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Case No: CO/2704/01

Neutral Citation No: [2002] EWHC 978 (Admin.)


Royal Courts of Justice
Strand, London, WC2A 2LL


22 May 2002



THE QUEEN on the application of






- and -





- and -







Richard Drabble QC, Helen Mountfield and Murray Hunt

(instructed by Thomas Eggar Church Adams) for the Claimant

James Eadie and Khawar Qureshi (instructed by the Treasury Solicitor) for the Defendant

Tom de la Mare for the Intervening Party


Hearing dates: 15 and 16 April and 8 May 2002


Mr Justice Stanley Burnton:



  1. These proceedings raise the important question whether the failure of the Government of the United Kingdom to pay to pensioners resident in certain countries abroad, in the case of the Claimant South Africa, the inflation uprating of their UK State pensions contravenes the European Convention on Human Rights.



  2. The Claimant is resident in South Africa. She spent most of her working life in England, and while she was employed she and her employer, and while she was self-employed she alone, paid full National Insurance contributions. She has been resident in South Africa since 1990. When she was working in South Africa she paid voluntary contributions to protect her right to a UK State pension. She began to draw her pension in September 2000. She receives a British Retirement Pension of £103.62 per week, comprising a Basic Pension of £67.50, an Additional Pension (under the State Earnings Related Pension Scheme, or SERPS) of £32.17 and Graduated Pension of £3.95. She has not received the increase in the Basic Retirement Pension of £5 (from £67.50 to £72.50) that has been paid since 9 April 2001 to those entitled to it; nor has she received the percentage increase in the Additional Pension and Graduated Pension that has been paid since that date. It is accepted on her behalf that she is not qualified for these increases by reason of the relevant provisions of UK legislation and delegated legislation, apart from the Human Rights Act 1998. While the Claimant remains in South Africa, her total British pension will remain frozen at £103.62 irrespective of inflation-based uprating of pensions for those who live in Great Britain and certain other countries referred to below.



  3. The position of the Claimant, as a recipient of a "frozen" pension, is representative of UK pensioners not only in South Africa, but in all the countries of the so-called Old Commonwealth, including Australia, Canada and New Zealand.



  4. Pensioners living in other countries, such as the USA, EU countries, the states of the former Yugoslavia, Japan, Mauritius, Turkey, Bermuda, Jamaica and Israel, receive the same pension from the UK Government as they would receive if they lived here: i.e., their Basic Retirement Pensions are uprated. Of some 760,000 pensioners and widow beneficiaries who live abroad, some 330,000 receive the annual uprating. The remainder do not. The great majority of the remainder live in the Old Commonwealth countries mentioned above.



  5. In some respects, the position of the Claimant is not representative. A pensioner who lives abroad receives initially the full pension that he would have received if he had remained in this country. He is denied the uprating for inflation from the date of his emigration or if earlier the date of his qualifying for his pension: in effect, his pension is frozen at the amount payable when he reached 65 if he had already emigrated or when he emigrated if he did so subsequently. (If he returns to Great Britain, his uprated pension is paid while he is here, but if he leaves his pension reverts to its previous amount.) The effect on the Claimant has so far been relatively minor: she has not received the small percentage uprating applied in 2001. The effect on those who retired long ago is more substantial and may be dramatic. Mr William Hayes, who lives in Australia, reached 65 in 1972. He receives a pension of the inconsiderable sum of £6.75 a week, less than one-tenth of the sum of £72.50 that would be paid to a pensioner with a complete contribution record who retired last year. Someone who retired as recently as 1990 receives only £46.90 a week.



  6. Very many of the expatriate UK pensioners who do not receive uprated pensions have a strong and understandable sense of grievance. They paid their contributions calculated in the same way as pensioners now living here and in, say, the USA, yet they do not receive the same pension. They feel that they have been deprived of an increasingly substantial part of the fruit of their contributions. The real value, at least in the UK, of their pensions is declining from year to year. As a result, they have formed associations to press their cause for equal treatment. As will be seen, before the coming into force of the Human Rights Act 1998 a number of them made applications to the European Commission of Human Rights, complaining that their rights under Article 1 of the First Protocol and under Article 14 had been infringed. Their applications were unsuccessful. However, they contend that recent developments in the jurisprudence of the European Court of Human Rights establish that the UK Government has indeed infringed their rights under those Articles.



  7. In her second witness statement, the Claimant suggested that she had not been informed that her pension would be frozen when she decided to pay her voluntary contributions from South Africa. That allegation has not been pursued on her behalf. Indeed, it is clear that the literature distributed by the Department of Social Security (and sent to her) was explicit and clear as to the position of UK pensioners who live in South Africa. The issues pursued on behalf of the Claimant are not dependent on her individual facts, and turn on the provisions of the applicable UK legislation and of Article 1 of the First Protocol and Article 14 of the Convention.


    The Issues


  8. Article 1 of the First Protocol is as follows:


    Protection of Property

    Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

    The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.


  9. In summary, the Claimant's contentions under Article 1 are as follows:



    1. Her state pension, or alternatively its uprating, are pecuniary rights, and therefore "possessions" within the meaning of Article 1 of the First Protocol.



    2. The failure of the UK Government to pay her the amount of the annual uprating wrongfully deprives her partly or wholly of one or other of those possessions, i.e., part of her pension and the entirety of the uprating.



  10. Mr Eadie, on behalf of the Secretary of State, accepted that the right to a contributory pension is protected by Article 1 of the First Protocol. However, he submitted as follows:



    1. Article 1 does not confer a right to a pension in any particular amount, and is therefore not infringed by the failure to pay uprating to the Claimant.



    2. The right protected by Article 1 of the First Protocol is defined by domestic law. Since UK law does not confer (and has never conferred) a right to an uprated pension on pensioners living in South Africa, the Claimant has not been deprived of any right, and therefore of any possession, within the meaning of Article 1.



    3. The decision of the Government not to pay uprating to the Claimant and to those in her position is objectively and reasonably justified and is therefore a permissible deprivation of such possession as she may have.



  11. Article 14 is as follows:


    Prohibition of discrimination

    The enjoyment of the rights and freedoms set forth in this Convention shall 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.


