Differential treatment of Ukrainian and Afghan applications justified on national security grounds

In AB v Secretary of State for the Home Department & Ors [2023] EWHC 287 (Admin), the High Court found that the Home Office did not discriminate against Afghan nationals, compared to Ukrainian nationals, in the context of the biometrics requirement for entry clearance applications.

The facts

AB worked as a prosecutor in Afghanistan, under the International Security Assistance Force, until the Taliban took over in summer 2021. In her role, she was involved in anti-terrorism prosecutions, including of Taliban members. Following the Taliban’s takeover and she was forced to leave Afghanistan and has been in hiding ever since. AB has two siblings who live in the UK and are British citizens.

In November 2021, she applied under the Afghan Relocation and Assistance Policy (ARAP). AB made representations to the Home Office in December 2021, asking to be granted leave outside the rules (LOTR) on the basis of her family ties to the UK, in the event that her ARAP application was refused. The Home Office refused to consider her application and said a complete immigration application, including the submission of biometrics was required. On 24 December AB confirmed that she could not attend a Visa Application Centre (VAC) to submit her biometrics in Afghanistan, but the Home Office confirmed that she should select on her application form a country that she can travel into to provide biometrics, even if she was not able to do so. Understandably, AB was concerned about misrepresentation if she declared this in her application form.

In March 2022, AB raised judicial review proceedings, challenging the refusal to consider her LOTR application and also arguing that the Home Office unlawfully discriminated against her. Had she been an Ukrainian national she would have been able to have her application considered without having to provide biometrics.

Differential treatment but no unlawful discrimination

In a very similar case in June 2022, the High Court found that the Home Office acted unlawfully in refusing to consider LOTR applications solely on the basis of applicant’s inability to provide biometrics. By the time this case reached court, the Home Office agreed to waive the biometrics requirement for AB and agreed to consider her LOTR application.

On this basis, the only argument left for the court to consider was whether AB, and other Afghans in similar circumstances, had been discriminated against by the Home Office when compared to Ukrainian nationals.

The court accepted that the requirement to provide biometrics in this case constituted differential treatment. It noted that Ukrainian nationals who have family members in the UK can have their applications considered without providing biometrics and they are allowed to give biometrics from inside the UK. On the other hand, there is no equivalent concession for Afghan nationals fleeing Afghanistan who have family members in the UK. The court also accepted that the differential treatment was based on nationality as most people in AB’s situation would be Afghans and most people applying under the Ukraine Family Scheme would be Ukrainians.

Finally, the court looked at whether the differential treatment was justified. The Home Office put forward two main arguments to justify the decision for a biometrics deferral to apply to Ukrainians and not to Afghans. Firstly, it was argued that requiring Ukrainians to give biometrics prior to entering the UK would have put a lot of pressure on VACs in Europe. Secondly, the Home Office argued 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 accepted these arguments and found that national security constituted a rational  justification for the differential treatment of Afghans, compared to Ukrainians and therefore found no unlawful discrimination.

Conclusion

Despite losing a number of challenges in court, the Home Office is yet to introduce a streamlined process for individuals who are unable to attend a Visa Application Centre to submit an entry clearance applications with biometrics. At present, applicants still need to state in the forms that they are able to travel to a country to give biometrics and, only after applications are submitted, they can request for the Home Office to waive the biometrics requirements. This requires making various attempts to reach whoever is in charge of making these decisions at the Home Office which can take weeks or even months. This is particularly concerning when assisting individuals or families who are at risk of losing their lives.

This is perhaps even more problematic when looking at how quickly a biometrics waiver was introduced as part of the Ukraine Family Scheme. For Ukrainians, the Visa Application Centre in Kyiv is now back open. It is hoped that the Home Office will put a process in place for Afghan nationals to request a biometrics waiver as soon as possible, putting an end to this long list of cases before the courts.