Upper Tribunal (Immigration and asylum chamber), 2023-03-31, JR-2022-LON-000488
| Appeal Number | JR-2022-LON-000488 |
| Hearing Date | 23 February 2023 |
| Published date | 03 April 2023 |
| Date | 31 March 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Case No: JR-2022-LON-000488
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
In the matter of an application for Judicial Review
Field House,
Breams Buildings
London, EC4A 1WR
31st March 2023
Before:
THE HON. MRS JUSTICE THORNTON
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Between:
THE KING
on the application of
FRS
Applicant
- and -
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
- and -
AB (a minor by his brother FRS and litigation friend)
CD (a minor by his brother FRS and litigation friend)
Interested parties
FINAL ORDER
UPON hearing from leading counsel for the Applicant and counsel for the Respondent; and
UPON the Respondent stating at paragraph 4 of her Detailed Grounds of 6th January 2023 that, if the Respondent agrees to waive the requirement to enrol biometrics prior to considering the application, she would then consider the Applicant’s application for family reunion under Part 11 of the Immigration Rules, and leave outside the rules, such that no fee would be payable
IT IS ORDERED that:
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The application for judicial review is dismissed.
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The Respondent shall pay the Applicant’s reasonable costs to 11 January 2023.
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The Applicant shall pay the Respondent’s reasonable costs to be assessed if not agreed from 11 January 2023.
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If the Respondent seeks to enforce the order, the amount of costs payable by the Applicant under section 26(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is to be determined in accordance with the Civil Legal Aid (Costs) Regulations 2013.
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There shall be a detailed assessment of the Applicant’s publicly funded costs in accordance with the Civil Legal Aid (Costs) Regulations 2013 and CPR 47.18.
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Permission to appeal is refused.
Case No: JR-2022-LON-000488
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Judicial Review
Field House,
Breams Buildings
London, EC4A 1WR
31st March 2023
Before:
THE HON. MRS JUSTICE THORNTON
- - - - - - - - - - - - - - - - - - - -
Between:
THE KING
on the application of
FRS
Applicant
- and -
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
- and -
AB (a minor by his brother FRS and litigation friend)
CD (a minor by his brother FRS and litigation friend)
Interested parties
- - - - - - - - - - - - - - - - - - - -
Sonali Naik KC
Justine Fisher
(instructed by Duncan Lewis), for the applicant
Tom Tabori
(instructed by the Government Legal Department) for the respondent
Hearing date: 23rd February 2023
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J U D G M E N T
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The Hon. Mrs Justice Thornton:
Introduction
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The Applicant is a national of Afghanistan who left the country in fear of persecution after his father and uncle were killed by the Taliban. He has been granted refugee status by the Respondent. His two young brothers remain in Afghanistan. The elders looking after them received death threats from the Taliban for doing so. As a result, the brothers were asked to leave their care. In September 2021, the Applicant applied to the Respondent for a visa for his brothers to join him. The application stalled when the brothers were unable to travel to Pakistan to enrol their biometric data (fingerprints and facial image) and the Applicant brought this claim for judicial review.
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Since proceedings were issued, the Respondent’s policy on the requirement for biometric data in entry clearance applications has evolved, following a series of decisions by the Courts and the Upper Tribunal. The Respondent now accepts she has discretion under the Immigration (Biometric Registration) Regulations 2008 (2008/3048) to waive or defer the requirement for biometric data in any application for entry clearance. The Respondent is due to publish guidance to address the situation the Applicant’s brothers find themselves in, namely where the enrolment of biometric data will require an applicant for entry clearance to make an unsafe journey in a conflict zone.
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The evolution of the Respondent’s policy has led to a change of position in the decision making in the present case. In January of this year, the Respondent agreed to consider the Applicant’s request for a waiver/deferral of biometric data. She intends to do so once the relevant guidance is published. In the meantime, she has also agreed to consider any application for waiver/deferral as a matter of urgency should she be requested to do so. To date, the Applicant has not made any such application.
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The Respondent primary position in these proceedings, therefore, is that the claim is now academic, or premature, or else requires the Applicant to advance substantive arguments that were not pleaded in the grounds of claim. It is said that the Court should not permit a ‘rolling’ judicial review of this nature.
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The Applicant contends that the claim remains ‘live’ because of concerns about the Respondent’s proposed approach to its reconsideration, given the ‘compelling facts of the present case’. The Applicant seeks a mandatory order requiring the Respondent to take a decision ‘in principle’ on the merits of the application for family reunion prior to any decision on the Applicant’s application for deferral of the provision of biometric data.
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Accordingly, as at the date of the hearing (23 February 2023) the issues arising in the claim were: 1) is the claim now academic? If so; 2) should the Tribunal nonetheless entertain the claim? If so; 3) is the Respondent’s decision making unlawful? If so; 4) should the Tribunal exercise its discretion to make the mandatory order sought?
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The precariousness of the brothers’ situation in Kabul is evident. However, the question for the Tribunal is whether the Respondent has acted unlawfully in her decision making.
Background
Leave to enter and the requirement for a visa
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Non-UK nationals wishing to come to the UK require leave to enter (Section 3 Immigration Act 1971). For nationals of Afghanistan the grant of leave is by way of entry clearance granted overseas, which takes the form of a visa.
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The Secretary of State’s practice governing the grant of leave to enter is set out in the Immigration Rules, but the Secretary of State retains a discretion to grant leave to enter in circumstances not provided for in the Rules. This is referred to as leave outside the rules (LOTR). Relevant Home Office guidance emphasises the exceptional character of LOTR (S & AZ v Secretary of State for the Home Department [2022] EWCA Civ 1092 at [13]).
The visa application process
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Applications for a visa must typically be made online, on the ‘gov.uk’ website. The most typical visa “routes” are identified (visitor visas, student visas and family visas) and have separate online application forms. Overseas applicants for LOTR must apply on the application form for the route which most closely matches their circumstances and pay the relevant fees and charges.
The requirement for biometrics
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Subject to the power to waive, applicants for leave to enter are required to “enrol their biometrics” – that is, to have their fingerprints and a photograph taken and supplied to the Home Office for registration. The relevant regulations are the Immigration (Biometric Registration) Regulations 2008 (2008/3048) (Regulation 3A). A failure to comply with the requirement may lead to the refusal of entry clearance (Regulation 23). As is now common ground, there is a discretion available to the authorised person to waive or defer the requirement for biometric information (Regulations 5(1) and 8).
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Enrolment of biometric data takes place at authorised “Visa Application Centres” (“VACs”). There are VACs in most, but not all, overseas countries. There is no VAC in Afghanistan.
C’s visa application – September 2021
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On 30 September 2021, the Applicant submitted an online application, outside the rules, for family reunion of siblings. The application was for his two young brothers, who remain in Afghanistan, to join him in the UK.
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At the time, following submission of an online application, an applicant was given a reference number and asked to complete further tasks, one of which was to identify the country in which they wished to enrol their biometrics. Once an applicant had done so, the system would redirect them to the VAC provider in that country and the applicant would then arrange an appointment and travel to that Centre to provide the biometrics.
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In accordance with this procedure, an appointment was booked for the Applicant’s brothers at the VAC in Islamabad (Pakistan). However, the brothers were refused a visa to enter Pakistan so were unable to attend the appointment. By email dated 7 December 2021, the Applicant’s counsel (Junior Counsel) emailed the Respondent explaining the situation and requesting the application be considered without biometrics.
On 12 January 2022, the Respondent replied. No mention was made of the request to waive the biometric data. Instead, the letter disputed the visa route chosen by the Applicant concluding that it would be necessary to demonstrate that the most appropriate visa...
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