MRS & Anor, R (on the application of) v Entry Clearance Officer

A biometric enrolment policy must be compatible with Article 8 ECHR. It may give significant weight to the public interest in identity and security checks, and may require very compelling circumstances before discretion is exercised. It must not, however, direct decision-makers to look only for extraordinary, rare or unusual circumstances. The correct approach requires a fair balance between family life and the legitimate aims pursued. A policy which narrows the enquiry in that way unlawfully misdirects decision-makers and fetters discretion. Individual decisions must also address family life, the best interests of children, vulnerability, relevant expert evidence and any proposed safeguards. Requiring dangerous journeys for biometric enrolment may be disproportionate where the applicants can provide biometrics after a positive in-principle decision and before entry to the United Kingdom.

The applicants, Afghan nationals seeking refugee family reunion outside the Immigration Rules, challenged refusals to defer biometric enrolment in Pakistan until after substantive consideration of their entry-clearance applications. They proposed providing biometrics in Pakistan if an in-principle decision was positive, subject to security checks, thereby avoiding multiple dangerous journeys.

The respondent’s policy required exceptional and extraordinary circumstances for waiver or deferral. The applicants argued that the policy and the individual decisions were unlawful under public law principles and incompatible with Article 8 ECHR. The central issues were whether the policy unlawfully restricted the Article 8 balancing exercise and whether the individual decisions adequately addressed the applicants’ family life, vulnerability, the best interests of the first applicant and the available safeguards.

1. Regulatory discretion. Regulation 5 of the Immigration (Biometric Registration) Regulations 2008 gives an authorised person discretion to require fingerprints and a facial photograph or to waive that requirement. Regulation 8 concerns when, where and how biometric enrolment occurs and does not prevent enrolment after substantive consideration of an entry-clearance application. The Tribunal relied on R (SGW) v SSHD [2022] UKUT 15 (IAC).
2. Article 8 framework. The taking of biometrics pursued legitimate aims, including security checks, prevention of serious criminality and prevention of immigration fraud. The respondent could give those aims significant weight. The decision-maker nevertheless had to assess proportionality and strike a fair balance between family life and the public interest. The approach could require very compelling circumstances, but not circumstances that were extraordinary, rare, unique or unusual in a factual sense.
3. Unlawful policy. The policy directed caseworkers to look for factually unusual circumstances rather than to balance compelling circumstances affecting family life against the legitimate aims. That was a misleading statement of law and an unlawful fetter on discretion. The policy therefore breached Article 8 and failed to guide decision-makers to take proper account of applicants’ rights.
4. Individual decisions. The decisions failed to give adequate reasons concerning the applicants’ family-life relationships, the best interests of the first applicant as a child or very young adult, the applicants’ vulnerability and medical evidence, the expert evidence concerning the dangers of travel, and the offer to provide alternative identity evidence. The higher wording used in the decisions was ultimately immaterial because it added no meaningful distinction to the policy test.
5. Proportionality and relief. On the facts, the applicants’ strong family life, vulnerability, psychological conditions, fear of the Taliban, pregnancy and the dangers of travel meant that requiring multiple journeys to Pakistan was disproportionate. The decisions of 28 March 2022 were quashed. The Tribunal declared the policy unlawful and ordered the respondent to consider the entry-clearance applications substantively on an expedited basis, with any positive decisions subject to biometric enrolment and security checks in Pakistan.

This was a judicial review in the Upper Tribunal. The challenged decisions dated 28 March 2022 replaced earlier decisions dated 18 January, 1 February and 18 February 2022. The Tribunal quashed the operative decisions and granted declaratory and mandatory relief.