JR-2025-LON-001581
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The decision
JR-2025-LON-001581
In the Upper Tribunal
(Immigration and Asylum Chamber)
Judicial Review
In the matter of an application for Judicial Review
The King on the application of
FK & Others
(Anonymity ordered)
Applicants
and
Secretary of State for the Home Department
Respondent
ORDER
BEFORE Upper Tribunal Judge Lodato
HAVING considered all documents lodged and having heard Rebecca Chapman of counsel, instructed by Birnberg Peirce Solicitors, for the applicants and Natasha Jackson of counsel, instructed by GLD, for the respondent at a hearing on 18 February 2026
IT IS ORDERED THAT:
(1) The application for judicial review is dismissed for the reasons in the attached judgment.
(2) The Applicants do pay the Respondent’s reasonable costs, to be subject to detailed assessment on a standard basis if not agreed. This order is not to be enforced without leave of the Court and is subject to the costs protection provided by s.26 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and the Civil Legal Aid (Costs) Regulations 2013.
(3) Permission to appeal is refused because no application was made for permission and I am unable to discern any arguable errors of law in the judgment.
Signed: P Lodato
Upper Tribunal Judge Lodato
Dated: 11 March 2026
The date on which this order was sent is given below
For completion by the Upper Tribunal Immigration and Asylum Chamber
Sent / Handed to the applicant, respondent and any interested party / the applicant's, respondent’s and any interested party’s solicitors on (date): 11/03/2026
Solicitors:
Ref No.
Home Office Ref:
Notification of appeal rights
A decision by the Upper Tribunal on an application for judicial review is a decision that disposes of proceedings.
A party may appeal against such a decision to the Court of Appeal on a point of law only. Any party who wishes to appeal should apply to the Upper Tribunal for permission, at the hearing at which the decision is given. If no application is made, the Tribunal must nonetheless consider at the hearing whether to give or refuse permission to appeal (rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008).
If the Tribunal refuses permission, either in response to an application or by virtue of rule 44(4B), then the party wishing to appeal can apply for permission from the Court of Appeal itself. This must be done by filing an appellant’s notice with the Civil Appeals Office of the Court of Appeal within 28 days of the date the Tribunal’s decision on permission to appeal was sent (Civil Procedure Rules Practice Direction 52D 3.3).
Case No: JR-2025-LON-001581
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR
Hearing date: 18 February 2026
Judgment date: 11 March 2026
Before:
UPPER TRIBUNAL JUDGE LODATO
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Between:
THE KING
on the application of
FK and Others
(Anonymity ordered)
Applicants
- and -
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
- - - - - - - - - - - - - - - - - - - -
Rebecca Chapman
(instructed by Birnberg Peirce Solicitors), for the applicants
Natasha Jackson
(instructed by the Government Legal Department) for the respondent
Hearing date: 18 February 2026
- - - - - - - - - - - - - - - - - - - -
J U D G M E N T
- - - - - - - - - - - - - - - - - - - -
Judge Lodato:
Introduction
1. The applicants challenge, with a limited grant of permission, the lawfulness of the decisions of the respondent, the Secretary of State for the Home Department, to refuse to predetermine their applications for entry clearance, on family life grounds outside of the Immigration Rules, so that they can join FK’s brother who resides in the UK. If the application for predetermination had succeeded, the applicants would not have been required to provide their biometric information before the relevant decisions were taken.
2. FK is the lead applicant because he claims to have worked for the National Directorate of Security (‘NDS’), an intelligence agency which was part of the Afghan government before the Taliban reclaimed power in 2021. It is primarily the risk he claims that the Taliban pose to him which necessitated the predetermination application made by him and multiple members of his family, including several minor children. In short, he fears being detained, tortured and possibly killed by the Taliban if he emerges from hiding to travel to a Visa Application Centre (‘VAC’) to provide biometric information. The risk is said to multiply every time he would have to make such a journey, and so it is said to follow that the applications should be predetermined to minimise the grave risks he faces.
3. In the interests of setting the appropriate analytical parameters at the outset of this judgment, it is important to articulate what is at issue in these proceedings. A single ground of challenge attracted permission following renewal at an oral hearing. I must decide whether the respondent’s decisions to refuse to predetermine the substantive applications were rational when seen against the public law duty to make lawfully required enquiries before coming to a determinative conclusion that the lead applicant had not established his identity to the applicable standard. It is equally important to make it plain what is not before me to decide. A broader range of grounds initially raised against the decisions were refused permission on the papers and not successfully renewed. It follows that I will not be considering questions such as whether the respondent fettered her discretion, whether the decision was more broadly consistent with the applicable policy in this decision-making field nor whether the factual substance of what was decided offended against the Wednesbury threshold save for the question of whether the respondent made the enquiries required by law.
Procedural Background
4. The key procedural events are summarised below:
16 February 2024 – the applicants made their applications for entry clearance. At page 9 of the application, it was stated that “My ARAP [Afghan Relocation and Assistance Policy] application was refused. Please see covering letter”.
16 July 2024 – a sequence of correspondence concluded with a formal request for predetermination of the applications. Supporting material was provided including an expert report from Mr Tim Foxley.
Between 2 September 2024 and 12 February 2025 – correspondence was exchanged between the parties which included two sets of refusal decisions which were each withdrawn following pre-action protocol letters. In the refusal decision for FK, dated 20 December 2024 (later withdrawn), and in the context of discussing the expert report of Mr Foxley and the claimed NDS relationship, the following observation was made: “There is reference to other documents listed within the report that may substantiate this ID however these were not made available as part of the submitted bundle”. In another of the refusal decisions of the same date [see page 767 of the trial bundle], the following passage stated: “You have provided a statement from RN who ceased employment with NDS in 2015. They state they have contacted a member of the organisation (WJ) whom they knew were responsible for the relevant region who is stated to corroborate this employment. However, the witness statement referred to by WJ is not found amongst the supporting documents […]”.
27 February 2025 – the applications for predetermination were refused (see below for a summary of the reasons for refusal).
19 May 2025 – following an exchange of pre-action protocol correspondence, this claim for judicial review was filed.
23 July 2025 – UTJ O’Brien refused permission on the papers in relation to all grounds. He said this in relation to the ‘Tameside’ enquiries ground:
Ground 1 comprises a number of separate complaints, some more easy to identify than others. The assertion that the respondent unreasonably failed to accept the first applicant’s evidence as sufficient to establish his identity is not arguable. The respondent carefully explains why the documents provided do not do so on the balance of probabilities. That was a conclusion unarguably open to the respondent. Neither is the alleged failure to comply with the Tameside duty arguable. As explained in Plantegenet Alliance Ltd [2014] EWHC 1662 (QB), the respondent only fails in that duty if no reasonable decision-maker could have considered further enquiry unnecessary. There is simply no arguable basis to suggest that any reasonable decision-maker, having before them the applicants’ evidence, would have considered it necessary to make the further enquiries suggested or at all. The respondent concluded (for unarguably sufficient reasons) that the first applicant had not established his employment with the NDS. […]
17 September 2025 – on renewal, permission was granted by UTJ Lindsley, solely for the ‘Tameside’ enquiries ground to be argued. The reasons for the limited grant of permission were:
[2] It is just arguable that the decision errs in law by failure of the respondent to make further enquiries in accordance with her Tameside duty with respect to FK to check their information with respect to his employment with the NDS, an essentially secret organisation with which the British authorities had a longstanding collaboration prior to the current Taliban government coming to power, in light of information found reliable by an arguably accepted expert on Afghanistan, Mr Tim Foxley, that FK was indeed an employee of this organisation and that the account he gives of persecution by the Taliban as a former NDS employee is plausible, in the context of the attempts of the British government to safeguard those who had assisted the British forces and policy aims in Afghanistan. In this connection it is notable that at page 17 of the policy guidance on “Unable to Travel to a VAC to enrol biometrics (overseas applications)” Version 4 that the respondent does retain the option to use checks to establish an individual’s identity. It is arguable that if such enquires had been undertaken that further information, if forthcoming, might have combined with that provided by the applicant and his wider family and sufficed to satisfy the respondent of the primary applicant, FK’s, identity and that this, in turn, might have changed the respondent’s assessment of the issues under the Unsafe Journey Criteria.
The Challenged Decisions
5. In refusing the applications for predetermination, the respondent prepared separate decisions for each of the various applicants. However, the parties agreed that the focus of the legal challenge is necessarily upon the refusal decision taken in respect of FK and, more specifically, whether he had established his identity to the required standard. This was also the basis on which the decision itself was approached [see page 1 of FK’s refusal decision]. For the purposes of this judgment, I need not go beyond the relevant aspects of this decision as the analysis in relation to FK was the foundation on which all of the other decisions were built. Below are copied the passages of the FK refusal decision which touch on FK’s identity. This includes the reasoning going to FK’s claimed professional relationship with NDS because it was argued that this dimension of the evidence provided the nexus to reach a rational conclusion on identity. In short, the documentary and narrative evidence which tended to show that FK worked for NDS was said to have established his identity.
6. FK’s identity was assessed in the following way [between pages 2-5]:
Establish identity to a balance of probabilities
As evident [sic] of your client’s identity you have provided:
• A paper tazkira and English translation
• An NDS ID Card and related ID Card
You have stated in your most recent representations that the paper tazkera should be cross referenced with self-annotated photographs and testimonies. However, such information cannot be validated and a photograph taken together is not proof of identity or relation.
Your client does not hold a valid travel document and it is not clear if they have ever held a travel document. They do not hold an e-tazkera and do not appear to have ever held an e-tazkera.
You have provided a photocopy of a paper tazkera which is stated to have been issued on 14/11/2015, it appears that this document claims to have been originally registered in 2008 as it refers to your client being 22 years old in 2008.
A report from Landinfo (Afghanistan: Tazkera, passport and other ID documents, May 2019 https://landinfo.no/wp-content/uploads/2019/08/Afghanistan-Tazkera-passports-and-other-ID-documents-22052019-final.pdf) states;
A tazkera can also be issued on the basis of a testimony of identity. Landinfo believes that there is little likelihood of a false testimony being discovered. Information on age is often based on the assessment of the person who has issued the tazkera. These two facts give grounds for questioning the credibility of tazkeras. At the same time poor transcriptions, limited reading and writing skills and inadequate administrative routines, may be the cause of name and location being written differently and explain deviations between different documents. A tazkera has a logo and stamp of the office having issued the document, but has no state-of-the-art security features. Today’s paper tazkera in standard A4 format has no reference to biometric data, and has no security features such as watermark, hologram, Report Afghanistan: Tazkera, passports and other ID documents micro text or similar. It is very easy to forge, alter or reproduce on account of few or no security features (Norwegian ID Centre, n.d.).
And
Basic information obtained in connection with the issuing of tazkeras can be manipulated and its control is inadequate. Up until spring 2018 only manual tazkeras were issued and most of those issued are still paper ones. The absence of electronic evidence means that it is relatively easy to manipulate basic information. In addition, it is evident that not all tazkeras issued locally, are registered centrally.
As detailed in the report, a paper tazkera has limited credibility. They can be obtained with little or no supporting documentation which could surmount to as little as false testimony. Furthermore, the report details that due to there being no security features on a paper tazkera, these documents are very easy to forge, alter or reproduce.
The report also details the state of bribery and corruption within Afghanistan – I note this report predates the Taliban change of regime in August 2021 – however other reports do not suggest any improvement with regard to this.
Bribery, corruption and illegal production of different types of documentation is widespread in Afghanistan. Bribery can entail having to pay for a privilege which one generally is entitled to free of charge, being treated without waiting one’s turn or having documentation issued on false premises, for example, if one has not submitted sufficient supporting documents.
And
Documents issued by the proper authority can contain both correct and incorrect information. It is easy to provide ID documents with incorrect information issued by the proper authority. There is also a large market for fake documents in Afghanistan.
