Upper Tribunal (Immigration and asylum chamber), 2024-05-15, JR-2023-LON-001622
| Appeal Number | JR-2023-LON-001622 |
| Hearing Date | 20 March 2024 |
| Date | 15 May 2024 |
| Published date | 20 May 2024 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
JR-2023-LON-001622
In the Upper Tribunal
(Immigration and Asylum Chamber)
Judicial Review
In the matter of an application for Judicial Review
The King on the application of
LR
(Anonymity Order made)
Applicant
versus
Secretary of State for the Home Department
Respondent
ORDER
BEFORE Mr Justice Sheldon and Upper Tribunal Judge Jackson
ON THE APPLICATION for judicial review of the Respondent’s decisions dated 2 May 2023 and 15 February 2024 refusing the Applicant’s application for entry clearance made under the Ukraine Family Scheme and the Homes for Ukraine Sponsorship Scheme and outside the Rules.
AND UPON hearing Ms M Knorr, Counsel, instructed by Birnberg Peirce, for the Applicant and Mr J Holborn, Counsel, instructed by the Government Legal Department, for the Respondent at a hearing held at Field House on 19 and 20 March 2024.
IT ORDERED THAT:
1. The application for judicial review is dismissed.
2. The Applicant shall pay the Respondent’s reasonable costs of the claim on a standard basis to be the subject of a detailed assessment if not agreed. The Applicant having the benefit of cost protection under section 26 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’); these costs shall not be enforced without the permission of the Upper Tribunal and the amount that he is to pay should be determined on any application by the Respondent in accordance with section 26 LASPO and Regulation 16 of the Civil Legal Aid (Costs) Regulations 2013.
3. There shall be a detailed assessment of the Applicant’s publicly funded costs.
4. The Applicant’s application for permission to appeal is refused.
Reasons for refusal of permission to appeal
The Applicant sought permission to appeal to the Court of Appeal on two grounds. First, that the Upper Tribunal erred in law in its approach as to whether the discrimination was justified, considering this on general grounds rather than properly considering whether it was justified on the facts of the Applicant’s case and erred in its conclusions that discrimination was objectively justified. Secondly, that the Upper Tribunal erred in law in its assessment of whether Article 8(1) of the European Convention on Human Rights was engaged and as to whether any interference would be proportionate.
The first ground is not arguable as to the approach taken, as confirmed recently in R (oao AB) v Secretary of State for the Home Department [2024] EWCA Civ 369 that Article 14 challenges do not involve individualised assessments and the remainder of the first ground amounts to no more than disagreement with the findings.
The second ground is not arguable as it fails to properly engage with the reasons why it was not accepted that Article 8(1) was engaged and is a disagreement on the facts rather than identifying any arguable error of law.
Signed: G Jackson
Upper Tribunal Judge Jackson
Dated: 14 May 2024
The date on which this order was sent is given below
For completion by the Upper Tribunal Immigration and Asylum Chamber
Sent / Handed to the applicant, respondent and any interested party / the applicant's, respondent’s and any interested party’s solicitors on (date): 15/05/2024
Solicitors:
Ref No.
Home Office Ref:
Notification of appeal rights
A decision by the Upper Tribunal on an application for judicial review is a decision that disposes of proceedings.
A party may appeal against such a decision to the Court of Appeal on a point of law only. Any party who wishes to appeal should apply to the Upper Tribunal for permission, at the hearing at which the decision is given. If no application is made, the Tribunal must nonetheless consider at the hearing whether to give or refuse permission to appeal (rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008).
If the Tribunal refuses permission, either in response to an application or by virtue of rule 44(4B), then the party wishing to appeal can apply for permission from the Court of Appeal itself. This must be done by filing an appellant’s notice with the Civil Appeals Office of the Court of Appeal within 28 days of the date the Tribunal’s decision on permission to appeal was sent (Civil Procedure Rules Practice Direction 52D 3.3).
