The English Court of Appeal has held that recent migrants now living in Britain are not entitled to financial assistance from the State to enable them to bury their loved ones in their country of origin.
The appellants appealed the decision of a Social Security Commissioner. The Commissioner had held that the refusal of the secretary of state to allow claims for funeral payments for their deceased partners under the Social Fund Maternity and Funeral Expenses (general) Regulations 1987 amounted to indirect discrimination against a group of recent migrants under ECHR Article 14. However, it was further held that this discrimination was not prohibited by Article 14 since it was not within the ambit of any of the substantive articles of the ECHR, article 14 requiring to be cited in conjunction with another right set out in a separate article.
The 1987 Regulations provide for funeral payments to be made only where a funeral is held in the UK or in certain cases in EEA states. They did not provide for burial in the state of origin of the appellants.
The Court held that, contrary to what the Commissioner had found, there had been no discrimination in any relevant sense. The Commissioner had stated in the original decision that the appellants belonged to a group of recent migrants who were more likely than other comparable groups to have retained family links with their countries of origin and were therefore more likely to want to have their loved one buried there. The Court held that this constituted the false judicial establishment of a "group" where none existed within the definition of Article 14. While article 14 is not confined to traditional categories, groups must be defined by reference to criteria having special significance within the ECHR as a whole.
The Court also concluded that, even if migrants did have an identifiable status for the purposes of Article 14, they would not attract the highest level of protection. Instead the allocation of public funds to them would depend on social policy. The Secretary of State had stated that an amended funeral payment scheme providing for potential burial costs outside the UK or EEA would be more complex and costly. Therefore, the Court held that the current scheme was not irrational and was within the "margin of appreciation" that states enjoy in complying with their ECHR obligations.