Therefore, as detailed in the report, paper tazkeras are especially unreliable. They are able to be obtained with limited or false information from the authorities tasked with issuing such documentation and they are also easy to obtain from sources other than the authorities.
I refer to the report you have provided by Tim Foxley at 133 which states:
The Taskera is one of Afghanistan’s two national identity documents, the other being the passport. The Taskera proves a person’s identity as a ctizen [sic] of Afghanistan. Possession of a Taskera allows the holder to exercise a variety of rights in Afghan society, amongst other things access to education, to join the army or police, ownership of land and property, getting a passport and involvement in the political process. The lack of a valid Taskera could therefore hamper an individual’s ability to exercise these rights.
It is unclear around the context of your client’s paper tazkera being issued, why their details were not registered until the age of 22 considering a tazkera may be required for such things as access to education. This suggests they had no identification documents their entire life into adulthood. It is not detailed what occurred that the tazkera was required to be reregistered in 2015, nor why the original document was not provided and instead what appears to be a recent photocopy of that document is provided.
While a paper tazkera may be acceptable as proof of identity for many things in Afghanistan, this relates to a general lack of emphasis on accurate and reliable identification in Afghan society in previous years, as seen regarding the relaxed requirements in regard to registration of documents, recording of age and date of births, lack of centralised records and inconsistencies with recording. It is noted that in 2018 eTazkeras began to be issued and paper tazkeras are being phased out. The report you have provided does not account for the transition to eTazkeras or the phasing out of paper tazkeras.
In the report Tim Foxley also goes onto consider the reliability of the paper tazkera and Afghanistan’s approach to accurate information at points 135 through 139 in particular they state:
The process and requirements by which the Taskera can be issued can vary from region to region. In particular, the standards of proof required before a Taskera can be issued vary. The Taskera can be readily forged and bribery in connection with validation of identity and issuing of the document is also a feature.
And goes on to state:
I am not an expert on the Afghan passport and Taskera issuing process. However, in the context I have offered above, I do not find it unusual, given the decades-long corrosion of Afghanistan’s official administrative infrastructure, that many aspects of the identity document system are thoroughly flawed and open to mispractice, mistakes and abuse. I believe it is entirely possible that, even if errors appeared on the documents, they may still have been provided by an Afghan in good faith and entirely unaware of the problems that surround the issuing of identity documents in Afghanistan at the current time.
Which while it is stated they find it entirely possible the documents were issued in good faith in the proper way, does also confirm in line with other sources such as the report referenced from landinfo that such documents are also able to be acquired due to mispractice, mistakes and abuse.
You have provided an NDS ID badge and NDS related ID card for your client. I note that this document has limited information including only a first name and the name of the father. The NDS ID badge does not list an expiry date but states it was issued 09/01/2013, the related ID badge gives an expiry date of 23/04/1400 or in the Gregorian calendar 14/07/2021.
While the NDS ID badge appears to contain one security feature in the form of a watermark, this document is still vulnerable to forgery. It cannot be authenticated against independent document image archives, such as PRADO and it cannot be independently verified considering the dissolution of NDS and the change of regime in Afghanistan. There is reference to other documents listed within the report that may substantiate this ID however these were not made available as part of the submitted bundle.
In further submissions it is raised that documents provided have not been cross-referenced with the annotated photographs and testimonies by the sponsor. The photographs provided do not and cannot demonstrate a biological connection, being present in the same photograph does not mean that people are related or that their name matches that which is self-annotated. The annotations have been provided by yourself and your clients and the testimonies provided by the sponsor as part of the submissions.
The doubts raised regarding the tazkera and NDS ID badge and the inability to validate these documents means the information cannot be verified. As such inference cannot be made as to whether the father listed as claimed is accurate as much as the rest of the information provided. It is noted that due to the commonality of mononyms in Afghan documents the NDS ID badge listing a father’s name does not solidify any claim of parentage with NO. Nevertheless, even should there be a biological relationship evidenced with a person’s identity who is evidenced to a balance of probabilities, this does not necessitate that their relative’s identity is verified on the basis of this biological relationship.
In light of all of the above I am not satisfied that you have provided sufficient documents for your client as the paper tazkera provided is wholly unreliable and the document from NDS cannot be authenticated or independently verified. You have not provided a valid travel document and despite making an application with the intent of traveling to the UK have not provided a reasonable excuse for not having one.
In most circumstances, even when an individual holds adequate documentation to evidence their identity, we still rely on enrolling their biometrics, in the form of fingerprints and a facial photograph. This enables us to confirm their identity and to complete background suitability checks on them before determining their visa application. This ensures we protect public safety.
[Underlining added]
7. Under the heading of “No compelling circumstances raised”, the decision-maker made the following observations [at pages 9-11]:
It is stated that your client is at risk from the Taliban due to their past employment. As evidence of this employment, you have provided an employer ID card, though as noted above this document and employment cannot be verified.
You have provided a statement from RN who ceased employment with NDS in 2015. They state they have contacted a member of the organisation (WJ) whom they knew were responsible for the relevant region who is stated to corroborate this employment. However, the witness statement referred to by WJ is not found amongst the supporting documents. It is difficult to ascertain that the employment is as stated, however, this is a distinct possibility. Reports suggest NDS had a staff of in the region of 15,000 to 30,000 (EASO – Afghanistan – State Structure and Security Forces August 2020)
It is stated that your client applied under the ARAP scheme and as detailed on the visa application form “My ARAP application was refused. Please see covering letter” and the date given for this refusal is “September 2023” The covering letter does not detail this application or the reasons for refusal, only that you were enlisted to apply for this for your client. No reference numbers are provided. Nevertheless, a refusal suggests that your client did not meet the eligibility requirements.
[…]
Tim Foxley in the report provided considers your client’s past employment would mean they are at a greater risk. They affirm that former members of the NDS are at greater risk than any other Afghan group in Afghanistan and in support of that belief have provided news articles relating to extrajudicial killings purported to be by the Taliban. Tim Foxley accepts your client worked for the NDS and in the capacity as claimed, however I am not satisfied that this has been determined on the evidence, though it is acknowledged that it appears to be inferred in Tim Foxley’s report that they have had additional documents that was not provided in the supporting documents provided for this pre-determination consideration. For example at point 3 c), j), k), o), w) and x).
As detailed elsewhere, sources suggest the extent of reprisals outside of the general amnesty are unclear, some cases are attributable to local circumstances such as personal disputes, feuds or rivalries with individual Taliban members as opposed to a systematic campaign of targeting. As such only those with such specific circumstances would be applicable. As reported in the Netherlands Ministry of Foreign Affairs report of June 2023 as referenced above, one source found that many individuals who worked with western troops were able to return to their daily lives. However, at the same time a person “who is known to have worked with foreign forces is more likely to be harassed or ill-treated than others.” NDS was a wide-ranging organization and not all employees would have worked with western forces. Such people who have demonstrable evidence of having worked with the UK Government would fall within the criteria of ARAP. As noted, your client did not receive a positive decision of their ARAP application, as you have stated.
[Underlining added]
The Substantive Hearing
8. At the outset of the hearing, Ms Chapman indicated that judicial review proceedings have been instituted in the High Court seeking to challenge the lawfulness of the ARAP refusal decision taken in relation to FK. It was clarified that the grounds of challenge in those parallel proceedings did not carry a risk of unpicking the aspects of the decision which it was argued ought to have been the subject of Tameside-compliant enquiries from the respondent in the proceedings before me. The parties were agreed that there was nothing to be materially gained by having further insight into the challenge to the ARAP decision, or to await outcome of those proceedings.
9. The extent to which it was argued that the respondent had failed to undertake Tameside-compliant enquiries crystallised at the outset of the hearing. The enquiries which it was suggested ought to have been made as a matter of law to produce a rational decision were twofold:
I. The respondent’s suggested failure to liaise with counterparts at the Ministry of Defence who were engaged in the assessment of FK’s case under the ARAP scheme.
II. The respondent’s suggested failure to ask FK’s representatives to provide the documents referred to in Mr Foxley’s expert report which were noted in the decision to be missing from those submitted in support of the application.
10. As alluded to above, the parties agreed that the only substantive question to be considered in the context of whether Tameside enquiries were lawfully required related to the first limb of the Unable to Travel to a Visa Application Centre to Enrol Biometrics (Overseas Applications) Policy v.4 (the ‘Unable to Travel Policy’). This is the requirement for the applicant to establish their identity. The parties agreed that the appropriate standard by which this question was to be assessed by the decision-maker was on the balance of probabilities. If successful, the Ms Chapman indicated that the remedy she was seeking was an order quashing the challenged decision and mandating reconsideration.
11. During the substantive hearing, I heard comprehensive and helpful submissions from Ms Chapman and Ms Jackson. These submissions broadly followed the position set out by the parties in their respective written submissions and it is unnecessary to set them out at length in this judgment. I address the central arguments in the context of the discussion section below.
The Legal Framework and Policy Guidance
12. The Tameside duty springs from the judgment of Lord Diplock in Secretary of State for Education v Tameside Metropolitan Borough Council [1977] AC 1014, at 1065B:
[…] the question for the court is, did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?
13. In the context of immigration decisions, the reach of the Tameside duty was considered by the Court of Appeal in Balajigari and Others v SSHD [2019] 1 W.L.R. 4647; [2019] EWCA Civ 673. In his judgment, Underhill LJ set out arguments made by Mr Saini of counsel to the effect that the Secretary of State for the Home Department was lawfully required to enquire of HMRC whether a penalty had been imposed and that the absence of such a penalty ought to have informed any assessment of dishonesty where there were discrepancies in income reported to the two separate Government Departments. Underhill LJ developed his reasons for rejecting this contention at [68]-[76]:
[68] At one stage, at least in his written submissions, Mr Saini appeared to suggest that it is legally impermissible for the Secretary of State to take a different view from HMRC in relation to the same matter. He referred to this in his skeleton argument as the “dichotomous views” of HMRC as distinct from the Home Office. We did not understand him to press that submission. In any event, in our judgment, the submission is a bad one. The Secretary of State has the legal power to decide the questions which arise under paragraph 322 (5) for himself and is certainly not bound to take the same view as HMRC. The two public authorities are performing different functions and have different statutory powers.
[69] Returning to Mr Saini’s central submission, that the Tameside duty applies in this context to require the Secretary of State to make enquiries of HMRC about how they have dealt with relevant errors, we do not accept that submission either.
[70] The general principles on the Tameside duty were summarised by Haddon-Cave J in R (Plantagenet Alliance Ltd) v Secretary of State for Justice [2014] EWHC 1662 (Admin) at paras. 99-100. In that passage, having referred to the speech of Lord Diplock in Tameside, Haddon-Cave J summarised the relevant principles which are to be derived from authorities since Tameside itself as follows. First, the obligation on the decision-maker is only to take such steps to inform himself as are reasonable. Secondly, subject
to a Wednesbury challenge, it is for the public body and not the court to decide upon the manner and intensity of enquiry to be undertaken: see R (Khatun) v Newham LBC [2004] EWCA Civ 55, [2005] QB 37, at para. 35 (Laws LJ). Thirdly, the court should not intervene merely because it considers that further enquiries would have been sensible or desirable. It should intervene only if no reasonable authority could have been satisfied on the basis of the enquiries made that it possessed the information necessary for its decision. Fourthly, the court should establish what material was before the authority and should only strike down a decision not to make further enquiries if no reasonable authority possessed of that material could suppose that the enquiries they had made were sufficient. Fifthly, the principle that the decision-maker must call his own attention to considerations relevant to his decision, a duty which in practice may require him to consult outside bodies with a particular knowledge or involvement in the case, does not spring from a duty of procedural fairness to the applicant but rather from the Secretary of State’s duty so to inform himself as to arrive at a rational conclusion. Sixthly, the wider the discretion conferred on the Secretary of State, the more important it must be that he has all the relevant material to enable him properly to exercise it.
