[2024] UKUT 00236 (IAC)

The rules for the UFS and the HUSS were, at the relevant time (Footnote: ²), set out in Appendix Ukraine Scheme in the Immigration Rules. The appendix sets out the three different routes by which those affected by the conflict in Ukraine could make an application. The relevant parts of the rules for the UFS are as follows:

The rules for the HUSS contain materially similar provisions requiring the Applicant to be ordinarily resident in Ukraine immediately before 1 January 2022 (UKR 16.1) and that the Applicant is a Ukrainian national or part of an immediate family group which includes an immediate family member who is a Ukrainian national (UKR 17.1). There are separate provisions in UKR 15.1 as to the requirement to have an approved HUSS sponsor, which are not in dispute in these proceedings.

The ‘Ukraine Scheme’, version 4, dated 11 March 2022 contains guidance to decision makers in relation to applications under the UFS. In particular, it contains reference to some cases to be referred to an Entry Clearance Manager or Senior Caseworker if the requirements of the rules are not met to allow decisions on a case-by-case basis. An example is in relation to relationships not covered by the scheme, which states:

“Applications received by applicants who do not meet the relationship requirements may be refused. However, caseworkers may apply discretion to accept and consider applications from other family members where they are evidenced and there are exceptional reasons to do so. Caseworkers should take a pragmatic approach and consider the applicant’s circumstances as well as what meaningful connection the applicant has to their immediate family unit, their sponsor and the UK. A case may be exceptional where, for example, the decision to refuse would mean separating an individual from their long-term family unit. An applicant should provide evidence of their situation where possible, and all decisions should be made on a case-by-case basis.”

There is similar reference under the heading of ‘Nationality and mixed families’ with provision to refer the case where a Ukrainian national resident in the UK is the sponsor and no immediate family members are Ukrainian but are ordinarily resident in Ukraine.

An updated version of the policy, now called the ‘Ukraine Family Scheme’, version 5, was published on 7 December 2023. This contains materially identical provision to that set out above as to relationships not covered by the scheme (with minor changes to the wording only). In relation to nationality, the policy now states:

“Nationality and mixed families

…

Where a Ukrainian national resident in the UK is the sponsor and none of their immediate family members are Ukrainian (for example the partner and child are both Indian) but are ordinarily resident in Ukraine, they do not qualify under the Ukraine Family Scheme and you should consider the application with the information available.

Other non-Ukrainian nationals

Unless they meet the relationship requirements set out above non-Ukrainian nationals who are or were ordinarily resident in Ukraine who have family members in the UK do not qualify under the scheme. For example, a Nigerian national who was studying in Ukraine, and has family members who are in the UK, even if the family members are British or settled, would not qualify under the Ukraine Family Scheme.

Individuals who wish to join family members who are British or settled in the UK may be eligible to apply to enter the UK under the family Immigration Rules.”

In a witness statement for these proceedings, David Ramsbotham, a civil servant at the Home Office, stated that the UFS was launched on 4 March 2022, initially as a concession to the Immigration Rules. Mr Ramsbotham explains that following the Russian invasion of Ukraine, the United Kingdom Government’s first priority was to protect British citizens living in Ukraine and to facilitate their departure. As British citizens were understandably reluctant to leave without their family members, a concession to the Immigration Rules was made to ensure that the usual requirements for bringing in family members (paying an application fee, meeting minimum income and language requirements) did not act as a barrier to getting them to safety quickly. The scheme was extended to Ukrainian nationals whose eligible family member was resident in the United Kingdom at the time of the Russian invasion, and a broad definition of family members was adopted. The rationale for the broad definition– to include siblings, adult children, aunts, uncles, nieces, nephews and in-laws – was to keep families together and ensure that as many as possible were able to get to safety as quickly as possible in the context of the invasion.

An Equality Impact Assessment dated 2 March 2022 set out the justification for the scheme as follows:

“The policy rationale is set out above and is intended to take a flexible approach to an ongoing conflict. The aim is to benefit the family members of British nationals and settled persons whose situation is such that there is a genuine and imminent threat to life. We will monitor the situation closely and adapt our approach accordingly.

This scheme gives rise to direct discrimination on the basis of race (nationality), as it is being implemented in favour of Ukrainian nationals. The scheme can be objectively justified as it aims to support those applicants who are significantly impacted by a rapidly deteriorating situation in Ukraine. This includes the risk of military incursion, war and air strikes; the potential for cyber-attacks affecting applications for visas or passports made online; and the need to facilitate rapid travel out of Ukraine, for safety and security reasons.

