“Biometrics, in the form of fingerprints and facial images, underpin the current UK immigration system to support identity assurance and suitability checks on foreign nationals who are subject to immigration control. They enable comprehensive checks to be made against immigration and criminality records to identify those who pose a threat to our national security, public safety, immigration controls or are likely to breach our laws if they are allowed to come to the UK.”
“This decision has been made exceptionally to ensure Visa Application Centres across Europe can focus their efforts on helping Ukrainians without passports and ensure these individuals do not face long waits for appointments. It will be kept under review if the security situation changes and if it becomes necessary to make further changes to protect our domestic homeland security.”
“2. … I emphasise that these are bespoke policies that stand alongside the normal routes of entry to the UK including, for example, applications for refugee family reunion under Part 11 of the Immigration Rules and/or under Appendix FM to the Immigration Rules. The fact that these schemes exist reflects that in the circumstances of Afghanistan and Ukraine, the Government has considered that there should be certain exceptions to the normal operation of the immigration system; the fact that they are different to each other reflects that the respective circumstances are different, and so different policy and operational responses are considered appropriate.” “11. The Ukraine Family Scheme was established at pace following the Russian invasion of Ukraine and reflects the unique and specific nature of that crisis. A submission of11 February 2022 set out the proposed contingency policies in the event that the Foreign, Commonwealth, and Development Office travel advice on Ukraine changed to Red. This included concessions for family members of British citizens resident in Ukraine who may not have time to show that they meet the requirements laid out by Appendix FM to the Immigration Rules. This Concession for family members of British nationals resident in Ukraine was launched on24 February 2022 . 12. Options for further support to Ukraine were provided to the Home Secretary on 27 February. This include extending the concessions above to Ukrainians with eligible family members resident in the UK. Following further discussions with Ministers and Number 10 on 28 March, as well as cross government agreement, on 1 March the Home Secretary announced the Ukraine Family Scheme, a bespoke new [scheme] which replaced the previously agreed concessions. 13. A submission of 2 March set out the proposed rules for the Ukraine Family Scheme, a revised Equality Impact Assessment, and sought Ministerial Authorisation for direct discrimination. The Ukraine Family Scheme as a concession to the Immigration Rules was launched on 4 March and the Home Secretary agreed to expand the definition of extended family members within the Ukraine Family scheme (to include nephews, nieces, uncles, aunts, cousins and in-laws) by correspondence on 8 March. The Immigration Rules for the Ukraine Scheme were laid before Parliament on 29 March and formally came into effect the following day.” “19. The policies set out for Ukraine are based on a specific range of circumstances related to the Russian incursion in Ukraine. The proximity of Ukraine in Europe, and the UK’s diplomatic links and foreign policy objectives mean the interests of the UK are more directly and specifically impacted than in other conflicts in other parts of the world. The role of the UK and our NATO partners, including the stance taken on the right for Ukraine to choose to pursue joining NATO, and the practical support provided for defensive preparations, were key factors in our assessment of a suitable immigration policy response. The particular risks posed by Russia, including state threats, were also considered. We therefore tailored specific concessions to meet the needs of particular cohorts requiring support, focussing on those with family members here who could accommodate new arrivals without recourse to local authority housing.” “21. In addition, I would emphasise that the Ukraine Family Scheme is a temporary route providing leave for up to three years and is not a route to settlement. This makes it possible to be more generous at the initial eligibility stage, as the UK is accepting only a time-limited responsibility for those arriving under this route - as the impacts are short term and accommodation is expected to be provided, in the main, by family members or the wider Ukrainian diaspora in the UK, greater numbers can be accommodated. As there appears to be no prospect of Afghan nationals who flee the Taliban returning to Afghanistan, such grants would necessitate a grant of settlement (aligned to the ARAP and ACRS) and therefore stricter eligibility criteria is necessary given the costs to the public purse of such long-term migration in potentially very large numbers.”
“17. In the case of the Ukraine Family Scheme, Ministers agreed to the submission dated10 March 2022 that eligible Ukrainians with valid biometric international Ukrainian passports who apply do not currently need to go to a VAC to give their biometrics before they come to the UK. This was extended to non-biometric passports following the submission to Ministers dated23 March 2022 to enable more Ukrainians to apply to one of the Ukraine Schemes using the fully digital application route when applying from overseas (a Ministerial Authorisation for direct discrimination on grounds of nationality was signed on16 May 2022 ). This was because only around 5 million Ukrainian nationals (out of a population of around 43m) hold biometric passports and without making this change many Ukrainians would not have been able to benefit from the improved application process. 18. We introduced these provisions for Ukrainians on a temporary basis, to ease the pressure on our VAC network and facilitate early travel, but not for Afghans (or any other nationality), because the security assessment of those coming from Ukraine permitted a temporary lifting of the requirement and is very different to the overall security assessment in relation to Afghanistan. We are able to approach the Ukraine Government to verify that a passport issued by them is genuine, which is not an available option with regard to Afghanistan passports and the Taliban. 19. The risks posed from Ukraine were primarily around immigration control, with some security risks associated with the proximity to Russia. The poisoning of Alexander Litvinenko, Sergei and Yulia Skripal have been alleged publicly to have been linked with the Russian administration. By contrast, Afghanistan poses both immigration and security risks, which are of a very different potential to Ukraine, and this has been the case for a long time. There are several terrorist organisations which have operated from Afghanistan and continue to remain there, such as ISIS and Al Qaida, who are committed to harming the interests of Western countries, including the UK. 20. In addition, there are not the same pressures on VACs outside of Europe in terms of volume of applicants and capacity to process applications. As explained above, the decision to allow Ukrainians with valid international passports to come to the UK without going to a VAC to give their biometrics was taken as a temporary measure to ease the pressure on the VAC network in Europe.”