[71] Applying those principles to the present context, it seems to us quite impossible to accept the submissions made by Mr Saini.
[72] The Secretary of State would certainly have power to make enquiries of HMRC but he had no obligation to exercise that power. It is impossible to say that no reasonable Secretary of State could have done anything other than to make the enquiries which Mr Saini submits had to be made of HMRC.
[73] We bear in mind that there may be many reasons why HMRC does or does not investigate a particular tax return. HMRC may quite properly take the view that, if a tax return has been amended, it is content to collect the tax which is due and which the applicant taxpayer accepts is due. It may or may not wish to expend the resources which would be required to enquire into a past tax return to see whether it was dishonestly or carelessly made and, if necessary, defend an appeal. In this regard we note the obvious good sense of what was said by Lane J in Kayani v Secretary of State for the Home Department (JR/9552/2017, judgment of 10 May 2018), at para. 27.
[74] We further bear in mind that there would be nothing to prevent the applicant from drawing attention to the fact that HMRC had enquired into a matter and had decided not to impose a penalty or had decided to impose a penalty at a lower rate, which signified that there had been carelessness rather than dishonesty. That would be information which was within an applicant’s own knowledge and they could draw this to the attention of the Secretary of State.
[75] We are fortified in that view by the conclusion we have reached above on the need for procedural fairness in this context. If the Secretary of State adopts the “minded to refuse” procedure which we consider is necessary in this context, that will afford an applicant the opportunity to draw attention to anything relevant, for example what action HMRC decided to take or not to take in respect of an inaccurate tax return.
[76] For all those reasons, we do not think it necessary to impose a separate Tameside duty in the present context. Certainly it is not irrational for the Secretary of State to have proceeded in the way that he did in these cases without making such enquiries of HMRC.
[Underlining added]
14. Underhill LJ referred above to the distillation of the principles, taken from [100] of the judgment of Haddon-Cave J. in R (Plantagenet Alliance Ltd) v Secretary of State for Justice [2015] 3 All E.R. 261; [2014] EWHC 1662 (Admin), which underpin the Tameside duty to make enquiries. Ms Jackson helpfully directed me to [139] which places some of those principles within their appropriate decision-making context:
[139] It is important to emphasise that the test for a Tameside duty is fundamentally different from the test for a duty to consult. The test for a Tameside duty is one of rationality, not of process. The Tameside test can be formulated as follows: Could a rational decision-maker, in this statutory context, take this decision without considering these particular facts or factors? And if the decision-maker was unaware of the particular fact or factor at the time, could he or she nevertheless take this decision without taking reasonable steps to inform him or herself of the same? The test for a Tameside duty (i.e. the duty to carry out a sufficient inquiry prior to making a decision and as to what information must be obtained by the decision-maker prior to making the decision in question) is, therefore, higher than the test for whether consultation is required. In short, the Tameside information must be of such importance, or centrality, that its absence renders the decision irrational.
15. There was no dispute between the parties that the respondent manifestly has the power, under The Immigration (Biometric Registration) Regulations 2008 to require an applicant for entry clearance to provide biometric information in support of their application. The requirement may be waived in the respondent’s discretion on application of the Unable to Travel Policy. Where relevant, this policy provides the following guidance to caseworkers making such decisions:
Introduction
The purpose of a biometric enrolment is to record an individual’s biometric information, to seek to verify their claimed identity and to undertake background checks on them.
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.
The biometrics we currently use (facial image and up to ten fingerprints) enable quick and robust identity assurance and suitability checks on foreign nationals subject to immigration control, delivering 3 broad outcomes:
• establishing an identity through fixing an individual’s biographic details (for example, name, date of birth, nationality) to biometric data
• verifying an individual accurately against an established identity
• matching individuals to other datasets (for example, against watchlists or domestic and international law enforcement fingerprint collections) to establish their suitability for an immigration product
Granting an individual a biometric excusal, such that they do not have to attend a Visa Application Centre (VAC) to enrol their biometrics prior to travelling to the UK, creates a heightened risk to our national security. By doing so, we lose the opportunity to identify individuals whose fingerprints are linked to terrorist activities or serious criminality until after they have arrived in the UK. In some cases, this could prove to be too late to protect the British public. Therefore, if an individual is suitable for a predetermination, then this must be offered instead. Biometric excusals should be limited in scope to reflect the strong public interest in protecting UK national security and public safety, as well as protecting the border. It is anticipated that biometric excusals will only be granted where the individual presents circumstances that are sufficiently compelling as to outweigh the wider and heightened public interest resulting from excusing the requirement to attend a VAC.
[…]
In most circumstances, individuals are required to enrol their biometrics as part of their application for entry clearance, which normally consists of the individual’s face and their fingerprints, unless exempt or excused. This is set out in the biometric enrolment guidance.
[Page 6]
Important principles
You must take account of the requirement to protect the public and the risk to national and border security when an individual makes a request to predetermine their application or to be excused from the requirement to attend a VAC to enrol their biometric information. This is because you will not be able to undertake a full range of background suitability checks until the person has enrolled their biometric information. You should only offer to predetermine an application or excuse an individual from the requirement to attend a VAC to enrol their biometric information, where they meet all 4 criteria (detailed below) and there are no alternative options, such as travelling to an alternative VAC location or delaying their journey.
Any offer to predetermine the individuals’ application or excuse individuals from the requirement to attend a VAC to enrol their biometric information should be justified and proportionate to enable them to complete their application to come to the UK. […]
[Page 11]
Considering requests
You must consider all 4 criteria listed below. In most circumstances, you must only agree to predetermine an application or excuse individuals from the requirement to attend a VAC to enrol their biometric information where they can demonstrate they meet all 4 criteria. Your decision needs to be compliant with Article 8 of the European Convention on Human Rights (ECHR).
You must balance the right to family life against the need to protect our national and border security and to reduce the risk of children being exploited or trafficked into the UK. The need to establish the individual’s identity (criterion 1) is a factor that must be accorded significant weight. The reason for this is because without sufficient assurance on an individual's identity we cannot perform suitability checks on them or check whether they are vulnerable.
Four criteria
1. Individuals need to satisfy you about their identity to a reasonable degree of certainty before they come to the UK.
2. They need to provide you with evidence that they are required to make an urgent journey to a VAC that is unsafe based on the current situation within the area they are located and along the route where they would need to travel to reach a VAC to enrol their biometrics, and they cannot delay their journey until later or use alternative routes.
3. They need to demonstrate that their circumstances go beyond simply joining relatives who are living in the UK and that they outweigh the interests of national and border security. For example, their UK based sponsor requires full-time care and there are no other viable alternatives to meet the sponsor’s or their young children’s needs.
4. They need to confirm they are able to travel to a VAC if they want their application to be predetermined (Criterion 4a), or where they are requesting you to excuse them from the requirement to attend a VAC (Criterion 4b) to enrol their biometrics. They should explain why they cannot attend any VAC, but are able to travel to the UK.
You must consider whether the individual meets each of the 4 criteria. You must provide written reasons for each criterion where the individual has not provided sufficient evidence to demonstrate they meet the requirements.
Establishing identity (Criterion 1)
This section tells you about establishing the individual’s identity.
In most circumstances, you must be able to satisfy yourself about the identity of individuals who are making an application to come to the UK to a reasonable degree of certainty before they travel to the UK. Establishing identity from the outset is important for protecting our border and national security as it helps us to determine the level of risk an individual poses to the UK. Individuals can usually achieve this by providing a valid travel document, such as a passport, and enrolling their biometric information which can be linked at a Visa Application Centre (VAC).
Before individuals can be granted entry clearance to come to the UK, you need to be satisfied to a reasonable degree of certainty about their identity. Ordinarily, this means you must be able to complete all the available identification checks on the individual at your disposal and you find no contra-indicators that raise suspicions about the authenticity of the claimed identity.
For criteria 1, there are 2 different thresholds for establishing an individual’s identity:
• on the balance of probabilities for predetermination (Criterion 1a)
• to a reasonable degree of certainty for excusing the requirement to attend a VAC (Criterion 1b) to enrol biometric information
Predetermination (Criterion 1a)
Where individuals request you to predetermine their application against the relevant requirements of the Immigration Rules for the route they are applying under before they travel to a VAC, they need to satisfy you to a balance of probabilities standard about their identity and nationality. This enables you to reach a point where, having undertaken an assessment of their claimed identity, you are satisfied it is more likely than not to be genuine.
In most circumstances, individuals should be able to satisfy you about their identity to a balance of probabilities by providing you with documentary evidence. This can include high quality scanned images of documents, which clearly show all the information and any available facial image so it can be authenticated against independent document image archives, such as PRADO. It is for you to determine whether the copy is high quality enough to meet this check. This means all of the biographical information, such as names, date of birth, document number etc; must be readable and any facial image should be clearly visible and not blurred or covered. If you consider a copy is not of a high enough quality for you to complete your checks, you must write to the individual and give them an opportunity to supply a better-quality copy, before making your decision about their claimed identity.
This means the onus lies on the individual to provide you with evidence of their identity that, on balance, establishes their name, age and nationality so that you can complete background biographical checks on them. You can complete your identity checks on them after they attend a VAC, to enable you to confirm, validate and lock-in their identity. This is to enable you to complete further checks on their documents and their biometrics so you can satisfy yourself about whether you have a reasonable degree of certainty about their identity.
Before you can offer to predetermine the individual’s application, you need to be initially satisfied based on the presented evidence that:
• the identity exists and belongs to a live individual
• the documentary evidence is authentic, valid, untampered and without defect
• the documentary evidence is linked to the individual
• there are no contra-indicators, which would provide you with doubt about the claimed identity
• the document has been compared to independent reference databases, such as PRADO to confirm validity and authenticity
This is to enable you to conduct background identity and suitability checks on individuals to assess whether they pose a risk to our national security and to public safety before deciding the individual’s application. For example, a birth certificate on its own would not normally be sufficient to establish an individual’s identity to a reasonable degree of certainty. While such a document establishes an identity exists, it does not necessarily mean it relates to the individual presenting it or that the individual is alive.
Individuals need to provide you with evidence of their identity that establishes their identity exists and there are no contra-indicators that would question its authenticity, and they are directly linked to the evidence, which cannot be used for anyone else. This is to enable you to conduct background identity and suitability checks on the biographical details the individual provided to assess whether they pose a risk to public safety. In most circumstances this should be a valid travel document unless they have a reasonable excuse for not having one. In such circumstances, they can provide alternative evidence as set out in Immigration Rules 34(5) and 34(6).
Individuals need to provide you with satisfactory evidence of their identity so you can consider their request to predetermine their application, which in most circumstances must include a facial photograph that meets the requirements set out in the biometric enrolment guidance and any other supporting evidence. This is to enable you to identify the individual should they make subsequent requests for assistance or further applications.
In most circumstances, individuals should provide you with a high-quality image of their valid travel document if they have one, such as a passport, to enable you to determine their claimed identity to a satisfactory standard. In circumstances where individuals have reasonable grounds for being unable to submit a travel document, they may provide you with an expired travel document or some other form of identification evidence that establishes their nationality and can be independently verified by a trusted third party. For example, by comparing the document against a known record or template or an internationally available identity documentation image archive or by checking with the national document issuing authority, when it is appropriate to do so.
Where you have predetermined individuals’ applications and you have informed them that their application is likely to be successful, subject to them attending a VAC to provide their biometric information to enable you to complete background checks on them, they need to bring the original documentation they used to support their application to the VAC so that identity checks can be completed alongside any biometric enrolment appointment notification. Completion of biometric enrolments by individuals and background checks on them will allow you to assess whether you are satisfied to a reasonable degree of certainty about their identity and suitability ahead of you deciding whether to grant entry clearance to them before they come to the UK.
[Pages 14-16]
Checking documents
You must follow the guidance provided by the National Document Fraud Unit when assessing the likely authenticity of the identification documents and whether they relate to the individual.
