chamber (Asylum Support) of the First Tier Tribunal, the claimant has submitted DNA evidence which, it is said, confirms that Mr Wu is the father of the child born in the United Kingdom. She contends that it can be inferred from the presence of Mr Wu’s name on the birth certificate that he was present when the birth was registered. The claimant has also submitted photographs which she stated show Mr Wu and her with their eldest child in China.

I have referred to the decisions of the Immigration and Asylum Chamber of the First Tier Tribunal (per Tribunal Judges Tully and IF Taylor) which considered and dismissed the claimant’s and Mr Wu’s appeals against the refusal of their asylum claims. Tribunal Judge Tully heard the claimant’s appeal in October 2010. She rejected the claimant’s evidence that she had a son and an adopted son who were being cared for by her parents in China. Tribunal Judge IF Taylor dealt with Mr Wu’s appeal in December 2010, and heard evidence from him and the claimant. He made adverse credibility findings against both of themthem. He found they had not been in a relationship in China, and was not satisfied that the child born in July 2009 in the United Kingdom was Mr Wu’s child.

I turn to the findings of fact in the decisions of the Social Entitlement Chamber (Asylum Support) of the First Tier Tribunal. The March 2011 decision of Tribunal Judge Jessica Wyman which is challenged in these proceedings was the second decision by that Tribunal about Mr Wu’s status. A decision in January 2011 by Tribunal Judge Rebecca Owens had dismissed the claimant’s appeal against an earlier decision by the Secretary of State not to treat Mr Wu as the claimant’s dependant. I am not directly concerned with that decision save in relation to findings of fact which were adopted by Tribunal Judge Jessica Wyman. The principal findings of fact made in the earlier decision and adopted in the later decision were: (a) the couple accepted that they were not legally married but had only entered into a “cultural” marriage, (b) the claimant and Mr Wu had cohabited at some time between September 2007 and October/November 2008, but (c) they then split up and lost contact for two years until September 2010 since when they had been living together “on a permanent basis”. (Footnote: ¹) Tribunal Judge Jessica Wyman did not refer to Tribunal Judge Rebecca Owens’ finding that the claimant and Mr Wu were in a personal relationship in China, had a natural child together, and adopted another child. She also (see decision, paragraphs 14 - 15) took a different approach to Tribunal Judge Rebecca Owens on the question of Article 8 of the ECHR.

The Secretary of State’s decisions (on 3 December 2010 and 15 February 2011) refusing to treat Mr Wu as the claimant’s dependant did so inter alia because he is not her spouse (and therefore within section 94(1)(a) of the 1999 Act and regulation 2(4)(a) of the 2000 Regulations) and has not “had been living with her for the qualifying period of two of the three relevant years (and therefore within regulation 2(4)(f) of the 2000 Regulations). It was the claimant’s appeal against the first decision that was dismissed by the Social Entitlement Chamber (Asylum Support) of the First Tier Tribunal presided over by Tribunal Judge Rebecca Owens. On 11 February 2011he claimant made a second application for Mr Wu to be treated as her dependant and added to her support. That application was also refused. It was the claimant’s appeal against that decision that was dismissed by the Tribunal presided over by Tribunal Judge Jessica Wyman on 1 March 2011. The Tribunal Judge concluded (see decision, paragraphs 18-20 and 23) that Mr Wu (who, notwithstanding her finding that the couple were not legally married, she referred to as the claimant’s “husband”) did not satisfy any of the definitions of dependant in the 2000 Regulations.

I turn to the treatment of the ECHR by the two decisions of the Social Entitlement Chamber (Asylum Support) of the First Tier Tribunal. At the time of the appeal to the Tribunal presided over by Tribunal Judge Rebecca Owens, Mr Wu was being provided with section 95 support to live at the same accommodation as the claimant because of his own application for asylum. The Tribunal Judge considered the impact of Article 8 but stated (decision, paragraph 19), that, as Mr Wu was provided with section 95 support at the same accommodation there was no interference with the couple’s right to family life contrary to Article 8.

By the time of the appeal to the Tribunal presided over by Tribunal Judge Jessica Wyman, the position had changed. Mr Wu’s section 95 support had been terminated. At the hearing, the claimant’s representatives submitted that, if her application that Mr Wu be treated as her dependant was not granted, “the family will not be able to maintain their rights to family life under Article 8 ...”. At paragraph 24 of her decision, the Tribunal Judge stated:

“[t]his is not a matter for the Asylum Support Tribunal to consider and is outside our remit. The issue before the Tribunal is whether or not the appellant satisfies the definition of a dependant,”

It is common ground that she erred on this matter. Subject to the limitations in sections 6(2) and (6) of the Human Rights Act 1998 (which do not apply) the Tribunal is, as a public body, obliged by section 6(1) of the Act, not to act in a way which is incompatible with an ECHR right. Accordingly, she was obliged to consider this question, as the earlier Tribunal had: see [16].

