R (on the Application of AB) v Secretary of State for the Home Department, Secretary of State for Foreign, Commonwealth and Development Affairs and Secretary of State for Defence
| Jurisdiction | England & Wales |
| Judge | Lieven J |
| Judgment Date | 09 February 2023 |
| Neutral Citation | [2023] EWHC 287 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
Lieven J
ADMINISTRATIVE COURT
Human rights — Article 14 of the ECHR — applicants under Ukrainian Family Scheme (UFS) compared to Afghans applying under ARAP or LOTR — differential treatment justified — immigration — Home Office policies and concessions — Afghan Relocations and Assistance Policy (ARAP) — Leave Outside the Rules (LOTR) — requirement to provide biometrics
The Claimant, a citizen of Afghanistan, worked as a prosecutor under the International Security Assistance Force between 2001 and 2021. Since the fall of Kabul, she had been living in hiding with her mother and sisters. There was strong reason to believe that she was known to the Taliban and at serious risk from them. In November 2021 the Claimant applied under the Afghan Relocation and Assistance Policy (‘ARAP’) for relocation to the United Kingdom, where two of her siblings lived. In the alternative, she requested leave to enter the United Kingdom outside the Immigration Rules (‘LOTR’) or pursuant to Article 8 ECHR on the grounds of family ties. The Secretary of State for the Home Department refused to consider a grant of entry clearance without a completed visa application form (‘VAF’). That required the Claimant to state a country in which she could provide biometric data. A difficulty arose because there was no Visa Application Centre (‘VAC’) in Afghanistan. The Secretary of State's proposed ‘workaround’ was to suggest that the Claimant select a country stating that she could travel there to provide biometrics, even if she was unable to do so.
In May 2022, the Claimant was granted permission to apply for judicial review of the Secretary of State's refusal to consider her applications for LOTR and under Article 8 ECHR without first requiring the submission of biometric data. In October 2022, the Claimant submitted an application for LOTR on a VAF. That application had not yet been determined, but the Secretary of State had agreed to consider waiving the biometric requirements which made many of the issues raised in the Claimant's skeleton argument superfluous. The outstanding issue was whether the Secretary of State had unlawfully discriminated against Afghans as compared to Ukrainians seeking to enter the United Kingdom contrary to Article 14 ECHR. The Ukrainian Family Scheme (‘UFS’) allowed Ukrainian family members of a United Kingdom sponsor to defer providing their biometric data until inside the United Kingdom. The Claimant argued that the differential treatment, by the provision of a bespoke scheme for the waiver of biometric data for Ukrainians but the failure to have any similar scheme for Afghans applying under ARAP or for LOTR, was not justified.
Held, refusing the application:
(1) The first question on an Article 14 ECHR claim was whether the case fell within the ambit of one of the substantive rights or freedoms. The instant case fell within the ambit of Article 8 ECHR as there was an obvious and direct impact on the Claimant's right to family life. The next question was whether the differential treatment was on the grounds of national origin or some ‘other status’. It was common ground that there was differential treatment on the grounds of ‘other status’, but there was dispute over the degree to which the differential treatment was on the grounds of nationality. It was noted that a Ukrainian who was not resident in Ukraine in January 2022 would not be eligible under the UFS. That was relevant since if the differential treatment was on the grounds of nationality alone then the Court would require ‘very weighty reasons’ for the difference: Gaygusuz v Austria(1997) 23 EHRR 364 applied. If the difference was based on immigration status, the state would have a wider margin of appreciation. The vast majority of people applying in the Claimant's situation would be Afghans and all those under the UFS would be Ukrainians. Applying the ECHR in a way that was practical and not theoretical, the difference in treatment was principally because of nationality (paras 22 – 26).
