Grounds for review: proportionality cases

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De Freitas v Permanent Secretary of Ministry of Agriculture [1999] (PC)

Facts: Note, this is not a Human Rights Act case, but forms the basis for thinking about proportionality review under the Human Rights Act

In this case, a civil servant was pursued by the State for participating in a peaceful demonstration against government corruption in Antigua. Under the Constitution, freedom of expression and assembly is guaranteed whilst permitting certain restrictions that were necessary in the public interest. A civil service code banned civil servants from engaging in any form of political controversy.

Held: It was held that the restraint imposed on civil servants amounted to more than what was necessary to pursue the public interest, and consequently the claimant’s constitutional right has been unlawfully infringed

Endorsing dicta from other Commonwealth jurisdictions, Lord Clyde (giving the judgment of the court) defined the basis or ‘test’ for proportionality review thus:

  • “whether i) the legislative objective is sufficiently important to justify limiting a fundamental right; ii) the measures designed to meet the legislative objective are rationally connected to it; and iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective

Huang v Secretary of State for the Home Department [2007]

Facts: Two claimants—one from China, the other from Iran—sought indefinite leave to remain (in the first case) and asylum (in the second case). The Home Office rejected both applications, citing the UK Government’s new policy on immigration. What both cases had in common is the link each of the claimants had to the UK by virtue of close family members residing here - in Huang’s case, she was a dependant of her daughter who lived here

One case was successfully appealed to an adjudicator, but both claimants failed in their bids to gain access to the UK when an appeal was heard by the Immigration Appeal Tribunal. On appeal to the Court of Appeal, the first claimant won and the second had the case remitted to the tribunal. On appeal to the House of Lords, both claimants won to the extent that their appeal would be re-heard by the tribunal on a new basis

Held: The legal issue for the courts was whether - and to what extent - the decision-makers were obliged to take into account the right to family life under Article 8 of the ECHR in formulating and applying immigration policy and procedures

In considering what the proper basis is for proportionality review, Lord Bingham considered the decision in de Freitas (at [19]):

  • “The [de Freitas] formulation has been widely cited and applied. But counsel for the applicants (with the support of Liberty, in a valuable written intervention) suggested that the formulation was deficient in omitting reference to an overriding requirement which featured in the judgment of Dickson CJ in R v Oakes, from which this approach to proportionality derives. This feature is the need to balance the interests of society with those of individuals and groups. This is indeed an aspect which should never be overlooked or discounted.”

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R (Begum) v Denbigh High School Governors [2006] UKHL 15

Facts: The claimant, a girl of Muslim faith, attended a school outside her catchment area. Although the school admitted mostly students of Muslim faith, it was not a faith school, admitting students of many different faiths. The school had a school uniform policy which provided for three options for girls - one of which was developed in consultation with the local Muslim community

One day, the claimant arrived at school in a ‘jilbab,’ and was told to go home and come back in school uniform. She didn’t go back to that school and spent around two years without any formal education at all. Although she later moved schools, she sought judicial review of the decision of the school not to admit her wearing the jilbab, in contravention of Article 9 ECHR on freedom of religion

Held: The High Court rejected her claim, but she successfully appealed to the Court of Appeal. On appeal to the House of Lords, the School successfully defended their decision

  • The school, by devising a school uniform policy that they were legally empowered to devise and enforce, was pursuing the objectives of cohesion and harmony - which was a lawful objective

In assessing whether the policy was a proportionate one in the sense that it did not disproportionality infringe upon the claimant’s right under Article 9, the court took into account:

  • That the school had devised its policy in consultation with the Muslim community;
  • That the school was pursuing legitimate objectives in imposing the policy;
  • That the refusal to admit the student without school uniform did not amount to a deprivation of education (the student could either wear the uniform or change schools);
  • That the school was transparent about its uniform policy, and this would be known to any prospective student;
  • That, in weighing up the interests of the claimant and those of the school (including the objectives of cohesion and harmony), the limitation on the Article 9 right was justified

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