Case No: JR-2023-LON-001622
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR
14th May 2024
Before:
MR JUSTICE SHELDON
UPPER TRIBUNAL JUDGE JACKSON
- - - - - - - - - - - - - - - - - - - -
Between:
THE KING
on the application of
LR
(Anonymity Order made)
Applicant
- and -
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
- - - - - - - - - - - - - - - - - - - -
Ms M Knorr of Counsel
(instructed by Birnberg Peirce Solicitors LTD), for the Applicant
Mr J Holborn of Counsel
(instructed by the Government Legal Department) for the Respondent
Hearing dates: 19 and 20 March 2024
- - - - - - - - - - - - - - - - - - - -
J U D G M E N T
- - - - - - - - - - - - - - - - - - - -
ANONYMITY ORDER
No-one shall publish or reveal any information, including the name or address of the Applicant or their Sponsor, likely to lead members of the public to identify the Applicant or their Sponsor. Failure to comply with this order could amount to a contempt of court.
Mr Justice Sheldon and Judge Jackson:
1. In this application for Judicial Review, the Applicant challenges the Respondent’s refusal of his application for entry clearance to the United Kingdom dated 2 May 2023 (albeit served on 1 June 2023) under the Ukrainian Family Scheme (the “UFS”) and the Homes for Ukraine Sponsorship Scheme (the “HUSS”).
2. The Applicant is an Afghan national who obtained a visa to study in Ukraine in September 2015 and arrived there on 8 October 2015 shortly after his eighteenth birthday. He studied at the University of Ukraine for a number of years with various visa extensions to 15 August 2020. The Applicant’s visa was cancelled prior to its end date following a new law which required students to leave the country and make a new application for a visa from outside of it. The Applicant could not return to Afghanistan to do so because there was no Ukrainian Embassy there from which to apply and because he feared for his safety on return to Afghanistan. The Applicant remained in Ukraine and on 1 September 2021 he was recognised as a refugee by the UNHCR there. His initial certificate for this expired and he was awaiting a response on his request to extend his refugee certificate at the time of the Russian invasion.
3. On 25 February 2022, following the Russian invasion in to Ukraine, the Applicant fled first to Poland and then to Germany on 3 March 2022 where he currently remains. The Applicant was granted a visa in Germany on 4 March 2022 which expired on 4 March 2024, but he is in the process of renewing it. In Germany, the Applicant had until very recently been living with his cousin’s son (he now lives in different shared accommodation) and has been supported at times by a small stipend from the German Government and by his brother (“the Sponsor”). He has had part-time employment and has accessed health care in Germany.
4. On 26 September 2022, the Applicant applied for entry clearance to the United Kingdom to join the Sponsor who has indefinite leave to remain here granted on 8 April 2022 under the Afghan Relocation and Assistance Policy (“ARAP”). The Sponsor was in the Afghan army and worked as an Air Liaison Officer for the Special Forces of the British General Command Police Special Unit in Afghanistan and consequently is now at risk from the Taliban if he returned to Afghanistan. The Sponsor has made separate applications for the Applicant and other family members (who were at the time of application still in Afghanistan but now understood to be in Pakistan) to join him in the United Kingdom under ARAP on the basis that they are also at risk from the Taliban because of his connections with the British armed forces. There are examples of other family members already having been targeted, injured and killed in Afghanistan. The application under ARAP is a separate application which is not the subject of the current claim and the details of which are not therefore referred to in any detail in this decision1.
5. The application on 26 September 2022 was under both the UFS to join the Sponsor in the UK as his closest relative in Europe and because he would be unable to return to Afghanistan; and under the HUSS with accommodation offered by one of the Sponsor’s former teachers in the Defence Academy in the UK (an approved sponsor under the HUSS) on the basis that at the time of the application, the Sponsor was in bridging accommodation which the Applicant could not join him in. The intention has however always been for the Applicant and Sponsor to live together in the United Kingdom, with plans to rent appropriate accommodation for the Applicant’s arrival.
6. The Respondent initially refused the Applicant’s application for entry clearance on 16 January 2023 on the basis that the Applicant was not a Ukrainian national, however that was withdrawn subsequent to an earlier application for Judicial Review (JR-2023-LON-000604) and reconsidered in a decision dated 2 May 2023.
7. In the decision dated 2 May 2023, the Respondent refused the application (without initially specifying which but it is not in dispute that the decision and reasoning covers both the UFS and HUSS) on the basis that the Applicant did not meet the nationality requirements. The Respondent refers to the Ukraine Scheme guidance containing discretion, but noted that this was only in relation to the evidence required and to relationships not explicitly catered for within the Immigration Rules and did not extend to the nationality requirements.
