Upper Tribunal (Immigration and asylum chamber), 2022-11-29, JR-2021-LON-001566
| Appeal Number | JR-2021-LON-001566 |
| Hearing Date | 20 October 2022 |
| Published date | 21 December 2022 |
| Date | 29 November 2022 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
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In the Upper Tribunal (Immigration and Asylum Chamber) Judicial Review |
JR-2021-LON-001566 |
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In the matter of an application for Judicial Review |
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The King on the application of |
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MS (1) SS (2) AS (3) BS (a minor, by his litigation friend MS) (4) CS (a minor, by her litigation friend MS) (5) DS (a minor by her litigation friend MS) (6) |
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Applicants |
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versus |
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Secretary of State for the Home Department |
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Respondent |
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FINAL ORDER |
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UPON the Applicants’ application for judicial review challenging the Respondent’s decision of 23 September 2022, refusing to defer the enrolment of biometric information for the purposes of making linked applications for entry clearance by way of family reunion outside the Immigration Rules until the Second to Sixth Applicants have arrived in the United Kingdom
AND UPON hearing Counsel for the Applicants and Counsel for the Respondent at a hearing on 20 October 2022
AND UPON judgment being handed down on 29 November 2022
IT IS ORDERED THAT
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The Applicants’ application for judicial review is dismissed.
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Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the Applicants or members of their family. Any failure to comply with this direction may be punishable by contempt of court.
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With respect to costs, the parties are to make submissions on costs as follows:
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Within 3 days of this Order being sealed, the Respondent shall file and serve written submissions as to what the appropriate order for costs should be;
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The Applicants shall, if so advised, file and serve any written submissions in reply within 7 days of receipt of the Respondent’s submissions at (i), above;
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The Respondent shall, if so advised, file and serve any reply to the Applicants’ written submissions within 7 days of receipt of the submissions at (ii), above;
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The issue of costs shall be decided by the Upper Tribunal on the papers.
PERMISSION TO APPEAL
There has been no application by the Applicants for permission to appeal to the Court of Appeal. In any event, and pursuant to rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008, permission is refused on the basis that there are no arguable errors of law contained within the judgment handed down.
Signed: H Norton-Taylor
Upper Tribunal Judge Norton-Taylor
Dated: 29 November 2022
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):
Solicitors:
Ref No.
Home Office Ref:
Case No: JR-2021-LON-001566
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR
29 November 2022
Before:
THE HONOURABLE MRS JUSTICE LANG DBE,
SITTING AS A JUDGE OF THE UPPER TRIBUNAL
UPPER TRIBUNAL JUDGE NORTON-TAYLOR
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Between:
THE KING
on the application of
MS (1)
SS (2)
AS (3)
BS (a minor, by his litigation friend MS) (4)
CS (a minor, by her litigation friend MS) (5)
DS (a minor, by her litigation friend MS) (6)
Applicants
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SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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Mr J Pobjoy and Ms G Sarathy, Counsel (instructed by Duncan Lewis Solicitors), for the Applicants
Ms H Masood, Counsel (instructed by the Government Legal Department) for the Respondent
Hearing date: 20 October 2022
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J U D G M E N T
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Judge Norton-Taylor:
INTRODUCTION
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The Applicants are all citizens of Afghanistan. The First Applicant (“MS”) is the adult son of the Second Applicant and the sibling of the Third to Sixth Applicants. MS resides in the United Kingdom, whereas the Second to Sixth Applicants are currently living in Kabul. They all challenge the Respondent’s decision, dated 23 September 2022 (“the decision”), refusing to defer the enrolment of biometric information (hereafter, “biometrics”) for the purposes of making linked applications for entry clearance by way of family reunion outside the Immigration Rules (“the application”) until the Second to Sixth Applicants have arrived in the United Kingdom. Biometrics comprise digital images of the iris and up to ten fingerprints and ordinarily have to be submitted at a Visa Application Centre (“VAC”), but there was, and is, no VAC in Afghanistan.
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The Applicants’ challenge consists of a number of elements, but it is important to emphasise at the outset that we are not concerned with a substantive consideration of the merits of the application. What is under the spotlight here is the lawfulness of the prior question of whether the Second to Sixth Applicants should have to enrol their biometrics before arrival in this country.
FACTUAL BACKGROUND
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MS was born in 2002. He left Afghanistan on an unknown date in 2015 and made a lengthy and difficult journey to Europe. He eventually arrived in Sweden, where he made an asylum claim. This was refused. In the belief that he was to be removed to Afghanistan, he left Sweden and travelled to France. He then made the onward journey to the United Kingdom in the back of a lorry, arriving in this country in 2018, aged 16/17. He made an asylum claim on 24 October of that year. The stated basis of that claim was a fear of the then government of Afghanistan and of the Taliban, who were at that time an insurgent force in the country. In respect of the former, MS claimed that he came from a communist family and would have been targeted on return for that reason. He claimed that his father had worked for the old Soviet-backed regime. When the mujahedin took control, his father and mother fled to Pakistan in fear of retribution. Once the Taliban overthrew the government in 1996, MS’ parents returned to Kabul. The father then assumed an important position within the Taliban. Following the intervention of Allied forces in 2001, the father returned to Pakistan once again, but visited Kabul from time to time. MS claimed that his father was arrested by unknown persons in 2015 and never seen alive again. This event prompted arrangements for the family unit to leave Afghanistan. The intention was for them to leave the country as a single family unit. However, for reasons primarily related to cost, only MS was allowed to travel on from the Afghan/Iranian border. The other Applicants were forced to turn back.
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Following MS’ asylum claim in the United Kingdom, by a decision made on 19 May 2019, the Respondent concluded that MS was a refugee and granted him limited leave to remain on that basis. In evidence adduced during the course of these proceedings, it became apparent that the basis of the favourable decision was not a risk from the Afghan authorities (as they then were) or the Taliban, but because MS was an unaccompanied minor. MS has leave to remain the United Kingdom until May 2024.
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At an unknown point in time after MS’ departure from Afghanistan, the Second to Sixth Applicants travelled to Pakistan, where they remained without status until being forced to return to Afghanistan in the early spring of 2020. They were all issued with Afghan passports in March 2020.
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On 25 June 2020, the Second to Sixth Applicants made the application (this was done outside the scope of the Immigration Rules because a refugee in the United Kingdom cannot sponsor an application for family reunion with a parent or siblings). The application was accompanied by a covering letter from the legal representatives (then, as now, Duncan Lewis Solicitors). The letter contained detailed submissions on why the application should have been granted on exceptional or compassionate grounds, with particular reference to Article 8 ECHR (“Article 8”) and supporting evidence. At that point, MS and the solicitors believed that the Second to Sixth Applicants were still residing in Pakistan unlawfully. In fact, by then they had returned to Afghanistan.
In a letter dated 20 July 2020, the solicitors confirmed that the Second to Sixth Applicants had been forced to return to Afghanistan. Importantly, the letter raised (albeit...
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