Briefing: how to apply for a predetermination or biometric excuse

This article explains how to make a successful application for a predetermination or biometric excuse where a person has applied for entry clearance to the UK but the journey to a visa application centre to enrol their biometrics is considered dangerous.

Biometric predetermination means that an applicant wants a decision on their visa application before making a dangerous journey to a visa application centre. It means they intend to enrol their biometrics before travelling to the UK.

Biometric excuse means that an applicant wants a decision on their visa application before they enter the UK, without enrolling their biometrics at a visa application centre beforehand.

Excuse has a higher threshold to satisfy to reflect the security concerns around allowing someone to enter the UK without being able to fully conduct thorough security checks. Where a person has asked for excuse but does not meet the threshold, or where the Home Office believes predetermination would mitigate the risks involved with travel, predetermination will be considered.

This article is written for applicants as well as for lawyers and advisors who may be assisting them.

Policy

The current policy, initially published in May 2023 and now on its fourth version, was introduced following two judgments.

The first was R (on the application of SGW) v Secretary of State for the Home Department (Biometrics – family reunion policy) [2022] UKUT 15 (IAC) which found the refugee family reunion guidance was unlawful because it failed to describe the secretary of state’s legal discretion to waive the biometric enrolment requirement. The case concerned an Eritrean minor residing in Libya who sought to join their brother who had refugee status in the UK. The second judgement is R (KA and others) v Secretary of State for the Home Department [2022] EWHC 2473 (Admin). A write up on the case can be found here.

The policy was amended following the linked cases of 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, a summary of which can be found here.

Key guidance 

As well as the guidance, advisors and applicants should also be aware of various other sources of published guidance including Family life and exceptional circumstances: caseworker guidance and country policy and information notes.

There are also two further policies regarding the predetermining or excusing of biometrics in specific circumstances. The first is the Biometric enrolment: policy guidance in relation to medical cases where:

a person would be physically unable to enrol their biometrics…such as a medical emergency ‘stretcher cases’ where the person is coming to the UK for urgent life saving medical treatment.

The second is the Home Office Gaza Process for Gaza Scholarship Students and those to be evacuated under HMG Gaza Medevac.

Procedure

The applicant must first submit an online visa application form. If the applicant overseas is intending to join their spouse or parent in the UK who has protection status, due to the pause of the Refugee Family Reunion route, they will be expected to apply under Appendix FM. There is a useful explainer of this route here and also an article looking at how to show exceptional circumstances where the English, financial and accommodation requirements are not met. The biometric predetermination/excuse policy states:

Ordinarily, you should not consider a request to predetermine an application or excuse individuals from the requirement to attend a VAC to enrol their biometric information if the appropriate online application for the type of permission being sought has not been completed, along with any relevant fees for the application being properly and correctly paid.

Where an applicant is applying for leave outside the rules, the policy states they should apply using the closest form. The Home Office’s Leave Outside the Rules policy explains:

For example, if the applicant’s primary purpose is to work in the UK, then they should apply through a Work route. Applicants whose primary purpose is to study in the UK should apply through a Student route. If the applicant’s primary purpose is to join family in the UK, then they should apply through the relevant family route, such as the parent, partner and child routes within Appendix FM.

In the linked cases of 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, the Upper Tribunal considered whether it was appropriate to reject an application for an individual in Gaza on the basis that their sponsor was on the Global Talent route and they had applied under Appendix Refugee Family Reunion: 

188. …there was at the time of the applications made, no guidance as to what the most appropriate form may be.”

189. … the circumstances of the Applicants were such that they were making very urgent applications in the most difficult circumstances, where conditions in Gaza are such that access to communication, including internet connection and power is very limited alongside the daily difficulties in accessing basic necessities and remaining safe in an active conflict zone. These are matters which are relevant to the reasonableness of requiring a particular form to be used…

190. Thirdly, in the case of RM and others, the alternative form said to be more appropriate (for Global Talent Migrant dependents) was one which did not permit of any clear discretion outside of the Immigration Rules on Article 8 grounds; nor was there any option of a fee waiver; nor was there any human rights decision or appeal against the refusal of the same available. Procedurally, at first sight, it looks far less appropriate than the form used by the Applicants in RM and others

Furthermore, the Secretary of State’s representative told the Court of Appeal in S & Anor v SSHD [2022] EWCA Civ 1092 that:

[14]…it was in truth a matter of indifference which online route the applicant selected as most closely matching their circumstances. By definition many of the boxes in the form would be inappropriate to the basis on which they were seeking leave, which they would be expected to explain in the “additional information” box. She told us on instructions that in practice applications would not be rejected on the basis only that a form more closely matching their circumstances could have been chosen.

