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Published 12 May 2021
Transitioning from Free Movement between the UK and the EU has resulted in 5.1 million applications for immigration status under the EU Settlement Scheme (‘EUSS’). Immigration status granted under the EUSS is only accessible digitally via the internet unlike traditional visa documents such as Biometric Residence Permits or vignettes in passports. As such, it was questioned in a recent application to the High Court whether a policy of having digital only immigration status for EU nationals is discriminatory.
R (on the application of The3Million Ltd) v Secretary of State for the Home department  EWHC 1159 (Admin)
The application to the Court was made by The3Million, a non-profit organisation. The information presented to the Court indicated a significant number of people had either never accessed the internet before or had difficulty accessing the internet:
A digital only immigration status requires individuals to access the internet. As such, EU nationals are subject to additional measures than nationals of other countries whenever they take up a new job, obtain accommodation or try to open a bank account. Elderly, disabled and Roma EU nationals who either have not used the internet before or have difficulty accessing the internet would be particularly disadvantaged.
Grounds for challenge
Grounds for challenge were brought mainly under sections 149(1)(a) and (b) of the Equality Act 2010 (‘the 2010 Act’) which provides that:
“(1) A public authority must, in the exercise of its functions, have due regard to the need to –
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;”
In deciding to introduce a digital only immigration status for EU nationals, it was argued that the Secretary of State failed to have due regard to the need to eliminate discrimination, particularly indirect discrimination and she failed to advance equality of opportunity between the relevant protected groups.
The3Million also argued that a digital only immigration status is indirectly discriminatory on grounds of disability, older age and/or race contrary to sections 19 and 29 of the 2010 Act and in breach of the Withdrawal Agreement.
In response, the Secretary of State argued that the application to the Court had been brought prematurely. The policy of digital only immigration status had not yet been implemented in its final form and is not due to be implemented until 1 July 2021 when further measures will be introduced to mitigate any difficulties experienced by those in the relevant protected groups.
The Secretary of State recognised that some individuals may face difficulties if they introduce the policy without including further measures for those who may have difficulties accessing the internet or using digital technology. However, they also claimed that this is the reason for introducing a grace period which until 30 June 2021 allows the immigration status of EEA citizens and their family members to be verified by physical documents, such as a passport. Crucially, the Secretary of State committed to introduce a range of measures which will aim to reduce any adverse impact on disadvantaged groups.
The Court refused the application brought by The3Million and concluded that the Secretary of State did have due regard to the need to eliminate discrimination and advance equality between those with protected characteristics and those without.
The Court had regard to the test set out in Bank Mellat v HM Treasury (No 2)  AC 700 :
“(1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right;
(2) whether the measure is rationally connected to the objective;
(3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective; and
(4) whether, balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter.”
The Court concluded that in order to obtain fair answers to these questions, it needs to have a clear understanding of the impact of digital only immigration status and the degree of any disadvantage which this causes. It was held that these questions cannot be fairly answered without being in possession of the full facts which will only be available to the Court after 1 July 2021. Fairness requires that the whole picture is available for examination before the test as a whole is applied.
The Secretary of State had introduced a range of measures to mitigate the consequences of a digital only immigration status including:
In light of the above, the Court found that the Secretary of State she did take into account the impact of a digital only immigration status and she has taken steps to mitigate the consequences of such a policy. Bringing a hypothetical action without the full facts showing the impact on those with protected characteristics was found to be premature. Whether a future action with evidence showing the impact of a digital only immigration status, particularly with real examples, will result in an alternative outcome remains to be seen.
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Shahjahan Ali, Alice Ratcliffe