Key Facts
- •AB, an Afghan national and former prosecutor, sought relocation to the UK due to threats from the Taliban.
- •She applied for entry clearance without providing biometric data, claiming discrimination against Afghan nationals compared to Ukrainians who had a policy allowing biometric deferral.
- •AB's claim was dismissed by the High Court, and she appealed to the Court of Appeal.
- •The Court of Appeal considered whether the differential treatment constituted unlawful discrimination under Article 14 ECHR in relation to Article 8 ECHR rights.
- •The Ukrainian Family Scheme (UFS) allowed biometric data deferral for Ukrainian nationals, while no such provision existed for Afghan nationals.
- •The SSHD argued that differences in national security assessments and pressure on visa application centres justified the different treatment.
Legal Principles
Article 14 ECHR prohibits discrimination in the enjoyment of Convention rights.
Article 14 ECHR
To establish a violation of Article 14, the claimant must show differential treatment based on a protected status, a relevantly similar situation compared to others, and a lack of objective and reasonable justification.
R (DA) v Secretary of State for Work and Pensions
The standard of review for justification varies depending on whether the discrimination is based solely on nationality; higher scrutiny ('very weighty reasons') is applied for nationality-based discrimination.
Gaygusuz v Austria, Bah v UK
The court should avoid over-analysis in discrimination claims and focus on whether the differentiation has a legitimate aim and whether the means are appropriate and proportionate.
R (Carson) v Secretary of State for Work and Pensions
Justification requires consideration of whether the objective is sufficiently important, the measure is rationally connected, less intrusive measures could have been used, and whether the severity of the measure's effects outweighs the importance of the objective.
Huang v Secretary of State for the Home Department, Bank Mellat v Her Majesty’s Treasury
Public authorities owe a duty to the court to cooperate and make candid disclosure of relevant facts and reasoning.
Belize Alliance Conservation of Non-governmental Organisations v Department of the Environment
Outcomes
The Court of Appeal dismissed AB's appeal.
The court found that the judge correctly applied the law and that the SSHD had demonstrated very weighty reasons to justify the different treatment of Afghan and Ukrainian applicants regarding biometric deferral. The differences in national security concerns and the pressure on VACs were deemed sufficient justification.