Last month, the European Court of Human Rights (“ECtHR”) delivered a landmark ruling in which it found the UK’s ‘bedroom tax’ policy, introduced in 2012, to be discriminatory and a 2016 UK Supreme Court decision to be wrong.
The so-called ‘bedroom tax’ was effectively a policy which reduced housing benefits for tenants in the social housing sector if they had spare bedrooms in their property. This policy was supposed to motivate social tenants to move to smaller accommodation thereby allowing public funds to be saved. The two applicants in this case argued that the reductions imposed on the benefits paid to them violated provisions of the European Convention on Human Rights against discrimination.
Both applicants were women and each of them lived with their child in a three-bedroom house. Both claimed that in their case a spare room was a necessity: the first applicant’s property was adapted for the needs of her disabled daughter and the second applicant’s property was modified in a way that allowed her to cope with domestic violence that she was subject to (these arrangements were made under the ‘Sanctuary Scheme’, a widely known initiative in support of domestic violence victims). In 2016, the UK Supreme Court held that the ‘bedroom tax’ policy was justified in both cases and that the additional payments, which both applicants received from their local authorities, were sufficient to alleviate any adverse impact of the reduction to their benefits.
The ECtHR partly disagreed with this reasoning and stated that this government policy, although legitimate per se, nevertheless gave rise to indirect gender discrimination in one of the above cases. Namely – the second applicant was treated in exactly the same way as other categories of individuals subject to the reductions, whilst her circumstances differed significantly insofar as she was a vulnerable woman experiencing domestic violence and because of that there should have been adjustments made in the application of the policy to her individual case. The European Court stated that there was disproportionality between the ultimate aim of the social housing policy (saving public funds) and the means which were used to achieve it (applying the policy to vulnerable women in the same way as to any other individuals). The Court also noted that the aim of protecting vulnerable women should have been given priority over the aim of the social housing policy.
Interestingly, the ECtHR ruled that there was no violation in respect of the first applicant, as moving to a smaller property and adapting it accordingly was considered possible given the fact that the local authority had provided her with additional payments. Some Human Rights experts claim that the grounds on which the Court distinguished between the first and second applicants’ situations were not sufficiently clear.
Irrespective of any defects in the logic behind the Court’s decision (as noted by the above experts) and even though this case may not directly relate to UK immigration law, we believe the European Court’s ruling to be significant. This is because the ruling potentially opens up the possibility of challenging other UK court decisions and government policies, including those directly related to immigration law.
In particular, the ECtHR disagreed with the test widely used by the UK courts to determine if a government policy is just and proportionate. The question the UK courts ask is whether the justification behind the policy was ‘manifestly without reasonable foundation’ (if not, then the policy is seen as sufficiently justified). However, the ECtHR ruled that the correct test would be to see if the policy itself is disproportionate without ‘very weighty reasons’. This approach is expected to impact decisions in discrimination cases relating to economic or social strategy, with immigration cases no doubt being amongst them. For example, it would be potentially possible to challenge particular Home Office visa refusals “on public policy grounds” (for example when an applicant has minor discrepancies or amendments in tax returns which have impacted on the Home Office’s decision) by arguing the disproportionality of this Home Office policy in the absence of “very weighty reasons”.
Gherson have a great wealth of experience with cases brought before the ECtHR and the impact of EU law on UK immigration matters. If you have any questions or queries in respect of any immigration matter which you think may be affected by EU law or ECtHR case law, please do not hesitate to contact us.
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.
©Gherson 2019
Image courtesy of UK Supreme Court press office
Paralegal in our Complex Case team
Further Reading
Human Rights and International Protection
Courts Uphold Strict Interpretation Of Immigration Rules