I have referred to the fact that it is common ground that, on any ordinary reading of the 2000 Regulations Mr Wu does not qualify as the claimant’s dependant. Mr Wu is not the claimant’s husband (and thus within section 94(a) and regulation 2(4)(a)) of the 2000 Regulations), had not been living with her as “a member of an unmarried couple” for “at least two of the three years before the relevant time” (and thus within regulation 2(4)(f)) of the 2000 Regulations, and does not fall within any of the other categories of “dependant” in the regulations.

Mr Chataway, on behalf of the claimant, submitted (skeleton argument, paragraph 2) that, pursuant to section 3 of the Human Rights Act 1998, in order to avoid a breach of Articles 8 and 14 of the ECHR, “the definition [in reg. 2(4)] can and must be read so as to include Mr Wu”. The interpretative obligation in section 3 to read and give effect to legislative provisions in a way which is compatible with the rights in the ECHR “so far as it is possible to do do” and creates a very strong and far-reaching obligation. It was described by Lord Cooke of Thorndon in R v DPP, ex p. Kebilene [2000] 2 AC 326, at 373 as a “strong adjuration”. Mr Chataway’s primary case was that the claimant and Mr Wu were arbitrarily excluded from support available to other couples in a way which amounted to discrimination and a breach of Article 14 when read with Article 8. But he also maintained that their exclusion constituted unfair treatment and is a free-standing breach of Article 8 because (skeleton argument, paragraph 61(b)) the claimant was given what is described as a stark choice of requiring Mr Wu to leave 23 St Paul’s Road or face the withdrawal of her own support.

On behalf of the Secretary of State, Mr Manknell submitted that the 2000 Regulations are not incompatible with Article 8 and do not discriminate contrary to Article 14. He maintained that the requirement that for an unmarried partner to qualify as a dependant he or she must have lived with the person for a minimum of two of the last three years is a legitimate and proportionate threshold for striking the balance between recognising recent relationships and minimising the scope for abuse of the asylum support system. He also maintained that the different treatment of a person who has lived with an unmarried partner for the two year period is not based on a status within Article 14 and, in any event, is justifiable.

It is accepted by the Secretary of State that the discrimination alleged by the claimant falls within the ambit of Article 8, and that therefore Article 14 applies. Although, as I have stated, Mr Chataway gave primacy to his submissions on Article 14, it is convenient first to consider those advanced in support of the argument that there has been a free-standing breach of Article 8. Before addressing the respective submissions on this, I make three observations.

First, as is clear on the face of Article 8, the right to family life under it is not an unqualified right. Secondly, as is well known, one of the justifications for interfering with the right to family life is the need to maintain immigration control. Thirdly, whether there is interference with the right, and, if so, whether the interference is disproportionate is a highly fact-sensitive matter.

The third point was recognised in the context of asylum support in MK and another v Secretary of State for the Home Department [2011] EWCA Civ 671 at [9], [29], and [31] (per Sullivan and Gross LJJ and Sir Anthony May). MK’s case concerned an unsuccessful applicant for refugee status in receipt of section 4 support whose partner was a British citizen. He challenged the refusal to make arrangements for him to be placed at his partner’s home. One of the well-known factual factors in the assessment of the position in cases such as this is whether family life in the United Kingdom started or continued with knowledge that one or both of the parties had no right to be in this country or that their immigration status is precarious.

There are, as Mr Chataway pointed out, differences between MK’s case and this one, including the the fact that the claimant’s residence at his partner’s home did not put her welfare benefits at risk and that she was not required to exclude him. Despite the differences, the case is of some assistance. At first instance, Mr Supperstone QC, as he then was, considered (see [2010] EWHC 1002 (Admin) at [40]) that the provision of separate accommodation to the claimant did not, in the light of all the relevant facts of that case, constitute an interference with his family life. Relying in part on the decision of the Strasbourg Court in Konstatinov v The Netherlands [2007] ECHR 336, [2007] 2 FCR 194 at [48], he also stated (see [50] – [58]) that, if, contrary to his view, it was an interference with the claimant’s family life, it was not a disproportionate and unjustified interference because, inter alia, it did not effectively rupture that family life.

By the time the case came before the Court of Appeal, the claimant had been granted leave to remain. The issue was therefore no longer a live one so the Court of Appeal was not required to decide this point. For that reason, and because of the fact-sensitivity of the matter, Sullivan and Gross LJJ did not express a view. But Gross LJ appeared sceptical about the submissions on behalf of claimant in that case and Sir Anthony May (at [31]) disagreed with the proposition that “the provision of accommodation which puts one member of a family in different accommodation from others is bound to require justification under Article 8”.

In the light of all this, including the indications in MK’s case, it might be thought, given the on/off nature of the claimant’s relation with Mr Wu and the state of the evidence before the Secretary of State and the Tribunal, that the decisions which are challenged in this judicial review are not surprising.

The claimant’s free-standing Article 8 claim largely depends on the impact of the prohibition on Mr Wu residing with her at 23 St Paul’s Road, which Mr Chataway submitted gave her the option of requiring him to leave or of losing her own support. I have noted (at [19]) Mr Chataway’s submission that, for this reason, this case differs from MK’s case. There are, however, formidable legal and factual difficulties with the free-standing Article 8 claim.