  12. It is common ground that there may be a breach of Article 14 without there having been a breach of any other Article of the Convention. Clearly, Article 14 adds to the protection conferred by the other provisions of the Convention. It is not however every act of discrimination that is within the scope of Article 14: it protects only "the enjoyment of the rights and freedoms set forth in this Convention". In Gaygusuz v Austria (1996) 23 EHRLR 230, the Court put the matter in terms that constitute a virtual formula applied in other cases:


    "According to the Court's established case-law, Article 14 of the Convention complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to "the enjoyment of the rights and freedoms" safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of them."


  13. Mr Drabble submitted that the complaint in the present case is "within the ambit" of Article 1 of the First Protocol, not least because the right to a state pension is a right protected by Article 1. He submitted that the Claimant has been the subject of discrimination, on the ground of her residence in South Africa, as compared with UK pensioners living in this country and in those other countries in which uprating is paid.



  14. Mr Eadie submitted:



    1. If the Claimant has no possession within the meaning of Article 1 of the First Protocol (as he submitted), she has no claim within the ambit of Article 14 read with Article 1 of the First Protocol.



    2. The basis of the differential treatment of the Claimant and others to whom comparison was made was not "any ground such as sex, race .... or other status" to which Article 14 applies.



    3. In any event, the decision of the Government not to pay uprating to the Claimant and to those in her position is objectively and reasonably justified.



  15. The above submissions of the parties raise the following issues:



    1. Is the state pension or the uprating a possession of the Claimant within the meaning of Article 1 of the First Protocol?



    2. If so, is the failure or refusal of the Government to pay an uprated pension to the Claimant a deprivation of that possession for the purposes of Article 1 of the First Protocol?



    3. If so, is that deprivation justified?



    4. If uprating is not a possession for the purposes of Article 1 of the First Protocol, is the payment of uprating to some, but not all, pensioners nonetheless within the scope of Article 14? I.e., does the Claimant's complaint relate to "the enjoyment of the rights and freedoms set forth in (the) Convention?"



    5. If so, what is the criterion applied to determine the differential treatment of pensioners?



    6. Is that criterion a ground "such as sex, race, ... or other status" that is, unless objectively justified, prohibited by Article 14?



    7. If so, is the differential treatment of the Claimant as compared with:



      1. pensioners living in this country, or



      2. pensioners living in states such as the USA, whose residents are paid uprated pensions,


    wrongful discrimination in breach of Article 14?


  16. In addition, in the course of my consideration of my judgment in this case, I concluded that an additional, and more fundamental, issue must be considered, namely whether the provisions of the Convention apply to persons, such as the Claimant, who are outside the jurisdiction. That question arises by reason of the terms of Article 1 of the Convention, which is as follows:


    "The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention."

    The Claimant and those like her are of course not within the territorial jurisdiction of the United Kingdom.


  17. The express jurisdictional qualification in Article 1 of the Convention is not expressly reflected in the provisions of the Human Rights Act. If the Act is to be construed as subject to the same qualification, and Article 1 refers to presence within the territorial jurisdiction of the State, the Claimant is not entitled to any of the rights conferred by the Convention, and she has no rights under either Article 1 of the First Protocol or Article 14.



  18. In these circumstances a further hearing took place on 8 May 2002 to enable to parties to make submissions on the jurisdictional issue raised by Article 1. In view of its importance I consider it first.


    The jurisdictional issue


  19. The natural reading of Article 1 of the Convention limits Convention rights to persons within the territorial jurisdiction of the High Contracting Parties. Prima facie, the jurisdiction of states in international law is territorial. This presumption is part of English Law: Parliament is presumed to intend an Act to extend to each territory of the United Kingdom, but not to any territory outside the United Kingdom: see Bennion, Statutory Interpretation, 3rd edition, at section 106, page 252. The comity of nations is doubtless one basis for this presumption: one state should not be taken to interfere with the sovereignty of another state by enacting legislation extending to its territory. Another is practicality: most legislation cannot practically be applied to those present in another state.



  20. However, jurisdiction need not refer simply to personal presence within the territory of a state. Rights and property may be within the jurisdiction of a state, though the owner of the right or of the property may be outside the state. The French version of Article 1 of the Convention differs from the English:


    Les Hautes Parties contractantes reconnaissent à toute personne relevant de leur juridiction les droits et libertés définis au titre I de la présente Convention.

    The French text suggests that the High Contracting Parties undertook to accord Convention rights to all persons relevant to their jurisdiction. On this basis, a person whose rights or property are within the jurisdiction of a state is entitled to such of the Convention rights as apply to those rights or property. On this basis, Article 1 refers not to the presence of persons within the territorial jurisdiction, but to jurisdiction in a legal sense.


  21. That this is the correct meaning to be given to Article 1 is confirmed by the jurisprudence of the Court as well as State practice. In none of the cases in which expatriate state pensioners have made applications to the Commission has the territorial limitation of the Convention been explicitly referred to. In Air Canada v UK (1995) 20 EHRR 150, the European Court of Human Rights held that the seizure of an aircraft belonging to the Canadian applicant had not infringed Article 1 of the First Protocol. It was not suggested that the fact that the applicant was resident in Canada affected its rights under that provision. (However, it may well be that Air Canada carried on business in the UK, and was present within the jurisdiction in any event.) In Drozd and Janousek v France and Spain (1992) 14 EHRR 745, the Court said, at paragraph 91 of its judgment:


    "The term 'jurisdiction' is not limited to the national territory of the High Contracting Parties; their responsibility can be involved because of acts of their authorities producing effects outside their own territory."

    In Bankovic and ors v Belgium and others (App. no. 52207/99), the Court rejected as inadmissible the complaint of the applicants that the NATO bombing in Belgrade was in breach of, principally, Article 2 of the Convention. The state respondents relied on Article 1 of the Convention. They submitted that jurisdiction in that provision referred to "the assertion or exercise of legal authority, actual or purported, over persons": paragraph 36 of the judgment. The Court accepted this interpretation: it referred, in paragraph 80 of the judgment, to the Convention operating in the legal space (espace juridique) of the Contracting States.


