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

Article 14 requires differential treatment within the ambit of a Convention right to be objectively justified. Where the difference is principally based on nationality, the court should require very weighty reasons, although the intensity of review depends on the circumstances and subject matter. Comparators need not be identical, but must be relevantly similar. The question of whether situations are analogous may overlap with justification. A wide margin of appreciation is appropriate where the impugned policy concerns foreign policy, diplomatic considerations and national security. The court should not intervene unless the distinction lacks a rational connection with legitimate aims or is clearly unjustified.

AB, an Afghan prosecutor who had worked in support of the United Kingdom’s mission in Afghanistan, sought relocation to the United Kingdom for herself and family members at risk in Kabul. She challenged the refusal to consider leave outside the Rules and Article 8 claims without prior biometric data, and alleged discrimination under Article 14 by comparison with Ukrainian nationals benefiting from the Ukrainian Family Scheme.

During the proceedings, the Secretary of State accepted that an application might be considered before biometric data were provided. Grounds concerning that process were withdrawn. The remaining issue was whether the differential treatment of Afghans and Ukrainians was justified.

1. Outcome. Ground Four was rejected. The remaining grounds had been withdrawn or overtaken by the Secretary of State’s acceptance that biometric requirements could be considered for deferral. The claim was therefore dismissed to the extent it remained live.
2. The claim fell within the ambit of Article 8. The differential treatment engaged “other status” and was principally, although not solely, based on nationality. The court therefore required very weighty reasons for the difference.
3. The Afghan applicants and Ukrainians under the Ukrainian Family Scheme were in analogous situations because both groups faced serious risks in their home countries and sought a safe route to the United Kingdom. An exact comparator was unnecessary. The assessment of analogy could properly overlap with justification.
4. The Secretary of State had justified the difference. The relevant considerations included pressure on visa application centres, differing national-security assessments, immigration control, diplomatic links and foreign-policy objectives. Those matters were rationally connected to the policy of ensuring that Afghan applicants were properly identified before entry.
5. The court gave very significant weight, or a wide margin of appreciation, to the executive in matters involving national security, foreign policy and diplomatic judgment. The exceptional biometric arrangements during Operation Pitting did not establish a precedent for later policy choices made in materially different circumstances.
6. R (Mahabir) v Secretary of State for the Home Department was distinguishable. It concerned people with a prima facie right to enter whose access was impeded by fees, whereas the present case concerned whether an individual had a right to enter at all.
7. The court observed that the justification case would have been stronger if the Secretary of State had refused even to consider deferral until an in-principle decision. That issue was no longer live because such consideration was taking place.