(2) The third question was whether the Claimant and the person she wished to be compared with under the UFS were in an ‘analogous situation’. It was not necessary for them to be in identical positions, but they must be relevantly similar: Hode v United Kingdom(2013) 56 EHRR 27 applied. That question went directly to the issue of justification and should be considered at that stage of the analysis. Since the differential treatment was principally based on nationality, it was appropriate to look for ‘very weighty’ reasons for the difference in treatment. The situations of the Ukrainian proposed entrant and the Afghan proposed entrant were analogous in the sense that both groups were fleeing persecution in their home countries and would be at great risk, albeit for different reasons, if they were to remain in those countries. Nonetheless, the nature of the reasons put forward by the Respondents, which went to both diplomatic and foreign policy considerations and to national security, were such that the Court should give a wide margin of appreciation to the Respondents. It was not for the Court, save in the clearest of cases, to go behind such considerations (paras 27 – 28 and3 8 – 39).
(3) The reasons given by the Respondents for not treating Afghans, in the position of the Claimant, and Ukrainians the same in respect of biometric data had a rational connection to the aims to be achieved, namely immigration control and national security. In his witness statement, the deputy policy lead on biometric policy in the Home Office explained that there were two key differences between the situation of Ukrainians and Afghans in the decision to allow the former but not the latter to enter the United Kingdom before biometric data had been submitted. First, he referred to the pressure that would have been placed on the VAC network in Europe if Ukrainians seeking entry to the United Kingdom had to go to a VAC first to enrol their data. Secondly, there was a different overall security assessment between Ukraine and Afghanistan. Whereas the risks posed from Ukrainian refugees were primarily around immigration control, terrorist organisations had operated from Afghanistan in recent times, bringing potential for harm to the interests of the United Kingdom. Those matters were rationally connected to the policy of ensuring that Afghans seeking entry to the United Kingdom were properly identified before being allowed entry. During the emergency evacuations in August 2021 from Kabul under Operation Pitting, it was considered appropriate to defer biometric testing of those being evacuated to the United Kingdom. That was an extremely urgent crisis which required a rapid policy response. That situation could not set a precedent for subsequent, more careftil, policy choices. The Respondents had discharged the burden of justifying the differential treatment (paras 33 – 34, 37 and 41 – 43).
AL (Serbia) v Secretary of State for the Home Department; R (on the application of Rudi) v Secretary of State for the Home Department[2008] UKHL 42; [2008] 1 WLR 1434; [2008] 4 All ER 1127; [2008] Imm AR 729; [2008] INLR 471
Bah v United Kingdom 2011 ECHR 56328/07; (2012) 54 EHRR 21
Gaygusuz v Austria 1997 ECHR 17371/90, ECtHR; (1997) 23 EHRR 364
Hode and Abdi v United Kingdom 2012 ECHR 22341/09; (2013) 56 EHRR 27; [2013] Imm AR 287; [2013] INLR 715
Mahabir and Others v Secretary of State for the Home Department [2021] EWHC 1177; [2021] ACD 84; [2021] 1 WLR 5301; [2022] 1 All ER 895
R (on the application of S) v Secretary of State for Foreign, Commonwealth and Development Affairs, Secretary of State for the Home Department and Secretary of State for Defence; R (on the application of AZ) v Secretary of State for the Home Department, Secretary of State for Foreign, Commonwealth and Development Affairs and Secretary of State for Defence[2022] EWHC 1402; [2022] ACD 133
R (on the application of SC, CB and 8 children) v Secretary of State for Work and Pensions and Others [2021] UKSC 26; [2022] AC 223; [2021] 3 WLR 428; [2022] All ER 95
International instruments judicially considered:
European Convention on Human Rights, Articles 8 & 14
Ms S Naik KC, Ms M Sardar and Ms G Mellon instructed by Wilsons Solicitors LLP, for the Claimant;
Mr J Anderson instructed by the Government Legal Department, for the Secretaries of State.
This judgment was handed down remotely at 10.30am on 10 February 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Mrs Justice Lieven DBE:
[1] This is an application for judicial review brought by AB concerning the Defendant's failure to determine her application for Leave Outside the Rules...
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