January 24th, 2022 by James Goudie KC

In R (TP) v SoS (2022) EWHC 123 Admin) the Court reiterates the relevant legal principles on discrimination under Article 14 of the ECHR from paragraph 98 as follows.

In order to determine whether a measure is incompatible with Article 14 it is necessary to address 4 questions : (1) whether the circumstances fall within the “ ambit” of one or more of the ECHR rights; (2) whether the claimant has been treated less favourably than a class of persons whose situation is relevantly similar, or who are in an analogous situation; (3) whether that difference in treatment is on the ground of one of the characteristics listed in Article 14 or an “ other status”; (4) whether there is an objective and reasonable justification for that difference in treatment.

These questions are not however rigidly compartmentalised. Moreover, when the first 3 questions are answered Yes, the burden switches to the defendant to justify the difference in treatment.

As regards (2), an assessment of whether situations are relevantly similar generally depends upon there being a material difference between them as regards the aims of the measure in question.

As regards (3), status cannot be defined solely by the difference in treatment complained of. It must be possible to identify a ground for the difference in treatment in terms of a characteristic which is not merely a description of the difference in treatment itself; but there is no requirement that a status should exist independently of that difference in treatment; and there is no requirement that a status be permanent, rather than transitory in nature.

As regards (4), the requirement for justification is an expression of the proportionality principle; and the intensity of review is variable.

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