Differential Consideration Of Applications Is Justifiable

The High Court held that the Home Office did not discriminate against Afghan nationals when it came to the biometrics requirement for entry clearance applications in AB v. Secretary of State for the Home Department & Ors [2023] EWHC 287 (Admin).

The Details

Up until the Taliban took power in the summer of 2021, AB served as a prosecutor in Afghanistan while it was governed by the International Security Assistance Force. She participated in anti-terrorism prosecutions in her capacity, particularly those involving Taliban members. She was forced to flee Afghanistan once the Taliban took control, and she has been hiding ever since. AB has two British-citizen siblings who reside in the UK.

She submitted an application for the Afghan Relocation and Assistance Policy in November 2021. (ARAP). In December 2021, AB sent comments to the Home Office requesting leave outside of the rules (LOTR) based on her familial links to the UK in the event that her ARAP application was denied. Her application was rejected by the Home Office, which insisted that a full immigration application that included the submission of biometrics was necessary. Although the Home Office acknowledged that she should choose a nation that she can go into to provide biometrics, even if she was unable to do so, AB confirmed on December 24 that she could not attend a Visa Application Centre (VAC) to submit her biometrics in Afghanistan. Naturally, AB was worried that if she stated this in her application form, it may be construed as a misrepresentation.

In March 2022, AB filed a judicial review petition, contesting the Home Office’s denial of her LOTR application and charging that it had engaged in unconstitutional discrimination. If she had been a citizen of Ukraine, her application would have been accepted without the need for biometrics.

Treatment Disparity But No Illegal Discrimination

In a somewhat similar case, the High Court determined in June 2022 that the Home Office had broken the law by rejecting LOTR applications purely on the basis of the applicant’s incapacity to submit fingerprints. By the time this matter reached court, the Home Office had decided to let AB avoid having to provide biometric information and to take her LOTR application into account.

Based on this, the court had to decide whether AB and other Afghans in comparable situations had been treated unfairly by the Home Office when compared to Ukrainian citizens.

The court agreed that the demand for biometrics constituted disparate treatment in this case. It was mentioned that Ukrainian people with relatives living in the UK might submit their applications without supplying biometric information and could do so from within the country. However, there is no comparable exception for Afghan nationals who are fleeing their country and have relatives in the UK. Because most people in AB’s circumstances would be Afghans and most people applying for the Ukraine Family Scheme would be Ukrainians, the court also acknowledged that the discriminatory treatment was based on nationality.

The court also considered whether the disparate treatment was warranted. The Home Office offered two key justifications for choosing to apply a biometrics deferral to Ukrainians but not Afghans. First, it was claimed that forcing Ukrainians to provide biometrics ahead of time would have put a lot of strain on VACs in Europe. The Home Office also contended that:

“there is a different overall security assessment between Ukraine and Afghanistan. [..] and whereas the risks posed from Ukrainian refugees were primarily around immigration control, with some security risks associated with the proximity to Russia; the risks associated with Afghanistan are different. [..] [and that] terrorist organisations have operated from Afghanistan in recent times”

The court agreed with these reasons and concluded that national security provided a legitimate justification for treating Afghans differently than Ukrainians, concluding that there had been no unconstitutional discrimination.

Conclusion

The Home Office has yet to implement a streamlined procedure for people who cannot visit a Visa Application Centre to submit an entrance clearance application with biometrics, despite losing a number of legal challenges. Currently, candidates must still indicate in the application forms that they have the ability to travel to a country to provide biometrics, and they can only ask the Home Office to waive the biometrics requirements after their applications have been completed. This necessitates making numerous attempts to get in touch with the Home Office official who is in charge of making these judgements, which might take weeks or even months. This is especially concerning when helping people or families who are in danger of dying.

When you consider how rapidly a biometrics waiver was implemented as part of the Ukraine Family Scheme, this situation may become much more problematic. The Kyiv Visa Application Centre is once again open to Ukrainian citizens. It is hoped that the Home Office will establish a procedure as quickly as possible for Afghan nationals to apply for a biometrics waiver, putting a stop to the numerous cases currently pending in the courts.

Need Help?

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Written by:

Tahir Shahab Khan

Managing Director

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