The legal difficulties stem from the fact that it is well settled law that Article 8 does not in itself guarantee a right to be provided with accommodation or other welfare assistance: see R (Q) v Secretary of State for the Home Department [2003] EWCA Civ 364 at [64], and Chapman v United Kingdom (2001) 33 EHRR 399. It is also settled that the special circumstances in which Article 8 may impose such an obligation are generally ones in which the impact is so severe that Article 3 of the ECHR is engaged: Anufrijeva v London Borough of Southwark [2004] 2 QB 1124 at [43], after reviewing the Strasbourg jurisprudence, including Marzari v Italy (1999) 28 EHRR CD175.

Where the welfare of children is involved, an obligation pursuant to Article 8 to provide accommodation or other welfare assistance may (see Anufrijeva’s case at [43]) be easier to establish. Even there, the test is whether, absent an Article 8 obligation, family life can continue. In the language of Konstatinov v the Netherlands, it is the extent to which family life is effectively ruptured.

With that summary of the legal requirements, and bearing in mind that the right to family life is not an unqualified right and that the need to maintain immigration control will justify proportionate interference with it, I turn to the factual position. On the material available at the time of the Tribunal’s decision and the hearing before me, there was no evidence that the effect of the refusal to regard Mr Wu as the claimant’s dependant and to allow him to reside at 23 St Paul’s Road would have an impact of the required severity and would effectively rupture the family life of the claimant and their son with him. In the absence of any evidence by Mr Wu, or other supporting evidence, and in the light of the rejection of his application for section 4 support (see [8]) there is no material before me from which I can conclude that he has no resources for travelling to see them, or that he is unable to obtain accommodate in a location near the claimant and their child.

Other factual difficulties with the claimant’s case emerged after the hearing. At my request, Mr Luke, the claimant’s solicitor, made enquiries with those providing her accommodation and with the Refugee Council’s “Advice and One-Stop Service”, which the United Kingdom Border Agency has engaged to provide advice on matters, including the provision of “NASS” accommodation. Mr Luke was helpfully able to provide three items of information from those providing the claimant’s accommodation and the Refugee Council. First, there is no prohibition on occupants of NASS accommodation receiving visitors at the property. Secondly, visitors are generally permitted to attend and remain at the property for reasonable periods of time during sociable hours. Thirdly, visitors should not interfere with other occupants’ quiet enjoyment of the property, and complaints may, in appropriate cases, give rise to a request by the provider that visits take place away from the property.

In these circumstances, I consider that this is one of those cases in which the provision of accommodation which puts a person who is in a relationship with another in different accommodation from that other does not require justification under Article 8. If, however, I am wrong and Article 8 is engaged, I do not consider that the refusal to accept Mr Wu as a dependant and to accommodate him with the claimant and their son has an impact on their family life which is sufficiently severe not to be justifiable under Article 8(2) as proportionate in the interests of immigration control and preventing abuse of the asylum support system. It is open to him to visit the accommodation, and to take his meals with the claimant and his son, and while he is there, to care for his son and to enjoy other aspects of family life with the claimant. It is also open to the three of them to meet elsewhere and to enjoy family life while so doing.

I therefore turn to Article 14. The question is whether the “cohabitation for two out of the three years before the relevant time” rule in regulation 2(4)(f) of the 2000 Regulations is incompatible with Article 14 when read with Article 8.

Article 14 provides:

“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.”

A concept of discrimination and thus the operation of Article 14 requires a comparison of the person complaining of discrimination with another person or persons. In the present case Mr Chataway relied on two comparators. The first is an applicant with an unmarried partner with whom he has lived for two of the past three years but has no children. The second is an applicant who is married to his partner but has no children.

There have been different formulations of the approach to Article 14 in the English courts. The authorities differ as to the extent to which the four part test formulated by Brooke LJ in Wandsworth LBC v Michalak [2003] 1 WLR 617 at [20] and the fifth question confirmed by Baroness Hale in Ghaidan v Godin-Mendoza [2004] 2 AC 557 at [134] assist in the determination of whether Article 14 has been breached. R(Carson) v Secretary of State for Work and Pensions [2006] 1 AC 173 and subsequent authorities such as R (British Gurka Welfare Society) v Ministry of Defence [2010] EWCA Civ 1098 favour a single question approach. The single question is: “Is there enough of a difference between X and Y to justify different treatment?”

The reason for the move away from the Michalak questions primarily concerned the third and fourth questions. These are: “Were the chosen comparators in an analogous situation to the complainant’s situation?”, and, “If so, did the difference in treatment have an objective and reasonable justification?”. It was considered (see Lord Nicholls and Lord Hoffmann in Carson’s case at [3] and [30]) that the relationship between these two questions was not clear and that there was an apparent overlap between them. Lord Nicholls (at [3]) favoured keeping the “formulation of the relevant issues in these cases as simple and non technical as possible”, and to focus on justification where it is not clear that the situations of the claimant and the comparators is not analogous. Lord Walker stated (at [68]) that “the evaluative process may not be assisted by setting out standard questions as a series of hurdles to be surmounted in turn”.

