R (Gullu) v London Borough of Hillingdon  EWHC 1937 (Admin), 26 July 2018
The Claimant, G, was a Kurd of Turkish nationality who had been granted refugee status in 2013. He sought an allocation of social housing from the Defendant, Hillingdon LBC, but was not permitted to register on Hillingdon’s allocation scheme, which contained a 10-year residence requirement (subject to a number of exceptions). G brought judicial review proceedings, arguing that the 10-year requirement resulted in unlawful discrimination against him as a refugee contrary to Articles 8 and 14 ECHR.
Mostyn J dismissed his claim. As a recent arrival in Hillingdon who was a refugee, the correct analogue or comparator in considering whether there was unlawful discrimination, was with a recently arrived resident of Hillingdon who was not a refugee; either from another part of the UK or an EEA national exercising his or her treaty rights. The circumstances of a refugee recently arrived in the borough, the judge held, were not materially different to any other recent arrival. Accordingly, there was no differential treatment and, therefore, no unlawful discrimination. Alternative, to the extent there was differential treatment, it was not ‘manifestly without reasonable foundation’.
There are certain aspects of the judgment which, to my mind, do not sit particularly easily with the approach to ECHR discrimination which has been taken by the House of Lords and the Supreme Court. In particular, the judge’s search for a precise comparator group is something that has previously been deprecated as an ‘arid exercise’: see AL (Serbia) v Secretary of State for the Home Department  UKHL 42,  1 WLR 1434 at  per Baroness Hale. Likewise, it is well established that in discrimination cases, what has to be justified is not the scheme as a whole but its discriminatory impact. See R (SG) v Secretary of State for Work and Pensions (Child Poverty Action Group and another intervening)  UKSC 16,  1 WLR 1449 at  per Baroness Hale. At  of this case, my reading is that the judge seems to be focussing on the justification for the residence criterion itself, rather than its disparate impact on refugees, which would seem to run contrary to this. In addition, (and perhaps inadvertently) the judge may have embroiled himself in a lively ongoing debate as to whether or not the manifestly without reasonable foundation test applies to the fourth stage of the proportionality analysis: a question that will hopefully be answered when the Supreme Court gives its judgment in the latest round in the benefit cap litigation. Finally, the judge’s rather blithe dismissal at  of the differences between a refugee and a voluntary migrant from Yorkshire might perhaps be open to criticism. The distinction surely (which was characterised by the Equality and Human Right’s Commission who intervened in the case as ‘obvious’) is that a recently arrived refugee is less likely to have anywhere in the UK (or the world) to which he or she can claim a ten-year connection, without facing a well-founded fear of persecution. So it will be interesting to see what happens if this case goes further. It looks like there may be quite a lot for the Court of Appeal to chew over.
The judgment is available here: R (Gullu) v London Borough of Hillingdon  EWHC 1937 (Admin)