Potential applicants for a visa may need to change their plans very quickly and have had little notice. They may therefore have difficulty demonstrating they meet all the requirements of the Family rules, or have time to apply for or qualify for a fee waiver.

The non-application of this scheme to individuals in other countries experiencing conflict is justified owing to the exceptional and unique circumstances in Ukraine, and the need for dependants to leave the country quickly and safely.”

The Equality Impact Assessment pointed out that, pending the scheme being set out in the Immigration Rules, there would be need to be a Ministerial Authorisation for the direct race discrimination under paragraph 17(4) of Schedule 3 to the Equality Act 2010. It was stated that:

“The direct discrimination which arises on the basis of race (nationality) because of this scheme will be authorised in the rules, and under an MA until the rules are laid on 15 March 2022. The underlying rationale for discriminating on the basis of race is to support Ukrainian nationals who are significantly impacted by the rapidly deteriorating security situation in Ukraine and have a connection to someone settled in the UK.

The non-application of this scheme to individuals in other countries experiencing conflict is justified owing to the exceptional and unique circumstances in Ukraine, and the need for dependants to leave the country quickly and safely. The non-application of this scheme to non-Ukrainian nationals who are resident in Ukraine (unless they have a Ukrainian family member) is considered to be justified and proportionate as it is anticipated they would be able to travel to a safe third country.

The scheme has been introduced in response to the exceptional and unique circumstances in Ukraine. Unlike other conflicts, the closer proximity of Ukraine and the UK’s diplomatic links and foreign policy objectives mean the interests of the UK are more directly and specifically impacted than in other conflicts in other parts of the world. The role of the UK and our NATO partners, including the stance taken on the right for Ukraine to choose to pursue joining NATO and the practical support provided for defensive preparations, are key factors in the escalating situation. The particular risks posed by Russia, including hostile-state threats, have also been factored into our assessment. We will monitor the situation closely and adapt our approach accordingly.”

In a Ministerial Submission dated 24 March 2022, the Secretary of State and the Minister for Safe and Legal Migration were informed that there were 1190 cases under the UFS which did not fall to be granted under the scheme or had individual complexities, and there was a need to agree an approach to these cases. The cases included 118 Third Country Nationals (“TCNs”) who potentially could return to their home country, and 71 TCNs who could not. The recommended approach for the former was to refuse their applications; and for the latter their cases should continue to be deferred pending further advice. With respect to the latter, the submission noted that “These applicants are primarily from Afghanistan, and many of them appear to have been evacuated to Ukraine from Afghanistan during 2021. We therefore believe that an outright refusal, as with [TCNs who could return to their home country], is not the appropriate approach and more support for next steps might be needed.”

The Minister for Safe and Legal Migration expressed a willingness to grant leave under the UFS in cases where was clear evidence that the TCN was previously resident in Ukraine and was the immediate family member (spouse, civil partner, durable partner, under 18 child or parent of a child aged under 18) of a person settled in the United Kingdom (or with limited humanitarian leave or pre-settled status under the EU Settlement Scheme). That is, the Minister was suggesting that there would need to be a closer family link between the TCN and the family member in the United Kingdom, as compared to the Ukrainian national who was applying under the UFS.

In a further Ministerial Submission dated 14 April 2022, officials noted that there were now approximately 2000 applications under the Ukraine schemes from TCNs which did not fall to be granted. Officials’ advice was that there were significant reasons for not including the TCN cases identified by the Minister in the Ukraine Schemes:

“A deliberate component of both these Schemes is that they have a nationality requirement whereby the applicant must either be Ukrainian or part of a family group of which at least one member is Ukrainian and qualifies under the Schemes. This is because the Schemes were established primarily to provide Ukrainians, displaced from their country and unable to return, a safe place to reside. TCNs in Ukraine, who have the option to return to their home country, are in a fundamentally different position.”

It was explained that the Ukraine Schemes were designed to be light touch, and the operational processes and resources had been tailored for this. If TCNs were allowed access to the Ukraine Schemes it was expected that they would receive large volumes of applications from TCNs who may never have been in Ukraine, or were not in Ukraine immediately before 1 January 2022, but seek to take advantage of the more relaxed evidential requirements. Having more cases to process would undermine the ability to process quickly cases from genuine Ukrainian family groups. It was not considered possible to apply the generous evidential flexibility policy to Ukrainians only, and applying a stricter standard for everyone would slow down caseworking and penalise genuine applicants who may have difficulty accessing the required evidence. A particular feature of the Ukraine Schemes was that they were free of fees: officials considered that this could be attractive to TCNs to make human rights and other protection-based claims, instead of using the family migration or refugee family reunion routes. There was also concern that extending the scheme to TCNs would run the risk of making the Ukraine Schemes

“a precedent for humanitarian visas on a larger scale, such as being open without reference to nationality or the specific nature of the conflict involved. Calls for the Home Office to do this are already made on a regular basis, so any move perceived to be acknowledging the need for such routes is likely to add to that pressure. If our long-term position is that we want our response to be specific to the nature of the conflict involved then it is worth preserving the shape of the Ukraine Scheme as set out.”

