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

The Court of Appeal dismissed AB’s appeal against the Administrative Court’s dismissal of her Article 14 challenge to differential treatment between Afghan applicants and Ukrainian applicants under the Ukraine Family Scheme (UFS) in relation to the deferral of biometric enrolment. The court accepted that the claim fell within the ambit of Article 8 and that the difference in treatment was principally based on nationality, but held that the Secretary of State had advanced very weighty reasons justifying the differential treatment. Those reasons included national security considerations and the operational pressures on Visa Application Centres, and warranted a wide margin of appreciation. The court also dealt with disclosure failures and admitted certain ministerial submissions into evidence but concluded they did not alter the outcome. The appeal was therefore dismissed.

Background and parties: AB, an Afghan national who had worked as a prosecutor in Afghanistan and who has two adult British siblings in the United Kingdom, sought entry clearance under the Afghan Relocations and Assistance Policy (ARAP) or, alternatively, leave reflecting Article 8 ECHR or Leave Outside the Rules (LOTR). She challenged as discriminatory the fact that a policy permitted certain Ukrainian applicants to defer biometric enrolment until arrival in the UK (the biometric deferral under the Ukraine Family Scheme) while no equivalent concession was given to Afghans generally.

Nature of the claim and relief sought: The claim was for judicial review and sought a declaration that the Secretary of State’s differential treatment (affording lesser or no protection to the family life of Afghan individuals at risk with family in the UK than to Ukrainians in analogous positions) amounted to unlawful discrimination contrary to Article 14 read with Article 8 ECHR.

Procedural history: The Administrative Court (Lieven J) dismissed the claim on 10 February 2023. Permission to appeal to the Court of Appeal was granted by Males LJ on 27 July 2023. The Court of Appeal heard the appeal on 31 January 2024. The Secretary of State applied under the Justice and Security Act 2013 for closed material procedures, which were authorised and dealt with in a parallel CLOSED judgment.

Issues framed by the court: (i) Whether the complaint fell within the ambit of Article 8 (accepted); (ii) whether the differential treatment was on grounds of nationality or other status and thus the intensity of review required; (iii) whether AB and a Ukrainian comparator were in sufficiently analogous situations; and (iv) whether the differential treatment was objectively and reasonably justified (legitimate aim, rational connection, proportionality and absence of less intrusive measures).

Court’s reasoning and dispositive findings: The court accepted that the differential treatment was principally because of nationality and that AB and Ukrainian applicants were sufficiently analogous to engage Article 14. However, the Court of Appeal agreed with the judge that very weighty reasons were advanced by the Secretary of State and that the matters relied on (national security concerns, differing security assessments between Afghanistan and Ukraine, and acute operational pressure on VACs in Europe during the Ukraine crisis) had a rational connection to the policy aims. The court emphasised the appropriateness of a wide margin of appreciation where geopolitical and national security considerations feature. The court found no persuasive less intrusive measures that would achieve the legitimate aims without unacceptable compromise and concluded the authorisation and policy were not unlawful. The appeal was dismissed.

Appeal dismissed. The court held that although the complaint fell within the ambit of Article 8 and the differential treatment was principally on grounds of nationality, the Secretary of State had provided very weighty and rationally connected reasons (national security and operational pressures on Visa Application Centres) that justified the differential treatment. The judge’s balance between individual rights and community interests was reasonable and within the margin of appreciation; no less intrusive measure had been shown to be practicable.

High Court (Administrative Court, Lieven J) – claim for judicial review dismissed on 10 February 2023 (JR/1072/2022). Permission to appeal granted by Males LJ on 27 July 2023. Appeal heard in the Court of Appeal (Civil Division) and judgment given [2024] EWCA Civ 369 on 18 April 2024. Case management directions in this court on 8 November 2023 altered respondent parties so SSHD was sole respondent on appeal.