8. In relation to Articles 8 and 14 of the European Convention on Human Rights (“the Convention”), the Respondent expressly stated that the application made was not a human rights claim but that, in any event, it was not arguable that family life was engaged in circumstances where the Applicant was living...
In the Upper Tribunal
(Immigration and Asylum Chamber)
Judicial Review
In the matter of an application for Judicial Review
The King on the application of
LR
(Anonymity Order made)
Applicant
versus
Secretary of State for the Home Department
Respondent
ORDER
BEFORE Mr Justice Sheldon and Upper Tribunal Judge Jackson
ON THE APPLICATION for judicial review of the Respondent’s decisions dated 2 May 2023 and 15 February 2024 refusing the Applicant’s application for entry clearance made under the Ukraine Family Scheme and the Homes for Ukraine Sponsorship Scheme and outside the Rules.
AND UPON hearing Ms M Knorr, Counsel, instructed by Birnberg Peirce, for the Applicant and Mr J Holborn, Counsel, instructed by the Government Legal Department, for the Respondent at a hearing held at Field House on 19 and 20 March 2024.
IT ORDERED THAT:
1. The application for judicial review is dismissed.
2. The Applicant shall pay the Respondent’s reasonable costs of the claim on a standard basis to be the subject of a detailed assessment if not agreed. The Applicant having the benefit of cost protection under section 26 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’); these costs shall not be enforced without the permission of the Upper Tribunal and the amount that he is to pay should be determined on any application by the Respondent in accordance with section 26 LASPO and Regulation 16 of the Civil Legal Aid (Costs) Regulations 2013.
3. There shall be a detailed assessment of the Applicant’s publicly funded costs.
4. The Applicant’s application for permission to appeal is refused.
Reasons for refusal of permission to appeal
The Applicant sought permission to appeal to the Court of Appeal on two grounds. First, that the Upper Tribunal erred in law in its approach as to whether the discrimination was justified, considering this on general grounds rather than properly considering whether it was justified on the facts of the Applicant’s case and erred in its conclusions that discrimination was objectively justified. Secondly, that the Upper Tribunal erred in law in its assessment of whether Article 8(1) of the European Convention on Human Rights was engaged and as to whether any interference would be proportionate.
The first ground is not arguable as to the approach taken, as confirmed recently in R (oao AB) v Secretary of State for the Home Department [2024] EWCA Civ 369 that Article 14 challenges do not involve individualised assessments and the remainder of the first ground amounts to no more than disagreement with the findings.
The second ground is not arguable as it fails to properly engage with the reasons why it was not accepted that Article 8(1) was engaged and is a disagreement on the facts rather than identifying any arguable error of law.
Signed: G Jackson
Upper Tribunal Judge Jackson
Dated: 14 May 2024
The date on which this order was sent is given below
For completion by the Upper Tribunal Immigration and Asylum Chamber
Sent / Handed to the applicant, respondent and any interested party / the applicant's, respondent’s and any interested party’s solicitors on (date): 15/05/2024
Solicitors:
Ref No.
Home Office Ref:
Notification of appeal rights
A decision by the Upper Tribunal on an application for judicial review is a decision that disposes of proceedings.
A party may appeal against such a decision to the Court of Appeal on a point of law only. Any party who wishes to appeal should apply to the Upper Tribunal for permission, at the hearing at which the decision is given. If no application is made, the Tribunal must nonetheless consider at the hearing whether to give or refuse permission to appeal (rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008).
If the Tribunal refuses permission, either in response to an application or by virtue of rule 44(4B), then the party wishing to appeal can apply for permission from the Court of Appeal itself. This must be done by filing an appellant’s notice with the Civil Appeals Office of the Court of Appeal within 28 days of the date the Tribunal’s decision on permission to appeal was sent (Civil Procedure Rules Practice Direction 52D 3.3).
Case No: JR-2023-LON-001622
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR
14th May 2024
Before:
MR JUSTICE SHELDON
UPPER TRIBUNAL JUDGE JACKSON
- - - - - - - - - - - - - - - - - - - -
Between:
THE KING
on the application of
LR
(Anonymity Order made)
Applicant
- and -
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
- - - - - - - - - - - - - - - - - - - -
Ms M Knorr of Counsel
(instructed by Birnberg Peirce Solicitors LTD), for the Applicant
Mr J Holborn of Counsel
(instructed by the Government Legal Department) for the Respondent
Hearing dates: 19 and 20 March 2024
- - - - - - - - - - - - - - - - - - - -
J U D G M E N T
- - - - - - - - - - - - - - - - - - - -
ANONYMITY ORDER
No-one shall publish or reveal any information, including the name or address of the Applicant or their Sponsor, likely to lead members of the public to identify the Applicant or their Sponsor. Failure to comply with this order could amount to a contempt of court.