You retain the option to use other means to check the individual’s identity, to enable you to decide whether the individual has satisfactorily established their identity to a reasonable degree of certainty. The individual must be willing to co-operate with any reasonable request you make that could enable them to establish their identity.
[Page 17]
Discussion
16. As can be seen from the final extract of the Unable to Travel policy set out above, there is nothing to preclude the respondent from using other means to check an applicant’s identity. The respondent undoubtedly had the option to request further information, either held by those representing FK or from those who were engaged in considering his ARAP request. However, the issue I must resolve under public law principles is whether the respondent was required to make such enquiries before a rational decision could be reached on the application to predetermine his application for entry clearance. To maintain analytical clarity in the assessment of whether the respondent breached any duty arising under Tameside principles, I will separately consider the two specific enquiries which it is argued the decision-maker was bound to undertake before coming to their decision.
The respondent’s suggested failure to liaise with counterparts at the Ministry of Defence who were engaged in assessing FK’s case under ARAP.
17. Once permission was granted in these proceedings, the respondent obtained and served the rationale which underpinned the MoD administrative review refusal of FK’s ARAP application. Ms Chapman relied on parts of the ARAP reasoning, both here and in the case notes of 15 October 2024, as tending to show the central importance of information which was unlawfully left out of account by the respondent because it was irrationally not requested.
18. In the administrative review refusal of the ARAP application, the following conclusion was reached [at page 199 of the trial bundle] in the context of assessing whether FK provided goods or services in Afghanistan under contract to a UK Government department:
Cross-government checks [not including with the Home Office] were sought which established that while the applicant has demonstrated that he was employed by National Directorate of Security (NDS), and the applicant has provided copies of his NDS photo ID card, weapon access card and a NDS Basic Intelligence course Certificate to demonstrate this claim, there is no evidence to demonstrate the applicant’s role at NDS was contracted by a UK Government Department. Nor does the applicant claim to have been contracted by a UK Government Department to provide services in his role at the NDS. Therefore, the decision maker is not satisfied that the applicant meets the conditions for Condition 1 (ii).
19. This conclusion would appear to have been informed by analysis [at page 216 of the trial bundle] and conclusions [at page 227 of the trial bundle] in the case notes:
Within initial correspondence the applicants representatives claim that he was employed by the Afghan National Directorate of Security (NDS). The applicant has provided an NDS identity card in his name issued on the 9th January 2023 and an NDS Weapons Access card as well as an NDS training certificate. These documents substantiate his employment within the Afghan National Directorate of Security. (See pg’s 1 & 2 letter Bernberg Pierce Solicitors dated 21/06/2023 and NDS identification, weapons access card & training certificate).
[…]
The applicant has provided cogent evidence of his employment within the Afghan Governments NDS in the form of identification, weapons access card and a training certificate which substantiates that employment. (See NDS identification, weapons access card & training certificate). He relies upon this evidence to substantiate his employment within NDS and the documentation is accepted as substantive documentary proof of that employment.
[Page 216]
I have viewed the evidence in support of this application which I have considered in the round and on the balance of probabilities. That careful consideration has lead me to the conclusion that the applicant was employed within the National Directorate of Security but I have found no compelling evidence indicating that whilst within that employment he worked in partnership or closely supporting HM Government agencies or British Forces.
[Page 227]
20. The applicants further relied on Defence ARAP Eligibility Standard Operating Procedures which included photographs of genuine and anonymised NDS-issued identification documents which were consistent with the documents FK had produced in support of his application for predetermination and accepted as genuine by the MoD.
21. Ms Chapman’s case was that it was impossible to see how the respondent could have rejected the reliability of FK’s NDS documents if she had apprised herself of the compelling ARAP material which reached the opposite conclusion. Given the MoD’s expertise in evaluating such evidential matters in the context of ARAP decisions, this was material deserving of great weight in any assessment of whether these documents could be safely relied upon. The reliability of these documents in turn played a critical role in the intimately connected assessment of FK’s identity and meant that the failure to obtain this information from a fellow Government department rendered the respondent’s refusal to predetermine the entry clearance application irrational to the extent that it was founded on FK not having established his identity on the balance of probabilities. For her part, Ms Jackson properly accepted during the hearing that the ARAP material was plainly relevant to the reliability of the NDS documents and, it followed, whether FK had established his identity on the balance of probabilities. However, she forcefully argued that such relevance did not come close to demonstrating that the decision-maker had acted irrationally in not seeking this material before coming to a decision.
22. I readily accept that if the ARAP material, which is now available, had been before the respondent decision-maker, it may well have had a material bearing on whether the NDS documents were reliable and supported FK’s case that he was who he said he was. As Ms Jackson recognised, it would have been entirely open to the respondent’s decision-maker to look to what had been decided in the course of the ARAP process to inform their consideration of the reliability of these documents and the identity question. Equally, as a matter of principle, the respondent decision-maker might have reached a different conclusion on the overall package of evidence before them. This accords with the observations of Underhill LJ at [68] of Balajigari (copied above). Just as in that case, the two decision-makers at the Home Office and the MoD were considering distinct ultimate issues and exercising their respective and differing official powers. Each exercise of judgement may have involved considering the reliability of the same NDS documents, but this should not be confused to mean that they were each deciding the very same ultimate factual questions. Under the Unable to Travel policy, the respondent was required to assess whether FK had established his identity on the balance of probabilities. This is qualitatively different to the primary focus of the ARAP decision which was an assessment of whether FK worked in Afghanistan in a capacity which qualified him to receive assistance and relocation from the UK Government. Additional analytical steps were required by the respondent before the conclusion could be reached that the applicant had shown on the balance of probabilities that he was the person he claimed to be. The ARAP rationale was not, on any sensible analysis, positively determinative of the identity issue for the purposes of the predetermination decision. The reality of the tangential nature of the ARAP decision necessarily weighs against the notion that the respondent was required in law to request it before a rational decision could be reached.
23. Ms Chapman suggested that it was problematic from the perspective of promoting good administration to have different arms of Government coming to different conclusion on the same factual question. I disagree that the Tameside duty, as developed in the authorities over time, demands that enquiries are made between Government departments to bring about entirely harmonious decision-making on each and every facet of multi-faceted decisions directed to different ultimate questions. I could see no support for such a proposition in the authorities. The public law threshold remains that distilled in Plantagenet Alliance as one of rationality and whether the decision-maker adopted an approach which was Wednesbury unreasonable in not making the enquiry which it is said should have been made.
24. In recognition of the way in which the argument unfolded before me at the substantive hearing, I have engaged with the substance of what was decided in the course of the ARAP process, which ultimately went against FK. However, even if I had found that the ARAP decision may have had a decisive bearing on the identity issue decided in the predetermination decision, discipline would be needed to ensure that one did not fall into the analytical trap of assessing the lawfulness of not making an enquiry by evaluating this with reference to what was not obtained. I agree with Ms Jackson that I must exercise caution to consider the legality of what enquiries were and were not made on the strength of the material which was before the decision-maker at the time. In regard to the ARAP process, it was made clear in the entry clearance application that FK’s ARAP request had been refused. While it is now known that there were elements of this decision-making process which might have been relevant and assisted FK in establishing the reliability of the NDS documents, this could only have had any purchase in the context of deciding whether to request this material if the respondent’s decision-maker had speculated that this was so. As far as the respondent was aware, the ARAP application had failed. I am not persuaded that the respondent was required to enquire as to whether any underlying part of that unsuccessful application might have been beneficial to FK in his predetermination request.
25. Contrary to Ms Chapman’s submissions, I am not persuaded that the analysis of the Tameside duty in Balajigari is distinguishable because the Court of Appeal were concerned with the lawfulness of a ‘minded to’ procedure in the context of an allegation of dishonesty. The court were plainly drawing on the distillation of principles of general application taken from Plantagenet Alliance. The court were tasked with deciding an argument squarely founded on the supposed existence of a Tameside duty for the Secretary of State for the Home Department to make enquiries of another Government department. I consider the observations of the court to be of considerable assistance in the resolving the challenge here to the suggested failure of the respondent to make enquiries of the MoD.
The respondent’s suggested failure to ask FK’s representatives to provide the documents referred to in Mr Foxley’s expert report which were noted in the decision to be missing from those submitted in support of the application
26. I can deal with the second suggested breach of the Tameside failure more succinctly. At the outset of the hearing, I asked Ms Chapman if she was aware of any example in the authorities of the Tameside duty to make enquiries being found to take hold in circumstances where the suggested gap in the information considered by the decision-maker was held, and not provided, by the aggrieved applicant. When I returned to the topic at the end of the hearing, Ms Chapman indicated that she had been unable to identify any such examples in the authorities.
27. It would be surprising in the extreme if a public body could be regarded as breaching their public law duty to make enquiries to inform rational decision-making by not requesting, of the legally represented applicants, material which was held on their behalf, but not provided. At the risk of stating the obvious, it would be difficult to come to the conclusion that a decision was founded on public law error because the public body did not ask for something which those who advanced the application appear to have not been minded to provide in support of the applications. There is considerable tension in the notion that material was so important to an exercise of discretionary judgement and yet it was not considered to be so important to be provided by those who at all material times, had this material in their possession. The extremity of the applicants’ position is only made more so when it is considered that the respondent alluded to these gaps in the material provided on the applicants’ behalf in the refusal decisions of December 2024 (see paragraph [4] above) which were later withdrawn upon consideration of pre-action protocol correspondence.
28. The evidence and material referred to by Mr Foxley [at pages 359-360 of the trial bundle] could have easily been provided by the applicant’s representatives if it was believed that consideration of these underlying documents might have assisted their case in establishing identity. That these rudimentary steps were not taken cannot be turned upside down as the platform on which to suggest that the respondent was under a public law duty to ask the applicant’s representatives to fill these gaps in the material they chose to rely upon in making the applications.
Overall Conclusion
29. In assessing the lawfulness of the respondent’s approach to deciding the applications for predetermination, it is important not to lose sight of two important matters which are clear from the Unable to Travel policy guidance. Firstly, it was for the applicants to discharge their burden to establish identity on the balance of probabilities. Secondly, the need to establish identity to the applicable standard is no mere formality but reflects the important policy objectives which underpin the need to obtain biometric information from those seeking to enter the UK. The UK Government is entitled to set the parameters of when this information should be obtained going, as it does, to safeguarding the public interest by ensuring that those entering the UK are identified and identifiable.
30. When I look to the general principles distilled in Plantagenet Alliance, I am left in no doubt that the respondent did not breach any public law duty to make enquiries. It was entirely reasonable of the decision-maker not to indulge in the kind of speculation which might have driven them to ask for the analysis which lay underneath the refusal of FK’s ARAP application. Reminding myself that it is for the public body to decide on the manner and intensity of enquiries, I unhesitatingly conclude that it was not Wednesbury unreasonable for the decision-maker to rely on the broad range of information which was made available without asking for more from the MoD, or indeed from those representing the applicants. Importantly, given the conclusions I have reached above about the relevance of the ARAP material, the fact that it may have assisted the decision-maker in the assessment of the reliability of the NDS documents and, in turn, FK’s identity is not enough to show that it was Wednesbury unreasonable to proceed on the strength of what was then available. The fifth principle from Plantagenet Alliance must be seen in conjunction with the observations made at [139] of that judgment. The challenged decision before me was not a decision which called for a broad consultative exercise. Finally, the scope of the discretion exercised by the respondent in deciding this matter was narrowly confined to the interests of the applicants.
31. Overall, I can discern nothing in the respondent’s conduct in deciding the applications for predetermination which could conceivably offend against the Tameside duty to make enquiries.
32. The respondent argued that even if there was a breach of the Tameside duty, it was immaterial to the overall outcome. Given the conclusion I have reached on the substance of the applicants’ ground of challenge, it is unnecessary to consider the materiality point.
