The Upper Tribunal has found the guidance to be used those who cannot travel to enrol their biometrics because it is unsafe to be unlawful. The individual refusal decisions were also quashed. The linked cases are RM and others v Secretary of State for the Home Department JR-2024-LON-000082 and WM and others v Secretary of State for the Home Department JR-2024-LON-000128. Due to the urgency of the situation, an oral decision was given on 7 March 2024 allowing the applicants’ claim, with this full written decision following later.

Background

As part of the application process for any UK visa, a person is generally required to enrol their biometrics. This requirement was temporarily lifted for Ukrainians after the Russian invasion, allowing them to enrol biometrics after arrival in the UK. As was the case with Afghanistan, no such provision has been made for those trying to flee Gaza, who have instead been told to rely on the “Unable to travel to a Visa Application Centre to enrol biometrics (overseas applications)” guidance. That guidance was put in place following litigation relating to Afghan cases.

A successful outcome under that guidance is either be a “biometric excuse” where biometric enrolment is deferred until after the individual has been granted entry clearance and arrived in the UK or “predetermination” which is a decision in principle following which biometrics must be enrolled and security checks carried out before entry clearance is formally granted.

Previously, version two of the guidance set out the four criteria that must be met as follows:

1. Individuals must satisfy a decision maker about their identity to a reasonable degree of certainty before coming to the UK.
2. They must provide evidence they need to make an urgent journey to a VAC that would be particularly unsafe for them 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 must demonstrate their circumstances are so compelling as to make them exceptional. which go beyond simply joining relatives who are living in the UK, 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 must confirm they are able to travel to any VAC if they want their application to be predetermined, or where they are requesting decision makers to excuse them from the requirement to attend a VAC to enrol their biometrics, they need to explain why they cannot attend any VAC, but are able to travel to the UK.

The applicants in this case were in Gaza, where there is no functioning visa application centre. They were unable to travel out of Gaza to go to a centre in another country.

Most of the applicants are children.

RM and others

In the case of RM and others, the applicants are a husband, wife and their two children aged 13 and 17. The family is internally displaced within Gaza after their home was damaged at the beginning of the conflict. They are staying in an overcrowded apartment in southern Gaza. The area has been heavily targeted by tanks and airstrikes and they lack food, clean water and medical treatment. Many of their friends have been killed and injured, including the schoolfriends of one of the children.

The family is traumatised and suffering from acute mental distress, with one child being suicidal and the other unable to speak more than a few words. They applied to come to the UK to join their daughter (the sponsor) who arrived in the UK on 5 October 2023 and has leave in the Global Talent Migrant route. The sponsor has developed post-traumatic stress disorder, severe major depressive disorder and suffers from severe anxiety and panic attacks. Her daily functioning is described as “severely impaired” due to the situation in Gaza, which has included the killing of her best friend and her entire family.

The application was made on 14 November 2023 on the form for family reunion applications made under Appendix Family Reunion (Protection) but expressly stated that the applications were being made outside the immigration rules. It was explained that this form was the closest to the applicants’ circumstances as they could not meet the requirements for dependents in the Global Talent route. It was also submitted that the sponsor was a sur place refugee (meaning that she had become a refugee while in the UK, in this case as a result of UNRWA’s inability to continue providing protection and assistance to Palestinian refugees such as the sponsor, for more see our briefing on this).

RM herself had previously visited the UK in 2022 and had provided her biometrics then. A request was made for RM’s biometrics to be reused, and for the others for their applications to be decided without the need to enrol biometrics first as provided for in the guidance.

A request for urgent consideration and a decision within seven days was made on 15 November 2023. On 22 December 2023 the Home Secretary refused to consider the applications without the enrolment of biometrics and said that the application had been made on the wrong form as the sponsor did not hold refugee status. The application was rejected as invalid. The applicants were told to apply under the Global Talent route.

The Home Secretary also found there was a lack of objective evidence to show that the appellants would personally be at risk of harm in Gaza and that their circumstances were not different to other people living there. Even in the event of a positive decision, the Home Secretary said there was no reasonable prospect of the applicants being able to leave Gaza, which meant that there would not be an interference with the sponsor’s article 8 right to family life.

The request that RM’s biometrics be reused was refused on the basis that she had not been issued with a biometric residence permit and that visitor visas are not eligible for biometric reuse. The judicial review application was lodged on 18 January 2024 and permission was granted on 8 February 2024.

WM and others

The applicants in this judicial review were a mother and her four children aged between three and nine years old. They applied on 1 December 2023 to join the mother’s brother (the sponsor) who is a British citizen living in the UK, using the same process as RM and others and again asking for their cases to be considered without the need for biometric enrolment first.

These applicants have been internally displaced twice within Gaza and are currently in Rafah. They have the additional danger of being faced with domestic violence from WM’s husband, the children’s father. The sponsor has been assessed as having moderately severe depression, survivor guilt and severe anxiety due to the situation in Gaza.

A judicial review application was lodged on 21 December 2023 challenging the delay in making a decision. The Home Secretary then decided the application on 5 January 2024. The application was rejected on the basis that they had not used the application form closest to their circumstances which in this case was Appendix FM. The judicial review challenging that decision was lodged on 23 January 2024 and permission was granted on 8 February 2024. On 9 February 2024 the Home Secretary issued a further decision rejecting the request for a decision in principle and deferral of biometric enrolment.

