London, 20 November 2012 

On 6 November 2012, the European Court of Human Rights (ECtHR) held that the United Kingdom’s failure to allow the family reunion of a refugee and his wife under its pre-2011 immigration rules was unlawful discrimination. Although the European Convention on Human Rights (ECHR) does not require states to provide a right to “family reunion” for spouses of immigrants, once such a right is provided, and as it falls within the general scope of the Convention’s protection of family life, it must be applied in a non-discriminatory manner.

In a ruling that further emphasises its broad interpretation of the scope of Article 14, the Court has followed Bah v the United Kingdom in finding that Article 14 protects people from discrimination because of their immigration status. The UK’s provision, prior to a change in the law in April 2011, of the “family reunion” right to spouses of student and worker immigrants and pre-flight spouses of refugees, but not post-flight spouses of refugees, could not be justified and was a violation of the Convention.

The case was brought by Mr Hode and Ms Abdi (the Applicants), a married couple with two children. Mr Hode is a Somali refugee who was granted asylum with five years’ leave to remain in the UK in 2006 and has since been granted indefinite leave to remain. He met and married Ms Abdi in 2007 in Djibouti. The UK’s Immigration Rules at the time only enabled spouses of refugees to join them if the couple were married prior to the refugee’s flight from their country of permanent residence or if the refugee was “present and settled”. Accordingly, Ms Abdi’s application to join her husband while he had a five year leave to remain was refused. In April 2011 the Immigration Rules were amended to allow the post-flight spouses of refugees to join their spouses in their initial period of leave to remain, if certain other conditions were met. Ms Abdi has not re-applied for leave to join Mr Hode since this change to the law and she remains in Djibouti with the couple’s children. 

The Applicants brought their case to the ECtHR claiming that the UK had breached their rights to respect for family life (Article 8) and to non-discrimination (Article 14). In particular they argued that they had been treated differently, without reasonable and objective justification, from students and workers with temporary leave to remain in the UK and from refugees whose marriages pre-dated their flight from their country of permanent residence. The government denied that there had been any violation of the Applicants’ rights, arguing that (a) students and workers were not in an analogous situation to the Applicants and (b) restricting “family reunion” to pre-flight spouses of refugees was proportionate.

The Equality and Human rights Commission, which intervened in the case, argued that the “family reunion” provision must not be discriminatory and that, although immigration control is a legitimate aim, the differential treatment between refugees, on the one hand, and other classes of immigrants who had been entitled to be joined by their families was not proportionate in pursuit of this aim.

The Court held that the UK’s immigration rules on family reunion fell “within the ambit” of the Convention and so must not be discriminatory. Its application of Article 14 to the case was as follows:

• The list of characteristics in Article 14 was “illustrative and not exhaustive”. The words “other status” have generally been given a wide meaning and, following Bah v. the United Kingdom encompass immigration status.
• The Applicants were treated differently than two groups of persons in an “analogous situation” to them: (i) students and workers with temporary leave to remain; and (ii) refugees who were married prior to fleeing their country of permanent residence.
• This difference in treatment was not objectively and reasonably justified. Offering incentives to certain groups of immigrants (i.e. students and workers) may amount to a legitimate aim and as such decisions are based on social and economic policy, the state has a wide margin of appreciation. However, this “justification” had not been advanced in some other recent cases and was not objective and reasonable. The difference in treatment of refugees who married post-flight and those who married pre-flight could not be justified just by reference to the state’s fulfilment of an international obligation.

Accordingly, the Court held that the UK’s immigration rules, in their form at the relevant time (e.g. prior to an amendment in April 2011) violated Article 14 of the Convention read together with Article 8.

ERT welcomes the Court’s reiteration that Article 14 has a wide application, extending beyond the rights guaranteed under the Convention to any subject matter which is “within the ambit” of another Convention right. ERT also welcomes this latest willingness by the Court to interpret “other status” under Article 14 widely to ensure that its protection extends to all those who need it. Principle 5 of the Declaration of Principles on Equality requires that discrimination on any ground which causes or perpetuates systematic disadvantage, undermines human dignity or adversely impacts on the enjoyment of rights in a way comparable to other grounds, be prohibited. Article 14 of the ECHR should be interpreted widely so as to encompass all such grounds.

To read ERT’s case summary click here

To read the ECtHR’s judgment click here