P Lodato
Upper Tribunal Judge Lodato
~~~~0~~~~
In the Upper Tribunal
(Immigration and Asylum Chamber)
Judicial Review
In the matter of an application for Judicial Review
The King on the application of
FK & Others
(Anonymity ordered)
Applicants
and
Secretary of State for the Home Department
Respondent
ORDER
BEFORE Upper Tribunal Judge Lodato
HAVING considered all documents lodged and having heard Rebecca Chapman of counsel, instructed by Birnberg Peirce Solicitors, for the applicants and Natasha Jackson of counsel, instructed by GLD, for the respondent at a hearing on 18 February 2026
IT IS ORDERED THAT:
(1) The application for judicial review is dismissed for the reasons in the attached judgment.
(2) The Applicants do pay the Respondent’s reasonable costs, to be subject to detailed assessment on a standard basis if not agreed. This order is not to be enforced without leave of the Court and is subject to the costs protection provided by s.26 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and the Civil Legal Aid (Costs) Regulations 2013.
(3) Permission to appeal is refused because no application was made for permission and I am unable to discern any arguable errors of law in the judgment.
Signed: P Lodato
Upper Tribunal Judge Lodato
Dated: 11 March 2026
The date on which this order was sent is given below
For completion by the Upper Tribunal Immigration and Asylum Chamber
Sent / Handed to the applicant, respondent and any interested party / the applicant's, respondent’s and any interested party’s solicitors on (date): 11/03/2026
Solicitors:
Ref No.
Home Office Ref:
Notification of appeal rights
A decision by the Upper Tribunal on an application for judicial review is a decision that disposes of proceedings.
A party may appeal against such a decision to the Court of Appeal on a point of law only. Any party who wishes to appeal should apply to the Upper Tribunal for permission, at the hearing at which the decision is given. If no application is made, the Tribunal must nonetheless consider at the hearing whether to give or refuse permission to appeal (rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008).
If the Tribunal refuses permission, either in response to an application or by virtue of rule 44(4B), then the party wishing to appeal can apply for permission from the Court of Appeal itself. This must be done by filing an appellant’s notice with the Civil Appeals Office of the Court of Appeal within 28 days of the date the Tribunal’s decision on permission to appeal was sent (Civil Procedure Rules Practice Direction 52D 3.3).
Case No: JR-2025-LON-001581
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR
Hearing date: 18 February 2026
Judgment date: 11 March 2026
Before:
UPPER TRIBUNAL JUDGE LODATO
- - - - - - - - - - - - - - - - - - - -
Between:
THE KING
on the application of
FK and Others
(Anonymity ordered)
Applicants
- and -
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
- - - - - - - - - - - - - - - - - - - -
Rebecca Chapman
(instructed by Birnberg Peirce Solicitors), for the applicants
Natasha Jackson
(instructed by the Government Legal Department) for the respondent
Hearing date: 18 February 2026
- - - - - - - - - - - - - - - - - - - -
J U D G M E N T
- - - - - - - - - - - - - - - - - - - -
Judge Lodato:
Introduction
1. The applicants challenge, with a limited grant of permission, the lawfulness of the decisions of the respondent, the Secretary of State for the Home Department, to refuse to predetermine their applications for entry clearance, on family life grounds outside of the Immigration Rules, so that they can join FK’s brother who resides in the UK. If the application for predetermination had succeeded, the applicants would not have been required to provide their biometric information before the relevant decisions were taken.
2. FK is the lead applicant because he claims to have worked for the National Directorate of Security (‘NDS’), an intelligence agency which was part of the Afghan government before the Taliban reclaimed power in 2021. It is primarily the risk he claims that the Taliban pose to him which necessitated the predetermination application made by him and multiple members of his family, including several minor children. In short, he fears being detained, tortured and possibly killed by the Taliban if he emerges from hiding to travel to a Visa Application Centre (‘VAC’) to provide biometric information. The risk is said to multiply every time he would have to make such a journey, and so it is said to follow that the applications should be predetermined to minimise the grave risks he faces.
3. In the interests of setting the appropriate analytical parameters at the outset of this judgment, it is important to articulate what is at issue in these proceedings. A single ground of challenge attracted permission following renewal at an oral hearing. I must decide whether the respondent’s decisions to refuse to predetermine the substantive applications were rational when seen against the public law duty to make lawfully required enquiries before coming to a determinative conclusion that the lead applicant had not established his identity to the applicable standard. It is equally important to make it plain what is not before me to decide. A broader range of grounds initially raised against the decisions were refused permission on the papers and not successfully renewed. It follows that I will not be considering questions such as whether the respondent fettered her discretion, whether the decision was more broadly consistent with the applicable policy in this decision-making field nor whether the factual substance of what was decided offended against the Wednesbury threshold save for the question of whether the respondent made the enquiries required by law.
Procedural Background
4. The key procedural events are summarised below:
16 February 2024 – the applicants made their applications for entry clearance. At page 9 of the application, it was stated that “My ARAP [Afghan Relocation and Assistance Policy] application was refused. Please see covering letter”.
16 July 2024 – a sequence of correspondence concluded with a formal request for predetermination of the applications. Supporting material was provided including an expert report from Mr Tim Foxley.
Between 2 September 2024 and 12 February 2025 – correspondence was exchanged between the parties which included two sets of refusal decisions which were each withdrawn following pre-action protocol letters. In the refusal decision for FK, dated 20 December 2024 (later withdrawn), and in the context of discussing the expert report of Mr Foxley and the claimed NDS relationship, the following observation was made: “There is reference to other documents listed within the report that may substantiate this ID however these were not made available as part of the submitted bundle”. In another of the refusal decisions of the same date [see page 767 of the trial bundle], the following passage stated: “You have provided a statement from RN who ceased employment with NDS in 2015. They state they have contacted a member of the organisation (WJ) whom they knew were responsible for the relevant region who is stated to corroborate this employment. However, the witness statement referred to by WJ is not found amongst the supporting documents […]”.
27 February 2025 – the applications for predetermination were refused (see below for a summary of the reasons for refusal).
19 May 2025 – following an exchange of pre-action protocol correspondence, this claim for judicial review was filed.
23 July 2025 – UTJ O’Brien refused permission on the papers in relation to all grounds. He said this in relation to the ‘Tameside’ enquiries ground:
Ground 1 comprises a number of separate complaints, some more easy to identify than others. The assertion that the respondent unreasonably failed to accept the first applicant’s evidence as sufficient to establish his identity is not arguable. The respondent carefully explains why the documents provided do not do so on the balance of probabilities. That was a conclusion unarguably open to the respondent. Neither is the alleged failure to comply with the Tameside duty arguable. As explained in Plantegenet Alliance Ltd [2014] EWHC 1662 (QB), the respondent only fails in that duty if no reasonable decision-maker could have considered further enquiry unnecessary. There is simply no arguable basis to suggest that any reasonable decision-maker, having before them the applicants’ evidence, would have considered it necessary to make the further enquiries suggested or at all. The respondent concluded (for unarguably sufficient reasons) that the first applicant had not established his employment with the NDS. […]
17 September 2025 – on renewal, permission was granted by UTJ Lindsley, solely for the ‘Tameside’ enquiries ground to be argued. The reasons for the limited grant of permission were:
[2] It is just arguable that the decision errs in law by failure of the respondent to make further enquiries in accordance with her Tameside duty with respect to FK to check their information with respect to his employment with the NDS, an essentially secret organisation with which the British authorities had a longstanding collaboration prior to the current Taliban government coming to power, in light of information found reliable by an arguably accepted expert on Afghanistan, Mr Tim Foxley, that FK was indeed an employee of this organisation and that the account he gives of persecution by the Taliban as a former NDS employee is plausible, in the context of the attempts of the British government to safeguard those who had assisted the British forces and policy aims in Afghanistan. In this connection it is notable that at page 17 of the policy guidance on “Unable to Travel to a VAC to enrol biometrics (overseas applications)” Version 4 that the respondent does retain the option to use checks to establish an individual’s identity. It is arguable that if such enquires had been undertaken that further information, if forthcoming, might have combined with that provided by the applicant and his wider family and sufficed to satisfy the respondent of the primary applicant, FK’s, identity and that this, in turn, might have changed the respondent’s assessment of the issues under the Unsafe Journey Criteria.
The Challenged Decisions
5. In refusing the applications for predetermination, the respondent prepared separate decisions for each of the various applicants. However, the parties agreed that the focus of the legal challenge is necessarily upon the refusal decision taken in respect of FK and, more specifically, whether he had established his identity to the required standard. This was also the basis on which the decision itself was approached [see page 1 of FK’s refusal decision]. For the purposes of this judgment, I need not go beyond the relevant aspects of this decision as the analysis in relation to FK was the foundation on which all of the other decisions were built. Below are copied the passages of the FK refusal decision which touch on FK’s identity. This includes the reasoning going to FK’s claimed professional relationship with NDS because it was argued that this dimension of the evidence provided the nexus to reach a rational conclusion on identity. In short, the documentary and narrative evidence which tended to show that FK worked for NDS was said to have established his identity.
6. FK’s identity was assessed in the following way [between pages 2-5]:
Establish identity to a balance of probabilities
As evident [sic] of your client’s identity you have provided:
• A paper tazkira and English translation
• An NDS ID Card and related ID Card
You have stated in your most recent representations that the paper tazkera should be cross referenced with self-annotated photographs and testimonies. However, such information cannot be validated and a photograph taken together is not proof of identity or relation.
Your client does not hold a valid travel document and it is not clear if they have ever held a travel document. They do not hold an e-tazkera and do not appear to have ever held an e-tazkera.
You have provided a photocopy of a paper tazkera which is stated to have been issued on 14/11/2015, it appears that this document claims to have been originally registered in 2008 as it refers to your client being 22 years old in 2008.
A report from Landinfo (Afghanistan: Tazkera, passport and other ID documents, May 2019 https://landinfo.no/wp-content/uploads/2019/08/Afghanistan-Tazkera-passports-and-other-ID-documents-22052019-final.pdf) states;
A tazkera can also be issued on the basis of a testimony of identity. Landinfo believes that there is little likelihood of a false testimony being discovered. Information on age is often based on the assessment of the person who has issued the tazkera. These two facts give grounds for questioning the credibility of tazkeras. At the same time poor transcriptions, limited reading and writing skills and inadequate administrative routines, may be the cause of name and location being written differently and explain deviations between different documents. A tazkera has a logo and stamp of the office having issued the document, but has no state-of-the-art security features. Today’s paper tazkera in standard A4 format has no reference to biometric data, and has no security features such as watermark, hologram, Report Afghanistan: Tazkera, passports and other ID documents micro text or similar. It is very easy to forge, alter or reproduce on account of few or no security features (Norwegian ID Centre, n.d.).
And
Basic information obtained in connection with the issuing of tazkeras can be manipulated and its control is inadequate. Up until spring 2018 only manual tazkeras were issued and most of those issued are still paper ones. The absence of electronic evidence means that it is relatively easy to manipulate basic information. In addition, it is evident that not all tazkeras issued locally, are registered centrally.
As detailed in the report, a paper tazkera has limited credibility. They can be obtained with little or no supporting documentation which could surmount to as little as false testimony. Furthermore, the report details that due to there being no security features on a paper tazkera, these documents are very easy to forge, alter or reproduce.
The report also details the state of bribery and corruption within Afghanistan – I note this report predates the Taliban change of regime in August 2021 – however other reports do not suggest any improvement with regard to this.
Bribery, corruption and illegal production of different types of documentation is widespread in Afghanistan. Bribery can entail having to pay for a privilege which one generally is entitled to free of charge, being treated without waiting one’s turn or having documentation issued on false premises, for example, if one has not submitted sufficient supporting documents.
And
Documents issued by the proper authority can contain both correct and incorrect information. It is easy to provide ID documents with incorrect information issued by the proper authority. There is also a large market for fake documents in Afghanistan.