  22. In the present case, the object of the application of the Convention is legislation that confers benefits on individuals. It clearly operates in (and only in) the "legal space" of the UK, and is therefore within the scope of the Convention. There is no question of any possible infringement of the sovereignty of another state or the exercise of sovereignty over those present in another state. Mr Eadie, on behalf of the Secretary of State, did not submit that the Claimant's case fell to be rejected on the basis of jurisdiction, and it was therefore common ground between the parties that it falls to be considered on the merits.



  23. Article 1 of the Convention is not part of English Law: it was not included in Schedule 1 to the Human Rights Act. In the circumstances, it is unnecessary to consider the question whether the ambit of the rights and freedoms legislated by the Act differ from those of the Convention. I am bound to say that I should be surprised if there were any such difference.


    The United Kingdom statutory provisions on pensions


  24. Of all legislation, that relating to social security should be clear and accessible. Regrettably, the relevant provisions are typically and unnecessarily complex, involving the application and disapplication of other provisions: compare the comments of Munby J in Ryan v Liverpool Health Authority [2002] Lloyd's Rep Med 23, and of myself in Bell v Todd [2002] Lloyd's Rep Med 12. The relevant provisions are summarised and so far as necessary set out in Annex 1 to this judgment. For present purposes, the effect of the statutory provisions may be summarised as follows:



    1. Contrary to popular perception, a person's contributions do not in whole or in part constitute a fund from which her pension is later paid: there is nothing in the legislation to warrant such a conclusion.



    2. The basic state pension is contributory only in the sense that the payment of sufficient contributions is a condition of entitlement. In addition, if more than a quarter but less than the full number of qualifying years has been achieved, a reduced rate pension is payable.



    3. Provided Parliament approves the statutory instrument that the Secretary of State is required to put before it by virtue of section 150(9) of the SSAA, the basic state pension is uprated annually in line with UK inflation.



    4. However, a person who is both absent from, and ordinarily resident outside, Great Britain is disqualified from receiving any additional benefit payable as a result of uprating after the date she reaches retirement age or her emigration, whichever is later.



    5. It follows from (d) that a person who is ordinarily resident abroad who returns to this country temporarily receives her uprated pension while here; when she returns to her country of residence however her pension reverts to its previous sum.



    6. However, uprated pensions are paid to those living in the countries referred to in paragraph 4 above, with whom the UK has entered into reciprocal agreements and in respect of whom appropriate Orders in Council have been made. Where it is paid, no regard is had to inflation in the country of residence.


    Finance and History


  25. The National Insurance scheme, including the payment of state pensions, is financed on a "pay as you go" basis, that is, current National Insurance contributions to the National Insurance Fund ("NIF"), mainly from employers, employees and the self-employed, fund current benefits. Thus a person's contributions fund not her own benefits, but those of others. As the Social Security Committee of the House of Commons stated in its Third Report of January 1997 ("the Social Security Committee Report"):


    "13. The reality is that National Insurance operates as a form of taxation, with the benefits being paid out on a pay as you go basis from a notional fund topped up as required by grants from the Exchequer. The record of contributions still serves as a control for determining the amount of pension payable, but even this principle has been blurred by the introduction of home responsibilities protection and credits, while the availability of means tested Income Support and Housing Benefit has to some extent replaced the old age pension itself as the principal defence against poverty in old age."


  26. The rates and levels of contributions are set each year to ensure so far as practicable that the overall income to the NIF is sufficient to pay for the various benefits. When necessary, the income from contributions is supplemented by a Treasury grant, i.e. from general taxation. The current contribution rates naturally do not include an allowance for uprating all retirement pensions paid to those who have chosen to reside abroad. Given the amount required to fund payment of pension uprating to those living in South Africa, New Zealand, Australia and Canada, it follows that, if uprating were applicable to their pensions, either contributions would have to be increased or the additional cost financed out of other taxation. (I ignore, for present purposes, the possibility of borrowing to fund the cost.)



  27. Provision could be made by UK legislation for the payment of uprated pensions to pensioners living abroad without the necessity of any reciprocal agreement with their country of residence. In practice, however, uprated pensions are paid only to those living in countries with which the UK Government has entered into a reciprocal agreement requiring their payment.



  28. According to the DSS Memorandum on the uprating of state retirement pensions payable to people resident abroad submitted to the Social Security Committee of the House of Commons:


    "17. The main purpose of reciprocal agreements so far has been to provide a measure of social protection for workers, and the immediate members of their families, when moving from one to country to the other during their working lives. In effect, they generally prevent such workers from having to contribute to both countries' Social Security schemes at the same time while ensuring that they retain benefit cover from either one country or the other. On reaching pensionable age, such workers who have been insured in two or more countries' schemes can receive a pension from each which reflects the amount of their insurance in each.

    18. Whether a reciprocal Social Security agreement with another country is entered into depends on various factors, among them the numbers of people moving from one to the other, the benefits available under the other country's scheme, how far reciprocity is possible and the extent to which the advantages to be gained by an agreement outweigh the additional expenditure likely to be incurred by the UK in negotiating and implementing it. Where an agreement is in place, the flow of funds may differ depending on the level of each country's benefits and the number of people going in each direction.

    19. Since June 1996, the Government's policy has been that future reciprocal agreements should normally be limited to resolving questions of liability for social security contributions."


  29. Between 1948 and 1992 the UK entered into reciprocal social security agreements with a number of foreign states. With one minor exception, the agreements entered into after 1979 fulfilled earlier commitments made by the UK Government. Agreements with Australia, New Zealand and Canada came into force in 1953, 1956 and 1959 respectively, but these did not require payment of uprated pensions. The agreement with Australia was terminated by it with effect from 1 March 2001, because of the refusal of the UK Government to pay uprated pensions to its pensioners living in Australia.



  30. Uprating has never been applied to those living in South Africa, or indeed to the residents of any of Australia, Canada and New Zealand. They have never had a statutory entitlement to uprating of their pensions. According to the Social Security Committee Report:


    "It is impossible to discern any pattern behind the selection of countries with whom bilateral agreements have been made providing for uprating."


  31. The EC Regulations on Social Security for Migrant Workers require uprating of benefits throughout the European Union. In practice, the entry of the UK into the EC had little effect on the provision for uprating pensions in the Member States, because there were pre-existing reciprocal agreements with all of them except Denmark providing for their payment.



