Families of British nationals in Afghanistan win concession on applications for leave to enter the UK without biometrics (7 October 2022)

Duncan Lewis Solicitors were instructed by KA, a British national, and his Afghan wife and five children in a claim challenging the lawfulness of the policy that prevented them from making applications for leave to enter the UK from Afghanistan. KA’s family were not evacuated under HMG’s Operation Pitting in August 2021. They remain in Afghanistan and are at particular risk from the Taliban due to their connection to the UK. As a result of the claim they brought, the Secretary of State for the Home Department (SSHD) has conceded that they can make applications to the UK without enrolling their biometrics, (photos and fingerprints). This is a major victory as it will provide a potential way out of Afghanistan for them and others in their situation. There is no way of enrolling biometrics in Afghanistan, and until this concession was made by the SSHD, their stated policy was that the requirement to enrol biometrics would not be waived. The Claimants have succeeded in knocking down the insurmountable barrier to Afghans who need to escape Taliban rule and join their British relatives in the UK. In his judgment, Knowles J describes the SSHD’s concession as a ‘crucially important development’ (para 90) as a result of which an entry clearance application made by the claimants would now ‘not be automatically rejected…because of an absence of biometrics, but would be considered on the merits’ (as para 93). The claimants were not successful in challenging a second element of the Policy which grants indefinite leave to remain to those who were ‘called forward’ under Operation Pitting. The claimants argued that despite being left behind, they were eligible for evacuation and therefore also entitled to indefinite leave to remain. Regrettably, Knowles J found in favour of the SSHD, concluding that to be ‘called forward’ meant that security and eligibility checks were conducted by the SSHD during Operation Pitting. The claimants were therefore not called forward and are not automatically entitled to indefinite leave to remain. Nina Kamp, legal representative for the claimants at Duncan Lewis Solicitors said: “When we started this claim there was no practicable way for the Afghan claimants to obtain entry clearance. The SSHD’s blanket policy made British nationals left behind like KA feel like second-class citizens, like the UK Government had no regard for the safety of their children. This concession takes us one step closer to safely reuniting the family in the UK, beyond the reach of the Taliban. "We are disappointed that the claimants will not automatically be granted indefinite leave to remain, but this may not be the end of the road. Once the claimants reach safety in the UK, it will be possible for them to apply for this status and deal with any refusals as necessary. For now the ability of the second to seventh claimants to leave their dire circumstances in Afghanistan is a priority. We are delighted for our clients that this is now a real possibility.” The claimants instructed Toufique Hossain, Jeremy Bloom, Nina Kamp, Kachi Odidika, Elizabeth Cole and Hannah Jandu at Duncan Lewis Solicitors and Chris Buttler KC and Zoe McCallum at Matrix Chambers. Our public law team operates a large judicial review claimant practice, representing vulnerable claimants in human rights, crime, prison law, court of protection, mental capacity and social welfare; with a niche specialism in human rights, immigration, civil liberties claimant judicial review matters and costs litigation.