Upper Tribunal Considers Discretion To Defer Biometric Enrolment

• Law Firm: Richmond Chambers Immigration Barristers
• Subject Matter: Immigration, General Immigration
• Author: Mr Alex Papasotiriou
• Published date: 14 April 2023

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...