The TCNs who were unable to return were specifically referred to. Officials understood that there were currently 353 of these, and these were from Afghanistan. It was recommended that these individuals “should avail themselves of the arrangements that exist in the safe European country in which they are residing after leaving Ukraine. These arrangements will either be under the Temporary Protection Directive, which caters for stateless persons and holders of refugee status, or the asylum system of that country. Countries can include TCNs in their temporary protection offer and some already have”. Officials also stated that:

“We do not think it would be desirable to consider the inability of a person to return as part of an application to the Ukraine Schemes. If we accepted there was a protection need to be considered, this is highly likely to be viewed as accepting an asylum claim from overseas. The Home Office has a clear and long running position that this is not an option available to people wishing to claim asylum or humanitarian protection

Were we to consider such matters through the schemes it would be difficult to maintain our policy position that they are … not Human Rights-based routes attracting a right of appeal. We have specifically designed these schemes not to be a legal protection routes and those successful are not given refugee status, humanitarian protection or indefinite leave to remain. If the schemes attract a right of appeal, the judiciary will be entitled [to] consider the human rights and/or protection elements of a claim in addition to the core components of the scheme e.g. eligibility and suitability requirements. We may come under pressure to consider our wider position on Ukrainians who are currently given three years leave to remain and provide refugee or humanitarian protection status as an alternative, although this risk is mitigated by the generous provision within the schemes including the right to work and access benefits.

The current casework resource allocated to the schemes is not equipped to deal with protection type issues. We would need to redeploy appropriate resource from elsewhere in the system to consider a person’s ability to return. Having to consider a claimed protection need would also significantly slow down application processing, at a time when we are under external pressure to increase our speed of processing.”

(Emphasis in original). The submission also repeated the earlier advice that cases with particularly compelling, compassionate or exceptional circumstances would be considered for leave outside of the rules.

The Minister for Safe and Legal Migration and the Secretary of State agreed with the recommendation from officials to refuse applications from TCN applicants who cannot return to their country of nationality but are currently in a safe country. The Minister and the Secretary of State did not agree, however, that not opening the scheme to TCNs resident in Ukraine immediately before 1 January 2022, except where they were in a family group of which at least one member is Ukrainian and qualifies under the Schemes, was necessary to maintain the key policy aims. The observations of the Minister for Safe and Legal Migration were reported as follows:

“ Minister Foster does not agree with the premise of the second paragraph which underpins this sub; that TCNs in Ukraine, who have the option to return to their home country, are in a fundamentally different position to those with UKR nationality or part of a family group with one member who qualifies for the schemes.

o Minister Foster comments that this argument does not hold up if the person concerned has been forced to leave their home due to the war and the (very close) family to reside with is in the UK.

o Some may not have an easy option to return and the core reason for launching this scheme was impact on the ground, not just nationality, hence our residence requirement.

o Minister Foster would draw this tightly to immediate family, to prevent abuse and apply to UFS only. Not doing this will see some harsh outcomes where someone with parents/partner in the UK is perceived as being simply sent on their way.

 On paragraph three (our ability to prove or disprove residence and our limited capacity to do so, thus slowing down case working) Minister Foster comments this risk is present already and only a certain number of applications received. We can ask for additional evidence for TCNs where necessary to prevent abuse, which few would argue with.

 LOTR Policy (paras 5-10) Minister comments that these arguments are ones which go against the routes as a whole and he is concerned with the recommended approach.

o The Minister notes it is the specific circumstances which justify the route and a potential approach to it plus, like with covid concessions, we can remove aspects of our provisions as the circumstances change, e.g., remove provision for TCNs or increase requirements for evidence of residence in UKR as the schemes gets more established and the WIP reduces.

 Minister Foster does agree we should now proceed to refuse applications made to the Ukraine Schemes by TCNs who claim to be unable to return to their country of nationality (para 14).

o He comments unless there is a close family link which is basis of the UFS, then the right approach is for them to seek sanctuary in the safe and democratic country they are in.”

In other words, the Minister for Safe and Legal Migration was suggesting that TCNs – including those who could not return to their country of nationality – with close family links to someone in the United Kingdom might be accommodated within the Ukraine Schemes without undermining their rationale.