If the applicant is making an application outside the rules, representations should be made as to why the route chosen is the closest route to the applicant’s circumstances and quote the biometric predetermination/excuse policy where it states:

You should not reject a request for a predetermination or biometric excuse solely because the individual has not used a form closest to their circumstances or paid the wrong fee. You must assess each case on its merits, taking account of the individual’s circumstances.

On opening an application online, the applicant is requested to state what country they will enrol their biometrics in. The policy states that the applicant should select to enrol their biometrics:

• in a country from where they would normally expect to commence their journey to the UK

• in or able to travel through a location that has a VAC, which they can attend before travelling onwards to the UK

• in a location that does not have a VAC – in which case, they should select the VAC that is closest to their current location even if they consider they cannot enrol their biometrics at that or any other location 

Once the application is submitted, the applicant must request predetermination/excuse through the online UKVI Contact centre which costs £2.74. You can use one form for a more than one applicant if it is for a family unit. Provide the applicant(s) GWF numbers, names, dates of birth and where they are residing and briefly explain they are requesting biometric predetermination/excuse. Expect some back and forth with the UKVI contact team over email. They will then send the correct email address to send the supporting evidence and submissions to which is the decision-making team for that visa route. You are normally given ten days.

The policy criteria for biometric predetermination and excuse

Establishing identity

The first criterion is that the decision maker must be satisfied of the applicant’s identity. The threshold for excuse is higher than predetermination. With predetermination, the test is the civil standard ‘on the balance of probabilities’. The test for excuse is ‘to a reasonable degree of certainty’. In relation to predetermination, the policy states the following would normally be required to evidence identity:

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.

In practice this means that UNCHR and national asylum registration certificates should suffice as well as national ID cards and passports.

The writer has had predetermination granted by the Home Office for minors using birth certificates where photo ID was unavailable and unobtainable.

In relation to biometric excuse, due to the higher standard of proof, to meet this criterion a person will normally have to provide a high quality scanned image of their passport or travel document. The policy specifically states:

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.

If excuse is required and the applicant does not have a passport or travel document, a detailed explanation of why it is unavailable and unobtainable is required, ideally supported by evidence such as country reports or attempts to obtain one. It may also be worthwhile to remind the decision maker of immigration rule 34(5)(c) which waives the requirement to provide identity where:

(ii) the applicant’s passport, nationality identity card or travel document has been permanently lost or stolen and there is no functioning national government to issue a replacement; 

…

(vii) proof of identity is not needed where the applicant provides a good reason beyond their control why they cannot provide proof of their identity.

Unsafe journey

The second criterion is the same for predetermination and excuse. The applicant must satisfy the decision maker that the journey required to travel to a visa application centre is unsafe. The policy states that:

As a general rule, individuals must demonstrate that their planned journey to a VAC means they:

• need to travel urgently

• are in an area that is demonstrably unsafe because:
  – it has become unsafe to travel from or through following a catastrophic natural disaster
  – they are in a location where there is an ongoing conflict that affects any journey to a VAC
  – the way of travelling to any VAC is through an area of conflict and there are no alternative, safer options available to them

• there is no alternative option for them to travel to a VAC safely to enable them to provide their biometric information, regardless of the costs or inconvenience to them

• would face an immediate and real risk of harm if they attempt to travel to any VAC, but are able to travel to a VAC

In order to assess whether a journey is unsafe, the decision maker will need to consider both objective factors, such as country information regarding where the applicant lives and the areas they would need to travel through to get to a visa application centre, as well as subjective factors about the applicant that make it unsafe. In particular they will consider any protected characteristics (age, gender, religion, disability, etc), the best interests of any children and the profile of the applicant.

Circumstances of the sponsor and applicant

The next stage of the criteria is to consider the circumstances of the applicant and sponsor. This is essentially an Article 8 ECHR assessment. The policy states that in ‘most circumstances’ the applicant must be applying to join a direct family member (who is British, settled or has protection status) and their journey cannot wait. They will normally need to show dependency between the sponsor and application, and consider the best interests of any children involved.

The policy also requires that:

Individuals need to provide you with a satisfactory explanation of why they cannot wait until their circumstances have changed before they attempt to travel to a VAC.

Examples given by the policy of where the sponsor’s situation would meet the criterion are:

• individuals who need to provide urgent care to their sponsor, because of the sponsor having an acute disability or significant illness

• the need to care for their sponsor’s young children in the UK who have an acute disability or significant illness, because no other support, including emotional support, is available to the sponsor or their children via governmental grants, charitable organisations or from other relatives in the UK

• the sponsor became separated from their young child and wants to be reunited with them

• the sponsor’s mental health is under severe pressure and is linked to the separation from the individual

Examples given in the policy of where the applicant’s circumstances would meet this criterion are:

• unaccompanied young children who are unable to look after themselves and there are no other close relatives or other forms of governmental or NGO support in their home country is of a strictly temporary or emergency nature that is not capable of being ongoing to look after them – ongoing support is unavailable other than from the sponsor who is living in the UK and is able to accommodate and look after them

