JZ (R on the application of) v THE SECRETARY OF STATE FOR FOREIGN, COMMONWEALTH AND DEVELOPMENT AFFAIRS

In exercising a discretion to defer or waive biometric requirements, the Secretary of State must engage with the individual facts of the case and assess the public interest in practical, rather than merely theoretical, terms. A generally important policy does not justify treating a real and documented risk as irrelevant.

Interim relief in public law proceedings is governed by the American Cyanamid approach, modified for the public law context. The court must consider the underlying merits, the public interest, the balance of convenience and whether the relief would effectively determine the claim. Where the harm of refusing relief is grave and the public interest is adequately protected, relief may be granted.

The claimant, an Afghan judge who had worked at the Justice Centre at Bagram Air Force Base and Pol-e-Charki prison, challenged decisions concerning relocation under the Afghan Relocations and Assistance Policy and entry clearance outside the Immigration Rules. He and his family remained in hiding in Afghanistan after failing to evacuate during Operation Pitting.

The Secretary of State accepted that the claimant was an Afghan judge but refused to defer or waive biometric enrolment until after an in-principle decision on his entry-clearance application. The claimant sought permission to amend his claim and interim relief requiring such an in-principle decision. The central issues were whether the claim was arguable and whether the balance of convenience justified relief which would substantially determine part of the claim.

1. Permission. Permission was granted on the claimant’s argument that the decision-maker may have made a material error of fact concerning whether he had been called forward for evacuation. Applying E v Secretary of State for the Home Department, the alleged fact was an existing objective fact and the evidence, including WhatsApp communications and chaotic record-keeping, made the issue arguable.
2. Biometric discretion. The difference between biometric waivers during Operation Pitting and the claimant’s present application was reasonable because the situations were not analogous. However, the Secretary of State arguably failed to assess the claimant’s particular circumstances. The general importance of biometrics for identity and security checks did not address the practical risk to this known, documented and verifiable claimant of travelling through Afghanistan to Pakistan.
3. Unlawful guidance. The Secretary of State had continued to rely on Family Reunion Guidance which had been held unlawful in SGW v Secretary of State for the Home Department because it failed to acknowledge the broader discretion under regulations 5 and 8 of the Biometric Regulation. Although that reliance was unacceptable and contrary to the constitutional principle identified in R (Majera) v Secretary of State for the Home Department, it was not causative on the facts because the decision-maker understood that a discretion existed.
4. Interim relief. The American Cyanamid test applied, with modifications for public law. The court considered the serious issue to be tried, the public interest, the balance of convenience, and the fact that the relief would effectively be final relief on the biometric grounds. The public interest in prior biometric checks remained important, but was fully protected because the claimant would provide biometrics in Pakistan before entering the United Kingdom. The risk of mistaken identity or repeated applications was theoretical on these facts. The claimant’s risk of death if required to return to Afghanistan was real and immediate. The balance therefore plainly favoured relief.
5. The Secretary of State was required to make an in-principle decision on the claimant’s eligibility for leave outside the Immigration Rules, subject to biometric enrolment. Permission was granted on Ground One by concession and on Grounds Two and Five; the pure inconsistency argument under Ground Three was not arguable.

This was a first-instance judicial review claim. Permission was refused on the papers by Lane J on 9 December 2021. On oral renewal, Kerr J granted permission on the leave-outside-the-Rules ground but refused permission on the ARAP ground on 15 December 2021. The Court of Appeal refused renewal of the ARAP ground on 1 March 2022. In this judgment, the Administrative Court granted permission on additional grounds and granted interim relief.