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Comment: Home Secretary’s DNA testing apology is meaningless if he can’t get his department under control


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The Home Secretary has published the results of a review into DNA testing at the Home Office, apologising to migrants who were told that genetic testing was compulsory for certain family visas. Sajid Javid also announced a potentially wide-ranging review of the immigration system more generally in a sign of impatience at his department’s performance.

Javid said:

At the end of June, it was brought to our attention that there were some immigration cases where the provision of DNA evidence had been made a requirement for issuing a visa or grant leave to remain, and it was not simply a request.

Such demands are unacceptable.

Today I want to take this opportunity to apologise to those who have been affected by this practice. The law in this context is that the provision of DNA evidence should always be voluntary and never mandatory.

The Home Office admitted a few months ago that it had been demanding DNA evidence where foreign parents seek to stay in the UK on the basis of their family life with a British child, and announced a review. That review was carried out by a senior official, Richard Alcock. It is dated 14 September and was published yesterday.

Alcock found that officials did demand DNA tests despite not being allowed to by law:

The Home Office has no legal basis for requiring the provision of DNA information in support of an application relating to immigration status. The Home Office may currently request DNA on a purely voluntary basis… failure to provide DNA voluntarily can in no way be cited as a determinant in an immigration outcome. It is clear from various guidance products, operational practice and in the handling of Parliamentary questions relating to the provision of DNA, that this is not clearly understood across all policy and operational areas.

The review found that it was impossible to be sure how many people were told they had to provide DNA tests. It could only find evidence of visa applications being rejected where the applicant did not provide genetic evidence in a handful of cases. These involved investigations of family visa fraud (“Operation Fugal”) and in the visa scheme for Nepali soldiers in the British Army (“Gurkhas”).

UKVI requested DNA evidence using the inappropriate wording in 398 cases within the overall Op Fugal (suspected paternity abuse) cohort of 591. Of these, 83 applications were refused and 7 within this number were refused solely for not providing the DNA evidence. A further 6 instances have been identified where the refusal is not solely based upon the non-provision of DNA evidence but it is referenced. These 13 are being reviewed. Due to the limitations of the caseworking database (CID) it is not possible to identify any other instances within the Human Rights and Family route where DNA evidence has been requested, but it is almost certain that there will be some.

Within the Gurkha concession, management information shows that since the policy was introduced in January 2015 through to July 2018, 51 cases have been identified where DNA was requested from applicants at their own cost. This number represents 1.7% of the 2937 applications received over the operation of this policy from January 2015 to date. In 4 cases, which were from the same family unit, the application was refused solely for not providing the requested DNA evidence. These cases have been reconsidered as they were refused for not supplying DNA when requested.

Javid identified a third category of migrants who forced to have DNA tests — family members of Afghans who had worked for the British government — but said no refusals were down to DNA in those cases.

The Home Secretary did not acknowledge that there are reasons other than illegality why blanket demands for DNA testing are a bad idea. Official querying of family relationships is insulting, DNA testing is inherently intrusive, it is expensive and the emotional impact of discovering that paternity is not as previously thought can be life changing. It carries with it the risk of family break-up or even domestic violence.

It is here that the weakness of the very dry internal report becomes apparent: civil servants and officials, including the author of the report, simply do not seem to think about the impact on the human beings they are dealing with. It is not that officials lack compassion necessarily; there is something in their training or their role that means human impact just does not seem to cross their minds. DNA testing is a tool that should be used with extreme caution.

While an official apology is welcome, a commitment to sensible use of DNA testing and the reintroduction of compassionate policies on dealing with unexpected DNA test outcomes would have been even better.

Alcock’s report does acknowledge that

powers to request DNA may also potentially put family members at risk should the paternity of a child be disproved through a DNA test.

But it leaves open the prospect of the Home Office being given the power “request DNA earlier or require the provision of DNA” — just so long as it is legally above board.

In a couple of senses, all this is academic. For one thing, the Home Office can lawfully request DNA evidence and then refuse the visa if the person cannot satisfy officials that the necessary family relationship exists — so long as the refusal is not solely and explicitly because of refusal to provide DNA evidence. Officials will, presumably, just follow that course in future.

For another, this situation happened despite the Home Secretary making it “absolutely clear” in 2014 that DNA testing was voluntary. The charitable explanation for this flouting of ministerial fiat is the baffling intricacy of the bureaucracy. The Alcock review found that

The guidance pertaining to UK Visa and Immigration work is very complex; some 40,000 pieces of guidance exist over seven IT systems.

The cynical view is that ascribed by Stephen Bush of the New Statesman to civil service contacts at other departments:

that Britain’s interior ministry is out of control: that it regularly goes further than its ministerial mandate and that it has an institutional dislike of the people it deals with day to day.

Either way, one can see why Javid also committed in his statement to a broader review of his department, likely with independent oversight. There is no point in sternly issuing “clear instructions” if officials cannot be induced to follow them.

Anyone who feels that their immigration case may have been influenced by an inappropriate demand for DNA testing can contact a new Home Office helpline on 0300 123 2235. It may be possible to reclaim the cost of the test.

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.