  32. A responsible UK Minister has admitted that there is no consistent or coherent pattern for these differences other than the intention to save cost. The then Minister of State, Mr Jeff Rooker, stated in the House of Commons on 13 November 2000:


    "I have already said I am not prepared to defend the logic of the present situation. It is illogical. There is no consistent pattern. It does not matter whether it is in the Commonwealth or outside it. We have arrangements with some Commonwealth countries and not with others. Indeed, there are differences among Caribbean countries. This is an historical issue and the situation has existed for years. It would cost some £300 million to change the policy for all concerned..."


  33. The cost of comprehensive uprating would presumably now exceed that figure of £300 million. The 1996 DSS Memorandum stated:


    "11. Agreeing to additional expenditure on pensions paid overseas would be incompatible with government's policy of containing the long term costs of the social security system to ensure that it remains affordable.

    12. In June and July 1995, during the passage of the Pensions Bill, amendments were tabled in both Houses calling for upratings to be paid. All were defeated by large majorities."


  34. According to the evidence filed on behalf of the Secretary of State:


    "Successive Governments have taken the view that the level of increases in retirement pensions relates to conditions in the UK and that it would not be right to impose an additional burden on contributors and taxpayers in the UK in order to pay pension increases to people who have chosen to become resident elsewhere in the world."

    State practice


  35. There is relatively little material before me to show the practice of other states in relation to payment of pensions to ex-patriots. Information contained in the appendix to the DSS Memorandum was drawn from a 1993 research report, and is set out as annex 2 to my judgment (supplemented, in the case of Australia, by the information in paragraph 27 of the Memorandum). It will be seen that there was no consistent practice among the seven states referred to.



  36. The United Kingdom is the only OECD country that discriminates between pensioners in different overseas countries.


    Convention rights


  37. The parties' submissions referred to above reflect the jurisprudence of the European Court of Human Rights and the decisions and opinions of the Commission, to which I refer below. The European jurisprudence was reviewed by Moses J in Hooper and ors v Secretary of State for Work and Pensions [2002] EWHC 191 (Admin) and Wilson J in The Queen on the application of Reynolds v Secretary of State for Work and Pensions [2002] EWHC 426 (Admin), and I do not propose to consider all of the material that has been put before me.



  38. In Alconbury [2001] 2WLR 1389, Lord Slynn of Hadley said at paragraph 26:


    "Although the Human Rights Act 1998 does not provide that a national court is bound by these decisions it is obliged to take account of them so far as they are relevant. In the absence of some special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the European Court of Human Rights. If it does not do so there is at least a possibility that the case will go to that court, which is likely in the ordinary case to follow its own constant jurisprudence."

    Decisions of the Commission are not of the same level as those of the Court. Where, however, there is a clear and constant line of decisions of the Commission that are not inconsistent with those of the Court, good reason is required if this Court is to decline to follow them.


  39. The starting point is the opinion of the Commission in Müller v Austria (App. No. 5849/72, Comm. Report 1.10.75, 73 DR 19). The position was subsequently helpfully summarised by the Commission in T v Sweden (App. No. 10671/83) (1986) EHRR 269:


    "The Commission recalls its constant case-law, according to which the right to a pension is not as such guaranteed by the Convention. At the same time the Commission has frequently held that the payment of contributions to a pension fund may in certain circumstances create a property right in a portion of such a fund and a modification of the pension rights under such a system could therefore in principle raise an issue under Article 1 of Protocol No. 1. The Commission has added, however, that "even if it is assumed that Article 1 of Protocol No. 1 guarantees persons who have paid contributions to a special insurance system the right to derive benefit from the system, it cannot be interpreted as entitling that person to a pension of a particular amount" (see Müller v Austria, Comm. Report 1.10.75, para. 30, D.R 3 p.25)."


  40. In X v Italy (App. No. 7459/76), the Commission rejected as manifestly ill-founded a claim of infringement of Article 1 of the First Protocol on the basis that the applicant had not satisfied the requirements under his domestic law for the payment of a pension.


  41. JW and EW v UK (App. No. 9776/82) was the first of the cases in which the Commission considered a complaint that the UK Government's failure to pay an uprated pension infringed the pensioner's Convention rights. The applicants were emigrating to Australia. The Commission rejected the complaint as inadmissible. In view of the relevance of their decision I shall set out the reported extract in full.


    "3. The Commission has considered the applicants' complaint under Article 1 of the Protocol. It first recalls that it has previously held that although this provision does not as such guarantee a right to a pension, the right to benefit from a social security system to which a person has contributed may in some circumstances be a property right protected by it. However the Commission also held that Article 1 does not guarantee a right to a pension of any particular amount, but that the right safeguarded by Article 1 consists, at most, "in being entitled as a beneficiary of the social insurance scheme to any payments made by the fund" (App. No. 5849/72, Müller v. Austria, D.R 3, p.25 at p. 31). It has further held that before the right to benefit protected by Article 1 can be established, it is necessary that the interested party should have satisfied domestic legal requirements governing the right (App. No. 7459/76, X. v. Italy, D.R. 11, p. 114).

    In the present case when the applicants emigrate to Australia their entitlement to benefit from the United Kingdom pension scheme will come to be regulated by different rules of domestic law, under which they will cease to qualify for payment of future pension increases contemplated by the relevant legislation. To that extent they will not satisfy domestic legal requirements to benefit from the United Kingdom pension scheme. Even if the right to benefit from a scheme will normally also apply to the regular increases this is not necessarily the case where a person leaves the country where the specific scheme operates. The Commission notes that in many countries specific restrictions as to the payment of social security benefits to foreign countries exist or have existed (cf. App. No. 6572/74 X. v. Federal Republic of Germany, D.R. 8, p. 70). In the Commission's view such operation of domestic law does not amount to a deprivation of possessions infringing Article 1 of the Protocol and there is thus no appearance of any breach of this provision.

