Upper Tribunal Considers Discretion to Defer Biometric Enrolment
In R (on the application of MRS and FS) v Entry Clearance Officer (Biometrics, Entry Clearance, Article 8) [2023] UKUT 00085 (IAC), in the context of judicial review proceedings, the Upper Tribunal considered the lawfulness of the Secretary of State for the Home Department’s (SSHD) biometric enrolment discretion policy in family reunion entry clearance applications. Further, the Upper Tribunal considered the compatibility of the SSHD’s decisions to refuse the deferral of biometric enrolment to the applicants with Article 8 ECHR.
Facts
The first applicant, MRS (an anonymity order was made), is the brother of RS, a citizen of Afghanistan who was recognised as a refugee in the UK in September 2017 on the basis of his fear of the Taliban. In September 2021, he made an application for entry clearance to the UK to join RS on the basis of refugee family reunion outside of the Immigration Rules. He also sent a request that the requirement to enrol his biometric information be deferred until and if an in-principle decision was made to grant him entry clearance. This was because he was unable to make three dangerous trips back and forth to Pakistan. He has a Tazkira, but no passport, for fear of approaching the Taliban. He is suffering from PTSD, depression and suicidal ideation.
The second applicant, FS, is the post-flight wife of RS. She had travelled perilously in September 2021 to Pakistan with the assistance of MRS, her own brother and a smuggler, where, in October 2021, she married RS and, in November 2022, made a refugee family reunion application outside the Rules, to join RS in the UK. She attempted to book an appointment to enrol her biometrics in Pakistan, but due to technical failures, she was not given an appointment. RS had to return to the UK and she had to return to Afghanistan. At the time of the hearing she was 5 months pregnant, with health complications and mental health problems. She also requested that the SSHD defer her biometric enrolment after an in-principle decision to grant entry clearance, for the same reasons as the MRS. She has a Tazkira but no passport, as her passport application had not been responded to by the Afghan authorities.
Decisions under challenge and Policy
The SSHD refused to defer the applicants’ biometric enrolment until after in-principle decisions on their entry clearance applications, if those were positive, subject to subsequent biometric-enabled security checks. The SSHD’s final decisions regarding this request were dated 28 March 2022 and the judicial review challenge ultimately related to those decisions.
The decisions were made in line with the SSHD’s policy “Family reunion: for refugees and those with humanitarian protection policy version 5 of 31st December 2020”, previously found to have been unlawful in R (on the application of SGW) v Secretary of State for the Home Department (Biometrics – family reunion policy) [2022] UKUT 00015 (IAC) for failing to confirm the existence of any discretion as to the provision (or manner of provision) of biometric information when a person makes an application for entry clearance, save in respect of children under 5 years of age. An official of the SSHD stated in evidence that the guidance had been updated to include a reference to discretion to provide biometrics after entry to the UK, but that remained “under review” on the date of the hearing.
In her grounds of defence, the SSHD had stated that the test for a waiver or deferral of biometric enrolment was “exceptional and extraordinary circumstances”. In the applicants’ case, they had not requested a deferral of biometric enrolment until after their entry to the UK, but only until after in-principle decisions had been made positively, in order to make one hazardous journey from Afghanistan to Pakistan to enrol their biometrics before entering the UK with entry clearance, rather than three journeys back and forth. As such, the lawfulness of the “exceptional and extraordinary circumstances” biometric discretion policy was considered with respect to that request made by the applicants.
Held
The requirement for the policy being Article 8 ECHR compliant and the existence of a legitimate aim in the taking of biometrics was common ground between the parties. In this case, given that the applicants’ request involved the deferral of biometric enrolment, not its waiver, the legitimate aim was limited to preventing immigration fraud by connecting the applications with biometric data from the start. It was considered that, individuals whose applications were refused without biometric enrolment taken in advance of the decision could reinvent themselves and submit improved applications whilst concealing the previous refusals. It was found that this was the legitimate aim against which the balance with any interference with family life had to be struck, although, it was found that the risk of fraud was less likely in cases where a UK sponsor was involved, given that one would be hard to be fabricated anew.
