- BY Sonia Lenegan
Court of Appeal rejects claim that Afghans were unlawfully discriminated against
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The Court of Appeal has rejected a claim that Afghan nationals have been unlawfully treated less favourably than Ukrainians when it comes to the requirement to enrol biometrics as part of an entry clearance application. The case is R (AB) v Secretary of State for the Home Department [2024] EWCA Civ 369.
Background
AB is an Afghan national who worked as a prosecutor involved in narcotics, corruption and terrorism prosecutions, including of Taliban members, before the Taliban took over in August 2021. Since then she has been in hiding.
AB has two adult siblings living in the UK, both are British citizens. She applied for entry clearance to come here and join them and she asked for the application to be processed without her providing biometric data. There are no visa application centres (where biometric data is submitted) in Afghanistan.
AB had brought other judicial reviews in relation to the insistence that she provide her biometrics, which were settled by consent. On 8 January 2024 the Home Secretary refused to defer the enrolment of AB’s biometrics, with reference to sensitive material that was referred to in closed proceedings. The court referred to another judicial review having been recently filed, that is presumably a challenge to the January decision.
This Court of Appeal decision was not about AB’s individual case but rather the wider discrimination point that had been raised in an earlier judicial review.
Between March 2022 and December 2023 a process was put in place for Ukrainians where the provision of biometric data could be deferred until they arrived in the UK. A ministerial submission was made on 2 March 2022 seeking authorisation for direct discrimination in respect of the Ukraine Family Scheme and Homes for Ukraine scheme and this was authorised on 16 May 2022.
AB argued that the different treatment amounted to unlawful discrimination in breach of article 14 of the European Convention on Human Rights as it applied to her article 8 right to a family life and she sought a declaration to that effect.
The High Court’s decision
The High Court held that article 8 was engaged and that the differential treatment between Ukrainians and Afghans was on the basis of nationality. It was also considered that AB and her Ukrainian comparator were in similar situations, such that the Home Secretary would need to justify the differential treatment by demonstrating that there were “very weighty reasons” for the different treatment.
The Home Secretary sought to justify the different treatment by saying that the decision to defer biometrics for Ukrainians was because of the pressure that would have been put on the visa application centres in Europe if they had been required to enrol their biometrics first. The other reason given was that there were more security risks associated with Afghanistan.
The High Court judge held that the nature of the reasons provided which included diplomatic, foreign policy and national security considerations, meant that the court should give very significant weight to the assessment of the Home Secretary. The judicial review was dismissed. For more details, see our full write up of the case.
The Court of Appeal’s decision
It was argued on behalf of the appellant that the judge’s approach to justification was too broad and did not look in enough detail at the reasons given when the Ukrainian biometric deferral policy was brought in. In particular, the following points were made in response to various justifications:
(1) The intended short duration of the scheme: it went on for nearly two years.
(2) The anticipated unprecedented volume of migration expected from Ukraine that would overwhelm VACs: the biometric deferral continued long after the first wave had passed.
(3) Many Afghans, unlike Ukrainians, did not hold valid passports: this said nothing about Afghans with valid passports.
(4) The particular need for a rapid reaction in the unprecedented circumstances in Ukraine: no evidence was provided to show that the threats posed to Ukrainians were uniquely severe in comparison with the threat posed to Afghan nationals seeking relocation to the UK.
(5) The absence of a direct comparison between the situation in Ukraine and the response in Afghanistan through Operation Pitting, the airlift carried out in August 2021: it is not apparent why the comparison is inappropriate and the court should have required reasoned explanation.
(6) The risks arising from extending the scheme to non-chipped Ukrainian passports could be mitigated: but no explanation was given for why the same mitigations could not be applied to Afghan passport-holders (beyond the fact that passports cannot be checked with the Taliban).
The Court of Appeal gave all the arguments raised fairly short shrift and said that the evidence provided a “coherent and convincing account of the reasons underlying the ministerial authorisation”. The court concluded that they could find no basis on which the ministerial authorisation could be considered unlawful and the appeal was dismissed.
Conclusion
The Home Office only got to the point of agreeing that biometric deferral was an option for Afghan nationals following litigation. Guidance was later published on this but the facts of this case do call into question how effective this process has been. It is no wonder that so many people from Afghanistan are being forced into making dangerous trips across the Channel when the UK is determined to make it as difficult as possible for them to get permission to travel here in advance.
Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.
Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.
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