    4. The Commission has nevertheless further considered the applicants' complaints in the light of Article 14 of the Convention which provides that enjoyment of Convention rights shall be secured without discrimination. In this respect it notes that one element of the applicants' complaint appears to be that they will receive less favourable treatment under the United Kingdom pension scheme than would other persons who have paid the same contributions but who have remained in the United Kingdom or emigrated to other countries. The Commission has therefore considered whether such differential treatment could amount to discrimination in the enjoyment of their rights under Article 1 of the Protocol contrary to Article 14.

    The Commission notes that it is a common feature of international life that social security agreements are entered into between different countries for the purpose of regulating the rights of persons moving from one country to another under the social security systems of each country. Such agreements commonly provide for the substitution, to a greater or lesser degree, of benefits under one system for those due under another. Under the Agreement between the United Kingdom and Australia the applicants' rights under the United Kingdom social security scheme are to some extent restricted and replaced by certain rights under the Australian scheme. The applicants, in their particular circumstances, will apparently be less well off than they would have been if they had remained in the United Kingdom or if they had gone to certain other countries. However it is almost inevitable that where a person in effect changes over from one social security system to another, he may find that his entitlements differ from those of persons in other countries. Depending on the circumstances such differences may or may not favour the individual. Furthermore the Commission notes that the applicants will only lose the benefit of future increases in their pensions, whose purpose broadly speaking is to compensate for rises in the cost of living in the United Kingdom. Given that they will not be living in the United Kingdom it appears reasonable that this element in their pension rights in particular should be replaced by the possibility of benefiting under the system of the country they are moving to."


  42. There is no longer a social security agreement between Australia and the UK, and there has never been an agreement with South Africa. However, I do not read the Commission's decision as depending on the existence of such an agreement. That this interpretation of the decision is correct is confirmed by the next decision of the Commission to which I must refer.



  43. Two years after its decision in JW and EW v UK, the Commission considered another complaint as to the Government's failure to pay uprated pensions, this time by an applicant who had emigrated to South Africa. In Corner (App. No. 11271/84), the Commission rejected as manifestly ill-founded the complaint that the failure to pay uprating infringed Article 1 of the First Protocol and Article 14. (There was also a complaint of breach of Article 2 of Protocol 4, but this was rejected because the UK had not ratified that Protocol.) The Commission stated:


    "The Commission recalls that it has previously held that, although Article 1 of Protocol No. 1 does not, as such, guarantee a right to a pension, the right to benefit from a Social Security system to which a person has contributed may, in some circumstances, be a property right protected by it. ... However, the Commission has also held that Article 1 does not guarantee a right to a pension of a particular amount, but that the right safeguarded by Article 1 consists, at most, "in being entitled as a beneficiary of the social insurance scheme to any payments made by the fund" (Dec. No. 5849/72, 1.10.75, D.R. 3 p. 25 at p. 31) in accordance with domestic legal requirements (Dec. No. 7459/76, 5.10.77, D.R. 11 p. 114). Further, the Commission has held that the "freezing" of a pension at a particular level when a person leaves the United Kingdom does not amount to a deprivation of possessions infringing Article 1 of the Protocol. (Dec. No. 9776/82, 10.83 to be published in D.R. 34). Moreover, the different treatment of persons entitled to pensions who remain in the country of payment compared with those who emigrate is justified on the grounds that the applicant will only lose the benefit of future increases in the pension, whose purpose broadly speaking is to compensate for rises in the cost of living in the United Kingdom and which the applicant will not have to endure (Dec. No. 9776/82, loc. cit.). The Commission also considers that the economic state of third countries is not a matter which domestic pension authorities should be obliged to consider."


  44. It is difficult to distinguish the present case from Corner, which if correct is fatal to the Claimant's case. Moreover, Corner, unlike JW and EW v UK, cannot be explained on the basis of the reciprocal agreement between the UK and Australia. However, it and other pre-1996 decisions must be reconsidered in the light of the judgment of the European Court of Human Rights in Gaygusuz v Austria (1996) 23 EHRLR 230. The Applicant was a Turkish national resident in Austria. The Austrian Government had refused to pay him emergency assistance, a social security benefit, entitlement to which depended on the payment of contributions into the state unemployment insurance fund. Austrian law confined entitlement to emergency assistance to Austrian nationals. Since the applicant had no right to benefit under Austrian law, the Austrian Government contended that he had no right within the scope of Article 14. The Court held that the Austrian Government had acted in breach of Article 14 taken in conjunction with Article 1 of the First Protocol. It said:


    "41. The Court considers that the right to emergency assistance in so far as provided for in the applicable legislation – is a pecuniary right for the purposes of Article 1 of Protocol No. 1 (P1-1). That provision (P1-1) is therefore applicable without it being necessary to rely solely on the link between entitlement to emergency assistance and the obligation to pay "taxes or other contributions".

    Accordingly, as the applicant was denied emergency assistance on a ground of distinction covered by Article 14 (art. 14), namely his nationality, that provision (art. 14) is also applicable (see, among other authorities, mutatis mutandis, the Inze v. Austria judgment of 28 October 1987, Series A no. 126, p. 18, para. 40, and the Darby v. Sweden judgment of 23 October 1990, Series A no. 187, p12, para. 30).

    B. Compliance with Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 (art 14+P1-1)

    42. According to the Court's case-law, a difference of treatment is discriminatory, for the purposes of Article 14 (art. 14), if it "has no objective and reasonable justification", that is if it does not pursue a "legitimate aim" or if there is not a "reasonable relationship of proportionality between the means employed and the aim sought to be realised". Moreover the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. However, very weighty reasons would have to be put forward before the Court could regard a difference of treatment based exclusively on the ground of nationality as compatible with the Convention.


    45. The Austrian Government submitted that the statutory provision in question was not discriminatory. They argued that the difference in treatment was based on the idea that the State has special responsibility for its own nationals and must take care of them and provide for their essential needs. Moreover, sections 33 and 34 of the Unemployment Insurance Act laid down certain exceptions to the nationality condition. Lastly, at the material time, Austria was not bound by any contractual obligation to grant emergency assistance to Turkish nationals.

    46. The Court notes in the first place that Mr Gaygusuz was legally resident in Austria and worked there at certain times (see paragraph 10 above), paying contributions to the unemployment insurance fund in the same capacity and on the same basis as Austrian nationals.


