S & Anor. v Secretary of State for the Home Department & Anor.

Guidance requiring an overseas applicant for leave outside the Immigration Rules to use the application form for the route most closely matching their circumstances referred to an online visa application form. An application under a separate relocation scheme did not satisfy that requirement.

However, it was irrational to insist upon the prescribed online route where the form could not conscientiously be completed because it required the applicant to identify an unavailable biometric enrolment centre. In those circumstances, the Secretary of State had to depart from the normal procedural policy and consider clear written representations submitted by another means. A suggested workaround requiring an applicant to enter information known to be untrue did not cure the defect, despite assurances that the applicant would suffer no prejudice.

Two former Afghan judges sought leave to enter the United Kingdom under the Afghan Relocations and Assistance Policy or, alternatively, by grants of leave outside the Immigration Rules. The Secretary of State declined to decide the latter applications because the claimants had not submitted online visa application forms.

Lang J held in [2022] EWHC 1402 (Admin) that the claimants had made valid applications and that the refusal to consider them was unlawful. She relied both on their submission of relocation-scheme forms and on the inability conscientiously to complete the online forms' biometric-enrolment requirements.

The Secretary of State appealed on the question whether proper applications for leave outside the Rules had been made. The central issues were whether a relocation-scheme application form met the procedural guidance and whether insisting upon an unusable online form was irrational.

1. The appeal was dismissed unanimously. The Secretary of State's refusal to consider the applications was irrational, although only the biometric-enrolment basis of Lang J's decision was upheld.

2. The relevant guidance required an overseas applicant for leave outside the Immigration Rules to use one of the online visa application forms accessible through the Government website. The Afghan Relocations and Assistance Policy application form was not a visa application form. It initiated a distinct Ministry of Defence eligibility process and was unsuitable for determining an application for leave outside the Rules. Submission of that form therefore did not meet the guidance's procedural requirement.

3. The claimants' written representations nevertheless made the substance of their applications clear. At the material time, the prescribed online route required an applicant to identify a country in which biometrics could be enrolled. The claimants could not conscientiously complete that step because no visa application centre operated in Afghanistan and they could not safely reach another centre. An application submitted through the prescribed route would consequently not have been considered.

4. Regulation 5 of the Immigration (Biometric Registration) Regulations 2008 empowered the Secretary of State to waive or defer biometric enrolment. In the circumstances, it was irrational to insist on the normal online procedure rather than depart from policy and consider an application submitted by another means.

5. The proposed workaround did not remedy that irrationality. It required an applicant knowingly to make an incorrect entry and then seek a waiver or deferral separately. Lang J was entitled to conclude that assurances from government solicitors did not remove legitimate concern about adverse consequences within a system involving different officials and locations.

6. The court did not determine whether the absence of a dedicated application form for leave outside the Rules was itself irrational. That broader challenge had not formed the basis of the decision below, and the evidence and submissions did not adequately address it.

1. Court of Appeal (Civil Division): In [2022] EWCA Civ 1092, the court unanimously dismissed the Secretary of State's appeal. It rejected the High Court's conclusion concerning the relocation-scheme form but upheld its order on the biometric-enrolment basis.

2. High Court, Administrative Court: Lang J held in [2022] EWHC 1402 (Admin) that the claimants had made valid applications for leave outside the Immigration Rules and that the refusal to consider them was unlawful. The court separately held that neither claimant qualified under the Afghan Relocations and Assistance Policy; that conclusion was not cross-appealed.