Mr Justice Sheldon and Judge Jackson:
1. In this application for Judicial Review, the Applicant challenges the Respondent’s refusal of his application for entry clearance to the United Kingdom dated 2 May 2023 (albeit served on 1 June 2023) under the Ukrainian Family Scheme (the “UFS”) and the Homes for Ukraine Sponsorship Scheme (the “HUSS”).
2. The Applicant is an Afghan national who obtained a visa to study in Ukraine in September 2015 and arrived there on 8 October 2015 shortly after his eighteenth birthday. He studied at the University of Ukraine for a number of years with various visa extensions to 15 August 2020. The Applicant’s visa was cancelled prior to its end date following a new law which required students to leave the country and make a new application for a visa from outside of it. The Applicant could not return to Afghanistan to do so because there was no Ukrainian Embassy there from which to apply and because he feared for his safety on return to Afghanistan. The Applicant remained in Ukraine and on 1 September 2021 he was recognised as a refugee by the UNHCR there. His initial certificate for this expired and he was awaiting a response on his request to extend his refugee certificate at the time of the Russian invasion.
3. On 25 February 2022, following the Russian invasion in to Ukraine, the Applicant fled first to Poland and then to Germany on 3 March 2022 where he currently remains. The Applicant was granted a visa in Germany on 4 March 2022 which expired on 4 March 2024, but he is in the process of renewing it. In Germany, the Applicant had until very recently been living with his cousin’s son (he now lives in different shared accommodation) and has been supported at times by a small stipend from the German Government and by his brother (“the Sponsor”). He has had part-time employment and has accessed health care in Germany.
4. On 26 September 2022, the Applicant applied for entry clearance to the United Kingdom to join the Sponsor who has indefinite leave to remain here granted on 8 April 2022 under the Afghan Relocation and Assistance Policy (“ARAP”). The Sponsor was in the Afghan army and worked as an Air Liaison Officer for the Special Forces of the British General Command Police Special Unit in Afghanistan and consequently is now at risk from the Taliban if he returned to Afghanistan. The Sponsor has made separate applications for the Applicant and other family members (who were at the time of application still in Afghanistan but now understood to be in Pakistan) to join him in the United Kingdom under ARAP on the basis that they are also at risk from the Taliban because of his connections with the British armed forces. There are examples of other family members already having been targeted, injured and killed in Afghanistan. The application under ARAP is a separate application which is not the subject of the current claim and the details of which are not therefore referred to in any detail in this decision1.
5. The application on 26 September 2022 was under both the UFS to join the Sponsor in the UK as his closest relative in Europe and because he would be unable to return to Afghanistan; and under the HUSS with accommodation offered by one of the Sponsor’s former teachers in the Defence Academy in the UK (an approved sponsor under the HUSS) on the basis that at the time of the application, the Sponsor was in bridging accommodation which the Applicant could not join him in. The intention has however always been for the Applicant and Sponsor to live together in the United Kingdom, with plans to rent appropriate accommodation for the Applicant’s arrival.
6. The Respondent initially refused the Applicant’s application for entry clearance on 16 January 2023 on the basis that the Applicant was not a Ukrainian national, however that was withdrawn subsequent to an earlier application for Judicial Review (JR-2023-LON-000604) and reconsidered in a decision dated 2 May 2023.
7. In the decision dated 2 May 2023, the Respondent refused the application (without initially specifying which but it is not in dispute that the decision and reasoning covers both the UFS and HUSS) on the basis that the Applicant did not meet the nationality requirements. The Respondent refers to the Ukraine Scheme guidance containing discretion, but noted that this was only in relation to the evidence required and to relationships not explicitly catered for within the Immigration Rules and did not extend to the nationality requirements.
8. In relation to Articles 8 and 14 of the European Convention on Human Rights (“the Convention”), the Respondent expressly stated that the application made was not a human rights claim but that, in any event, it was not arguable that family life was engaged in circumstances where the Applicant was living...
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