This post was co-authored by Lourdes Peroni and Alexandra Timmer
The Court recently ruled on the case of Ms. Bah, a Sierra Leonean woman with indefinite leave to remain in the UK, who asserted that she was discriminated against in the allocation of social housing. The Court’s reasoning in Bah v. UK gives ample food for thought. We find two aspects of the Court’s reasoning especially worrisome: the Court’s explicit references to the need of a ‘comparator’ and the Court’s use of the ‘immutability-criterion’. Though these are familiar concepts within discrimination law, the Court has thankfully largely steered clear of them through the years. With this post we question the Court’s present recourse to these concepts. The comparator-approach and the immutability-criterion are potentially harmful and, moreover, we are of the opinion that the Court could have reached the same decision without relying so heavily on these concepts.
Ms. Bah was refused social housing on the basis of her son’s immigration status. Her son, who was 13 or 14 years old at the time, joined her in the UK. He had been granted leave to remain in the country on the condition that he would not have recourse to public funds. Soon after he arrived, the landlord informed the applicant that he was unwilling to accommodate the two of them and asked them to move out. Under domestic laws, an unintentionally homeless person with a minor would ordinarily get priority in the allocation of social housing. The applicant did not however get priority given that her son was “subject to immigration control.”
Ms. Bah claimed discrimination in the allocation of housing benefits on the basis of her national origin. The Government argued that the reason behind the difference in treatment was not nationality but immigration status and sought to be granted a wide margin of appreciation on two grounds: 1) distinctions based on immigration status did not require weighty justification because the ground concerned a legal status and not a personal characteristic, and 2) the denial was due to the need to allocate limited resources, namely social housing. The Court accepted both of the government’s arguments and found no violation of Article 14, taken in conjunction with Article 8.
In what follows we will first discuss the Court’s use of the comparator approach and then the Court’s reliance on immutability. For a good general discussion of the case, see the post on Nearly Legal.
In paragraph 41-42 of the judgment, the Court discusses at length who is the hypothetical person that Ms. Bah should be compared with – the ‘comparator’ – to determine whether there was discrimination of persons in similar positions: “only where there is differential treatment, based on an identifiable characteristic or “status”, of persons in analogous or relevantly similar positions, can there be discrimination.” “Dealing first with the question of who is the appropriate comparator to this applicant”, the Court continues that this is not a “British citizen with a child who was subject to immigration control” but rather a “person who has indefinite leave to remain in the United Kingdom like the applicant, but whose child is either not subject to immigration control or has an unconditional form of leave”. (par 41-42).
There is an extensive literature documenting the shortcoming of a comparator-approach. The American experience shows us that there are good reasons for avoiding a comparator-approach as much as possible (see this recent article by Suzanne Goldberg in the Yale Law Journal). What is most worrying about a comparator-approach is that it obscures what discrimination law should be about: addressing disadvantage and subordination of certain disfavored groups. The comparator-approach gets us stuck in a sameness/difference ideology that – as feminist legal theorists already recognized two decades ago – impedes progress towards substantive equality. The focus should not be on whether an applicant was treated differently, but on more substantive questions such as whether her dignity was breached, or whether the rule perpetuates subordination of a vulnerable group. In short, the comparator-approach epitomizes equality at its most formal.
Luckily, it is not often that the Court explicitly invokes a comparator. Perhaps this is for the simple reason that the Court mostly feels it does not have to, especially in cases that concern the ‘traditional’ discrimination grounds such as sex or race. It is all the more remarkable that the Court observes in paragraph 42: “the Court does not consider it necessary to determine conclusively whether the applicant and her son were in an analogous situation to either of the comparators suggested above”. The reason that the Court eventually finds the question of comparators irrelevant, is that it comes to the conclusion that the Government’s rules which excluded the applicant from eligibility for social housing are justified by a legitimate aim (namely allocating a scarce resource fairly between different categories of claimants) and that there was proportionality between this aim and the means of realizing it. Then why all this fuss about comparators anyway? The Court had done better to avoid the issue entirely, rather than risk instantiating a line of reasoning that does more harm than good.
The Immutability Criterion
In Bah v. UK, the immutability factor, which basically refers to the inability to choose or change one’s status, plays a decisive role in the Court’s reasoning in two ways: 1) in determining whether immigration status amounts to “other status” under Article 14 and 2) in determining whether immigration status triggers heightened scrutiny (or, in other words, whether it narrows States’ margin of appreciation). The essential idea behind the immutability approach is that individuals should be especially protected from state norms or actions that make distinctions on the basis of characteristics that are beyond their control.
The UK government argued that immigration status should not count as “other status” under Article 14 because it involved an element of choice. The argument was that the status was “legal” and not “personal.” The Court rejected this, recalling that in the past it has found that various other statuses amounted to “other status” under Article 14, even though they could not be considered personal “in the sense of being immutable or innate to the person” (paragraph 45). The fact that the nature of the status was not “inherent” to an individual, the Court held, does not preclude it from amounting to “other status.” So far, so good. The Court had no choice but to address the argument raised by the UK government. Based on its case law, the Court then dismissed this point, arguing that the personal or inherent character of the status is irrelevant in determining whether it counts or not as “other status” under Article 14 (paragraph 46).
Things start however to get problematic in the next paragraph (47). Here the Court announces that the nature of the status becomes relevant in determining the scope of the margin of appreciation. The Court says: “the nature of the status upon which differential treatment is based weighs heavily in determining the scope of the margin of appreciation to be accorded to Contracting States.” The Court goes on to argue that, since immigration is not an “inherent or immutable personal characteristic such as sex or race” the justification for the difference in treatment does not have to be as weighty as in sexual or racial discrimination cases. In short, according to the Court, the element of choice involved in immigration status makes it less worthy of special judicial solicitude than nationality. The definition of the width of the margin of appreciation usually marks a turning point in Article 14 judgments. In this case, the rejection of a narrow margin of appreciation – both because it concerned a non-immutable status and because it concerned a subject matter of a socio-economic nature – seriously slimmed the applicant’s chances of winning the case.
The insertion of the immutability criterion in a discrimination assessment is problematic in several respects and has generated extensive criticism. We have blogged about it before, here. First, like the comparator-approach, emphasis on immutability shifts the focus away from what is really at issue in discrimination cases: “social stratification based on traits, not the nature of the traits themselves.” In other words, and as Kenji Yoshino has argued, “courts should turn away from the corporeal body to the body politic.” This point leads us to a second problematic aspect of the immutability criterion: it is often unclear which personal traits are the result of choice and which traits are immutable. Is one’s religion a choice? Is one’s gender a choice?(think of transsexuals) Under the immutability rationale, the element of choice would make religion probably less worthy of judicial protection.
So the real issue, then, is not how traits are situated within individuals but within society. Factors such as political powerlessness and history of discrimination may therefore be more adequate proxies for discrimination than immutability. The Court has in fact embraced the history-of-discrimination criterion in cases such as Kiyutin v. Russia (discrimination against persons living with HIV), and Alajos Kiss v. Hungary (discrimination against persons with mental disabilities). Alexandra has praised the Court’s approach in these cases in two previous blog posts (see here and here). This approach is, indeed, spot on as it allows the Court to focus on the stereotypical or stigmatizing use society has traditionally made of certain characteristics or traits rather than on the “nature” of the traits themselves.