    50. The Court ... finds the arguments put forward by the Austrian Government unpersuasive. It considers, like the Commission, that the difference in treatment between Austrians and non-Austrians as regards entitlement to emergency assistance, of which Mr Gaygusuz was a victim, is not based on any "objective and reasonable justification".

    51. Even though, at the material time, Austria was not bound by reciprocal agreements with Turkey, it undertook, when ratifying the Convention, to secure "to everyone within [its] jurisdiction" the rights and freedoms defined in section I of the Convention.

    52. There has accordingly been a breach of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 (art. 14+P1-1)."


  45. The fact that the Court did not find a breach of Article 1 of the First Protocol taken alone supports the view that a pecuniary right that may qualify as a possession for the purposes of that provision is defined by domestic law, in that case the law of Austria. A person who does not qualify for that right under domestic law is not "deprived" of it for the purposes of that Article. However, Gaygusuz establishes that a domestic law that disqualifies an individual from enjoyment of a pecuniary right of a kind protected by Article 1 of the First Protocol on grounds prohibited by Article 14 without objective and reasonable justification infringes Article 14.



  46. The second sentence of paragraph 41 of the Court's judgment is framed in not untypical Delphic terms. It is unnecessary for me to decide what the Court intended to lay down, but I read it as holding that a state benefit may be a pecuniary right protected by Article 1 of the First Protocol even if it is not a contributory benefit entitlement to which is conditional on compulsory payment of a tax or other contribution. This is logical. There would be some logic in restricting Article 1 to pecuniary rights derived from a defined investment funded by individual contributions. In such a case the right is a true right of property. Where, however, the payment of contributions is no more than a condition for entitlement to a benefit (as I assume was the position in Gaygusuz), it is difficult to see why entitlement to a benefit resulting from satisfaction of that condition should create a pecuniary right protected by Article 1, when entitlement to benefit resulting from satisfaction of some other condition should not. In a case such as the present, the payment of benefit does not create a right of property in any real sense. The earlier decisions of the Court following Gaygusuz indicated that my reading was incorrect (see Skorkiewicz, Coke and Bellet v France (App. no. 4083332/98)), and Moses J and Wilson J similarly held that non-contributory benefits were outside the scope of Article 1 of the First Protocol in Hooper and in Reynolds. However, in Walden v Liechtenstein (Decision no. 33916/96) (a decision on admissibility only) the Court held that a non-contributory pension was protected by Article 1 of the First Protocol. In Shackell v UK (App No. 4585/99), the Court rejected the applicant's complaint as manifestly ill-founded, but in the course of doing so was prepared to assume that a non-contributory social security benefit was a pecuniary right for the purposes of Article 1 of the First Protocol. In Matthews v United Kingdom (App. No. 40302/98) (also a decision on admissibility only), the Court held that an allegation of discrimination on grounds of gender in relation to a bus pass, a non-contributory benefit, "raises complex issues under Article 14 of the Convention and Article 1 of Protocol No. 1 taken together".



  47. However, I entirely agree with Moses J, in paragraph 50 of his judgment in Hooper, that a pecuniary right protected by Article 1 is defined by the domestic legislation that created it. I refer in particular to the decision of the Court in Bellet, in which the Court stated:


    "... while no right to the grant of a pension is, as such, guaranteed by the Convention, compulsory contributions to a retirement fund may give rise, in certain cases, to a right of ownership over part of the funds .... However, it is still necessary, in order for such a right to accrue, that the persons concerned should fulfil the conditions laid down by national law."


  48. In the present case, UK legislation has never conferred a right on the Claimant to the uprating of her pension while she lived in South Africa. She does not satisfy and has never satisfied the conditions for payment of an uprated pension. She has never had a right to an uprated pension. There can therefore be no question of her having been deprived of any such right.



  49. In my judgment, therefore, there has been no infringement of Article 1 of the First Protocol. I add, however, that it does not follow that legislation that removes a right protected under Article 1 of the First Protocol cannot infringe that provision. That case is not before me. I also do not have to consider Mr Eadie's submission that the claim under Article 1 of the First Protocol must fail because that provision does not guarantee payment of a pension of any particular amount, and the Claimant has not been deprived of the substance of the right. I do not find the distinction between loss of part of a sum payable by reason of a pecuniary right and impairment of the substance or essence of the right (see Jankovic v Croatia Dec. no. 43440/98) an easy one.



  50. I therefore turn to consider the allegation of breach of Article 14 read with Article 1 of the First Protocol.


    Article 14 read with Article 1 of the First Protocol

    The questions to be considered


  51. In Michalak v London Borough of Wandsworth [2002] EWCA Civ 271, Brooke LJ said:


    "It appears to me that it will usually be convenient for a court, when invited to consider an Article 14 issue, to approach its task in a structured way. For this purpose I adopt the structure suggested by Stephen Grosz, Jack Beatson QC and the late Peter Duffy QC in their book Human Rights: The 1998 Act and the European Convention (2000). 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...?

    (ii) If so, was there different treatment as respects that right between the complainant on the one hand and the other persons put forward for comparison ("the chosen comparators")?

    (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 aims sought to be achieved?"


  52. As I indicated in paragraph 15 above, in my judgment, there is a fifth question to be considered, although it may well be that Brooke LJ intended it to be encapsulated in his question (iii). That question is: is the basis for the different treatment of the complainant as against that of the chosen comparators based on "any ground such as sex, race, colour, language...or other status" within the meaning of Article 14? Differences in treatment based on other factors are not discriminatory for the purposes of Article 14: see, for example, the decision of the Commission in P v UK (App. No. 14751/89) and those referred to in paragraph 55 below.


    (i) Do the facts fall within the ambit of a substantive Convention provision?


  53. The answer is clearly Yes: the present claim falls within the ambit of Article 1 of the First Protocol. The applicant in Gaygusuz succeeded although he had no right under Article 1 of the First Protocol. It follows from the decision of the Court in that case that Article 14 read with Article 1 of the First Protocol applies equally in the present case.


  1. Is there any different treatment as respects that right between the Claimant and her chosen comparators?


  1. Again, the answer clearly is in the affirmative.


    (iii)(a) Is the basis for the different treatment of the Claimant and the chosen comparators a ground within the scope of Article 14?

