A First-tier Tribunal judge has ruled that five Afghan applicants cannot appeal to the Tribunal against a decision refusing to waive biometric enrolment requirements, finding that the decision did not amount to a refusal of their human-rights claim.
What did the Tribunal decide?
In S & Ors v The Entry Clearance Officer, First-tier Tribunal Judge D Brannan considered whether the Tribunal had jurisdiction to hear appeals by a mother and her four children who were living in Afghanistan and wished to join their UK-based sponsor.
The decision, signed on 15 October 2026 following a hearing at Taylor House on 7 October, concluded that the Entry Clearance Officer’s decision of 14 October 2025 refusing a biometric exemption was not a refusal of the applicants’ entry-clearance applications. The judge therefore upheld the decision not to accept the notices of appeal as valid.
An anonymity order was made because the applicants were said to be a mother and her four children living in Afghanistan, and the Tribunal considered that identifying them could expose them to a risk of harm.
Why was biometric enrolment disputed?
The applicants had applied for entry clearance to the UK on or shortly before 15 April 2025. Their submissions explained their family circumstances, addressed the Immigration Rules and requested an exemption from the English-language requirement. They also indicated that they would seek discretion not to enrol biometrics because they said they could not travel to a third country to do so.
On 23 September 2025, the Entry Clearance Officer invited further evidence and asked whether the applicants wanted their applications to be decided before travelling to a visa application centre, or wanted to be excused from attending a centre before travelling to the UK. Their representatives confirmed that they sought an exemption from pre-travel attendance and said the applicants would be willing to provide biometrics in the UK if their applications were successful.
The applicants relied, among other matters, on Article 8 of the European Convention on Human Rights, arguing that prolonged family separation caused by procedural barriers would interfere disproportionately with their family life. The Entry Clearance Officer refused the biometric exemption on 14 October 2025 and made findings relevant to the human-rights submissions, including questioning the claimed family relationships. The applicants were told they could complete their applications by attending a visa application centre to enrol biometrics within the specified period.
- The applicants’ submissions included a request for discretion over biometric enrolment.
- The Entry Clearance Officer sought further information and clarification about the requested exemption.
- The biometric exemption was refused.
- A Legal Officer initially determined that the appeals were not valid.
- Judge Brannan heard submissions on the Tribunal’s jurisdiction.
- The written decision was signed, upholding the decision not to accept the notices of appeal.
What was the legal issue?
The central question was whether the Entry Clearance Officer’s refusal to exempt the applicants from biometric enrolment constituted a refusal of a human-rights claim that carried a right of appeal under section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002.
The Tribunal considered the statutory definition of a human-rights claim and previous authorities, including MY (refusal of human rights claim) Pakistan and the cases addressing biometric discretion in family-reunion applications. Those authorities distinguish between a substantive decision refusing a human-rights claim and a procedural decision that does not accept or validate an application.
The refusal of a biometric exemption was not the same decision as determining the underlying application for entry clearance.
The judge noted that the biometric regulations allow discretion over whether biometric information is required and the manner in which it is enrolled. The decision-maker must consider relevant human-rights matters when deciding whether an exemption should be granted. However, that consideration does not automatically turn the procedural decision into a substantive refusal of the underlying claim.
Why were the appeals held to be invalid?
Judge Brannan found that the decision of 14 October 2025 required the applicants to enrol their biometrics if they wished to proceed with valid entry-clearance applications. The refusal of the exemption did not itself decide whether the applicants met the Immigration Rules or whether entry clearance should ultimately be granted.
The judge emphasised that the Entry Clearance Officer had not fully considered the merits of the underlying applications. In particular, the decision did not determine whether the Immigration Rules were satisfied. The consideration of the claimed family relationships was relevant to the Article 8 assessment of the biometric-exemption request, but it was not a complete assessment of the entry-clearance applications.
The Tribunal also considered that the applicants could still enrol their biometrics, although they maintained that doing so was impossible. The Entry Clearance Officer had decided that enrolment was possible, and the Tribunal held that it had no jurisdiction to review the refusal of the exemption through these appeals. Following the approach in R (on the application of MRS and FS) v Entry Clearance Officer, the appropriate route to challenge that refusal was judicial review.
| Issue | Tribunal’s finding |
|---|---|
| Human-rights claim | The entry-clearance applications included a human-rights claim. |
| Biometric exemption | The refusal to exempt the applicants from enrolment was not a refusal of the entry-clearance applications. |
| Appeal right | No appealable decision under section 82(1)(b) had been made. |
| Challenge route | The refusal of the biometric exemption could be challenged by judicial review. |
The judge therefore concluded that there was no subsequent appealable decision before the Tribunal and no refusal of a human-rights claim for the purposes of the statutory appeal right.
What does the decision mean for applicants?
The decision highlights the distinction between a refusal to waive a procedural requirement and a substantive refusal of an immigration or human-rights application. Applicants should not assume that every decision involving human-rights considerations creates a right of appeal to the First-tier Tribunal.
For legal representatives, the judgment underlines the importance of identifying precisely what decision has been made, whether the underlying application has been determined, and which legal route is available to challenge the decision. Where the dispute concerns refusal of a biometric exemption before the entry-clearance application has been substantively decided, judicial review may be the appropriate route.
The ruling does not determine whether the five applicants ultimately qualify for entry clearance. The Tribunal’s decision was limited to its jurisdiction to hear the appeals brought against the refusal of the biometric exemption.
Frequently asked questions
Did the Tribunal decide whether the applicants could join their sponsor in the UK?
No. The judge decided only whether the Tribunal had jurisdiction to hear the appeals against the refusal of the biometric exemption. The substantive entry-clearance applications remained undetermined by that decision.
Why were the appeals not accepted?
The refusal to exempt the applicants from biometric enrolment was a procedural decision, not a refusal of their entry-clearance applications or a refusal of a human-rights claim that carried a statutory right of appeal.
What legal route did the judge identify?
The judge said the refusal of the biometric exemption should be challenged by judicial review, as opposed to an appeal to the First-tier Tribunal in these circumstances.
Why was an anonymity order made?
The Tribunal considered that the applicants were a mother and four children living in Afghanistan and that identifying them could expose them to a risk of harm because of their apparent wish to leave the country.