R (MRS & Anor) v ECO (Biometrics, Entry Clearance, Article 8)  UKUT 85 (IAC) (30 Mar 2023)
The Upper Tribunal thinks that it is open for the Home Office, in line with article 8 of the ECHR, to have a biometric discretion policy that places significant weight to the public interest and proper legitimate aims which justify biometrics and that only exceptional in the sense of very compelling cases can outweigh that interest. Further, it is incompatible with article 8 of the ECHR for the policy Family Reunion: for refugees and those with humanitarian protection policy version 5 (31 December 2020), to direct decision-makers that only applicants with extraordinary, and therefore rare, unique or unusual circumstances, can succeed. Judicial review proceedings were instituted in February 2022 and challenged the ECO's refusal to defer the collection of biometric information (scans of finger prints and face) in Pakistan from the Afghan applicants until after in principle decisions, subject to biometric enabled security checks, are made to grant entry clearance for refugee family reunion, if such decisions are indeed made, and in the alternative to the refusal to arrange for biometric collection via another embassy or international agency in Afghanistan rather than from a visa application centre in Pakistan. The applicants' challenge was, first of all that the policy with respect to the deferment of biometric information from the applicants was unlawful because the "exceptional and extraordinary" circumstances requirement applied was unlawful on public law grounds.
It was agreed that the policy breached article 8 as it failed to strike a fair balance and/or misdirected decision-makers as to how they should proceed in reaching decisions which are compatible with article 8. Secondly, it was argued, that the decisions were unlawful because there was a failure to have regard to relevant considerations, particularly the best interests of a child and the fact that article 8 family life was engaged, and because an even higher threshold than required by the policy, as now clarified, was applied. Further, when the Tribunal steps into the position as primary decision-maker in determining whether the decisions breached article 8, it will be seen that the ECO failed to strike a fair balance and that the decisions were a disproportionate interference with the procedural/substantive components of the applicants' and sponsor's right to respect for family life as protected by article 8. In the alternative, it was argued that if it were found that the policy requiring "exceptional and extraordinary" circumstances was lawful and article 8 compliant then this test was, contrary to the relevant decisions, met on the facts of this case.
The first applicant was born in July 2004 was the brother of the sponsor, RS, a citizen of Afghanistan who was recognised as a refugee in the UK in September 2017 on the basis of a claim that he feared the Taliban, and held limited leave to remain until September 2022. The history was that the first applicant and RS left Afghanistan together in 2015 as they were afraid of forced recruitment into the Taliban but were separated in January 2016 in Iran by people smugglers, and did not make contact again until the Summer of 2021 by which time the first applicant was back in their home region of Laghman. He lived with his sister-in-law (second applicant), RS's post flight wife, and her minor younger brother. In September 2021 the first applicant made, through a pro bono representative, an online application for refugee family reunion outside of the Immigration Rules, and requested he be allowed to postpone the giving of biometrics until and if an in-principle decision was made to grant entry clearance as he was unable to make three dangerous trips back and forth to Pakistan. He had a Tazkira, Afghan identity card, but no passport and he had not made an application for a passport as he feared approaching the Taliban (now in charge of Afghanistan). He suffers from mental health problems—PTSD, depression and suicidal ideation.
The second applicant was born in March 2002, was the post-flight wife of RS the sponsor. She married him formally in October 2021 in a ceremony in Pakistan and travelled there in September 2021 illegally. She did this with the assistance of the first applicant and her minor brother (who both remained on the Afghan side of the border) and a smuggler who enabled her to cross the border.
The first applicant and the second applicant's minor brother were beaten by the Taliban in this process. Whilst she was in Pakistan, in November 2021, through a pro bono lawyer, she made an outside of the Immigration Rules refugee family reunion application online and tried to book an appointment to give her biometrics at a Pakistani visa application centre. However, there were technical failures, reflected in email correspondence between her then representative and the UKVI technical helpdesk, which meant that she was not given an appointment to provide biometrics. RS had to return to the UK and she could not stay in Pakistan without him so returned to Laghman in Afghanistan. She was pregnant and had a difficult pregnancy with health complications including bleeding. She was also suffering from mental health problems including anxiety, depression and suicidal ideation. She requested the decision-maker to defer her biometrics enrolment and argued it was not safe or reasonable for her to make the dangerous trip to Pakistan simply to do this with no in principle decision to grant entry clearance for onward travel to join her husband RS in the UK. She has a Tazkera and applied for an Afghan passport but had no response to that application.
