Delimiting Thlimmenos discrimination

In Thlimmenos v Greece (2001) 31 EHRR 15, Strasbourg held that Article 14 ECHR (when read with another substantive right within the Convention) will be “violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different” (emphasis added), §44. A quarter of a century on, the conceptual boundaries of this potentially transformative principle remain poorly articulated and understood. 

In the recent case of R (CKS and others) v Secretary of State for Education [2026] EWHC 741 (Admin), in which a group of Charedi Jewish children challenged the Defendant’s refusal to extend the Universal Infant Free School Meals policy ("UIFSM") to Charedi Jewish private schools, the Administrative Court attempted to prescribe some principled limits on Thlimmenos. In this piece, I suggest that this attempt was unsuccessful. As CKS may yet be appealed, I focus less on the specifics of that case and more on the conceptual problems that the judgment raises.

What is Thlimmenos discrimination?

The Applicant in Thlimmenos was a Jehovah's Witness who had received a criminal conviction for refusing to enlist in the Greek army for religious reasons, §7. He applied to become a Chartered Accountant, but this was refused on the ground that he had been convicted of a felony, §8, pursuant to domestic legislation which prohibited persons with felony convictions from becoming Chartered Accountants, §§15-16. The ECtHR held that the Applicant was in a materially different situation to other persons convicted of felonies (he had been convicted for reasons connected to his religion). Applying the statement of principle at §44, the Court held that the Greek authorities had failed to treat the Applicant differently from other people with convictions, and this failure was not justified, meaning that Article 14 ECHR (read with Article 9) had been violated, §§47-49. 

Strasbourg did not seek to justify this principle in any detail in that case. Tentative steps towards this have come later: in Kurić v Slovenia (2013) 56 E.H.R.R. 20, the Court stated that “in certain circumstances a failure to attempt to correct inequality through different treatment may, without an objective and reasonable justification, give rise to a breach”, §388 (emphasis added). Thlimmenos discrimination thus has an avowedly egalitarian thrust behind it. Of course however, these normative underpinnings give very little guidance as to when this broad principle will actually bite. 

The CKS case

Since 2014, s.512ZB(2) of the Education Act 1996 (read with s.512ZB(4A)) has prescribed that children in reception, year 1 or year 2 of a state-funded primary school are entitled to free school meals. On 24 June 2025, the Defendant published its “conditions of grant” Guidance, which set out the conditions on which funding and assistance would be given to local authorities to aid their compliance with s.512ZB(2). Funding was limited to schools in the state sector. 

As explained in the recent case of R (ALR and others) v Chancellor of the Exchequer [2025] EWHC 1467 (Admin), [2026] 1 W.L.R. 10 (“the VAT Case”) at §149, the Charedi Jewish community has a strong religious and cultural preference for a Charedi education which is almost entirely unavailable within the state sector. The community also faces high levels of deprivation. Against this background, representatives from the Orthodox Jewish community made a “direct ask” of the Defendant to review whether the UIFSM should be extended to include Charedi children. The Defendant considered this request, but ultimately decided that the policy should be limited to state-funded schools. 

This decision was challenged by a claim for judicial review. Relevantly, the Claimants argued that the decision was an unlawful breach of Article 14 ECHR read with Article 9 ECHR due to a breach of the Thlimmenos principle. They argued, in summary, that: (i) the Defendant has a policy of funding UIFSM for state-funded children; (ii) the Claimants were excluded from that policy, like other private school pupils; (iii) they were in a materially different situation to other private school children, in light of their conditions of deprivation and their need to be in specific Charedi education; and (iv) it was therefore discriminatory in the Thlimmenos sense to fail to treat them differently from those other private school pupils here, §87.

The Defendant argued that the Thlimmenos principle was not engaged as there was “no relevant treatment” at all. All private school pupils were outside the policy and were unaffected by it; whereas “the Thlimmenos principle requires that someone caught by a rule should be excepted from it. It does not operate to extend a policy to provide benefits outside its remit”, §88. 

Mansfield J agreed with the Defendant. He concluded that Thlimmenos discrimination required the application of a “general rule” to the applicants, in relation to which “it was argued that the rule was discriminatory by failing to treat them differently to others to whom the rule applied”. This application of a general rule was a necessary form of “treatment” that had to be shown as a primary hurdle, §105. As the Claimants in CKS were not subject to any general rule (they fell outside the scope of the UIFSM entirely), they had faced no “treatment” from the Defendant, and as such Thlimmenos was not engaged, §109. 

