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

The claimant challenged the defendant's refusal to determine or consider her application for Leave Outside the Rules and related processes, including the requirement to submit biometric data, and alleged unlawful discrimination under Article 14 ECHR by comparison with the Ukrainian Family Scheme. The court accepted that Article 8 ECHR was engaged and that the comparator groups (Afghans in the claimant's position and Ukrainians under the UFS) were sufficiently analogous for the Article 14 analysis.

The claimant withdrew Grounds 1–3 after the defendant accepted it would consider deferring biometric requirements and that those issues were therefore overtaken. The sole live issue was Ground 4: alleged Article 14 discrimination. The court applied the familiar Article 14 framework, considered the relevance of nationality and "other status", and examined justification, including the required intensity of review where nationality is the principal ground of differential treatment.

The court found that the defendant discharged the burden of justification. The decision to provide a bespoke biometric deferral for Ukrainians but not for Afghans was rationally connected to legitimate aims including immigration control, national security, the capacity constraints of the Visa Application Centre network, and foreign policy considerations. Given those national security and diplomatic factors, the court afforded the defendant a wide margin of appreciation and concluded the differential treatment was justified. Ground 4 was rejected and the remaining grounds were not considered further.

The claimant AB, formerly a prosecutor who assisted the UK mission in Afghanistan, and her family were living in hiding in Kabul after the fall of Kabul in August 2021. The claimant applied for relocation under the Afghan Relocation and Assistance Policy (ARAP) on 1 November 2021 and later sought Leave Outside the Rules (LOTR) or entry on Article 8 ECHR grounds. The defendant required a completed immigration application with biometric enrolment at a Visa Application Centre, which posed practical impossibilities for applicants in Afghanistan. The defendant initially advised a workaround (stating an alternative country) and later said forms would be amended; the claimant issued judicial review proceedings on 24 March 2022. Permission was granted by Foxton J on 3 May 2022 and the claim was heard by Mrs Justice Lieven in December 2022 with judgment on 10 February 2023.

Relief sought: declaratory and mandatory relief in relation to (i) inconsistent treatment in LOTR/ARAP processing, (ii) failure to consider a LOTR application, (iii) failure to consider Article 8 entry clearance, and (iv) unlawful discrimination under Article 14 ECHR comparing Afghans to Ukrainians under the Ukrainian Family Scheme (UFS).

Issues framed by the court:

• whether the defendant applied a fair procedure in considering biometric "workarounds";
• whether the defendant treated the claimant differently from other ARAP applicants;
• whether the defendant erred in law in relation to Article 8;
• whether the defendant unlawfully discriminated under Article 14 by comparison with Ukrainian nationals under the UFS.

During the proceedings the defendant accepted it would at least consider deferring biometric requirements for the claimant, and Grounds 1–3 were withdrawn as overtaken. The court therefore concentrated on Ground 4.

The court held (i) Article 8 was engaged; (ii) the differential treatment was principally based on nationality but also on immigration and situational differences; (iii) the comparator analysis required examination of whether the differential treatment was justified; and (iv) on the evidence (including witness statements from Home Office officials about VAC capacity, national security risks associated with Afghanistan, the circumstances of Operation Pitting, and foreign policy considerations) the defendant discharged the burden of justification. The court afforded a wide margin of appreciation on national security and diplomatic grounds and found a rational connection between the measures taken and legitimate aims. The Article 14 claim was therefore rejected and the other grounds were not considered further.

The court briefly noted the existence of an outstanding LOTR/family reunion application submitted on 4 October 2022 which the defendant had not yet determined and which the claimant did not challenge as unreasonable in delay. The court emphasised that the exceptional operational circumstances of Operation Pitting were not a precedent for later policy choices.

The claim is dismissed. The court rejected the Article 14 discrimination challenge comparing Afghans in the claimant's position with Ukrainians under the Ukrainian Family Scheme. The defendant justified differential treatment on grounds including national security, Visa Application Centre capacity and foreign policy, and was afforded a wide margin of appreciation; there was a rational connection between the measures and legitimate aims. Grounds 1–3 were overtaken by the defendant's acceptance it would consider deferring biometrics and were withdrawn.

Permission for judicial review was granted by Foxton J on 3 May 2022. The claim was filed 24 March 2022, heard on 6 December 2022 and determined by Mrs Justice Lieven on 10 February 2023. The judgment refers to prior decisions in R (S and AZ) v SSHD [2022] EWHC 1402 and its subsequent Court of Appeal consideration, which informed the context but do not form an appellate history of this claim.