The applicants did not seek to postpone collection of biometrics until they are in the UK. They are willing to provide them in Pakistan once the substantive applications have been considered and indicative decisions made, subject to security checks following biometric enrolment, so that they have only to make one dangerous journey to Pakistan if they are granted, and none if they are refused, rather than three hazardous journeys in the case of a grant. They are furthermore willing to give alternative biometric information outside of the SSHD's recruitment system, such as provide a passport compliant type photograph, or even potentially finger-prints to supplement this process, but exactly how they would do this by themselves was not made clear.
In R (SGW) v SSHD  UKUT 15 (IAC), UTJ Norton Taylor found that Regulation 8 of the Immigration (Biometric Registration) Regulations 2008 is related to "the when, where and how, as to the enrolment of biometric information" and does not preclude the possibility that "enrolment may occur after an application for entry clearance has been substantively considered". Significantly, the evidence of Mr Burt, deputy policy lead on biometric policy for the Border Security and Identity Policy Unit stated that in principle decisions pre-capture of biometrics might very occasionally be made where there is very compelling evidence that absolutely confirms the identity of an applicant.
UTJ Lindsley said that this might be that this last category is reflective of the outcome of Lieven J's decision in R (JZ) v SSFCDA and SSHD  EWHC 771 (Admin) where interim relief was granted to the applicants requiring the respondent to defer biometric recruitment until after the substantive consideration of the Afghan applicant's application for entry clearance in the case of an Afghan judge who was a person known to the US and UK authorities who wished to come to the UK to join his brother, a British citizen living in the UK, under the ARAP scheme. Lieven J found his being a known and documented individual differentiated his case from many others. It is notable that the application was not only for JZ but also his wife and six children, as to whom there was no information that they individually were known except via their relationship to JZ himself.
The test for exercise of this discretion actually applied to these applicants in the decisions of 28 March 2022 is 'very exceptional and extraordinary circumstances', a test which was also set out in a letter of 14 March 2022 from the respondent requested by the applicants' solicitors in these proceedings to clarify the current policy.
The SSHD argued that it is has been decided that the 'very' added nothing to the ultimate meaning and so is now deleted, and that the two tests are really the same and so therefore "exceptional and extraordinary circumstances" is and has been the test for discretion at all material times in relation to the decisions in the applicants' cases. Notably, the applicants were also willing to give biometrics in Afghanistan via a functioning embassy such as that of Qatar or through an international agency such as the UNHCR, Red Cross or IOM but UTJ Lindsley did not give further consideration to this point owing to no evidence before the court.
She noted that the parties agreed that the "exceptional and extraordinary circumstances" biometric discretion policy must comply with article 8. UTJ Lindsley noted that in Huang v SSHD  UKHL 11 the court held that where there is family life and the refusal of entry clearance interferes with that family life, so as to be lawful the interference must be proportionate, which in turn means it must be justified; the justification must be rationally connected to the legitimate aim; the steps taken must be the minimum required to achieve the legitimate aim; they must strike a fair balance between the right to respect for family life and that aim; and not place an additional requirement of exceptionality.
The applicants accepted that taking biometrics serves a legitimate aim to assist preventing those involved in serious criminality, including acts of terrorism, being able to travel to the UK by their biometric details being checked against other datasets such as watchlists and fingerprint collections.
The applicants argued—and UTJ Lindsley accepted their argument—that their challenge did not limit the protection in respect of this legitimate aim. If permitted to come to the UK the applicants will give their biometrics in Pakistan and the checks with other datasets can therefore be done before they enter the UK. In Hesham Ali v SSHD  UKSC 60, the Supreme Court decided that exceptional circumstances must be understood to mean very compelling circumstances requiring a departure from the general rule and they need not necessarily involve those circumstances which are considered exceptional in the sense of being extraordinary. Moreover, the role of the Tribunal was being to establish whether the article 8 ECHR claims is sufficient strong and compelling to outweigh the strong public interest identified by parliament and the respondent, the strong public interest in that case being the deportation of foreign offenders. UTJ Lindsley noted that the SSHD accepted before her that the use of the word "extraordinary" in the biometric discretion policy was not a word which was consistent with the article 8 ECHR caselaw and she held that:
24. I find that it is clear from the first witness statement of Mr Burt at paragraphs 10 and 23 that the policy aims to reduce the feared large numbers of ordinary Afghans who would argue it was unsafe and unreasonable for them to make multiple dangerous trips to Pakistan. It is clear from the detailed grounds of defence at paragraph 47 that it is the respondent's view that this test will be "rarely met". The policy therefore leads a decision-maker to look for the factually unusual and not to balance compelling circumstances going to the right to respect for family life against the public interest in preventing immigration fraud.