In respect of the Claimants’ argument that they had, in effect, been affected by a general exclusionary rule, namely that the UISFM was limited to state-funded pupils, Mansfield J held that this was “overly simplistic”, §107. This was because UISFM was not a general entitlement from which they were excluded by the criterion that only state schools were eligible: “UIFSM is not a general entitlement, it is part of the package of features provided only to children at state-funded schools, in the same way that access to books, pencils, teachers and classrooms are provided by the state to state-funded pupils”, §107(i). As such, rather than asking for an exception to the exclusionary condition, they were effectively “asking for a different scheme” altogether, §107(iii). 

Three problems with these conceptual limits on Thlimmenos discrimination

In my view, the limits suggested by Mansfield J in CKS (and by other Judges in obiter in separate cases) are, with respect, theoretically and practically unsustainable. Further below I suggest some ways in which the principle could be more workably operated. 

The need to show a “general rule” from which an exception is sought

The ECtHR in Thlimmenos explained that Applicant’s case at §42, where it stated that: 

“the applicant does not complain of the distinction that the rules governing access to the profession make between convicted persons and others. His complaint rather concerns the fact that in the application of the relevant law no distinction is made between persons convicted of offences committed exclusively because of their religious beliefs and persons convicted of other offences”. 

In other words, the Applicant did not challenge the distinction in the rules between convicted persons and others; accepting that distinction, he nonetheless argued that distinctions should be drawn within the category of convicted persons in an individual case, namely where those convictions were related to religious belief. He thus accepted that he fell outside the general rule (“Chartered Accountants cannot have felony convictions”), but argued that because of his particular circumstances a different approach should be taken to him. Similarly, the Claimants in CKS fell outside the general rule, but argued that distinctions should be drawn within the category of private schools when deciding whether to extend the UIFSM to them in an individual case. 

Strasbourg is plainly comfortable with this kind of case engaging Article 14. In Abdu v Bulgaria (Application no. 26827/08), the Applicants were the victims of racist attacks, §7. The domestic prosecutor decided not to bring a prosecution, §13, and it was alleged that the investigation was incomplete, §14. The Court held that there was a particular duty to investigate criminal offending with racist overtones, as this would be “tantamount to turning a blind eye to the specific nature of acts which are particularly destructive of fundamental human rights”, such that “a failure to make a distinction in the way in which situations which are essentially different are handled may constitute unjustified treatment irreconcilable with Article 14 of the Convention”, §44.^[1] No “general rule” as to how criminal investigations are normally to be conducted is discernible in this case: the Court’s focus is solely on the positive duty to distinguish the approach to racially motivated crimes from non-racially motivated ones. 

Despite this, the idea that an applicant must a “general rule” from which they are asking to be excepted is often repeated in domestic law: R (A and another) v Secretary of State for Health [2015] EWCA Civ 771, [2016] 1 WLR 331, §37; R (SC & Ors) v SSWP [2022] AC 223; [2021] UKSC 26, §48; R (Jwanczuk) v SSWP [2025] UKSC 42; [2025] 3 WLR 741, §33. As well as departing from Strasbourg jurisprudence, in my view such a distinction is likely to be problematic in practice. 

Imagine there is a policy-maker, P, whose workload involves distributing gloves to people who need them. P has 5 pairs of gloves, and 20 people to choose from. P notices that there seem to be a lot of dark-haired people who are bare-handed. Now imagine P formulating her policy position in two different ways: 

1. Anyone who does not have dark hair is excluded from getting gloves.
2. All dark-haired persons are to be given gloves. 

If a blonde haired person came forward and requested a pair of gloves from P on the basis that they were bare-handed, Mansfield J’s analysis suggests that whether Thlimmenos applies depends on whether P formulated the policy as (1) or (2). On (1), the blonde haired person is caught by a general rule, and is asking for an exception from it, such that Thlimmenos applies. On (2), the blonde haired person is simply asking for a “new scheme”, one that is not based on dark-haired persons being eligible, such that Thlimmenos is not engaged. It can hardly be said that there is some material distinction between the two formulations that makes (1) inherently more suspect than (2). Tailoring Thlimmenos to the way in which a rule is formulated is likely to be problematic, and may needlessly incentivise drafters to frame rules in a particular way. 

