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

The four-question framework for discrimination under Article 14 is a useful guide, not a sequence of separate tests. Except where a claim plainly falls outside Article 14, the court should focus on the essential issue of objective and reasonable justification.

Comparators need be relevantly similar, not identical. The aims of a policy must be assessed broadly and cannot be defined by the means chosen to achieve them so as to exclude Article 14 scrutiny. A systemic discrimination claim concerns cohorts and cannot be sustained by an applicant’s individual circumstances alone.

A differential immigration policy may be justified where it strikes a fair balance and no less intrusive alternative has been identified. Wide weight may properly be given to foreign-policy, national-security and operational assessments made in a fast-moving humanitarian crisis.

AB, an Afghan former prosecutor at serious risk following the fall of Kabul, sought entry to the United Kingdom through relocation routes, Article 8 of the European Convention on Human Rights and leave outside the Immigration Rules. She could not safely travel to provide the biometric information normally required for entry clearance.

She challenged the former Ukraine Family Scheme concession that allowed Ukrainian applicants to defer biometrics until after arrival. She alleged unlawful nationality discrimination contrary to Articles 8 and 14. Lieven J dismissed the judicial review claim on 10 February 2023.

AB appealed. The central issue was whether the different biometric policy for Ukrainian and Afghan applicants was objectively and reasonably justified. The Court also considered late disclosure of ministerial submissions and the Secretary of State’s respondent’s notice on status and relevant similarity.

1. Appeal dismissed. The court affirmed Lieven J’s order. The Ukrainian and Afghan cohorts were in relevantly analogous situations for Article 14 purposes. Both concerned people seeking protection from acute threats in their home countries. Relevant similarity does not require identical circumstances, and the Secretary of State could not define the policy’s aim by the particular means selected to achieve it.
2. The four Article 14 questions identified in R (DA) [2019] UKSC 21 were a helpful framework, but not self-contained tests. In accordance with Carson [2005] UKHL 37, AL (Serbia) [2008] UKHL 42 and R (SC) [2021] UKSC 26, the essential issue was justification. The court therefore declined to determine whether the difference was exclusively based on nationality and whether that required very weighty reasons. That issue could not affect the result and any conclusion would have been obiter.
3. The biometric concession was inseparable from the implementation of the Ukraine Family Scheme and entry to the United Kingdom. It was therefore wrong to assess deferral merely as a pre-decision measure divorced from entry and its security consequences. Article 14 policy challenges compare relevant cohorts; they do not require an individualised assessment of the claimant’s own identity or circumstances.
4. Applying the proportionality approach in Huang [2007] UKHL 11 and Bank Mellat (No 2) [2013] UKSC 39, the policy was justified. The contemporaneous ministerial submissions coherently explained the urgent operational pressure on European visa application centres and the materially different security assessment for Afghanistan. Foreign policy, national security and the need for rapid humanitarian action entitled the Secretary of State to a wide margin of appreciation. The court found no plausible less intrusive measure and held that the policy struck a fair balance.
5. The late non-disclosure of ministerial submissions was unfortunate and contrary to the public authority’s duty of candour, but it was inadvertent. The court admitted the submissions, found that they did not materially affect the outcome, and refused a declaration as unnecessary and disproportionate. Having considered the closed material procedure, it also granted a declaration under section 6 and a non-disclosure order under section 8 of the Justice and Security Act 2013.

• Court of Appeal (Civil Division) — dismissed AB’s appeal and affirmed the Administrative Court’s order: [2024] EWCA Civ 369.
• High Court, King’s Bench Division, Administrative Court — Lieven J dismissed AB’s judicial review claim concerning alleged discrimination in biometric deferral policy on 10 February 2023. A neutral citation was not stated in the judgment.