in relation to those in the British Islands. Thus, as it is put, the need for a
s8(4) warrant is much rarer in relation to a person in Britain, and it is
easier for the Secretary of State to satisfy herself that a s16(3) certificate
is necessary (Observations, §§8.8-8.16).
271.
In response:
(1)
The Court’s case law establishes that a difference of treatment is
discriminatory if it has no objective and reasonable justification; in
other words, 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. (J.M. v United
Kingdom, §54).
(2)
Contracting States enjoy a margin of appreciation in assessing
whether and to what extent differences in otherwise similar
situations justify a difference in treatment (§54; see Hämäläinen v.
Finland, GC, App. no. 37359/09, 16 July 2014, §108). But the scope
of the margin of appreciation will vary according to the
circumstances, the subject matter and its background. The final
decision as to the observance of the Convention’s requirements rests
with the Court (Biao v Denmark, GC, App. no. 38590/10, 24 May
2016, §93).
(3)
The Government urges on the Court the case of Stec v UK, App. No.
65731/01, 12 April 2006, and its “manifestly without reasonable
foundation” test. But Stec was a welfare benefits case, concerned
with an upper limit of eligibility that had been tied into other
benefits (and so severing them would have a number of complex
implications). It was therefore a classic economic or social strategy
case where a wider margin of appreciation is often afforded. Stec is
very different to the present case.
104