Therefore, as detailed in the report, paper tazkeras are especially unreliable. They are able to be obtained with limited or false information from the authorities tasked with issuing such documentation and they are also easy to obtain from sources other than the authorities.
I refer to the report you have provided by Tim Foxley at 133 which states:
The Taskera is one of Afghanistan’s two national identity documents, the other being the passport. The Taskera proves a person’s identity as a ctizen [sic] of Afghanistan. Possession of a Taskera allows the holder to exercise a variety of rights in Afghan society, amongst other things access to education, to join the army or police, ownership of land and property, getting a passport and involvement in the political process. The lack of a valid Taskera could therefore hamper an individual’s ability to exercise these rights.
It is unclear around the context of your client’s paper tazkera being issued, why their details were not registered until the age of 22 considering a tazkera may be required for such things as access to education. This suggests they had no identification documents their entire life into adulthood. It is not detailed what occurred that the tazkera was required to be reregistered in 2015, nor why the original document was not provided and instead what appears to be a recent photocopy of that document is provided.
While a paper tazkera may be acceptable as proof of identity for many things in Afghanistan, this relates to a general lack of emphasis on accurate and reliable identification in Afghan society in previous years, as seen regarding the relaxed requirements in regard to registration of documents, recording of age and date of births, lack of centralised records and inconsistencies with recording. It is noted that in 2018 eTazkeras began to be issued and paper tazkeras are being phased out. The report you have provided does not account for the transition to eTazkeras or the phasing out of paper tazkeras.
In the report Tim Foxley also goes onto consider the reliability of the paper tazkera and Afghanistan’s approach to accurate information at points 135 through 139 in particular they state:
The process and requirements by which the Taskera can be issued can vary from region to region. In particular, the standards of proof required before a Taskera can be issued vary. The Taskera can be readily forged and bribery in connection with validation of identity and issuing of the document is also a feature.
And goes on to state:
I am not an expert on the Afghan passport and Taskera issuing process. However, in the context I have offered above, I do not find it unusual, given the decades-long corrosion of Afghanistan’s official administrative infrastructure, that many aspects of the identity document system are thoroughly flawed and open to mispractice, mistakes and abuse. I believe it is entirely possible that, even if errors appeared on the documents, they may still have been provided by an Afghan in good faith and entirely unaware of the problems that surround the issuing of identity documents in Afghanistan at the current time.
Which while it is stated they find it entirely possible the documents were issued in good faith in the proper way, does also confirm in line with other sources such as the report referenced from landinfo that such documents are also able to be acquired due to mispractice, mistakes and abuse.
You have provided an NDS ID badge and NDS related ID card for your client. I note that this document has limited information including only a first name and the name of the father. The NDS ID badge does not list an expiry date but states it was issued 09/01/2013, the related ID badge gives an expiry date of 23/04/1400 or in the Gregorian calendar 14/07/2021.
While the NDS ID badge appears to contain one security feature in the form of a watermark, this document is still vulnerable to forgery. It cannot be authenticated against independent document image archives, such as PRADO and it cannot be independently verified considering the dissolution of NDS and the change of regime in Afghanistan. There is reference to other documents listed within the report that may substantiate this ID however these were not made available as part of the submitted bundle.
In further submissions it is raised that documents provided have not been cross-referenced with the annotated photographs and testimonies by the sponsor. The photographs provided do not and cannot demonstrate a biological connection, being present in the same photograph does not mean that people are related or that their name matches that which is self-annotated. The annotations have been provided by yourself and your clients and the testimonies provided by the sponsor as part of the submissions.
The doubts raised regarding the tazkera and NDS ID badge and the inability to validate these documents means the information cannot be verified. As such inference cannot be made as to whether the father listed as claimed is accurate as much as the rest of the information provided. It is noted that due to the commonality of mononyms in Afghan documents the NDS ID badge listing a father’s name does not solidify any claim of parentage with NO. Nevertheless, even should there be a biological relationship evidenced with a person’s identity who is evidenced to a balance of probabilities, this does not necessitate that their relative’s identity is verified on the basis of this biological relationship.
In light of all of the above I am not satisfied that you have provided sufficient documents for your client as the paper tazkera provided is wholly unreliable and the document from NDS cannot be authenticated or independently verified. You have not provided a valid travel document and despite making an application with the intent of traveling to the UK have not provided a reasonable excuse for not having one.
In most circumstances, even when an individual holds adequate documentation to evidence their identity, we still rely on enrolling their biometrics, in the form of fingerprints and a facial photograph. This enables us to confirm their identity and to complete background suitability checks on them before determining their visa application. This ensures we protect public safety.
[Underlining added]
7. Under the heading of “No compelling circumstances raised”, the decision-maker made the following observations [at pages 9-11]:
It is stated that your client is at risk from the Taliban due to their past employment. As evidence of this employment, you have provided an employer ID card, though as noted above this document and employment cannot be verified.
You have provided a statement from RN who ceased employment with NDS in 2015. They state they have contacted a member of the organisation (WJ) whom they knew were responsible for the relevant region who is stated to corroborate this employment. However, the witness statement referred to by WJ is not found amongst the supporting documents. It is difficult to ascertain that the employment is as stated, however, this is a distinct possibility. Reports suggest NDS had a staff of in the region of 15,000 to 30,000 (EASO – Afghanistan – State Structure and Security Forces August 2020)
It is stated that your client applied under the ARAP scheme and as detailed on the visa application form “My ARAP application was refused. Please see covering letter” and the date given for this refusal is “September 2023” The covering letter does not detail this application or the reasons for refusal, only that you were enlisted to apply for this for your client. No reference numbers are provided. Nevertheless, a refusal suggests that your client did not meet the eligibility requirements.
[…]
Tim Foxley in the report provided considers your client’s past employment would mean they are at a greater risk. They affirm that former members of the NDS are at greater risk than any other Afghan group in Afghanistan and in support of that belief have provided news articles relating to extrajudicial killings purported to be by the Taliban. Tim Foxley accepts your client worked for the NDS and in the capacity as claimed, however I am not satisfied that this has been determined on the evidence, though it is acknowledged that it appears to be inferred in Tim Foxley’s report that they have had additional documents that was not provided in the supporting documents provided for this pre-determination consideration. For example at point 3 c), j), k), o), w) and x).
As detailed elsewhere, sources suggest the extent of reprisals outside of the general amnesty are unclear, some cases are attributable to local circumstances such as personal disputes, feuds or rivalries with individual Taliban members as opposed to a systematic campaign of targeting. As such only those with such specific circumstances would be applicable. As reported in the Netherlands Ministry of Foreign Affairs report of June 2023 as referenced above, one source found that many individuals who worked with western troops were able to return to their daily lives. However, at the same time a person “who is known to have worked with foreign forces is more likely to be harassed or ill-treated than others.” NDS was a wide-ranging organization and not all employees would have worked with western forces. Such people who have demonstrable evidence of having worked with the UK Government would fall within the criteria of ARAP. As noted, your client did not receive a positive decision of their ARAP application, as you have stated.
[Underlining added]
The Substantive Hearing
8. At the outset of the hearing, Ms Chapman indicated that judicial review proceedings have been instituted in the High Court seeking to challenge the lawfulness of the ARAP refusal decision taken in relation to FK. It was clarified that the grounds of challenge in those parallel proceedings did not carry a risk of unpicking the aspects of the decision which it was argued ought to have been the subject of Tameside-compliant enquiries from the respondent in the proceedings before me. The parties were agreed that there was nothing to be materially gained by having further insight into the challenge to the ARAP decision, or to await outcome of those proceedings.
9. The extent to which it was argued that the respondent had failed to undertake Tameside-compliant enquiries crystallised at the outset of the hearing. The enquiries which it was suggested ought to have been made as a matter of law to produce a rational decision were twofold:
I. The respondent’s suggested failure to liaise with counterparts at the Ministry of Defence who were engaged in the assessment of FK’s case under the ARAP scheme.
II. The respondent’s suggested failure to ask FK’s representatives to provide the documents referred to in Mr Foxley’s expert report which were noted in the decision to be missing from those submitted in support of the application.
10. As alluded to above, the parties agreed that the only substantive question to be considered in the context of whether Tameside enquiries were lawfully required related to the first limb of the Unable to Travel to a Visa Application Centre to Enrol Biometrics (Overseas Applications) Policy v.4 (the ‘Unable to Travel Policy’). This is the requirement for the applicant to establish their identity. The parties agreed that the appropriate standard by which this question was to be assessed by the decision-maker was on the balance of probabilities. If successful, the Ms Chapman indicated that the remedy she was seeking was an order quashing the challenged decision and mandating reconsideration.
11. During the substantive hearing, I heard comprehensive and helpful submissions from Ms Chapman and Ms Jackson. These submissions broadly followed the position set out by the parties in their respective written submissions and it is unnecessary to set them out at length in this judgment. I address the central arguments in the context of the discussion section below.
The Legal Framework and Policy Guidance
12. The Tameside duty springs from the judgment of Lord Diplock in Secretary of State for Education v Tameside Metropolitan Borough Council [1977] AC 1014, at 1065B:
[…] the question for the court is, did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?
13. In the context of immigration decisions, the reach of the Tameside duty was considered by the Court of Appeal in Balajigari and Others v SSHD [2019] 1 W.L.R. 4647; [2019] EWCA Civ 673. In his judgment, Underhill LJ set out arguments made by Mr Saini of counsel to the effect that the Secretary of State for the Home Department was lawfully required to enquire of HMRC whether a penalty had been imposed and that the absence of such a penalty ought to have informed any assessment of dishonesty where there were discrepancies in income reported to the two separate Government Departments. Underhill LJ developed his reasons for rejecting this contention at [68]-[76]:
[68] At one stage, at least in his written submissions, Mr Saini appeared to suggest that it is legally impermissible for the Secretary of State to take a different view from HMRC in relation to the same matter. He referred to this in his skeleton argument as the “dichotomous views” of HMRC as distinct from the Home Office. We did not understand him to press that submission. In any event, in our judgment, the submission is a bad one. The Secretary of State has the legal power to decide the questions which arise under paragraph 322 (5) for himself and is certainly not bound to take the same view as HMRC. The two public authorities are performing different functions and have different statutory powers.
[69] Returning to Mr Saini’s central submission, that the Tameside duty applies in this context to require the Secretary of State to make enquiries of HMRC about how they have dealt with relevant errors, we do not accept that submission either.
[70] The general principles on the Tameside duty were summarised by Haddon-Cave J in R (Plantagenet Alliance Ltd) v Secretary of State for Justice [2014] EWHC 1662 (Admin) at paras. 99-100. In that passage, having referred to the speech of Lord Diplock in Tameside, Haddon-Cave J summarised the relevant principles which are to be derived from authorities since Tameside itself as follows. First, the obligation on the decision-maker is only to take such steps to inform himself as are reasonable. Secondly, subject
to a Wednesbury challenge, it is for the public body and not the court to decide upon the manner and intensity of enquiry to be undertaken: see R (Khatun) v Newham LBC [2004] EWCA Civ 55, [2005] QB 37, at para. 35 (Laws LJ). Thirdly, the court should not intervene merely because it considers that further enquiries would have been sensible or desirable. It should intervene only if no reasonable authority could have been satisfied on the basis of the enquiries made that it possessed the information necessary for its decision. Fourthly, the court should establish what material was before the authority and should only strike down a decision not to make further enquiries if no reasonable authority possessed of that material could suppose that the enquiries they had made were sufficient. Fifthly, the principle that the decision-maker must call his own attention to considerations relevant to his decision, a duty which in practice may require him to consult outside bodies with a particular knowledge or involvement in the case, does not spring from a duty of procedural fairness to the applicant but rather from the Secretary of State’s duty so to inform himself as to arrive at a rational conclusion. Sixthly, the wider the discretion conferred on the Secretary of State, the more important it must be that he has all the relevant material to enable him properly to exercise it.