25. I find that the biometric discretion policy applied by the respondent in this particular context is unlawful as it breaches Article 8 ECHR as it misdirects the decision-making caseworker as to how they should proceed in reaching the decision in line with the third category of illegality in policies identified at paragraph 46 of R (A) v SSHD  UKSC 37 (which appears at paragraph 84 of the Upper Tribunal decision in R (SGW) v SSHD when identifying the standards to be applied by a court when conducting a judicial review of a policy document issued by government because the policy includes a misleading statement of law.
26. It would be open to the respondent, in line with a proper Article 8 ECHR balancing exercise, to outline that significant weight must be given to the public interest and proper legitimate aims which justify biometrics, and that only exceptional in the sense of very compelling cases can outweigh that interest, but not to direct decision-makers that only applicants with extraordinary, and therefore rare, unique or unusual, circumstances can succeed. This is simply incompatible with the Article 8 ECHR case law I have outlined above. It follows that I find that the policy therefore fails to ultimately provide for a fair balance under Article 8 ECHR, and the decisions in relation to the applicants are unlawfully made through application of an unlawful policy.
27. It also follows that relevant Article 8 ECHR considerations are not properly considered by application of the policy and irrelevant considerations, caused by a condition narrowing the pool of potential applicants by reason of some unusual feature in their case, have been unlawfully given weight. As such the respondent has unlawfully fettered her discretion to partially defer the collection of biometrics by application of this policy in making the decisions under challenge.
28. In terms of the actual decisions under challenge I find that they are unlawful as they fail to provide reasoned decisions on the following relevant matters: whether the applicants and sponsor have family life relationships; they fail to engage substantively with the best interests of the first applicant who contends that he is a child in the context of the respondent accepting that the spirit of s.55 applies in entry clearance cases and Article 8 ECHR being informed by the Convention on the Rights of the Child making the best interests a primary consideration; they fail to weigh the vulnerability of the first applicant as a person for whom there is history of fear of the Taliban like his sponsor RS (which has been accepted in relation to RS) and the vulnerability of the second applicant based on medical evidence provided to the respondent; and they fail to engage sufficiently with the expert evidence in the report of Mr Foxley dated 4 March 2022.
The expert opinion was briefly that travel within Afghanistan to a border crossing raises multiple dangers in the form of improvised explosive devises and unexploded ordnance, criminality and check points established by local militias, Taliban, illegal armed groups and criminals and from local armed disputes. Mr Foxley also explained that travel in the applicants' home district of Laghman is "extremely hazardous" and that entering Pakistan illegally is "costly, unpredictable and very risky". Mr Foxley also set out in his report, the advice of the FCDO of March 2022 that: "All travel throughout Afghanistan is extremely dangerous". The evidence of Mr Burt included the fact that organisations such as the Red Cross and UNCHR have been told by the Taliban that they cannot assist enabling people to leave the country, and this provided further evidence that to leave Afghanistan is—at least generally—to act contrary to the Taliban's wishes. UTJ Lindsley held that:
31. The decisions also fail to engage with the offer by the applicants to provide some other sort of identity evidence such as a passport compliant photograph of the applicant to mitigate the chance of the applicants being able to make other future applications in other identities. I accept that such evidence could not be uploaded into the "closed loop" biometric system as described by Mr Burt, and would be of lesser worth than an officially issued passport copy including a photograph as possessed by the applicants in (JZ), but the respondent has not explained why it would be of no worth at all in ensuring that the same applicants issued with the in principle decision were the same people who register their biometrics in Pakistan. It is notable that, according to the first witness statement of Mr Burt at paragraph 6, such non-system biometrics appear to have been seen as having some protective effect by the respondent during the emergency evacuation from Afghanistan, "Operation Pitting", where wet fingerprints were taken prior to full biometrics in some cases and so can be assumed to have had some protective value for the public interests engaged.
32. The decisions also on their face, at paragraph 5, apply a different test to that set out in the policy at the time they were made: they were, as noted early in my decision, made on the basis of a higher test of "very exceptional and extraordinary circumstances" being required for the partial deferment requested. I accept however that it is hard to understand what "very" added to make the standard of exceptional and extraordinary higher. I find that this error was ultimately not material, and the test as now expressed is for practical purposes the same as that applied to the applicants.
