AB, R (on the application of) v Secretary of State for the Home Department & Ors.
[2023] EWHC 287 (Admin)
LR, R (on the application of) v Secretary of State for the Home Department
20 March 2024
[2024] UKUT 236 (IAC)
Upper Tribunal
An Afghan living in Ukraine applied to join his brother in the UK under a scheme for Ukrainians. The UK refused because he wasn't Ukrainian. The court said the scheme was only for Ukrainians because it was a quick response to the war and couldn't handle everyone. The court also said the brother's relationship wasn't strong enough to justify special treatment.
Key Facts
- •LR (Applicant), an Afghan national, was resident in Ukraine before the Russian invasion.
- •LR had a relative in the UK and applied for entry clearance under the Ukrainian Family Scheme (UFS) and Homes for Ukraine Sponsorship Scheme (HUSS).
- •The application was refused because LR was not a Ukrainian national.
- •LR challenged the refusal on grounds of discrimination (Article 14 ECHR), breach of Article 8 ECHR, and failure to exercise discretion.
Legal Principles
Article 14 ECHR prohibits discrimination in the enjoyment of Convention rights. To establish a violation, the applicant must show (i) the circumstances fall within the ambit of a Convention right; (ii) they are in an analogous situation to a person treated differently; (iii) the difference in treatment is on grounds of a protected characteristic (race/nationality); (iv) there is no objective justification for the difference.
In re McLaughlin [2018] UKSC 48; AL (Serbia) v Secretary of State for the Home Department [2008] UKHL 42; Petrovic v Austria (2001) 33 EHRR 14; Hode and Abdi v United Kingdom (2013) 56 E.H.R.R. 27; Bank Mellat v H M Treasury (No 2) [2013] UKSC 39; Biao v Denmark (2017) 64 E.H.R.R. 1; Pajić v Croatia (2018) 67 E.H.R.R. 12; Ponomaryov v Bulgaria (2014) 59 E.H.R.R.
Article 8 ECHR protects the right to respect for private and family life. To determine whether a refusal of entry clearance is a disproportionate interference with Article 8, the five-stage Razgar test is applied.
Razgar v Secretary of State for the Home Department [2004] UKHL 27; Rai v Entry Clearance Officer [2017] EWCA Civ 320; R (Singh) v Entry Clearance Officer [2004] EWCA Civ 1075
Outcomes
Application for Judicial Review dismissed.
The Tribunal found that while the refusal of LR's application was discriminatory on grounds of nationality, this discrimination was objectively justified. The UFS was a temporary scheme designed to quickly assist Ukrainian nationals and their families fleeing the war. Extending the scheme to all non-Ukrainian nationals in Ukraine would have created significant administrative burdens and risks of abuse. Further, the Tribunal found that Article 8 was not engaged because LR's relationship with his brother in the UK did not constitute 'family life' within the meaning of Article 8, and even if it did, the interference was proportionate.
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