AB, R (on the application of) v Secretary of State for the Home Department
[2024] EWCA Civ 369
AB, R (on the application of) v Secretary of State for the Home Department & Ors.
10 February 2023
[2023] EWHC 287 (Admin)
High Court
An Afghan woman who helped the UK in Afghanistan needed to leave due to threats. The UK said she needed her fingerprints first, which was impossible from Afghanistan. She sued, saying it was unfair compared to Ukrainians who didn't need to do this. The judge ruled it was not unfair because the UK government had good reasons for the difference related to safety and international relationships.
Key Facts
- •AB, an Afghan prosecutor who worked for 20 years under ISAF, is in hiding in Kabul with her family due to threats from the Taliban.
- •She applied for relocation under the Afghan Relocation and Assistance Policy (ARAP) and subsequently requested Leave Outside the Rules (LOTR) or entry under Article 8 ECHR due to family ties in the UK.
- •The Home Office required biometric data, which is impossible to provide from Afghanistan, proposing a ‘workaround’ that AB considered a misrepresentation.
- •AB brought judicial review challenging the Home Office's refusal to consider her LOTR application without biometric data and alleging discrimination against Afghans compared to Ukrainians under the Ukrainian Family Scheme (UFS).
- •The Home Office subsequently agreed to consider the LOTR application before requiring biometric data.
Legal Principles
Article 14 ECHR prohibits discrimination in the enjoyment of Convention rights.
ECHR
Article 8 ECHR protects the right to respect for private and family life.
ECHR
In Article 14 claims, the court considers whether the claimant and comparator are in analogous situations and whether any differential treatment is justified. A higher level of scrutiny is applied if the differential treatment is based on nationality.
Gaygusuz v Austria [1996] 23 EHRR 364; Bah v UK [2012] 54 EHRR 21; R (SC) v Secretary of State for Work and Pensions [2022] AC 223; AL (Serbia) v SSHD [2008] 1 WLR 1434; Hode v UK [2013] 56 EHRR 27
The court will give significant weight to government considerations of diplomatic and foreign policy, and national security, unless clearly unreasonable.
R (SC) v Secretary of State for Work and Pensions [2022] AC 223
Outcomes
The claim of discrimination under Article 14 ECHR was rejected.
The court found the Home Office justified the different treatment of Afghan and Ukrainian applicants regarding biometric data due to national security concerns, the strain on the VAC network, and diplomatic considerations. The Home Office's willingness to consider the LOTR application without prior biometric data rendered the other grounds moot.
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