However, when considering Article 14 the Strasbourg Court in Carson’s case, application No. 42184/05, [2010] 51 EHRR 13, in effect asked three questions. These were:

Perhaps as a result of the approach of the Strasbourg Court in the Carson case, Mr Manknell’s formulation (skeleton argument, paragraph 28) identified three further questions. Having shown that the alleged discrimination is within the ambit of another Convention Article, he submitted that, in order to succeed in a claim based on Article 14, a claimant must show:

Mr Chataway (skeleton argument, paragraph 46) accepted, as he had to in the light of the Strasbourg jurisprudence, that “other status” is to some “personal characteristic” by which persons or groups are distinguishable from each other and does not extend to matters of mere historical fact unrelated to personal circumstances. For example in R (S) v Chief Constable of South Yorkshire Police [2004] 1 WLR 2196 it was held that the possession of fingerprints and DNA samples by the police was a matter of historical fact rather than the personal status of characteristics of the people who had supplied their fingerprints or DNA samples. But he relied on statements by Lord Hope and Lord Neuberger (in R (Clift) v Secretary of State for the Home Department [2007] 1 AC 484 at [48] and R (RJM) v Secretary of State for Work and Pensions [2009] 1 AC 311 at [42]) that the term “other status” should be given “a generous meaning”. Relying on the decision in Carson’s case and that of Sir Peter Gibson in Francis v Secretary of State for Work and Pensions [2006] 1 WLR 3202 at [27] he also submitted that a “personal characteristic” need not be immutable and may be a matter of choice.

In Francis’s case it was held that whether the responsibility for a child arose because of a residence order or because of an adoption order was a “personal characteristic” and thus within the concept of an “other status”. Sir Peter Gibson stated that the residence order, while an historical fact, “relevantly gave rise to a continuing relationship between the person who thereby had parental responsibility for a child and the child”. Mr Chataway submitted that, in the present case too, the difference of treatment is not based only on mere historical fact. He argued that whether or not a person is a cohabitee plainly amounts to an “other status” because the cohabitation has given rise to a continuing relationship. Just as being “married” or being “unmarried” is a status, so is being a “cohabitee”. He also pointed to the recognition in RJM’s case that homelessness might be an “other status”.

Mr Chataway’s submissions as to the need for a generous interpretation of “other status” and that a status or personal characteristic is not required to be immutable, innate or inherent also gain support from the July 2010 decision of the Strasbourg court in Clift v United Kingdom [2010] ECHR 1106, at [56]- [59] to which he referred in his post-hearing submissions. See also Eady J’s observation in Lawrie Swift v Secretary of State for Justice [2012] EWHC 2000 (QB) at [47] that the latter point is obvious from the wording of Article 14, which includes examples such as language, political opinions and property. The line between immutable characteristics and others may in any event be less bright than it once was. Even gender may not be immutable in a world in which individuals are able to have medically assisted gender reassignment.

The final stage of this part of Mr Chataway’s argument was that, since a difference based on cohabitation is based on an “other status”, the requirement that the cohabitation be for two of the three years before the application to treat the individual as a dependant of the person in receipt of section 95 support is based on the degree or duration of cohabitation. Relying on Chassagnou v France (2000) 29 EHRR 615 he submitted that, a distinction based on degree will still be within Article 14 if it is based on one of the proscribed grounds. In that case a distinction between landowners based on amount of land owned was held to be discrimination on grounds of “property” in breach of Article 14. He stated (skeleton argument, paragraph 48(c)) it must follow that “if cohabitation falls within the proscribed grounds, then any difference in treatment based on how long a couple have cohabited can also amount to discrimination on proscribed grounds”. Again his submissions gain support from the decision of the Strasbourg court in Clift v United Kingdom.

In Clift’s case the House of Lords had held, albeit with hesitation on the part of Lord Bingham, that different treatment of prisoners serving determinate sentences based on the length of their sentence was not based on an “other status”. In that case the challenge was to the power of the Secretary of State to reject a recommendation by the Parole Board that a prisoner be released on licence. At the material time, the Secretary of State had such power only in relation to recommendation concerning a prisoner serving a determinate sentence of fifteen years or more. He had no power to reject a recommendation concerning a prisoner serving a shorter determinate sentence or one serving a life sentence. Lord Bingham ([2007] 1 AC 484 at [28]) stated that he inclined to regard a life sentence as an acquired personal characteristic and it was hard to see why a classification based on the length of sentence should be regarded differently. He also stated that he found it “difficult to apply so elusive a test”. But he did not conclude that the difference of treatment was based on an “other status” because he considered “a domestic court should hesitate to apply the Convention in a manner not … explicitly or implicitly authorised by the Strasbourg jurisprudence”. This consideration also weighed with Lord Hope and Baroness Hale: see [49] and [63].