The Court’s concept of a “general entitlement” at §107

In Taddeucci v Italy (Application no. 51362/09), the Applicants were in a same-sex relationship. One was an Italian national; the other applied for an Italian residence permit so that they could live together in Italy, §§10, 57. That application was refused on the basis that they were not “members of the same family”. Because the Applicants were unmarried, they could not meet this criterion, §83. Strasbourg found that (i) the Italian authorities did not treat same-sex couples differently from heterosexual couples in requiring them to show that they were married before granting residence permits, §82; (ii) the Applicants were in a materially different situation to unmarried heterosexual couples, because same-sex couples were unable to marry in Italy, §83; (iii) this failure to distinguish between them was not justified, §§94-97. 

This case helps illustrate the difficulties with Mansfield J’s attempts to delimit Thlimmenos in the CKS case at §107. First, he found at §107 that UIFSM could not be said to amount to a “general entitlement” from which the Claimants were being excluded. In Taddeucci, state residence permits were not “general entitlements” from which the applicants were excluded via a qualifying condition (namely, marriage). According to Strasbourg, the state is entitled to decide for itself the contours of its immigration policy (see §55 of Taddeucci); access to a residence permit is no more a general entitlement than access to free school means on the basis of age and school-type. Secondly, Mansfield J held that UIFSM was not a “general entitlement” because state provision thereof is intrinsically tied up with state school status (like “books, pencils, teachers and classrooms”). With respect, this simply begs the question: the Claimants were asking for one such feature to be extended to them, and this was refused. In Taddeucci, the Italian government could have argued that provision of residence permits was intrinsically tied up with marital status (as that was the scheme they had created). It is difficult to imagine that the Court would have regarded this as relevant.

Nor is the notion that applicants are seeking the creation of a “different scheme” a helpful touchstone. The applicant in Thlimmenos was asking for a dramatically different scheme altogether (he was asking that those with criminal convictions could become Chartered Accountants, despite the express prohibition of this in primary legislation). Whether their request for an extension to the scheme was so radical as to result in a fundamentally different scheme was not of interest to the Court: the real point was whether the refusal to extend the scheme in that way was justified. 

The exclusion of “positive discrimination”

The Defendant in CKS argued that this was a “pure claim for positive discrimination”, §63(ii). Mansfield J ultimately rejected the claim for this reason; he said “[n]either the Claimants nor the comparator group fall within the scope of UIFSM at all. In my judgment, the Defendant is right to say that the Claimants simply seek a form of positive discrimination”, §109. 

The notion that a claim is for “positive discrimination” is not, without more, an adequate basis for its dismissal. On the contrary, Strasbourg has held that positive discrimination may sometimes be required by the exigencies of equality. In Taddeucci, the Court held when describing Thlimmenos that “in certain circumstances a failure to attempt to correct inequality through different treatment may in itself give rise to a breach of the Article” (emphasis added), §81. This aligns with the statement of principle set out in Kurić at §388, supra. 

Indeed, the notion of reasonable adjustments (or, to use Strasbourg’s preferred terminology, reasonable accommodation) is well-known within our domestic law. The duty to make reasonable adjustments is, at least at one level, a duty to discriminate positively in favour of one person over another, in order to address or mitigate pre-existing disadvantages that such persons face. If in equality law a criterion (giving rise to substantial disadvantage of disabled persons) can give rise to the duty to make reasonable adjustments (see s.20(3) Equality Act 2010), it is unclear why an exclusionary criterion like that in the CKS case is incapable of engaging Strasbourg’s concept of reasonable accommodation.

Conclusions

Many of the objections to the Claimants’ case in CKS can be appropriately dealt with at the justification stage. However, it is clear that justification cannot do all of the heavy lifting. One tentative suggestion is that the focus should be directed away from the vexed questions of “treatment” or “general rules”, and onto whether, in an individual case, the particular disadvantages of certain groups are of such weight as to give rise to a prima facie duty to afford them some benefit. This was the focus of Lord Carnwath in R (DA & Or) v SSWP [2019] UKSC 21, [2019] 1 WLR 3289 at §109 when he said that the question was “whether those groups or sub-groups are sufficiently different from other comparable groups to have required separate treatment under the Thlimmenos principle to avoid interference with their article 8 rights, and whether a failure in that regard can be justified” (emphasis added). By focusing on the nature of the differences between the groups relied upon as a result of the state’s policy decisions, the Court can consider whether, in particularly striking cases, the failure to extend that policy to certain groups requires objective justification. A greater focus on the particular circumstances of groups, rather than on whether their treatment falls within a general rule, is likely to align more closely with the egalitarian thrust behind Thlimmenos.