• individuals who are victims of transnational marriage abandonment and are being denied access to their young children who remain with the child’s other parent or carer in the UK

• they are part of a split household where the adult sponsor is in the UK along with some of the children, but other children including some who have a right to reside in the UK are outside of the UK with the sponsor’s partner

• the individual is facing a significant risk of harm, because they are located in a conflict zone or a place where a catastrophic natural disaster has occurred, and they cannot travel to a VAC

• the individual is unable to travel to a VAC because of a protected characteristic, such as a young child who is too young to travel on their own

• the individual has other compelling links to the UK

Ability to travel

Predetermination

For predetermination the applicant is expected to show that, if the case is positively predetermined, they can travel to a visa application centre to enrol their biometrics.

If predetermination is needed in order to enable a person to cross an international border, evidence in support of this should be provided where possible.

A reminder that this policy is discretionary. There will be some applicants where it is not clear at all that onward travel is possible but the situation is dynamic and may change by the time of decision. This isn’t a bar to making the application, especially if the circumstances for the applicant and sponsor are dire.

Excuse

To be granted excuse, applicants will need to explain:

1. Why they can travel to the UK but not to any visa application centre beforehand
2. That there is an urgent need to come to the UK that overrides the public interest in ensuring national security
3. That the applicant faces insurmountable barriers to attending any visa application centre and have exhausted all other options available

Where the policy criteria are not met

The policy is written to allow decision makers to apply discretion where these four criteria are not met. If there is an issue with meeting one or more of the criteria, explain why discretion should be applied and if the request is refused, consider whether there is evidence of the decision maker fettering their discretion as a potential route to challenge.

Decision

It’s important to note that the policy warns against conflating compelling circumstances to grant predetermination/excuse with the eligibility requirements for entry clearance. Just because the applicant meets the criteria for predetermination or excuse, does not mean they will be granted entry clearance.

If the applicant is granted predetermination, the Home Office will issue them with a ‘minded to issue’ letter. They will be required to travel to a visa application centre to enrol their biometric within 240 days of submitting the online visa application. If the applicant is granted excuse, they will be issued with a similar letter and required to send their identity documents to a visa application centre to be checked and for the visa to be affixed and sent back to them.

Challenging a refusal

The only remedy available to challenge a refusal is judicial review. A challenge is likely to raise both public law and Article 8 ECHR grounds. Consider the decision to see whether adequate reasons have been given, anxious scrutiny applied to facts and evidence provided and whether the secretary of state has fettered her discretion written into the policy.

Instructions to take

Predetermination and excuse should only be applied for when all other options have been exhausted otherwise the request is likely to lead to a refusal. Instructions should be taken to find out the following and answers should be provided to the Home Office in the form of a witness statement:

• Have they applied for entry clearance before? Can their biometrics be reused?
• What identity documents do they have? Do they have expired documents? What attempts have they made to renew any expired documents?
• Did they choose to travel to an area without a visa application centre or where the journey would be dangerous?
• Can they delay their journey until it is safe to travel? If not, what is the urgency?
• Can they use an alternative visa application centre which they can safely travel to?
• Can they pay for a priority visa if they require a quick decision?
• Would using the ’keep my passport whilst applying’ service mitigate the risk?
• Why is the journey unsafe – what parts and why?
•  Are there any specific vulnerabilities or protected characteristics that make the applicant’s journey more unsafe?
• What are their plans for travel if predetermination/excuse is granted? If there is no viable plan, why are they applying now? Is the situation dynamic?
• What is the relationship between the applicant and sponsor (including any dependency)?
• What are the circumstances of sponsor in the UK and how is separation impacting them?
• What are the circumstances of applicant and how is separation impacting them?

Evidence to provide

The policy makes it clear that submissions should be supported by evidence. As the only remedy is judicial review, these applications do need to be frontloaded. If the sponsor and/or applicant are reporting poor mental or physical health and it is relevant to one of the four criteria, for example where it increases the risks associated with the journey or goes to compelling circumstances, then cogent medical evidence should be obtained. If you are minded to get a psychological assessment, make sure the expert comments on the impact the separation is having on the sponsor.

Other evidence you may want to consider providing includes:

• Evidence supporting the characteristics or profile of the applicant which make them more vulnerable on their journey
• Country information (the Home Office currently want this in the form of individual PDFs which clearly show the website links)
• Best interest assessment for children
• Independent social worker report commenting on dependence where applicants are not the direct family members of UK sponsor
• GP letter commenting on mental and/or physical health of sponsor

The statement from the applicant should go into detail on what the journey to the visa application centre would look like and explain the different stages of the journey and why they would be dangerous. The statement should then be supported with as much objective evidence as possible. If there is little objective evidence available, you may want to consider a country expert report.