Lord Bingham’s inclination and hesitation was vindicated by the decision of the Strasbourg Court. It held that that the different treatment based on the length of the prisoners’ sentence was based on an “other status”. It rejected (at [61]) the submission that the difference was based on the gravity of the offence and thus, in the light of the decision in Gerger v Turkey 8 July 1999, not within the prohibition in Article 14. It was also (see [60]) not persuaded by the Government's argument that the treatment of which an applicant complains must exist independently of the “other status” upon which it is based.

Despite the strength of Mr Chataway’s submissions, and the additional support for them provided by the decision of the Strasbourg court in Clift’s case, I incline to the view that in this case the difference of treatment based on regulation 2(4)(f) of the 2000 Regulations does not fall within the term “other status” in Article 14. I do so primarily because the difference in treatment is based not on cohabitation itself but the length of cohabitation. The submission on behalf of the claimant requires any period of cohabitation (save possibly the “one-night stand” referred to by Eady J in in Lawrie Swift v Secretary of State for Justice at [58]) to be treated as an “other status”. Although it may be that so treating those who have cohabited for very short periods would not be difficult to justify, I shrink from concluding that very short cohabitation in this and other contexts would engage Article 14 so as to require justification. One reason for my reluctance is that, to use the treatment of which an applicant complains as itself creating the status has a certain “pulling oneself up by one’s bootstraps” element to it.

More importantly, it is difficult to see how, if the argument that the treatment must exist independently of the “other status” upon which it is based, is rejected, as it effectively was by the Strasbourg Court, and no alternative criterion is provided, the limitation on the scope of Article 14 contained in its language and consistently recognised by the jurisprudence of the Strasbourg Court is not rendered nugatory in the way suggested by for example R (S) v Chief Constable of South Yorkshire Police [2004] 1 WLR 2196 at [48] per Lord Steyn, citing Kjeldsen and others v Denmark (1976) 1 EHRR 711. It is significant that in Clift’s case the Strasbourg Court did not provide another criterion for identifying a personal characteristic. All that it said (at [60]) was that “[t]he question whether there is a difference of treatment based on a personal or identifiable characteristic in any given case is a matter to be assessed taking into consideration all of the circumstances of the case and bearing in mind that the aim of the Convention is to guarantee not rights that are theoretical or illusory but rights that are practical and effective …” . That approach does not make the test any less elusive, and will not assist in the development of a certain and predictable body of law.

In view of the approach taken by the Strasbourg Court in Clift’s case and the undoubted elusiveness of the test, I do not rest my decision on the ground that the difference of treatment is not an “other status” and therefore not protected by Article 14. I turn to the two other questions. The first is whether the comparators relied on in support of the claimant’s case are in a relevant similar situation to her.(In Michalek’s case the phrase used was “an analogous situation”) If they are, the second question is whether the difference in treatment that is the result of regulation 2(4)(f) is justifiable.

I have referred to the fact (see [36]) that the criticisms in Carson’s case of Brooke LJ’s questions in Michalek’s case concerned these two questions, and the apparent overlap between them. Lord Hoffmann observed of Brooke LJ’s formulation that if an “analogous situation” “means that the two cases are not relevantly different (no two cases will ever be exactly the same) then a relevant difference may be the justification for the difference in treatment”: [2006] 1 AC 173 at [30]. It was for this reason that, in Carson’s case, Lord Nicholls considered (at [3]) that where there is no obvious relevant difference between the cases “the court’s scrutiny may best be directed at considering whether the differentiation has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not disproportionate in its adverse impact”.

On this question, Mr Chataway submitted that both comparators (identified above at [34]) are in a relevantly similar position to the claimant. Paragraph 44 of his skeleton argument stated that the Tribunal may find that her relationship with Mr Wu goes back to 2004, that in the period since then they have lived together for substantially more than two years, had a family together in China, and that they are now living with their third child in the United Kingdom. In those circumstances, he maintained the family bond is at least as strong as the first comparator couple who have no children. He submitted that the only significant difference is that the claimant and Mr Wu fall outside the two out of three years rule but the other couple does not, “i.e. the very difference complained of”.

As far as the second comparator couple is concerned, Mr Chataway invited me to prefer the approach of the House of Lords in Re G (Adoption: Unmarried Couple) [2009] 1 AC 173 to the well established position in the Strasbourg jurisprudence that those who are married are not in a relevantly similar position to cohabiting couples who are not: see the decision of the Grand Chamber in Burden v United Kingdom (2008) 47 EHRR 38, and the more recent case of Yigit v Turkey (2011) 53 EHRR 25.

I do not consider that the claimant’s case is significantly assisted by Re G and accept Mr Manknell’s submission that the married comparator is not in a relevantly similar position to her. The difference of treatment in G’s case was between married couples who could apply to adopt a child and unmarried couples who could not, however long they had been in their unmarried relationship. In the present case the 2000 regulations do not impose an absolute ban on a cohabitee being treated as a dependant but require a qualifying period of cohabitation. Moreover, in the situation in G’s case (see Lord Hoffmann at [11]), eligibility to make an application was only the first step on the road to adoption. It was followed by thorough scrutiny of the applicants. In the present case, a person who meets the requirements of the 2000 regulations will be subject to no further process to test the degree of permanence of the relationship. If my conclusion that the claimant is not in a relevantly similar position to the second comparator, for the reasons I give in section (vi) of this part of this judgment, the difference of treatment between her and the second comparator is justified.

