Introduction

The case of S & Anor v Secretary of State for the Home Department & Anor ([2022] EWCA Civ 1092) involves two Afghan former judges seeking judicial review against the UK Home Department's refusal to grant them leave to enter the United Kingdom. The appellants, referred to as "S" and "AZ" to preserve anonymity, argue that they qualify for entry under the Afghan Relocations and Assistance Policy (ARAP) or alternatively through Leave Outside the Rules (LOTR). The central issues revolve around the proper application procedures for LOTR and whether the Secretary of State adhered to these procedures, particularly concerning the use of appropriate visa application forms and biometric requirements.

Summary of the Judgment

The initial decision by Lang J in the High Court upheld the Secretary of State's decision to refuse ARAP applications, deeming that neither claimant met the policy's criteria. However, on the LOTR claim, Lang J found that the Home Secretary unlawfully refused to consider the applications due to the claimants' failure to use the prescribed visa application forms (VAFs). Consequently, Lang J directed the Secretary of State to proceed with substantive decisions on LOTR. The Secretary of State sought to appeal this decision to the Court of Appeal.

The Court of Appeal, presided over by Lord Justice Lewis and Lady Justice Elisabeth Laing, ultimately dismissed the appeal. The court held that ARAP forms could not be substituted for the standard VAFs required for LOTR applications and agreed with the High Court's stance that the refusal to consider the claimants' LOTR applications was lawful.

Analysis

Precedents Cited

The judgment references several key precedents that shape the UK's immigration law, notably:

• R (Alvi) v Secretary of State for the Home Department [2012] UKSC 33: This case establishes that the Secretary of State's immigration practice must be transparent and follow the Immigration Rules.
• R (Munir) v Secretary of State for the Home Department [2012] UKSC 32: This case affirms the Secretary of State's discretionary power to grant LOTR outside the standard Immigration Rules.

These precedents were instrumental in framing the legal context for assessing whether the Secretary of State's actions adhered to procedural fairness and existing legal frameworks.

Legal Reasoning

The court's reasoning focused on the procedural requirements for LOTR applications. It determined that:

• The ARAP application forms are distinct and cannot substitute for standard VAFs intended for LOTR applications. ARAP forms are specifically designed for relocation under ARAP and do not encompass the broader criteria necessary for LOTR.
• The Secretary of State's insistence on using standard VAFs for LOTR was procedureally correct, as these forms are integrated into the Home Office's automated processing system, including biometric enrollment.
• The Secretary of State failed to provide a viable alternative for claimants in exceptional circumstances, such as those living under threat by the Taliban, thereby making the refusal procedurally unfair.
• The suggestion by the Government Legal Department (GLD) for claimants to make false entries on the forms was deemed irrational and potentially detrimental to the claimants' applications.

The Court emphasized that adherence to procedural norms is essential unless there are compelling reasons to deviate, which was not sufficiently demonstrated by the Secretary of State in this case.

Impact

This judgment has significant implications for future immigration cases, particularly those involving LOTR applications under specific policies like ARAP:

• Procedural Clarity: The decision reinforces the necessity for applicants to use the correct application forms tailored to their specific circumstances, ensuring that their cases are processed appropriately.
• Limitations on Discretion: While the Secretary of State retains discretion in immigration matters, it must be exercised within the bounds of established procedures. Arbitrary or ill-prepared administrative actions can be challenged successfully.
• Administrative Accountability: The judgment underscores the importance of thorough and accurate administrative processes. Failure to adhere to these can result in judicial intervention, promoting greater accountability within Home Office procedures.
• Support for Vulnerable Applicants: Although the appeal was dismissed, the case highlights the challenges faced by applicants in precarious situations, potentially prompting reviews of application processes to better accommodate exceptional cases.

Complex Concepts Simplified

Leave Outside the Rules (LOTR)

LOTR is a discretionary power granted to the Home Secretary allowing them to grant immigration permissions outside the standard Immigration Rules. It is typically used in exceptional cases where applicants face compelling compassionate grounds or significant threats.

Afghan Relocations and Assistance Policy (ARAP)

ARAP is a specific policy designed to assist Afghan nationals who worked with the UK Government or are otherwise exceptionally vulnerable. It provides pathways for relocation to the UK, primarily focusing on individuals needing protection from persecution.

Visa Application Form (VAF)

VAFs are standardized forms used for various visa routes to the UK. They streamline the application process through an automated system that assigns reference numbers and manages biometric data collection.

Biometrics

Biometrics refer to the collection of an applicant's fingerprints and a photograph, which are required as part of the UK visa application process. This data is used for identity verification and security checks.

Conclusion

The Court of Appeal's decision in S & Anor v Secretary of State for the Home Department & Anor underscores the critical importance of procedural adherence in immigration applications. By clarifying that ARAP forms cannot be used as substitutes for standard VAFs in LOTR applications, the court has reinforced the necessity for clear, consistent administrative processes. This judgment not only affirms the Secretary of State's discretion within legally defined boundaries but also highlights the judiciary's role in ensuring fair treatment of applicants, especially those in vulnerable situations. Moving forward, immigration authorities may need to reassess their application processes to better accommodate exceptional cases, thereby preventing similar legal challenges and promoting equitable treatment of all applicants.