The High Court has confirmed that the Home Office is obligated to consider exercising discretion to waive or delay the requirement to enrol biometrics before considering an application in R (KA and others) v Secretary of State for the Home Department [2022] EWHC 2473 (Admin).

Ordinarily, individuals applying for entry clearance need to submit fingerprints and have photographs taken as part of a biometrics appointment. This is done at a visa application centre in their country of residence. When the Taliban’s re-established control in Afghanistan in August 2021 the only visa application centre in the country closed. The family in this case, who were applying to join their British husband and father in the UK, argued that it was too dangerous for them to leave their current location to submit their biometrics in a neighbouring country instead.

Without an accessible application centre, the family found themselves barred from submitting their applications. It was argued that this barrier was a disproportionate violation of the husband’s rights to private and family life under Article 8(1) of the European Convention of Human Rights.

The Afghanistan resettlement and immigration policy statement states the following, in respect of Afghan family members of people with settlement and British citizens:

“They will be expected to meet the eligibility requirements of their chosen route, which includes paying relevant fees and charges, and providing biometrics. There is currently no option to give biometrics in Afghanistan. The British Embassy in Kabul has suspended in country operations and all UK diplomatic and consular staff have been temporarily withdrawn. The UK is working with international partners to secure safe routes out of Afghanistan as soon as they become available, but while the security situation remains extremely volatile, we recommend people in Afghanistan do not make applications and pay application fees at this time as they will not be considered until biometrics are provided.”

The policy statement seems unambiguous. The Secretary of State took great pains in this case to emphasise that it was made “in the heat of the crisis” and conceded that it did not reflect the true position on biometrics:

“First, and generally, the Home Secretary is well aware of the need, pursuant to the non-fettering principle, to apply her policies flexibly, having regard to all relevant factors including any representations accompanying a relevant visa application; or, if necessary, and on the same basis, to disapply them by way of her residual discretion, if necessary. Strikingly, the evidence shows that the ordinary biometrics policy is applied flexibly – and was during the course of Operation Pitting, with operational case-working decisions resulting in deferral of the requirements in a number of cases.”

In what the judge described as a “crucially important development”, the Secretary of State accepted that, as of now, an application for entry clearance without biometrics would not be rejected automatically and would be considered on its merits. This includes consideration of whether to waive or defer the biometrics requirement.

The court agreed with this position. Despite the wording of the policy statement, it was nevertheless the Home Office’s policy to consider waiving or deferring biometric enrolment upon receipt of an application under regulation 5 of the Immigration (Biometric Registration) Regulations 2008:

The premise on which it was based, namely that [the Secretary of State] will not even consider an application for entry clearance without biometrics, is unsound. She will.

The court also refers to R (JZ) v Secretary of State for the Foreign, Commonwealth and Development Affairs [2022] EWHC 771 (Admin), which we have written about before here, as an example of:

“…an application without biometrics was considered on its merits and not automatically rejected. This shows that the Secretary of State can and does take a flexible approach, and does not rigidly insist upon biometrics, so that an application without them will fail in limine [i.e. without consideration of the merits].”

The fact that the policy statement did not make it clear that caseworkers could exercise discretion, did not make it unlawful to do so. The Secretary of State has made similar concessions in other instances. For example, the Ukraine scheme guidance indicates that all applicants are, “in most circumstances, required to give their biometrics”.

The Home Office is only obligated consider whether to waive or defer the enrolment of biometrics. In this case, the family obtained the promise of a merits-based review of their applications for leave to enter, including consideration of whether to wavier or delay biometrics. Decisions made by the Home Office not to exercise discretion may also be challenged by way of judicial review.

The case focused on applications to join family in the UK, but the underlying discretion that the Home Office can exercise when deciding whether to waive or defer biometrics applies equally to other applications. In practice, it may be more difficult to obtain such a waiver in a case not considering a human rights violation.

Separately, the court also considered paragraphs 39 and 40 of the Afghan resettlement and immigration policy, that differentiates between different groups fleeing Afghanistan. The policy grants some groups settlement, while requiring others to go through the expensive process of meeting the rules of one of the pre-existing categories (like Appendix FM). The court decided that the claimant had failed to demonstrate that applying this policy would inevitably result in some decisions which were unlawful.