  2. Mr Eadie initially submitted that differences in the countries where people live are not differences in status. Persons who are in different places may be treated differently, and the differences in treatment do not amount to discrimination. He relied on the decisions of the Commission in Nelson v United Kingdom (App. No. 11077/84), in which the different treatment of offenders in Scotland and England was held not to be discriminatory, and in Murray v United Kingdom (1996) 22 EHRR 29, in which different treatment of detained suspects in Northern Ireland and in England was held not to be discriminatory. However, these are very different cases from the present. Regional differences, resulting from different bodies having jurisdiction, cannot be discriminatory: it seems to me that discrimination does not arise where different regions apply different rules without discrimination to all those within the region.



  3. In the present case, there is only one set of rules, namely the UK pensions legislation, and it applies differently to persons depending on their residence and presence abroad. A person ordinarily resident in Great Britain is entitled to her uprated pension even if absent (by definition temporarily) from this country. A person who is not ordinarily resident in Great Britain is not entitled to an uprated pension unless she is present in this country: Regulation 5 of the 1975 Regulations, as applied by Regulation 3 of the 2001 Up-rating Regulations, both of which are set out in Annex 1 to this judgment.



  4. Residence applied as a criterion for the differential treatment of citizens is in my judgment a ground within the scope of Article 14. Like domicile and nationality, it is an aspect of personal status. Indeed, having discovered the judgment of Darby v Sweden (1991) 13 EHRR 774, in which differential treatment on the ground of residence outside Sweden was held to infringe Article 14, Mr Eadie conceded the applicability of Article 14. Under UK legislation, a person is not entitled to have his pension uprated if he is ordinarily resident elsewhere. Ordinary residence is a ground of the kind referred to in Article 14.



  5. In these circumstances, I do not have to decide whether temporary presence in a location, by itself, not amounting to residence, is a ground of differential treatment that is within the scope of Article 14.


    (iii)(b) Are the chosen comparators in an analogous situation to the Claimant's?


  6. Since we are concerned with social security benefits, the comparison must take into account the social and economic circumstances and needs of the chosen comparators.



  7. There are two comparators to consider: persons resident in the UK and those resident in those countries whose UK pensioners receive uprated UK pensions.



  8. So far as the first class of comparators is concerned, persons who live in other countries have different costs of living from those in Great Britain, and live in economies that are subject to different rates of inflation. If a comparison were appropriate, it would be justifiable to compare the cost of living in sterling terms of a foreign pensioner with that in the UK. A pensioner resident abroad may be better off, in real terms, than a pensioner living in Great Britain, because of different local costs of living which are not fully reflected in exchange rates.



  9. While I have no evidence before me, it is notorious that the cost of living in this country is relatively high, and certainly higher than that in South Africa, partly as a result of the equally notorious depreciation of the rand as against, in particular, sterling. The depreciation of the rand has doubtless led to inflation in South Africa in terms of the local currency, and the Claimant's evidence refers to the facts that inflation and interest rates are higher there than here. However, the purchasing power of her fixed UK pension is not fixed: it depends on the rate of inflation in South Africa and changes in the sterling/rand exchange rate. Importantly, the Claimant does not state that the purchasing power in South Africa of her fixed sterling pension has declined because it has not been uprated; and as mentioned above the uprating so far refused to the Claimant personally is a relatively small sum. Perhaps more fundamentally, she has not compared the cost of living in South Africa with that in the UK. Lastly, she obviously cannot provide a prediction as to whether her cost of living in South Africa will increase in sterling terms.



  10. Similar comments apply to the comparison between the Claimant and those living in other countries.



  11. There are other differences between the circumstances of those resident here and those resident abroad, of which the most obvious in the present context are differences in local social security provision and in local taxation. The Claimant is unfortunate in that South Africa has limited social security provision, or at least did so at the time of the Social Security Committee Report. The position of pensioners in Australia is different: some of them benefit from Australian social security provision, at significant cost to the Australian exchequer. Of the (about) 220,000 UK pensioners in Australia, 158,000 qualify for an Australian pension, which is payable to those who have been resident in Australia for at least 10 years and have reached retirement age, and have less than a specified income. The position of pensioners in New Zealand, as described in the 1996 DSS memorandum, is different again: under the reciprocal agreement between the UK and New Zealand, periods of residence in the UK are treated as periods of residence in New Zealand. As a result, UK pensioners living in New Zealand qualify for New Zealand pensions (called superannuation), less the amount of their UK pensions, by reason of their residence here or there. Increases in their UK pensions would result in an equivalent reduction in their New Zealand pensions.



  12. It seems to me that the comparison between the positions of persons living in different countries, in different social and economic circumstances, and under different tax and social security regimes, is complex, and cannot simply be restricted to a comparison of the sterling amounts of their UK pensions.



  13. The differences between the situation of UK pensioners living abroad and those here led to the decisions of the Commission in JW and EW and Corner. The hope that Gaygusuz transformed the legal position of persons in the position of the Claimant would have been disappointed by the decision of the Commission in Havard (App. No. 38882/97) rejecting the complaint as inadmissible. The written decision of the Commission does not disclose anything meaningful about Mr Havard's complaint or the reasons for its being declared inadmissible, but it is common ground that Mr Havard is a UK state pensioner living in Australia, was president of the British Australia Pensioner Association, gave evidence to the House of Commons Social Committee (referred to at paragraphs 14 and 33 of their Report), and that his complaint to the Commission was that the UK Government had failed to pay him an uprated pension. The Commission found that "in so far as the matters complained of are within its competence, the Committee (of the Commission) finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols". The lack of any specific reasons is tantalising, and has left me to consider the question of breach of Article 14 without the benefit of the recent thinking of the Commission. I should very much have liked to see the report and information referred to in the decision. I should like to think that the reasons of the Commission were similar to those set out above. As appears from what I have stated above, in my judgment the failure of the applications in JW and EW and Havard did not depend on the existence of the then bilateral agreement between Australia and the UK, but on a more fundamental obstacle to their success, as the decision in Corner indicates. In neither of the earlier cases was the position of the applicant compared with that of pensioners in countries where uprating is paid. For reasons I have given, I do not think that this makes their conclusions unreliable.



