KA & Ors., R (on the application of) v Secretary of State for the Home Department & Ors.

An immigration policy may state general requirements in unqualified terms. It remains lawful only if decision-makers retain discretion, consider relevant individual circumstances and comply with other legal duties, including Article 8. Where the Secretary of State confirms that an application lacking biometrics will be considered on its merits, the supposed automatic-barrier challenge falls away. For policy construction, terms of art are read objectively in the context of the policy as a whole. Under the Afghanistan Resettlement and Immigration Policy Statement, ‘called forward’ meant receiving an evacuation-centre invitation, an assurance of evacuation and successful security and eligibility checks. The resulting distinction in indefinite-leave treatment was not irrational.

The claimants sought judicial review concerning the treatment of Afghan family members of a British national. The second to seventh claimants remained in Afghanistan while the first claimant was in the United Kingdom.

Issue 1 challenged the alleged requirement that an entry-clearance application could not be considered without prior biometric enrolment, said to interfere disproportionately with the first claimant’s Article 8 rights. During the hearing, the Secretary of State confirmed that an application without biometrics would be considered on its merits, including any request to waive or defer the requirement.

Issue 2 concerned the construction of paragraphs 39 and 40 of the Afghanistan Resettlement and Immigration Policy Statement and an alternative irrationality challenge to the distinction in indefinite-leave treatment. The court also considered standing and prematurity.

1. Issue 1. The claimants’ case was founded on the premise that an entry-clearance application without biometrics would be rejected automatically. That premise ceased to reflect the Secretary of State’s position. On instructions, she confirmed that any application would be considered on its merits, including whether the biometric requirement should be waived or deferred. The claimants therefore obtained a merits-based determination, and the court declined to entertain a separate retrospective declaration which was insufficiently pleaded, of limited practical value and raised too late for a proper response.
2. The Immigration (Biometric Registration) Regulations 2008 contain discretion concerning the requirement, timing and method of biometric enrolment. Deferral until arrival at a UK port is legally possible. Where biometrics are required but not provided, an application may be invalid. The policy also had to be applied flexibly and consistently with Convention rights. A policy-maker need not spell out every exception on the face of a policy: R (West Berkshire DC) v Secretary of State for Communities and Local Government [2016] EWCA 441 and British Oxygen Board Co Ltd v Minister of Technology [1971] AC 610.
3. Issue 2. Administrative policies are construed objectively, naturally and sensibly, in their overall context. Context is particularly important where wording is ambiguous or constitutes a term of art. ‘Called forward’ in paragraphs 39 and 40 meant receiving an invitation to attend the evacuation centre containing an assurance of evacuation following successful security and eligibility checks. The facilitation email sent to the claimants did not meet that definition and did not guarantee evacuation.
4. The claimants had sufficient interest to challenge the policy, and the challenge was not premature merely because they had not yet entered the United Kingdom or applied for indefinite leave to remain.
5. The distinction in the policy involved immigration status and socio-economic consequences. Applying the low-intensity approach to social and economic policy, the court held that the distinction between those who had passed the relevant checks and received an assurance of evacuation, and those who had not, was neither irrational nor manifestly without reasonable foundation. The claim failed on Issue 2.
6. The claimants therefore succeeded on Issue 1 in obtaining a merits-based review, but failed on Issue 2. The parties were invited to draw up an order reflecting the judgment.

This was a first-instance judicial review. Permission was refused on Ground 1 and granted on Grounds 2 and 3. Ground 1 was later withdrawn, and the claim against the second and third defendants was dismissed. Permission to amend the claim was subsequently granted.