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This appeal is the first immigration case to be heard by the Supreme Court.  There are a series of linked appeals – confusingly the “Case Details” do not give the references for the Court of Appeal decisions under appeal but these appear to be [2008] EWCA Civ 1082 and [2009] EWCA Civ 634.  The first case was itself four joined appeals with the result that, in the UKSC, the appeals to be heard next week have five appeal numbers 2009/84, 2009/85, 2009/95, 2009/0116 and 2009/0120.  It would be helpful if, at least in cases where parties are identified by initials, the actual decisions being appealed against could be identified in the Case Details.

On first glance, the joined appeals appear to raise technical issues about the correct interpretation of the Immigration Rules, but the appeal of AM should prompt more general and important consideration of discrimination under Article 14.

The appeals raise two principal questions:

1) Do the Immigration Rules paragraphs 281, 297 and 317 permit a person seeking entry into the UK to rely on third party financial support to establish that they would not require recourse to public funds?

2) Does the requirement in paragraph 281(v) of the Immigration Rules that those seeking to settle in the UK should not have recourse to public funds discriminate against people with disabilities? 

 

The first question was resolved in the negative by the Court of Appeal in AM (Ethiopia) & Ors [2008] EWCA Civ 1082.  It was held that the Immigration Rules could not be purposively construed to protect Article 8 rights. Indeed, the Rules were not required to guarantee compliance with Article 8; that, the Court said, could be left to the Secretary of State and the courts.

In AM (Somalia) [2009] EWCA Civ 634, the Court of Appeal held that the effect of the rule requiring self-sufficiency in paragraph 281(v) was discriminatory under Article 14, but could be justified. While very weighty reasons would be necessary to justify direct disability discrimination, such a high standard did not apply where an individual was contending for more favourable, rather than equal, treatment. Disability was a “relative concept” insofar as different disabilities would have differing effects on earning capacity and as a result it was proportionate not to maintain a general exclusion from the requirement of self-sufficiency for disabled people.

In a short concurring judgment, Elias LJ struggled to identify which notion of discrimination was at stake, distinguishing “traditional indirect discrimination”, where the claimant contends a rule is unlawful for failing to take account of material features of their position, from a case, such as this, where the claimant asks for a new rule specifically aimed at ameliorating the effect of their special characteristics. It will be interesting to see how his analysis bears up under the scrutiny of the Supreme Court.

This will be the second case in which the Supreme Court has had to grapple with discrimination. While this appeal will not attract the audience that JFS did, its impact on the meaning and scope of discrimination law is potentially as important.