I turn to the first comparator couple. Mr Chataway submitted that there is no “obvious relevant difference” between them and the claimant and that, in the light of Lord Nicholls’ statement in Carson’s case (see above [32]), the focus of the court should be on the question of justification. He (see skeleton argument, paragraph 50) argued that the Tribunal may find that on the facts the claimant is in a closely analogous position to the first comparator (see above at [34]) and difference of treatment despite that closeness and the severity of the consequences that follow from the application of regulation 2(4)(f) in the circumstances of this case calls for persuasive justification. While accepting that the length of the cohabitation is a relevant factor in assessing dependency, he maintained that because regulation 2(4)(f) permits no account to be taken of any other factors, in particular the presence of the child, it is arbitrary and inflexible. Thirdly, he submitted that the effect of the provision is to frustrate the Secretary of State’s duty under section 55 of the Borders, Citizenship and Immigration Act 2009 to safeguard and promote the welfare of the child.

The part of the claimant’s case based on the alleged severity of the consequences that follow from the application of the regulations largely falls away as a result of the conclusions in the section of this judgment dealing with Article 8. Much of the rest of her case on “analogous position” is contingent upon the Tribunal, if the case is remitted to it, making findings that differ radically from those found by the various decisions in the Social Entitlement Chamber (Asylum Support) and the Immigration and Asylum Chamber of the First Tier Tribunal. In the present state of the decisions (none, save for the most recent one, have been challenged) the reason the claimant and Mr Wu have not cohabited for two of the last three years is not because of an external factor such as imprisonment or being forbidden to cohabit in NASS accommodation. It is because they decided to split up in October or November 2008 and lost contact. Absent new and radically different findings, the claimant’s position is clearly not analogous to a cohabitant who satisfies the “two out of the last three years” requirement in regulation 2(4)(f). I deal with the prospect of the Tribunal making such findings at [67] and [69]. But, for the purpose of this part of the case, I shall assume that the Tribunal might do so, and focus on the question of justification.

While accepting the legitimacy of the aim of the regulations, the need for a workable scheme, and that the length of the cohabitation is a relevant factor in assessing dependency, Mr Chataway submitted that it is the inflexibility of regulation 2(4)(f) that means the difference of treatment between the claimant and the comparators is not justified. He also submitted that the suggestion made on behalf of the Secretary of State that the regulations provide legal certainty and a workable rule is illusory, because the decision maker is still required to determine whether two people have “been living together as an unmarried couple” and because the unmarried partners of applicants for asylum who have supplemental rights inder Article 2 of the Reception Directive, Council Directive 2003/9/EC of 27 January 2003 have rights where they are in a “stable relationship”.

The fact that the 2000 Regulations do not impose an absolute ban on a cohabitee being treated as a dependant but require a qualifying period of cohabitation is also significant to the question of justification when the claimant’s position is assessed against that of the first comparator. I have referred to Mr Chataway’s acceptance that the aim of the regulations in minimising the scope for abuse of the asylum support system and create a workable scheme is legitimate. It is also, in my view, legitimate for the regulations to have a threshold. Otherwise, (see the reference to Eady J’s observation about a “one-night stand” in Laurie Swift v Secretary of State for Justice at [58]) any cohabitation, however short, would be considered analogous to the positions of the married couple and the couple who have cohabited for two out of the past three years.

I consider that such a threshold can also legitimately be used as a surrogate in determining the nature of the relationship, including its degree of permanence and whether it is enduring at the time of the application for support.This is because, in this context, it is administratively sensible and permissible to have a relatively “broad” or “bright” line threshold requirement. What is necessary is that the particular “bright line” adopted be a rational one: see Re G (Adoption: Unmarried Couple) [2009] 1 AC 173 at [13] and [16] and AL (Serbia) v Secretary of State for the Home Department[2008] UKHL 42 at [44] – [46], followed in R (Chapti) v Secretary of State for the Home Department [2011] EWHC 3370 (Admin) at [132] – [135]. In Re G’s case the court in fact held that there was no rational basis for the bright line chosen, and in AL (Serbia) Baroness Hale stated (at [45]) that not all bright line criteria which are rational on pragmatic grounds are justified. Significantly, she also stated that “bright lines, even if they produce what appear to be arbitrary distinctions between one case and another, are often necessary and can be justified”.

