The Upper Tribunal has held that an Afghan man who was living in Ukraine at the time of the Russian invasion and who wanted to come and join his brother in the UK was lawfully refused a grant of entry clearance under the Ukraine schemes. The case is R (on the application of LR (Afghanistan)) v Secretary of State for the Home Department (Ukrainian Family Scheme – discrimination, nationality) [2024] UKUT 00236.

Background: policy

Following the Russian invasion of Ukraine, a ministerial submission dated 24 March 2022 advised the Home Secretary and Minister for Safe and Legal Migration that there were 1,190 applications to the Ukraine Family Scheme that were complex or could not be granted. This included 118 third country nationals who could possible return to their home country, and 71 third country nationals who could not return. It was recommended that cases in the second group be left paused until they had further advice. It was noted that this group were mainly Afghans, many of whom had been evacuated to Ukraine in 2021.

On 14 April 2022 a further ministerial submission was made, identifying that there were now around 2,000 applications to the Ukraine schemes from third country nationals. Home Office officials resisted the inclusion of these groups in the Ukraine schemes on the grounds that it was expected that large volumes of applications would be made by people who had not been in Ukraine, or not at the relevant time, and that this would make it more difficult to quickly process applications from those who were eligible under the schemes. The Home Office was also concerned about setting:

a precedent for humanitarian visas on a larger scale, such as being open without reference to nationality or the specific nature of the conflict involved. Calls for the Home Office to do this are already made on a regular basis, so any move perceived to be acknowledging the need for such routes is likely to add to that pressure. If our long-term position is that we want our response to be specific to the nature of the conflict involved then it is worth preserving the shape of the Ukraine Scheme as set out.

By this point there were 353 Afghans who had applied to the scheme. The ministerial submission said that they:

should avail themselves of the arrangements that exist in the safe European country in which they are residing after leaving Ukraine. These arrangements will either be under the Temporary Protection Directive, which caters for stateless persons and holders of refugee status, or the asylum system of that country. Countries can include TCNs in their temporary protection offer and some already have.

The concern here was that “this is highly likely to be viewed as accepting an asylum claim from overseas. The Home Office has a clear and long running position that this is not an option available to people wishing to claim asylum or humanitarian protection”.

Concerns were also raised that in the event of an appeal in these cases, the tribunal could consider whether there was a protection claim and so a person may access refugee status instead of Ukraine leave if this happened. The reason this was a concern to the Home Office was that they:

may come under pressure to consider our wider position on Ukrainians who are currently given three years leave to remain and provide refugee or humanitarian protection status as an alternative, although this risk is mitigated by the generous provision within the schemes including the right to work and access benefits.

The Minister for Safe and Legal Migration at the time, Kevin Foster, did not agree with the Home Office’s recommendation on the exclusion of third country nationals from the Ukraine Family scheme. He said they could be included but with eligibility drawn strictly to include immediate family only and the right approach for anyone else would be for them to seek asylum where they were.

Home Office officials went back to the Minister on 6 May 2022 saying that it would be difficult to include third country nationals and limit eligibility to immediate family members where Ukrainians were able to bring in a much wider group of family members. They also argued that there could be a significant increase in those eligible which would have a knock on impact on public funds and services.

Concerns about “potentially abusive applications” and the difficulty of a different approach than to Ukrainians were re-stated. They reminded the Minister that there was “discretion available to caseworkers to grant outside the Rules in exceptional circumstances”.

Background: appellant

The applicant is an Afghan national who arrived in Ukraine on 8 October 2015 as a student. He studied at the University of Ukraine and had multiple visa extensions to 15 August 2020. Ukraine then introduced a new law requiring students to make out of country applications. The applicant was unable to do this as he feared for his safety in Afghanistan and there was no Ukrainian Embassy there.

He was subsequently recognised as a refugee on 1 September 2021. At the time of the Russian invasion of Ukraine, the applicant was waiting for a decision on his request to extend his refugee certificate. On 25 February 2022 the applicant fled to Poland and then to Germany on 3 March 2022. Germany granted him a two-year visa on 4 March 2022.

The applicant’s brother (the sponsor) lives in the UK, he was granted indefinite leave to remain in the UK on 8 April 2022 under the Afghan Relocation and Assistance Policy. On 26 September 2022 the applicant applied under the Ukraine Family Scheme to join his brother.

An application was also made under the Homes for Ukraine Scheme with accommodation offered by one of the sponsor’s former teachers in the Defence Academy. The sponsor was in bridging accommodation at the time and so unable to offer accommodation himself, however the intention was that they would live in rented accommodation together.

The application for entry clearance was rejected on 16 January 2023 because the applicant was not a Ukrainian national. Following a judicial review that decision was withdrawn. On 2 May 2023 the application was again rejected on the grounds that the applicant did not meet the nationality requirements.

The refusal letter said that the discretion available to decision makers did not extend to the nationality requirement. It also said that the application was not a human rights claim but in any event it was not arguable that family life was engaged in this case. It was not accepted that there were any exceptional circumstances in this case, as the applicant and sponsor had lived in different countries since 2015, with only two visits.

Further evidence, including a medico-legal report, was submitted on 18 December 2023. A further refusal was made on 15 February 2024, which gave consideration to exceptional circumstances in light of the medical evidence.

The grounds for the judicial review were that the refusal was discriminatory in breach of the European Convention on Human Rights, in breach of article 8 and that the refusal to exercise discretion to grant entry clearance outside of the immigration rules was unlawful.

The judicial review

The first ground was that the refusal of the application was discriminatory and in breach of article 14. The Upper Tribunal found that the applicant was in an analogous situation to a Ukrainian national who was impacted by the Russian invasion and wanted to go to the UK where they had a settled family member. The different treatment was direct discrimination on the grounds of race or nationality.

On the question of whether there was an objective justification for the different treatment, the tribunal considered, with reference to Biao v Denmark (2017) 64 E.H.R.R. 1, that it should apply the stricter standard of review when considering discrimination on the grounds of nationality. The tribunal said it would decide whether the Home Secretary had “compelling or very weighty reasons to justify the difference in treatment in the present case”.

The tribunal considered that the Home Secretary was entitled to be concerned about broadening the scheme and the “serious risk of abuse” and the additional resources that would be required. It was held that the aims for the Ukraine scheme were legitimate and rationally connected to the measures used by the Home Secretary.

On the second ground for judicial review, the Upper Tribunal held that the applicant had not established family life for the purposes of engaging article 8. There was only evidence of one example of financial support and the Whatsapp messages show “overall regular contact but also some lengthy gaps of up to six weeks without any messages at all”. There were “no significant examples of emotional or other practical support” and there were no significant changes in the frequency or content of the messages after the invasion of Ukraine nor the Taliban’s taking of Kabul.

The tribunal said that even if it had held that article 8 was engaged, they did not consider that the refusal would have been a disproportionate interference in breach of article 8. In relation to the medico-legal report, the tribunal found that they could only attached little weight to it for reasons including the lack of analysis as to what treatment or support is available in Germany. Considering the strength of their relationship and possible benefits of being reunited, the tribunal held that this “modest” interference would not be disproportionate.

The discretion ground was dismissed for “substantively the same reasons”.

Conclusion

I deliberately set out the policy background in some detail, as I think it is very instructive to see the extent to which the Home Office is determined not to accept any refugees outside of the very limited so called “safe and legal” routes that exist. That inevitably leads to unfair (even if held to be lawful) outcomes, as is arguably the case here.