Next she moved on to make findings, as primary decision-maker, going to her assessment under article 8 of the ECHR and held that:
37. I find that RS and the applicants cannot have family life anywhere other than the UK as they are Afghan citizens without a right to live elsewhere and RS is a UK recognised refugee from Afghanistan who cannot therefore be required to live in Afghanistan.
38. In this context I find that the refusal to permit the applicants to defer the recruitment of their biometrics until after an in-principle substantive decision interferes with the applicants' right to respect for family life. The right to family life contains a procedural component to ensure processes are fair, and that the process as a whole must provide sufficient protection for the applicant's interests.
39. I find that the respondent requires, on the facts of this case, that multiple trips are made to Pakistan, first to register biometrics and then if successful to collect visas. In the context of the dangers of travel in Afghanistan and into Pakistan high-lighted in the evidence of Mr Foxley, set out above at paragraph 29 in this decision, and in the context of the applicants being a young adult pregnant woman and a justifiably fearful minor boy/ very young adult man who are suffering from psychological conditions including anxiety, depression and suicidal ideation, this system amounts to a significant interference with the right to family life being genuine and effective for the applicants.
She noted that in R (JZ) v SSFCDA, SSHD & SSD  EWHC 771 (Admin), Lieven J accepted that the risks of that applicant and his family crossing Afghanistan and entering Pakistan are great, even though those applicants actually held passports and visas, and she found that it was difficult to precisely quantify but she found that risk to be considerable, and a rational consideration in coming to this conclusion was if the risk was minimal why would the applicants not have simply gone to Pakistan to register their biometrics?
UTJ Lindsley duly adopted this reasoning and found that the applicants and sponsor were desperate to be reunited and this was reflected in their statements and the psychological evidence relating to all three of them, and they would not have taken these proceedings with the inherent distressing delay they have caused if the biometric procedure did not, in their view and understanding as Afghan citizens on the ground who had already had the experience of getting the second applicant from their region of Afghanistan into Pakistan and back, pose a considerable risk to their safety. She found that the interference with the applicants' right to respect for family life was in accordance with the law. But on the other side of the balance she noted the strong family life relationships of the applicants with RS their sponsor, and held that "on the particular facts of this case that the fair balance falls in favour of the applicants."
UTJ Lindsley determined that it is clearly extraordinary, in sense of rare and unusual, for the second applicant to have travelled, experiencing the dangers routinely prevalent when travelling from Afghanistan to Pakistan, to make an application and register biometrics at the visa application centre and to have been refused the opportunity to do so due to no fault of her own and indeed in circumstances where her representative did all they could to report the error via the online process advised but to no avail.
UTJ Lindsley determined that her other circumstances are very compelling (being a very young, mentally unwell pregnant woman with no older male relative in Afghanistan, and a husband (RS) with mental health problems, facing a dangerous trip involving people smugglers to enter Pakistan and being only able to have family life via an entry clearance application to the UK due to her husband's refugee status) and that she met the test of exceptional and extraordinary circumstances for the exercise of discretion in her favour, and that therefore the SSHD's decision in refusing the request was erroneous in law as it is contrary to article 8. She quashed the relevant decisions. She declared that the SSHD's policy on the exercise of discretion to defer/postpone the recruitment of biometrics until after substantive decisions made on entry clearance applications but prior to entry to the UK is unlawful as it fails to guide decision-makers to take proper account of the article 8 rights of the applicants. She made a mandatory order that the ECO proceed to consider the applications for entry clearance of the first and second applicants substantively on an expedited basis, and provide them with these decisions first which, if positive, would be subject to enrolment of biometrics in Pakistan and security checks thereafter.
The UT gave significant weight to the public interest in maintaining the integrity of the immigration control system, and ensuring that applicants cannot make future applications without their past history of applications being linked to them via biometrics and it did acknowledge that what is being requested increases the risk that the applicants would potentially be in a position to do this, and that if refused there would be less protection against detecting false second applications being made by these people.
However, the UT found on the facts of this case, where the applicants would have not only to reinvent themselves with new Tazkeras, but also find a new family sponsor in the UK to join, and therefore the potential for abuse is not as high as it would be in non-family relationship applications. Any new false applications would also ultimately be vulnerable to challenge to the truth of their relationships as unlike in the true case, where ultimately DNA evidence would prove their relationships to RS (for the second applicant via her as yet unborn child), this would not be possible in relation to any second applications with a new fake sponsor.