[71] Applying those principles to the present context, it seems to us quite impossible to accept the submissions made by Mr Saini.
[72] The Secretary of State would certainly have power to make enquiries of HMRC but he had no obligation to exercise that power. It is impossible to say that no reasonable Secretary of State could have done anything other than to make the enquiries which Mr Saini submits had to be made of HMRC.
[73] We bear in mind that there may be many reasons why HMRC does or does not investigate a particular tax return. HMRC may quite properly take the view that, if a tax return has been amended, it is content to collect the tax which is due and which the applicant taxpayer accepts is due. It may or may not wish to expend the resources which would be required to enquire into a past tax return to see whether it was dishonestly or carelessly made and, if necessary, defend an appeal. In this regard we note the obvious good sense of what was said by Lane J in Kayani v Secretary of State for the Home Department (JR/9552/2017, judgment of 10 May 2018), at para. 27.
[74] We further bear in mind that there would be nothing to prevent the applicant from drawing attention to the fact that HMRC had enquired into a matter and had decided not to impose a penalty or had decided to impose a penalty at a lower rate, which signified that there had been carelessness rather than dishonesty. That would be information which was within an applicant’s own knowledge and they could draw this to the attention of the Secretary of State.
[75] We are fortified in that view by the conclusion we have reached above on the need for procedural fairness in this context. If the Secretary of State adopts the “minded to refuse” procedure which we consider is necessary in this context, that will afford an applicant the opportunity to draw attention to anything relevant, for example what action HMRC decided to take or not to take in respect of an inaccurate tax return.
[76] For all those reasons, we do not think it necessary to impose a separate Tameside duty in the present context. Certainly it is not irrational for the Secretary of State to have proceeded in the way that he did in these cases without making such enquiries of HMRC.
[Underlining added]
14. Underhill LJ referred above to the distillation of the principles, taken from [100] of the judgment of Haddon-Cave J. in R (Plantagenet Alliance Ltd) v Secretary of State for Justice [2015] 3 All E.R. 261; [2014] EWHC 1662 (Admin), which underpin the Tameside duty to make enquiries. Ms Jackson helpfully directed me to [139] which places some of those principles within their appropriate decision-making context:
[139] It is important to emphasise that the test for a Tameside duty is fundamentally different from the test for a duty to consult. The test for a Tameside duty is one of rationality, not of process. The Tameside test can be formulated as follows: Could a rational decision-maker, in this statutory context, take this decision without considering these particular facts or factors? And if the decision-maker was unaware of the particular fact or factor at the time, could he or she nevertheless take this decision without taking reasonable steps to inform him or herself of the same? The test for a Tameside duty (i.e. the duty to carry out a sufficient inquiry prior to making a decision and as to what information must be obtained by the decision-maker prior to making the decision in question) is, therefore, higher than the test for whether consultation is required. In short, the Tameside information must be of such importance, or centrality, that its absence renders the decision irrational.
15. There was no dispute between the parties that the respondent manifestly has the power, under The Immigration (Biometric Registration) Regulations 2008 to require an applicant for entry clearance to provide biometric information in support of their application. The requirement may be waived in the respondent’s discretion on application of the Unable to Travel Policy. Where relevant, this policy provides the following guidance to caseworkers making such decisions:
Introduction
The purpose of a biometric enrolment is to record an individual’s biometric information, to seek to verify their claimed identity and to undertake background checks on them.
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.
The biometrics we currently use (facial image and up to ten fingerprints) enable quick and robust identity assurance and suitability checks on foreign nationals subject to immigration control, delivering 3 broad outcomes:
• establishing an identity through fixing an individual’s biographic details (for example, name, date of birth, nationality) to biometric data
• verifying an individual accurately against an established identity
• matching individuals to other datasets (for example, against watchlists or domestic and international law enforcement fingerprint collections) to establish their suitability for an immigration product
Granting an individual a biometric excusal, such that they do not have to attend a Visa Application Centre (VAC) to enrol their biometrics prior to travelling to the UK, creates a heightened risk to our national security. By doing so, we lose the opportunity to identify individuals whose fingerprints are linked to terrorist activities or serious criminality until after they have arrived in the UK. In some cases, this could prove to be too late to protect the British public. Therefore, if an individual is suitable for a predetermination, then this must be offered instead. Biometric excusals should be limited in scope to reflect the strong public interest in protecting UK national security and public safety, as well as protecting the border. It is anticipated that biometric excusals will only be granted where the individual presents circumstances that are sufficiently compelling as to outweigh the wider and heightened public interest resulting from excusing the requirement to attend a VAC.
[…]
In most circumstances, individuals are required to enrol their biometrics as part of their application for entry clearance, which normally consists of the individual’s face and their fingerprints, unless exempt or excused. This is set out in the biometric enrolment guidance.
[Page 6]
Important principles
You must take account of the requirement to protect the public and the risk to national and border security when an individual makes a request to predetermine their application or to be excused from the requirement to attend a VAC to enrol their biometric information. This is because you will not be able to undertake a full range of background suitability checks until the person has enrolled their biometric information. You should only offer to predetermine an application or excuse an individual from the requirement to attend a VAC to enrol their biometric information, where they meet all 4 criteria (detailed below) and there are no alternative options, such as travelling to an alternative VAC location or delaying their journey.
Any offer to predetermine the individuals’ application or excuse individuals from the requirement to attend a VAC to enrol their biometric information should be justified and proportionate to enable them to complete their application to come to the UK. […]
[Page 11]
Considering requests
You must consider all 4 criteria listed below. In most circumstances, you must only agree to predetermine an application or excuse individuals from the requirement to attend a VAC to enrol their biometric information where they can demonstrate they meet all 4 criteria. Your decision needs to be compliant with Article 8 of the European Convention on Human Rights (ECHR).
You must balance the right to family life against the need to protect our national and border security and to reduce the risk of children being exploited or trafficked into the UK. The need to establish the individual’s identity (criterion 1) is a factor that must be accorded significant weight. The reason for this is because without sufficient assurance on an individual's identity we cannot perform suitability checks on them or check whether they are vulnerable.
Four criteria
1. Individuals need to satisfy you about their identity to a reasonable degree of certainty before they come to the UK.
2. They need to provide you with evidence that they are required to make an urgent journey to a VAC that is unsafe based on the current situation within the area they are located and along the route where they would need to travel to reach a VAC to enrol their biometrics, and they cannot delay their journey until later or use alternative routes.
3. They need to demonstrate that their circumstances go beyond simply joining relatives who are living in the UK and that they outweigh the interests of national and border security. For example, their UK based sponsor requires full-time care and there are no other viable alternatives to meet the sponsor’s or their young children’s needs.
4. They need to confirm they are able to travel to a VAC if they want their application to be predetermined (Criterion 4a), or where they are requesting you to excuse them from the requirement to attend a VAC (Criterion 4b) to enrol their biometrics. They should explain why they cannot attend any VAC, but are able to travel to the UK.
You must consider whether the individual meets each of the 4 criteria. You must provide written reasons for each criterion where the individual has not provided sufficient evidence to demonstrate they meet the requirements.
Establishing identity (Criterion 1)
This section tells you about establishing the individual’s identity.
In most circumstances, you must be able to satisfy yourself about the identity of individuals who are making an application to come to the UK to a reasonable degree of certainty before they travel to the UK. Establishing identity from the outset is important for protecting our border and national security as it helps us to determine the level of risk an individual poses to the UK. Individuals can usually achieve this by providing a valid travel document, such as a passport, and enrolling their biometric information which can be linked at a Visa Application Centre (VAC).
Before individuals can be granted entry clearance to come to the UK, you need to be satisfied to a reasonable degree of certainty about their identity. Ordinarily, this means you must be able to complete all the available identification checks on the individual at your disposal and you find no contra-indicators that raise suspicions about the authenticity of the claimed identity.
For criteria 1, there are 2 different thresholds for establishing an individual’s identity:
• on the balance of probabilities for predetermination (Criterion 1a)
• to a reasonable degree of certainty for excusing the requirement to attend a VAC (Criterion 1b) to enrol biometric information
Predetermination (Criterion 1a)
Where individuals request you to predetermine their application against the relevant requirements of the Immigration Rules for the route they are applying under before they travel to a VAC, they need to satisfy you to a balance of probabilities standard about their identity and nationality. This enables you to reach a point where, having undertaken an assessment of their claimed identity, you are satisfied it is more likely than not to be genuine.
In most circumstances, individuals should be able to satisfy you about their identity to a balance of probabilities by providing you with documentary evidence. This can include high quality scanned images of documents, which clearly show all the information and any available facial image so it can be authenticated against independent document image archives, such as PRADO. It is for you to determine whether the copy is high quality enough to meet this check. This means all of the biographical information, such as names, date of birth, document number etc; must be readable and any facial image should be clearly visible and not blurred or covered. If you consider a copy is not of a high enough quality for you to complete your checks, you must write to the individual and give them an opportunity to supply a better-quality copy, before making your decision about their claimed identity.
This means the onus lies on the individual to provide you with evidence of their identity that, on balance, establishes their name, age and nationality so that you can complete background biographical checks on them. You can complete your identity checks on them after they attend a VAC, to enable you to confirm, validate and lock-in their identity. This is to enable you to complete further checks on their documents and their biometrics so you can satisfy yourself about whether you have a reasonable degree of certainty about their identity.
Before you can offer to predetermine the individual’s application, you need to be initially satisfied based on the presented evidence that:
• the identity exists and belongs to a live individual
• the documentary evidence is authentic, valid, untampered and without defect
• the documentary evidence is linked to the individual
• there are no contra-indicators, which would provide you with doubt about the claimed identity
• the document has been compared to independent reference databases, such as PRADO to confirm validity and authenticity
This is to enable you to conduct background identity and suitability checks on individuals to assess whether they pose a risk to our national security and to public safety before deciding the individual’s application. For example, a birth certificate on its own would not normally be sufficient to establish an individual’s identity to a reasonable degree of certainty. While such a document establishes an identity exists, it does not necessarily mean it relates to the individual presenting it or that the individual is alive.
Individuals need to provide you with evidence of their identity that establishes their identity exists and there are no contra-indicators that would question its authenticity, and they are directly linked to the evidence, which cannot be used for anyone else. This is to enable you to conduct background identity and suitability checks on the biographical details the individual provided to assess whether they pose a risk to public safety. In most circumstances this should be a valid travel document unless they have a reasonable excuse for not having one. In such circumstances, they can provide alternative evidence as set out in Immigration Rules 34(5) and 34(6).
Individuals need to provide you with satisfactory evidence of their identity so you can consider their request to predetermine their application, which in most circumstances must include a facial photograph that meets the requirements set out in the biometric enrolment guidance and any other supporting evidence. This is to enable you to identify the individual should they make subsequent requests for assistance or further applications.
In most circumstances, individuals should provide you with a high-quality image of their valid travel document if they have one, such as a passport, to enable you to determine their claimed identity to a satisfactory standard. In circumstances where individuals have reasonable grounds for being unable to submit a travel document, they may provide you with an expired travel document or some other form of identification evidence that establishes their nationality and can be independently verified by a trusted third party. For example, by comparing the document against a known record or template or an internationally available identity documentation image archive or by checking with the national document issuing authority, when it is appropriate to do so.
Where you have predetermined individuals’ applications and you have informed them that their application is likely to be successful, subject to them attending a VAC to provide their biometric information to enable you to complete background checks on them, they need to bring the original documentation they used to support their application to the VAC so that identity checks can be completed alongside any biometric enrolment appointment notification. Completion of biometric enrolments by individuals and background checks on them will allow you to assess whether you are satisfied to a reasonable degree of certainty about their identity and suitability ahead of you deciding whether to grant entry clearance to them before they come to the UK.
[Pages 14-16]
Checking documents
You must follow the guidance provided by the National Document Fraud Unit when assessing the likely authenticity of the identification documents and whether they relate to the individual.
