![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
United Kingdom Asylum and Immigration Tribunal |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> G v Secretary of State for the Home Department (Nepal) [2003] UKIAT 00184 (15 May 2003) URL: https://www.bailii.org/uk/cases/UKIAT/2003/00184.html Cite as: [2003] UKIAT 184, [2003] UKIAT 00184 |
[New search]
[Context]
[View without highlighting]
[Printable RTF version]
[Help]
APPEAL No. [2003] UKIAT 00184 G (Nepal
)
Date of hearing: 15 May 2003
Date Determination notified: 15 May 2003
G | APPELLANT |
and | |
Secretary of State for the Home Department | RESPONDENT |
"14. With regard to the human rights appeal and in particular with regard to the submissions put forward in respect of Article 1 of the first protocol, Mr Heaver submits that a legal right is private property within the meaning of that Article, and that if that is the case it can be combined with a claim under Article 14 of ECHR. He refers me to the case of Van Mari v Netherlands (1986 8 EHRR 483) which he regards as authority that a human right belongs to a person in much the same way as an incorporeal property right, such as the goodwill of a business. If Mr Heaver is right in this submission it seems to me that following the judgment of the Court in Lithgow v United Kingdom (1986 EHRR 329) at paragraph 106, that the Appellant's rights not to be discriminated against have been interfered with by the State. Mr Heaver's case is that all other overseas nationals serving in the British Army are entitled to apply for British passports and to seek naturalisation after five or more years of service. This does not mean that their applications will be accepted but simply that they may be submitted for consideration. In the case of the Gurkhas their standing orders prohibit this and would appear to be discrimination on the basis of their national origin. Ms Hemmings in making her submissions said that this was not a n appropriate point to be argued before an Adjudicator at first instance and clearly needed to be determined by a higher Court. On the basis of the evidence before me and in light of Mr Heaver's submissions, I am persuaded that he is right and having regard to Ms Hemmings' submissions consider that the most likely way of achieving the thrust of her submissions is to allow the appeal, which I do now."
The Adjudicator therefore allowed the appeal. That comprises the totality of his consideration of this difficult issue.
"A person who is refused leave to enter the United Kingdom under any provision of the 1971 Act may appeal to an Adjudicator against the decision that he requires leave."
Of course, a person entitled to citizenship is a person who does not require leave. Under the 2002 Act, an appeal to an Adjudicator must be against an immigration decision listed in s 82(2), (save in the special case covered by s 83 which is not relevant to the present discussion). Under s 82(2), the refusal of leave to enter and the refusal of entry clearance are both appealable immigration decisions, but so far as we understand that section there is now no appeal to an Adjudicator against the decision that entry clearance or leave to enter is necessary. It therefore follows that an allegation that a decision to refuse a passport or citizenship was made contrary to the Human Rights Act would need to be made in the appropriate Court or Tribunal under s 7(1)(a) of the Human Rights Act 1998 rather than to an Adjudicator.
"If a court follows this model, it should ask itself the four questions I set out below. If the answer to any of the four questions is No, then the claim is likely to fail, and it is in general unnecessary to proceed to the next question. These questions are:
(i) Do the facts fall within the ambit of one or more of the substantive convention provisions (for the relevant convention rights, see section 1(1) of the 1998 Act?
(ii) If so, was there different treatment as respects that right between the complainant on the one hand and other persons put forward for comparison ('the chosen comparators') on the other;
(iii) Were the chosen comparators in an analogous situation to the complainant's situation?
(iv) If so, did the difference in treatment have an objective and reasonable justification: in other words, did it pursue a legitimate aim and did the differential treatment bear a reasonable relationship of proportionality to the aim sought to be achieved."
As Sullivan J notes later in his judgment, the burden of proof as regards the first three questions falls typically on the Claimant. Only if the Claimant is able to show that the answer to the first three questions is yes, is there a duty upon the Respondent to justify the difference in treatment.
"The enjoyments of the rights and freedoms set forth in this Convention should be secured without discrimination on any grounds such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
As we have said, the right upon which the Claimant bases his claim is contained not in the Convention but in Article 1 of the First Protocol to the Convention.
"In this Act, the Convention rights means the rights and fundamental freedoms set out in:
(a) Articles 2 to 12 and 14 of the Convention;
(b) Articles 1 to 3 of the First Protocol, and
(c) Articles 1 and 2 of the Sixth Protocol as read with Articles 16 to 18 of the Convention."
And it is those rights which are Convention rights for the purposes of the United Kingdom's own law on human rights.
"Relationship to the Convention
As between the High Contracting Parties the provisions of Articles 1, 2, 3 and 4 of this Protocol shall be regarded as additional articles to the Convention and all the provisions of the Convention shall apply accordingly."
"15. The defendant accepts that it does discriminate between (not against) Gurkha soldiers and British soldiers serving in the British Army, but is most anxious to emphasise that this discrimination is based upon factors relating to nationality – Gurkhas are, and remain at all times, citizens ofNepal
– and not race. National armies commonly discriminate on the ground of nationality. Although there is no legal impediment to a non-British citizen joining the British Army, as a matter of policy, aliens (which for this purpose excludes Commonwealth citizens, British protected persons and citizens of the Republic of Ireland) are not eligible to enlist unless they also have British citizenship and are therefore dual nationals. Unless special arrangements were made, citizens of
Nepal
, who are not dual nationals, could not in practice serve in the British Army." (emphasis added)
i. The Appellant has failed to establish that an act has occurred in which his human rights have been arguably infringed.
ii. The act or acts which he envisages may occur are not acts which, in the information before us, could be regarded as infringing any Convention right of his to be treated without discrimination in the enjoyment of property.
C M G OCKELTON
DEPUTY PRESIDENT