High Court delivers important judgment on the meaning of the Home Office’s non-conducive policy and the application of Article 6 ECHR to immigration decisions: R (FMA) v SSHD [2023] EWHC 1579 (Admin)

The Claimant in this case was an Afghan national who had been refused entry clearance to the UK on the grounds that his presence in the UK would not be conducive to the public good for reasons of national security.  The Claimant argued that the SSHD had misinterpreted her non-conducive policy in failing to balance the risk to the Claimant if he remained in Afghanistan against the risk he might pose to the UK if granted entry. Swift J rejected this argument, holding that the policy did not require any such balancing exercise to be undertaken.

The Claimant also argued that the decision to refuse entry clearance engaged Article 6 ECHR (and thus a requirement for further disclosure) because the decision to refuse entry clearance ensured that the Claimant would be denied access to a range of other benefits which to which he would otherwise be entitled under the Afghan Relocations and Assistance Policy (ARAP).  Swift J disagreed.  He held that the substance of the issue before the court concerned only the legality of the decisions on the visa applications and, by reference to the decision in Maaouia v France that issue did not entail determination of an article 6 civil right or obligation.

Ben Fullbrook appeared as junior counsel for the SSHD.