Before turning to whether the bright line in regulation 2(4)(f) of the 2000 Regulations is either not rational or impermissibly arbitrary, it is instructive to compare the present case with Clift’s case, which I discussed on the question of “other status” at [43] and [44]. The House of Lords held that the different treatment of the claimant was not based on an “other status”. But Lord Bingham, with whom Lord Brown agreed, went on to consider whether, had the non-determinative nature of Parole Board recommendations concerning those serving determinate sentences of over fifteen years been based on “status”, the difference in treatment between them and “lifers” and those serving shorter sentences would have been justified. He concluded that it would not because it was an anomalous survivor of legislative changes in the position governing those other categories. He stated (see [2007] 1 AC 484 at [33] & [68]) that by 2002 the non-determinative nature of Parole Board recommendations for those serving determinative sentences of over 15 years “had become an indefensible anomaly because it had by then come to be recognised that assessment of the risk presented by any individual prisoner … was a task with no political content and one to which the Secretary of State could not … (and did not claim to) bring any superior expertise”. The Strasbourg Court agreed: see [2010] ECHR 1106 at [75]. There have been no such developments concerning the 2000 regulations, and, as I shall show, there are similar threshold requirements for cohabitants in other contexts. The position in the present case is thus fundamentally different to that in Clift’s case.

The “bright line” represented by the “two out of the last three years” requirement is, in my view, neither irrational nor unjustified. It is, as I have observed, conceded that the length of a relationship is a relevant factor. I have also observed that I consider it a sensible factor to use as a workable objective indicator of the nature and permanence of a relationship. It balances the need for the need to avoid abuse of the asylum support system by applications in respect of those with whom the person in receipt of section 95 support is not in, or no longer in, a relationship with the need to recognise recent relationships which meet a threshold of constancy. The former need requires the focus to be on the position at the time at and immediately before the application. The latter requires a minimum length.

It is noteworthy that in other contexts, notably the right of action for wrongful action causing death in section 1(3) of the Fatal Accidents Act 1976 (as amended), and proposals for reform by the Law Commission, for example that in respect of bereavement damages in its 1999 Report Claims for Wrongful Death, (Law Com No 263), adopt a requirement that for cohabitants to qualify they had to cohabit for at least two years immediately before the relevant date. The Law Commission (see §§ 6.21 – 6.24) regarded the two year period as showing the “objective indicia of a relationship of permanence and commitment” upon which it considered the availability of damages to cohabitants should turn.

The reasoning of Eady J in Laurie Swift v Secretary of State for Justice [2012] EWHC 2000 (QB) is of particular assistance. That case considered the compatibility of the two year rule required by section 1(3) of the Fatal Accidents Act 1976 with the ECHR. Eady J contrasted marriage, where the date of the marriage is a ready made defining line to evidence the requisite degree of permanence or constancy, and cohabitation, which does not have such a ready made defining line. After referring to the spectrum of possible ways of proceeding, he stated:

“[59] To draw a line anywhere is arbitrary, but there is no substitute for the making of a legislative judgment, since it is necessary to take account of the need for the law to be as clear and predictable in its operation as possible. An alternative would be to leave it to some representative of the state, judicial or otherwise, to make an individual decision in each case. That would surely be open even more to the objection of arbitrariness. …”

and (citing Lord Bingham in R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] 1 AC 1312 at [33]):

“[60] It is obvious, in cases where Parliament chooses to draw a line, that hard cases will fall on the wrong side of it, but that will not invalidate the rule if, judged in the round, it is beneficial; that is to say, if it achieves a purpose which the legislature deems to be desirable.”

I turn to the impact of the fact that the claimant has a young son. It is only because of her son that the claimant has continued to receive section 95 support after the rejection of her application for asylum. I have stated that, although the Secretary of State did not formally concede that Mr Wu is the father of the child, the case largely proceeded before me on the assumption that he was, and that I so assume. Does the fact that the claimant and the child have been residing with Mr Wu impact on Mr Wu’s position vis a vis the claimant? The issue is whether the existence of the child and the fact Mr Wu has been residing with the claimant and the child affects the justifiability of the difference of treatment between the claimant and the comparators. Mr Chataway relied on this as a factor showing that the regulations are arbitrary and inflexible and the difference in treatment is not justifiable. I reject this submission. Mr Wu’s relationship with the child may say something about his relationship with the claimant, but does not necessarily do so. Moreover, the Secretary of State is not obliged to cater in the regulations for all aspects of relationships. That would be inconsistent with the permissibility of “bright-line” rules which meet the requirement of rationality, as I have concluded this one is.

I also reject the submission that it is “illusory” for the Secretary of State to maintain that regulation 2(4)(f) provides certainty and is workable. The fact that certain individuals in receipt of asylum support, for instance those with rights under EU law, may have different and additional rights is irrelevant to this. This will always be the case in any context where (as is often the case) the legal regime is complex and creates different categories of entitlement. The proposition (claimant’s skeleton argument, paragraph 53) that the fact that the regulation requires the determination of whether two people living together are doing so as a married couple, renders the suggestion that it provides “legal certainty and a workable rule” illusory is also untenable. The fact that another requirement in the regulation may require an exercise of judgment which is less mechanical does not mean that the “two out of the past three years” rule is itself uncertain and not justified. The same pair of requirements of living as a married couple and for a defined minimum period are also to be found in section 1(3) of the Fatal Accidents Act 1976 and the Law Commission proposals to which I have referred.