You retain the option to use other means to check the individual’s identity, to enable you to decide whether the individual has satisfactorily established their identity to a reasonable degree of certainty. The individual must be willing to co-operate with any reasonable request you make that could enable them to establish their identity.
[Page 17]
Discussion
16. As can be seen from the final extract of the Unable to Travel policy set out above, there is nothing to preclude the respondent from using other means to check an applicant’s identity. The respondent undoubtedly had the option to request further information, either held by those representing FK or from those who were engaged in considering his ARAP request. However, the issue I must resolve under public law principles is whether the respondent was required to make such enquiries before a rational decision could be reached on the application to predetermine his application for entry clearance. To maintain analytical clarity in the assessment of whether the respondent breached any duty arising under Tameside principles, I will separately consider the two specific enquiries which it is argued the decision-maker was bound to undertake before coming to their decision.
The respondent’s suggested failure to liaise with counterparts at the Ministry of Defence who were engaged in assessing FK’s case under ARAP.
17. Once permission was granted in these proceedings, the respondent obtained and served the rationale which underpinned the MoD administrative review refusal of FK’s ARAP application. Ms Chapman relied on parts of the ARAP reasoning, both here and in the case notes of 15 October 2024, as tending to show the central importance of information which was unlawfully left out of account by the respondent because it was irrationally not requested.
18. In the administrative review refusal of the ARAP application, the following conclusion was reached [at page 199 of the trial bundle] in the context of assessing whether FK provided goods or services in Afghanistan under contract to a UK Government department:
Cross-government checks [not including with the Home Office] were sought which established that while the applicant has demonstrated that he was employed by National Directorate of Security (NDS), and the applicant has provided copies of his NDS photo ID card, weapon access card and a NDS Basic Intelligence course Certificate to demonstrate this claim, there is no evidence to demonstrate the applicant’s role at NDS was contracted by a UK Government Department. Nor does the applicant claim to have been contracted by a UK Government Department to provide services in his role at the NDS. Therefore, the decision maker is not satisfied that the applicant meets the conditions for Condition 1 (ii).
19. This conclusion would appear to have been informed by analysis [at page 216 of the trial bundle] and conclusions [at page 227 of the trial bundle] in the case notes:
Within initial correspondence the applicants representatives claim that he was employed by the Afghan National Directorate of Security (NDS). The applicant has provided an NDS identity card in his name issued on the 9th January 2023 and an NDS Weapons Access card as well as an NDS training certificate. These documents substantiate his employment within the Afghan National Directorate of Security. (See pg’s 1 & 2 letter Bernberg Pierce Solicitors dated 21/06/2023 and NDS identification, weapons access card & training certificate).
[…]
The applicant has provided cogent evidence of his employment within the Afghan Governments NDS in the form of identification, weapons access card and a training certificate which substantiates that employment. (See NDS identification, weapons access card & training certificate). He relies upon this evidence to substantiate his employment within NDS and the documentation is accepted as substantive documentary proof of that employment.
[Page 216]
I have viewed the evidence in support of this application which I have considered in the round and on the balance of probabilities. That careful consideration has lead me to the conclusion that the applicant was employed within the National Directorate of Security but I have found no compelling evidence indicating that whilst within that employment he worked in partnership or closely supporting HM Government agencies or British Forces.
[Page 227]
20. The applicants further relied on Defence ARAP Eligibility Standard Operating Procedures which included photographs of genuine and anonymised NDS-issued identification documents which were consistent with the documents FK had produced in support of his application for predetermination and accepted as genuine by the MoD.
21. Ms Chapman’s case was that it was impossible to see how the respondent could have rejected the reliability of FK’s NDS documents if she had apprised herself of the compelling ARAP material which reached the opposite conclusion. Given the MoD’s expertise in evaluating such evidential matters in the context of ARAP decisions, this was material deserving of great weight in any assessment of whether these documents could be safely relied upon. The reliability of these documents in turn played a critical role in the intimately connected assessment of FK’s identity and meant that the failure to obtain this information from a fellow Government department rendered the respondent’s refusal to predetermine the entry clearance application irrational to the extent that it was founded on FK not having established his identity on the balance of probabilities. For her part, Ms Jackson properly accepted during the hearing that the ARAP material was plainly relevant to the reliability of the NDS documents and, it followed, whether FK had established his identity on the balance of probabilities. However, she forcefully argued that such relevance did not come close to demonstrating that the decision-maker had acted irrationally in not seeking this material before coming to a decision.
22. I readily accept that if the ARAP material, which is now available, had been before the respondent decision-maker, it may well have had a material bearing on whether the NDS documents were reliable and supported FK’s case that he was who he said he was. As Ms Jackson recognised, it would have been entirely open to the respondent’s decision-maker to look to what had been decided in the course of the ARAP process to inform their consideration of the reliability of these documents and the identity question. Equally, as a matter of principle, the respondent decision-maker might have reached a different conclusion on the overall package of evidence before them. This accords with the observations of Underhill LJ at [68] of Balajigari (copied above). Just as in that case, the two decision-makers at the Home Office and the MoD were considering distinct ultimate issues and exercising their respective and differing official powers. Each exercise of judgement may have involved considering the reliability of the same NDS documents, but this should not be confused to mean that they were each deciding the very same ultimate factual questions. Under the Unable to Travel policy, the respondent was required to assess whether FK had established his identity on the balance of probabilities. This is qualitatively different to the primary focus of the ARAP decision which was an assessment of whether FK worked in Afghanistan in a capacity which qualified him to receive assistance and relocation from the UK Government. Additional analytical steps were required by the respondent before the conclusion could be reached that the applicant had shown on the balance of probabilities that he was the person he claimed to be. The ARAP rationale was not, on any sensible analysis, positively determinative of the identity issue for the purposes of the predetermination decision. The reality of the tangential nature of the ARAP decision necessarily weighs against the notion that the respondent was required in law to request it before a rational decision could be reached.
23. Ms Chapman suggested that it was problematic from the perspective of promoting good administration to have different arms of Government coming to different conclusion on the same factual question. I disagree that the Tameside duty, as developed in the authorities over time, demands that enquiries are made between Government departments to bring about entirely harmonious decision-making on each and every facet of multi-faceted decisions directed to different ultimate questions. I could see no support for such a proposition in the authorities. The public law threshold remains that distilled in Plantagenet Alliance as one of rationality and whether the decision-maker adopted an approach which was Wednesbury unreasonable in not making the enquiry which it is said should have been made.
24. In recognition of the way in which the argument unfolded before me at the substantive hearing, I have engaged with the substance of what was decided in the course of the ARAP process, which ultimately went against FK. However, even if I had found that the ARAP decision may have had a decisive bearing on the identity issue decided in the predetermination decision, discipline would be needed to ensure that one did not fall into the analytical trap of assessing the lawfulness of not making an enquiry by evaluating this with reference to what was not obtained. I agree with Ms Jackson that I must exercise caution to consider the legality of what enquiries were and were not made on the strength of the material which was before the decision-maker at the time. In regard to the ARAP process, it was made clear in the entry clearance application that FK’s ARAP request had been refused. While it is now known that there were elements of this decision-making process which might have been relevant and assisted FK in establishing the reliability of the NDS documents, this could only have had any purchase in the context of deciding whether to request this material if the respondent’s decision-maker had speculated that this was so. As far as the respondent was aware, the ARAP application had failed. I am not persuaded that the respondent was required to enquire as to whether any underlying part of that unsuccessful application might have been beneficial to FK in his predetermination request.
25. Contrary to Ms Chapman’s submissions, I am not persuaded that the analysis of the Tameside duty in Balajigari is distinguishable because the Court of Appeal were concerned with the lawfulness of a ‘minded to’ procedure in the context of an allegation of dishonesty. The court were plainly drawing on the distillation of principles of general application taken from Plantagenet Alliance. The court were tasked with deciding an argument squarely founded on the supposed existence of a Tameside duty for the Secretary of State for the Home Department to make enquiries of another Government department. I consider the observations of the court to be of considerable assistance in the resolving the challenge here to the suggested failure of the respondent to make enquiries of the MoD.
The respondent’s suggested failure to ask FK’s representatives to provide the documents referred to in Mr Foxley’s expert report which were noted in the decision to be missing from those submitted in support of the application
26. I can deal with the second suggested breach of the Tameside failure more succinctly. At the outset of the hearing, I asked Ms Chapman if she was aware of any example in the authorities of the Tameside duty to make enquiries being found to take hold in circumstances where the suggested gap in the information considered by the decision-maker was held, and not provided, by the aggrieved applicant. When I returned to the topic at the end of the hearing, Ms Chapman indicated that she had been unable to identify any such examples in the authorities.
27. It would be surprising in the extreme if a public body could be regarded as breaching their public law duty to make enquiries to inform rational decision-making by not requesting, of the legally represented applicants, material which was held on their behalf, but not provided. At the risk of stating the obvious, it would be difficult to come to the conclusion that a decision was founded on public law error because the public body did not ask for something which those who advanced the application appear to have not been minded to provide in support of the applications. There is considerable tension in the notion that material was so important to an exercise of discretionary judgement and yet it was not considered to be so important to be provided by those who at all material times, had this material in their possession. The extremity of the applicants’ position is only made more so when it is considered that the respondent alluded to these gaps in the material provided on the applicants’ behalf in the refusal decisions of December 2024 (see paragraph [4] above) which were later withdrawn upon consideration of pre-action protocol correspondence.
28. The evidence and material referred to by Mr Foxley [at pages 359-360 of the trial bundle] could have easily been provided by the applicant’s representatives if it was believed that consideration of these underlying documents might have assisted their case in establishing identity. That these rudimentary steps were not taken cannot be turned upside down as the platform on which to suggest that the respondent was under a public law duty to ask the applicant’s representatives to fill these gaps in the material they chose to rely upon in making the applications.
Overall Conclusion
29. In assessing the lawfulness of the respondent’s approach to deciding the applications for predetermination, it is important not to lose sight of two important matters which are clear from the Unable to Travel policy guidance. Firstly, it was for the applicants to discharge their burden to establish identity on the balance of probabilities. Secondly, the need to establish identity to the applicable standard is no mere formality but reflects the important policy objectives which underpin the need to obtain biometric information from those seeking to enter the UK. The UK Government is entitled to set the parameters of when this information should be obtained going, as it does, to safeguarding the public interest by ensuring that those entering the UK are identified and identifiable.
30. When I look to the general principles distilled in Plantagenet Alliance, I am left in no doubt that the respondent did not breach any public law duty to make enquiries. It was entirely reasonable of the decision-maker not to indulge in the kind of speculation which might have driven them to ask for the analysis which lay underneath the refusal of FK’s ARAP application. Reminding myself that it is for the public body to decide on the manner and intensity of enquiries, I unhesitatingly conclude that it was not Wednesbury unreasonable for the decision-maker to rely on the broad range of information which was made available without asking for more from the MoD, or indeed from those representing the applicants. Importantly, given the conclusions I have reached above about the relevance of the ARAP material, the fact that it may have assisted the decision-maker in the assessment of the reliability of the NDS documents and, in turn, FK’s identity is not enough to show that it was Wednesbury unreasonable to proceed on the strength of what was then available. The fifth principle from Plantagenet Alliance must be seen in conjunction with the observations made at [139] of that judgment. The challenged decision before me was not a decision which called for a broad consultative exercise. Finally, the scope of the discretion exercised by the respondent in deciding this matter was narrowly confined to the interests of the applicants.
31. Overall, I can discern nothing in the respondent’s conduct in deciding the applications for predetermination which could conceivably offend against the Tameside duty to make enquiries.
32. The respondent argued that even if there was a breach of the Tameside duty, it was immaterial to the overall outcome. Given the conclusion I have reached on the substance of the applicants’ ground of challenge, it is unnecessary to consider the materiality point.
P Lodato
Upper Tribunal Judge Lodato
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