Further advice was provided on 6 May 2022. This maintained the position previously expressed by officials, recommending that TCNs with no immediate or extended Ukrainian family members should be excluded from the scope of the UFS. It was said to be “problematic to make TCNs eligible for the scheme whilst restricting that eligibility to immediate family members, when Ukrainian nationals can rely on extended family members” (emphasis in the original). It was considered to be “difficult to argue that a TCN extended family member of a UK-based sponsor is in a different position to a Ukrainian extended family member of a UK-based sponsor and should return to their country of nationality (or safe third country) but an immediate family member could not”. The officials stated that:

“If the intention behind the scheme is to protect those resident in Ukraine with family links to the UK, and that this applies as much to TCNs as to Ukrainians, there is no clear justification in treating TCNs more harshly by limiting the scope of eligible relationships to immediate family members of UK-based sponsors. Therefore, we think the rational choice is between continuing to exclude TCNs from the scheme (except where they have a Ukrainian family member who qualifies) or including TCNs with extended family members in the UK”.

(Emphasis in the original).

The risks and impacts were described as follows:

“Including TCNs with extended family members in the UK within the scope of UFS could significantly increase the total numbers eligible, which would have an impact on public funds and services. All successful applicants are granted full access to benefits and housing support and we are already under pressure from other departments such as the Department for Levelling Up, Housing and Communities (DLUHC) and local authorities given the unfunded pressures the volumes already in the scheme are creating. Any expansion to the scheme would likely require cross government agreement which would not be guaranteed.

There is a risk that opening up the Scheme to TCNs might generate potentially abusive applications from people who were not resident in Ukraine. Given this, and the relatively light touch approach to evidential requirements for Ukrainians under the Scheme, you have indicated you may be minded to operate a different approach to evidential flexibility to TCN applications. We have very little rationale or evidence base for doing so at this stage. Caseworkers would still be able to request further evidence where there are concerns (including of residence in Ukraine prior to the 1 January 2022 cut off). Caseworkers would be more likely to do this where a person is unable to show any links to Ukraine, such as a Ukraine Passport. As such we do not believe we would derive significant benefit from a differential approach.

If we were to operate two different policies on evidential flexibility, it is likely to constitute direct discrimination on the basis of nationality (in favour of Ukrainian nationals) and would need to be authorised. Any authorisation can be challenged on public law grounds, and we would need to ensure there was an adequate evidence base to support the authorisation. As the current policy already allows further checks to be completed, we do not consider there would be a strong rationale for taking a different approach.

We would recommend operating a consistent evidential flexibility policy across the scheme which would mean either offering the same light touch approach to TCNs (with the consequent risk of applicants abusing the light touch approach being granted) or introducing a more stringent approach to counter that risk (with the knock on impact on genuine Ukrainian applicants being asked to produce more documentary evidence than has previously been the case, and potentially more refusals on the basis of an absence of evidence).

Given the potential adverse impacts on already-stretched public services and potential for abusive applications, our recommendation remains to not include TCNs in the UFS (except where they are the family members of Ukrainians who qualify). This is in line with the Rules as currently in operation, with discretion available to caseworkers to grant outside the Rules in exceptional circumstances.”

In his witness statement, Mr Ramsbotham also explained that there was and is a legitimate public interest in ensuring that those granted temporary admission to the United Kingdom could be required to return to Ukraine once it was safe and their right to remain expires. It was unclear whether non-Ukrainian nationals would be permitted to return to Ukraine, or could be subject to removal from Ukraine if returned. The stated Ukrainian Government policy was for there to be a temporary extension of their visas, but this was not guaranteed and would be time-limited. Non-Ukrainian nationals could therefore be placed in the undesirable position of being unable to return to the Ukraine and also unable to meet the criteria to remain in the United Kingdom.

Mr Ramsbotham also described the difficulties in obtaining evidence about residence. He stated that the Secretary of State could not confirm residency of an individual in Ukraine. There were difficulties with the publicly available Ukrainian checking service and a new process from the Ukrainian authorities might not be forthcoming given their other priorities. A light touch approach had been applied to evidencing residency immediately before 1 January 2022 and this made sense for the vast majority of Ukrainians. For TCNs, however, the risk of false residence claims would be greater. This would necessitate additional casework scrutiny and credibility assessments. This would not be proportionate when considering the aims of the Ukraine Schemes, and given that there are alternative schemes for those fleeing from Afghanistan, and the ability for TCNs unable to return to seek asylum in safe third countries accessible from Ukraine.