The Claimants are seeking to challenge the decisions of an Entry Clearance Officer to refuse them entry clearance to visit family members in the UK.
The Claimants argue that the reasoning of the refusal decision gives rise to a claim of direct discrimination on the grounds of national origins contrary to s29 of the Equality Act 2010.
Paragraph 17, Schedule 3 of the Equality Act provides that section 29 does not apply “to anything done by a relevant person in the exercise of functions exercisable by virtue of a relevant enactment”. A relevant person is defined as a person acting in accordance with a relevant authorisation (para.17(3) of Sch3).
In her defence the SSHD relied upon a Ministerial Authorisation dated 26 February 2015.
This authorisation provides that applications from persons with certain nationalities may be subject to “more rigorous scrutiny” [para.3(2)] or, more broadly, for the SSHD or an Immigration Officer to “decline to give or cancel the person’s leave to enter before he arrived in the United Kingdom” [para.4(2)(a)]. The authorisation does not identify the nationalities to which it applies.
The Claimants argue, amongst other things, that the authorisation is unlawful and of no effect because it is not accessible (it being very hard to find and only publicly available in the deposited papers section of the Parliament website) and in any event does not disclose the countries to which it applies.
The authorisation can be found here.
Samantha Broadfoot QC is acting for the Claimants.