Sonali Naik KC, Maha Sardar and Gráinne Mellon of Garden Court Chambers acted for AB, instructed by Marcela Navarrete of Wilsons LLP.
The High Court has handed down the judgment for AB v SSHD, which was heard before Mrs Justice Lieven. AB was, until the fall of Kabul in August 2021, a female prosecutor in anti-narcotics, anti-corruption and anti-terrorism prosecutions, including of Taliban members. She has a high profile, having prosecuted for twenty years in senior courts in Kabul.
There is strong reason to believe that she is known to the Taliban regime and that she may be at very serious risk from them. She, her three sisters and her mother have been living in hiding in Kabul since August 2021. She seeks to relocate to the UK and join her older brother and younger sister who are British citizens.
In the High Court, counsel for AB argued that she, and other Afghans seeking to relocate to the UK, have been discriminated against pursuant to Article 14 ECHR, by comparison with the treatment of Ukrainian nationals by the SSHD. The Government has provided a safe and legal route to the UK for Ukrainians under the Ukrainian Family Scheme, which does not require the submission of biometric data. AB, and other similarly situated Afghans, are expected to provide biometric data, despite it being unsafe and difficult for them to do so.
Mrs Justice Lieven held that there is differential treatment between Afghans and Ukrainians on the basis of nationality. However, the Court held that this differential treatment was justified as the Defendant should be given a wide margin of appreciation.
While Mrs Justice Lieven did acknowledge that some of the differences between AB and the Ukrainians under the UFS point in the direction of more favourable treatment of AB, the weight of these factors is a matter for the Government.
Although AB was not ultimately successful, this is an important case on discrimination on grounds of nationality. Additionally, the SSHD did accept that she will consider waiving the Claimant’s biometric requirements, and she is in the process of making such a decision.
AB is part of a cohort of Afghan judges, prosecutors and other civilians at risk who have been involved in litigation, seeking to relocate to the UK. The lack of safe and legal routes for Afghans remains a significant issue.
