No discrimination found against Afghan man blocked from Ukraine visa schemes

The Upper Tribunal has held that an Afghan man who was living in Ukraine at the time of the Russian invasion and who wanted to come and join his brother in the UK was lawfully refused a grant of entry clearance under the Ukraine schemes.

The case is R (on the application of LR (Afghanistan)) v Secretary of State for the Home Department (Ukrainian Family Scheme – discrimination, nationality) [2024] UKUT 00236.

Background

The applicant is an Afghan national who arrived in Ukraine on 8 October 2015 as a student. He studied at the University of Ukraine and had multiple visa extensions to 15 August 2020. Ukraine then introduced a new law requiring students to make out of country applications. The applicant was unable to do this as he feared for his safety in Afghanistan and there was no Ukrainian Embassy there.

He was subsequently recognised as a refugee on 1 September 2021. At the time of the Russian invasion of Ukraine, the applicant was waiting for a decision on his request to extend his refugee certificate. On 25 February 2022 the applicant fled to Poland and then to Germany on 3 March 2022. Germany granted him a two-year visa on 4 March 2022.

The applicant’s brother (the sponsor) lives in the UK, he was granted indefinite leave to remain in the UK on 8 April 2022 under the Afghan Relocation and Assistance Policy. On 26 September 2022 the applicant applied under the Ukraine Family Scheme to join his brother.

An application was also made under the Homes for Ukraine Scheme with accommodation offered by one of the sponsor’s former teachers in the Defence Academy. The sponsor was in bridging accommodation at the time and so unable to offer accommodation himself, however the intention was that they would live in rented accommodation together.

The application for entry clearance was rejected on 16 January 2023 because the applicant was not a Ukrainian national. Following a judicial review that decision was withdrawn. On 2 May 2023 the application was again rejected on the grounds that the applicant did not meet the nationality requirements.

The refusal letter said that the discretion available to decision makers did not extend to the nationality requirement. It also said that the application was not a human rights claim but in any event it was not arguable that family life was engaged in this case. It was not accepted that there were any exceptional circumstances in this case, as the applicant and sponsor had lived in different countries since 2015, with only two visits.

Further evidence, including a medico-legal report, was submitted on 18 December 2023. A further refusal was made on 15 February 2024, which gave consideration to exceptional circumstances in light of the medical evidence.

The grounds for the judicial review were that the refusal was discriminatory in breach of the European Convention on Human Rights, in breach of article 8 and that the refusal to exercise discretion to grant entry clearance outside of the immigration rules was unlawful.

The judicial review

The first ground was that the refusal of the application was discriminatory and in breach of article 14. The Upper Tribunal found that the applicant was in an analogous situation to a Ukrainian national who was impacted by the Russian invasion and wanted to go to the UK where they had a settled family member. The different treatment was direct discrimination on the grounds of race or nationality.

The tribunal considered that the Home Secretary was entitled to be concerned about broadening the scheme and the “serious risk of abuse” and the additional resources that would be required. It was held that the aims for the Ukraine scheme were legitimate and rationally connected to the measures used by the Home Secretary.

On the second ground for judicial review, the Upper Tribunal held that the applicant had not established family life for the purposes of engaging article 8. There was only evidence of one example of financial support and the Whatsapp messages show “overall regular contact but also some lengthy gaps of up to six weeks without any messages at all”. There were “no significant examples of emotional or other practical support” and there were no significant changes in the frequency or content of the messages after the invasion of Ukraine nor the Taliban’s taking of Kabul.

The tribunal said that even if it had held that article 8 was engaged, they did not consider that the refusal would have been a disproportionate interference in breach of article 8. In relation to the medico-legal report, the tribunal found that they could only attached little weight to it for reasons including the lack of analysis as to what treatment or support is available in Germany. Considering the strength of their relationship and possible benefits of being reunited, the tribunal held that this “modest” interference would not be disproportionate.

The discretion ground was dismissed for “substantively the same reasons”.

Conclusions

We deliberately set out the given court case in some detail, as we think it is very instructive to see the extent to which the Home Office is determined not to accept any refugees outside of the very limited so called “safe and legal” routes that exist. That inevitably leads to unfair (even if held to be lawful) outcomes, as is arguably the case here.