With reference to the guidance, the decision stated that the applicants’ identities had been accepted but that the applicants would be unable to leave Gaza even with a decision in principle. On the domestic violence point, the refusal letter said that there was no evidence that the children were at risk nor whether they had tried to live with other family members.

The sponsor’s mental health issues were also dismissed as there was no evidence that he was at risk of suicide and he could access medical care in the UK. The same arguments were made as for RM in that the applicants’ circumstances were no different to others in Gaza and the article 8 claim was rejected for the same reason. In addition, the letter said that RM had other adult siblings in Gaza who could provide support and the sponsor had his own family in the UK.

The judicial review

Both judicial reviews challenged the unsafe journeys biometric guidance in addition to the individual decisions. At paragraph 85 the tribunal said:

We do however acknowledge that the Unsafe Journeys guidance requires evidence that a person faces dangers beyond the current situation in their location and along the route they would need to travel. The reason for such a comparison is however entirely unclear. If a journey is unsafe, as it rationally is on the basis of cogent background evidence as to the current conditions in Gaza, why would it need to be more unsafe for some than others, particularly in light of the other conditions set out not only for the unsafe journey criteria but in combination with the other three conditions as well?

The tribunal rejected the concerns of the Home Secretary that without this requirement everyone in Gaza could meet the criteria, as there were still three other criteria to meet and the guidance is only realistically applicable to people with family in the UK close enough to engage article 8.

The tribunal found that (at paragraph 90):

that the requirement for an individual to provide evidence that they “face dangers beyond the current situation that exist” amounts to a limitation that only applicants with extraordinary, and therefore rare, unique or unusual circumstances can succeed. For the reasons set out in R (on the application of MRS and FS) v Entry Clearance Officer (Biometrics – entry clearance – Article 8) [2023] UKUT 00085 (IAC), that is incompatible with Article 8 and goes beyond an individual assessment of a person’s circumstances.

Evidence disclosed by the Home Secretary during the claim was that only 130 applications (comprising 16 families) for family reunion had been received. Of those, two applicants had since died and 11 had withdrawn their applications. The tribunal found that this would not be a significant burden on the Home Office (paragraph 99).

Outcomes

The tribunal allowed the challenges to the individual decisions, as well as to version one and two of the guidance.

RM and others

The tribunal made the following order in relation to the guidance:

In so far as the “Unable to travel to a Visa Application Centre to enrol biometrics (overseas application)” guidance version 1, dated 3 May 2023 requires ‘evidence that a person faces dangers beyond the current situation in their location and along the route they need to travel’ that is declared to be contrary to Article 8 of the European Convention on Human Rights.

The Upper Tribunal refused to grant the Home Secretary permission to appeal to the Court of Appeal, which he sought on four grounds. The Upper Tribunal said that all of the grounds were “unarguable”, saying that “this is one of those rare cases in which the evidence only rationally permitted of one answer when applying the relevant guidance lawfully”. The application may well be renewed directly to the Court of Appeal.

WM and others

The same order was made in relation to finding version one of the guidance to be unlawful, but this decision also made an order relating to version two of the guidance:

In so far as the “Unable to travel to a Visa Application Centre to enrol biometrics (overseas application)” guidance version 2, dated 8 February 2024 requires, (i) ‘evidence that a person faces dangers beyond the current situation in their location and along the route they need to travel’; ; (ii) ‘circumstances unique to the individual and not related to the general conditions in the country in which they are resident’; (iii) ‘that they would personally face an immediate and real risk of significant injury or harm because of personal circumstances that are unique to them when compared to the circumstances faced by the general population’; and (iv) ‘that they would personally be at risk of harm which is separate to the level of risk faced by the wider population’; are declared to be contrary to Article 8 of the European Convention on Human Rights.

As in RM, the Home Secretary sought and was refused permission to appeal to the Court of Appeal.

Guidance changes and further litigation

Following this decision, version 2 of the guidance was withdrawn on 3 May 2024 and interim guidance “Unable to travel to a Visa Application Centre to enrol biometrics (overseas applications) (Interim) Version 3.0” was published. A comparison of the two versions can be found here. The second criterion has been amended to remove the words “would be particularly [unsafe] for them”. The government has recently declined to give an indication as to when new guidance will be published.

The guidance is still problematic in other ways and so Safe Passage, represented by the Migrants’ Law Project at Asylum Aid, sent a pre action letter before publication of the interim guidance, challenging version 2 as well as the Biometric enrolment: policy guidance, version 10.0. The main points raised were:

1. The guidance as a whole is overly restrictive and misleading in relation to the application of Article 8 and it fails to set out that the best interests of children must be a primary consideration.
2. The need to make subsequential requests for biometric excuse and pre-determination creates irrational delays and undermines the purpose of the policy.
3. Specifically excluding pre-determinations from being used to facilitate travel is irrational and incompatible with Article 8 particularly where a predetermination would facilitate access to the SSHD’s own EC processes.
4. Directing decision makers to reject applications outside the rules if not made “on the closest form” is unreasonable and irrational.

Safe Passage are yet to receive a substantive response to the letter. It remains to be seen whether these issues will be addressed when the new guidance is published, if not then we can no doubt expect further litigation on this point.

Conclusion

The term “safe and legal routes” has never felt more meaningless than it does at the moment. The UK is offering essentially nothing in the way of assistance to these people, who are struggling to survive in the most horrific of circumstances.

With thanks to Caterina Franchi at Safe Passage for her input regarding their pre action letter.