It should also be borne in mind that regulation 2(4)(f) creates a difference that is not based on one of the “suspect” grounds such as race or sex, and is consequently entitled to a lesser degree of scrutiny. The fact that the issue is entitlement to a welfare benefit is a further ground for a lesser degree of scrutiny in this case. This is seen from the well-known passage from the speech of Lord Hope in R v Director of Public Prosecutions, ex p Kebilene [2000] 2 AC 326, at 381. Lord Hope stated that it is “easier to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person … where the issues involved questions of social or economic policy …”.

In R (Waite) v Hammersmith LBC [2002] EWCA Civ 482 Laws LJ, with whom Ward LJ and Sir Peter Gibson agreed, relied on what Lord Hope had said. The Court of Appeal was concerned with regulations governing the entitlement of housing benefit to those at different stages in the criminal process which treated unconvicted prisoners remand in custody and convicted prisoners detained pending sentence differently from the claimant who had been released on licence, but recalled and was awaiting the decision of the Parole Board. Laws LJ considered “the extent to which the court should defer to the judgment of the democratic decision-maker in the context of the Convention rights” and stated (at [37]) that “the distribution of state benefit lies particularly within the constitutional responsibility of elected Government”.

For these reasons, even if, which, for the reasons I give at [67] and [68], I doubt, the Tribunal would, if the case is remitted to it, make findings that differ radically from those found by the various Tribunal decisions to which I have referred, I have concluded that regulation 2(4)(f) is a proportionate means of achieving the legitimate aims of minimising the scope for abuse of the asylum scheme. This is so whether the comparison is with the first or the second comparator.

It was submitted on behalf of the claimant that, since the Secretary of State has conceded that the Asylum Support Tribunal’s 1 March 2011 decision erred in law in refusing to consider whether the application of regulation 2(4)(f) of the 2000 Regulations breached the claimant’s ECHR rights, the decision should be set aside and the matter remitted to the Tribunal. Mr Chataway submitted, on the basis of R (Smith) v Derbyshire PCT [2006] 1 WLR 3315, especially at [10] per May LJ, that the court should be slow to refuse relief on the basis that it is “inevitable” that the Tribunal would adopt the findings of the Immigration Judges who considered the claimant and Mr Wu’s asylum appeals. Remission would be to the Asylum Support Tribunal, which is in a different chamber of the First Tier Tribunal to the Immigration and Asylum Tribunal, and which is not bound by the findings of the Immigration and Asylum Tribunal. In any event he argued that there is new material upon which the claimant relies which was not available at the time of the earlier Tribunal decisions: see [12] above.

I reject these submissions. I was invited by Mr Chataway to take the claimant’s evidence “at its highest” and, in the context of the Article 14 claim and the comparison with the first comparator, I have done so. But, in the light of my conclusions on Article 14 and the free-standing Article 8 claim, the additional material submitted which is said to support the claimant’s account of her relationship with Mr Wu in China from 2004 and that he is father of her young son would not lead to a different conclusion at the Tribunal. Secondly, this court is entitled to take into account the findings of the different tribunals and the way in which the accounts of the claimant and Mr Wu changed at the various hearings and in the material submitted in these proceedings. Thirdly, the reference to “inevitability” in Smith’s case must be seen in the context of that case. It was very different to this case because it concerned the circumstances in which this court should refuse to grant relief in the exercise of its discretion on the basis that an error of law made no difference to the decision. In this case the issue is which view of the facts should be used as the basis for deciding whether there was a breach of the claimant’s Convention rights.

As to my first reason, it is accepted on behalf of the claimant that she and Mr Wu are not legally married. I have concluded that, as a matter of law, the requirement in regulation 2(4)(f) that, to establish dependency, there must have been cohabitation for two of the three years immediately before the application that Mr Wu be treated as a dependant is justified. In those circumstances it is difficult to see how findings about the position in China between 2004 and 2007 or (for the reason given at [32]) whether or not Mr Wu is the father of the claimant’s young son can affect matters. Accordingly, in the light of my conclusions on the law, even if the Tribunal were to make different findings of fact, unless it refused to follow my conclusions of law it would be inevitable for it, on a rehearing for it to dismiss the claim to treat Mr Wu as the claimant’s dependant.

Having explained why, even taking the claimant’s evidence at its highest, a tribunal rehearing the case would dismiss the application, I add that I see very little prospect of the Tribunal making such very different factual findings. This is because of the seriously adverse credibility findings made by the Tribunal in the claimant and Mr Wu’s asylum appeals after hearing evidence from her in her appeal and from both of them in his appeal. There has been no successful appeal in either of those decisions. Moreover, although one reason for the Tribunal rejecting the claimant’s account in her asylum appeal was the absence of evidence or a supporting statement by Mr Wu, in neither the second asylum support decision challenged in these proceedings nor in these proceedings has a statement from Mr Wu been provided to support any of the claim. My assessment is that, in view of this very damning forensic background, it cannot be said that there is a realistic possibility of the Tribunal reaching the conclusion for which the claimant contends.

My conclusions are:

Accordingly, this application is dismissed.