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

A visa scheme designed to reunite families displaced by war may fall within the ambit of Article 8, even where Article 8 is not substantively engaged. A non-national resident in the affected country may be in an analogous situation to a national eligible under the scheme where both were displaced by the same conflict and have a settled family connection in the United Kingdom.

Nationality-based differential treatment requires compelling or very weighty reasons. An administratively workable scheme using bright-line eligibility rules may nevertheless be objectively justified where the rules are rationally connected to legitimate humanitarian and governmental aims, avoid abuse, preserve speedy decision-making and limit administrative burdens.

The applicant, an Afghan national, had lived in Ukraine before the Russian invasion. He fled to Germany and sought entry clearance to join his brother, who was settled in the United Kingdom. His applications under the Ukrainian Family Scheme and Homes for Ukraine Sponsorship Scheme were refused because he was not Ukrainian.

The applicant challenged the decisions by judicial review, alleging discrimination on grounds of nationality contrary to Article 14 read with Article 8, breach of Article 8, and failure lawfully to exercise discretion outside the Immigration Rules.

The central issues were whether the schemes fell within the ambit of Article 8, whether the applicant was in an analogous situation to an eligible Ukrainian national, and whether the nationality distinction was objectively justified.

1. The Ukrainian Family Scheme was intended to promote family life by enabling defined family members of persons settled in the United Kingdom to remain together after leaving Ukraine. It therefore fell within the ambit of Article 8 for Article 14 purposes, although it was unnecessary to decide whether the applicant enjoyed family life engaging Article 8 itself.
2. The applicant was in a relevantly similar situation to an eligible Ukrainian national. Both had been ordinarily resident in Ukraine before the invasion, had been affected by it, and sought to join a settled family member in the United Kingdom. The difference in treatment was direct discrimination on grounds of nationality.
3. Applying the proportionality questions in Bank Mellat v H M Treasury (No 2) [2013] UKSC 39, the Tribunal required compelling or very weighty reasons because the distinction was based on nationality.
4. The legitimate aims included providing a rapid safe haven for Ukrainians and their families, supporting Ukraine, preventing abuse, preserving manageable evidential checks, avoiding an asylum route from abroad, limiting administrative and public-service burdens, and maintaining a workable temporary scheme. The nationality and residence bright lines were rationally connected to those aims and were objectively justified.
5. The evidence did not establish real, committed or effective support exceeding normal ties between adult siblings living apart. In any event, the relationship could continue through communication and visits, and any interference would be modest and proportionate. The refusal to grant leave outside the Rules contained no public-law error. The judicial review application was dismissed on all grounds.

This was a judicial review application in the Upper Tribunal. The judgment records an earlier judicial review, JR-2023-LON-000604, after which an initial refusal was withdrawn and the application reconsidered. The present application was dismissed on all grounds.