Upper Tribunal Judge Lindsley found that the biometric discretion policy applied by the SSHD was unlawful as it breached Article 8 ECHR, as it misdirected the decision-making caseworker as to how they should proceed in reaching the decision. It fell under the third type of unlawful policy set out in R (A) v SSHD [2021] UKSC 37, as it purported “to provide a full account of the legal position but fail[ed] to achieve that, either because of a specific misstatement of the law or because of an omission which ha[d] the effect that, read as a whole, the policy present[ed] a misleading picture of the true legal position.” This was because it introduced a test of exceptionality and directed caseworkers to seek factually unusual and extraordinary cases, instead of compelling circumstances warranting a departure from the general rule. It was previously held by the Supreme Court, in Hesham Ali v SSHD [2016] UKSC 60, that exceptional circumstances in the Article 8 context mean the latter, not the former.
UTJ Lindsley found that a biometric discretion policy requiring compelling circumstances that outweigh that significant weight to be given to the public interest and proper legitimate aims would be open to the SSHD, but one that involved a test of exceptionality was not. It was found that the impugned decisions were unlawful, having been made through application of an unlawful policy.
It was further found that the SSHD unlawfully fettered her discretion to partially defer biometric enrolment by application of this policy, as, by directing decision-makers to seek unusual features, it resulted in the failure to properly consider Article 8 considerations and the giving of weight to irrelevant considerations. In terms of the impugned decisions themselves, UTJ Lindsley held that they unlawfully failed to provide reasoned decisions on relevant matters.
UTJ Lindsley proceeded to consider whether the impugned decisions were incompatible with Article 8 ECHR, as the Tribunal has jurisdiction to consider as a primary decision-maker whether the SSHD had acted in breach of her statutory duty under section 6 of the Human Rights Act 1998. It was found that there was family life between the applicants and their sponsor in the UK, RS, and that the refusal of deferral of biometric enrolment interfered with their right to respect for family life, including its procedural component. The interference was found to be in accordance with the law.
Upon considering all relevant factors, UTJ Lindsley held that the balance fell in favour of the applicants. She found that it was “not a proportionate interference with their right to respect to family life in all of the circumstances outlined above to require three dangerous trips back and forth to Pakistan to make their applications to join RS, a first round trip to register biometrics and a third single trip to collect visas if the applications are successful rather than just one after an in principle positive decision subject to biometrics and security checks.”
Had she been wrong as to the unlawfulness of the policy and the test of exceptionality included therein, UTJ Lindsley found that the first applicant’s circumstances were not extraordinary, in the sense of rare and unusual. However, the second applicant’s circumstances were found to be clearly extraordinary, given that she had been previously denied the opportunity to enrol her biometrics in Pakistan due to no fault of her own, together with her other circumstances.
Remedies
The 28 March 2022 decisions (and those preceding them) were quashed. A declaration was made that the SSHD’s policy was unlawful. Finally, a mandatory order was made that the Respondent proceed to consider the two applicants’ applications for entry clearance substantively on an expedited basis and provide them with decisions which, if positive, will be subject to the enrolment of biometrics in Pakistan and subsequent security checks.
The relevant policy on family reunion has since been updated and now refers to a separate policy specific to biometric enrolment for immigration applications. Other than referring to specific categories, the guidance states:
Exceptional individual circumstances
Officials must not excuse individuals from the requirement to enrol biometrics unless
a senior official or a senior manager has authorised excusing the requirement on
medical grounds or the individual is a senior government official.
Where a senior official considers an individual who is applying for a visa and / or a
BID to come to the UK should be excused from the requirement to enrol their
biometrics as part of their application for reasons other than medical grounds or their
role as a senior governmental official, such as:
- there are compassionate circumstances that are so compelling as to make
them exceptional and there are no operational alternativeswhich (sic) that warrant
excusing or deferring an individual from having to attend a VAC to enrol their
biometrics before they travel to the UK
- the individual’s circumstances or status warrants them from being excused from
having to enrol their biometrics on the basis it is in the interest to the UK’s
economy or reputation
they must refer the matter to Ministers to approve the proposal to waive the
requirement to attend a VAC to enrol their biometrics or defer the requirement for an
individual to enrol their biometrics for a BID.
The individual must still provide a facial photograph that meets required facial photo
standards in support of their application.
The wording of the current guidance, whilst perhaps not grammatically or syntactically clear enough to denote the meaning of “exceptional circumstances”, is an improvement from that of the previous guidance, which was found unlawful. I have doubts regarding the unqualified duty to provide a facial photograph in view of the discretion in Regulation 5 of the 2008 Regulations and the judgment in R (on the application of SGW), but that would be a matter for another challenge, should the circumstances arise.
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