  14. It follows that the Claimants' claim fails. In case I am wrong on this issue, however, I shall address the question of justification.


    (iv) Is there an objective and reasonable justification?


  15. On this issue, it is important to take into account that the Court is concerned with two areas of government in which it is clear that the judicial arm must give the greatest deference to the legislature and to the elected executive. The first concerns the allocation of resources: how much is to be raised by the Government, by taxation or otherwise, and how the moneys available for expenditure by the Government are to be spent. Those matters are not justiciable. In a different context, in Kebilene [2000] 2 AC 326, Lord Hope of Craighead said, at 381:


    "In this area difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention."

    These words were applied to the distribution of state benefit by Laws LJ (with whom the other members of the Court of Appeal agreed) in Waite v London Borough of Hammersmith & Fulham an another [2002] EWCA Civ 482, at paragraphs 36 and 37. At paragraph 37, Laws LJ said:

    "... the distribution of state benefit lies peculiarly within the constitutional responsibility of elected Government."

    In Steele Ford & Newton v CPS [1994] 1 AC 22, Lord Bridge referred, at 33E, to:

    "... the special constitutional convention which jealously safeguards the exclusive control exercised by Parliament over both the levying and the expenditure of the public revenue."


  16. I should also refer the Social Security Committee Report:


    "The allocation of scarce resources and the language of priorities are what politics and government are all about. It is not a question of first reaching a moral judgement about the rights and wrongs of the expatriates' case, and then deciding whether or not this country can afford to do anything about it. The decision about whether public expenditure on state retirement pensions should be increased in future by paying uprating increases which are not required by law at the moment is a political question which includes, but is not distinct from, the moral questions. Ultimately, it must be for the House to decide, and that is our concluding recommendation: That there should be a free vote at prime time to allow Members to express their opinion on the principle of whether the Government should pay upratings to some or all of those pensioners living in countries where upratings are not paid at present."


  17. The second area is that of foreign relations. Where uprated pensions are paid to expatriate pensioners, at present that is done either by virtue of the obligations imposed on members of the EU or pursuant to bilateral agreements between HM Government and the Government of the country in which the expatriates in question live. The Court will not embark on questions whether it is or is not in the public interest for such agreements to be entered into: see Blackburn v Attorney-General [1971] 1 WLR 1037; the International Tin Council litigation, culminating in J H Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418; Brunswick (Duke of) v. King of Hanover (1844) 6 Beav. 1; (1848) 2 H.L. Cas. 1, H.L. (E.). Such questions are, in English Law, the paradigm of questions that are non-justiciable. Although the payment of uprated pensions to expatriates does not require any agreement with their country of residence, relations with those countries are clearly involved, as the intervention of Australia in the present case demonstrates.



  18. European jurisprudence does not differ from English authority on the deference to be given to the democratically-elected organs of government in the field of social policy and public expenditure: Mellacher v Austria [1989] 12 EHRR 391, at paragraphs 45 and 54, helpfully cited by Moses J in Hooper at paragraph 102.



  19. The fundamental question is whether the UK Government may lawfully restrict uprating of pensions to pensioners within Great Britain. It seems to me that the discussion of this question is illogically affected by the incorrect perception that a pension is the fruit of the investment by a pensioner of National Insurance contributions. If it were, the Claimant would have a right protected by Article 1 of the First Protocol; but I have held that she has no such right. What I am concerned with, therefore, is the scope of entitlement to a form of state benefit.



  20. The Government has decided that uprated pensions are to be confined to those living in this country or living in certain other countries. It seems to me that a government may lawfully decide to restrict the payment of benefits of any kind to those who are within its territorial jurisdiction, leaving the care and support of those who live elsewhere to the governments of the countries in which they live. Such a restriction may be based wholly or partly on considerations of cost, but having regard to the wide margin of discretion that must be accorded to the government, I do not think it one that a Court may say is unreasonable or lacking in objective justification. The lack of consistency in state practice indicates that there is no single right decision to be made as to the payment of pensions to those who go to live abroad. It is also difficult to criticise the position of the government if the limitation on the benefit has been published for some time, so that those who have gone to live abroad did know, or could easily have ascertained it, before deciding to live abroad. That is the case in relation to pensions.



  21. Similarly, I think that the government is entitled to consider the payment of uprated pensions to those living abroad on a country-by-country basis, taking into account the interests of this country in each case. I do not think that payment of uprated pensions to pensioners in any one foreign country (or several) is converted, by Article 14, into an obligation to pay uprated pensions to all pensioners living abroad: yet this is the effect of the Claimant's submissions. It would be curious indeed if Article 14 were to compel the government to pay uprated pensions to those living abroad irrespective of any countervailing benefit offered by their countries of residence, yet again that would be the effect of the Claimant's case. The accepted illogicality of the present position is the result of agreements providing for payment of uprated pensions having been entered into with some countries, but not others, at a time when governmental policy was different from the present policy. The Social Security Committee Report states at paragraph 25 how this change of policy excluded pensioners in Canada from uprating:


    "An opportunity was missed in 1972 to reach agreement with Canada which would have provided for upratings to be paid. The UK's proposal of a comprehensive agreement foundered because of difficulties on the part of Canada. By the time these were sorted out, the UK's position had moved on and uprating was no longer on offer."

    This emphasises both the political nature of the decisions involved and the relative complexity of the issues, and shows how the illogicality has arisen.


  22. Mr Drabble stated that there is no record of a policy decision underlying the present scheme, and no record of a reasoned debate. The matter has certainly been before Parliament: see paragraph 12 of the DSS Memorandum cited above. There is a record of the policy for the refusal to extend payment of uprated pensions: see paragraphs 33 and 34 above. Lastly the reason for the payment of uprated retirement pensions to the residents of some foreign countries only is historical: changed political policies, different results.




  23. In my judgment, the remedy of the expatriate United Kingdom pensioners who do not receive uprated pensions is political, not judicial. The decision to pay them uprated pensions must be made by Parliament.



  24. For the reasons set out above, this claim for judicial review will be dismissed.


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