“34. Mr Burt explains that there were two key differences between the situation of Ukrainians and Afghans in the decision to allow the former but not the latter to enter the UK before biometric data had been submitted. Firstly, the pressure that would have been placed on the VAC network in Europe if Ukrainians seeking entry to the UK had to go to a VAC first to enrol their data. Secondly, there is a different overall security assessment between Ukraine and Afghanistan. He says that 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. Mr Burt refers to the fact that terrorist organisations have operated from Afghanistan in recent times and the potential for harm to the interests of the UK that that brings.”
“40. I accept that there are very significant differences between the position of those in the situation of the Claimant and Ukrainians under the UFS. Some of those differences might be said to point in the direction of more favourable treatment of the Claimant. She spent 20 years assisting the UK in their mission in Afghanistan, and her and her family’s lives are now at risk in large part because of that work. However, the weight to give to that issue and the policy responses are matters for the Government and not the Court. 41. In terms of the specific justification for not treating Afghans in the position of the Claimants and Ukrainians in the same way in respect of biometric data, that is as I have said primarily one for the Defendant. I accept that the reasons given by the Defendant have a rational connection to the aims to be achieved, namely immigration control and national security. 42. The matters set out by Mr Burt in his witness statement, both as to the strain on the VAC network and the national security issues raised more strongly by Afghan refugees than by Ukrainians, are matters which are for the Secretary of State. Those matters are rationally connected to the policy complained of, namely ensuring that Afghans seeking entry to the UK are properly identified before being allowed such entry.”
“45. There would have been a stronger argument about justification if the Defendant had continued to refuse to even consider the possibility of deferring biometric tests until an in-principle decision had been made. This is because people, particularly women, in the position of the Claimant may have to take a great risk in travelling to Pakistan and be placed at even greater risk if they are then refused entry to the UK. However, the Defendant is now considering deferring the biometric testing until the in-principle decision is made, so that issue is not at the present time live.”
“(1) Failure to consider specifics of the Appellant’s case on justification The court was required to address with a greater degree of specificity the Appellant’s central submission that the discrimination was not justified on the facts of her case as an Afghan national seeking to apply for entry to the UK outside the immigration rules, given that it could be rectified by the Respondent simply offering her the flexibility of deferral of biometrics until a decision in-principle was made. (2) Failure to undertake an individualised assessment for the purposes of justification The learned Judge failed to properly address the issues in the individual case before her and failed to engage in an individualised and nuanced assessment as to whether discrimination was justified on the facts of this case. In the circumstances of this case the Court was wrong to attach such a high degree of deference to every case brought on grounds of nationality discrimination relying on a high degree of generality. Each case should be examined on its own merits to determine whether such approach is justified.”
“8. At §13 Mr Carlisle speaks of a “submission of 2 March set out the proposed rules for the Ukraine Family Scheme, a revised Equality Impact Assessment, and sought Ministerial Authorisation for direct discrimination.” (i) Can you provide a copy of both the Equality Impact Assessment and Ministerial Authorisation for direct discrimination? Enclosed with this Part 18 Response, are copies of: (a) Equality Impact Assessment dated2 March 2022 . (b) Ministerial Authorisation dated16 May 2022 . (c) Equality Impact Assessment: Ukraine Illegal or Irregular Migrants, dated8 April 2022 . (d) Equality Impact Assessment: Ukraine Biometric Deferral, dated8 April 2022 .” “11. At §19 the UFS is said to be “tailored specific concessions to meet the needs of particular cohorts requiring support, focussing on those with family members here who could accommodate new arrivals without recourse to local authority housing.” (i) Are there any documents/minutes of meetings where consideration was given to whether this relaxation of family criteria for relocation was considered for any other cohorts/nationalities? We attach Ministerial Submission dated11 February 2022 .”
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
“… I prefer to keep formulation of the relevant issues in these cases as simple and non-technical as possible. Article 14 does not apply unless the alleged discrimination is in connection with a Convention right and on a ground stated in article 14. If this prerequisite is satisfied, the essential question for the court is whether the alleged discrimination, that is, the difference in treatment of which complaint is made, can withstand scrutiny. Sometimes the answer to this question will be plain. There may be such an obvious, relevant difference between the claimant and those with whom he seeks to compare himself that their situations cannot be regarded as analogous. Sometimes, where the position is not so clear, a different approach is called for. Then the court’s scrutiny may best be directed at considering whether the differentiation has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not disproportionate in its adverse impact.”
“… unless there are very obvious relevant differences between the two situations, it is better to concentrate on the reasons for the difference in treatment and whether they amount to an objective and reasonable justification.”
“… the reality is that the vast majority of people applying in the Claimant’s situation will be Afghans and all those under the UFS, Ukrainians. Therefore, applying the ECHR in a way that is practical and not theoretical, the difference in treatment here is principally because of nationality. The different treatment of those nationalities may be justified, but that arises at the later stage of the analysis.”
“Nonetheless, the specific circumstances of the case are to be taken into account in determining the scope of the respondent State’s margin of appreciation.”
“59. It is also necessary to bear in mind that not all differences in treatment are relevant for the purposes of article 14. The difference is only relevant, for the purpose of assessing whether there has been discrimination, if the claimant is comparing himself with others who are in a relevantly similar situation. An assessment of whether situations are “relevantly” similar generally depends on whether there is a material difference between them as regards the aims of the measure in question.”
“38. … The question of whether the Ukrainian proposed entrant and the Afghan proposed entrant are in sufficiently similar situations goes directly to the issue of justification and therefore should be considered at that stage of the analysis. I accept that their situations are analogous in the sense that both groups are fleeing persecution in their home countries and would be at great risk (albeit for different reasons) if they were to remain in those countries.”