SGW is a UK-based refugee and Eritrean national. His brother, FGW, is a young person who was trapped in Libya until recently. FGW’s journey to the UK has not been quick, safe or simple.

In the case of R (SGW) v Secretary of State for the Home Department (Biometrics, family reunion policy) [2022] UKUT 15 (IAC) the Upper Tribunal decided that Home Office guidance on refugee family reunion applications was unlawful because it failed to accurately describe the legal discretion in relation to providing biometric information. You can read more about the judgment here. This post looks at the individuals behind the case, and the personal impact of trying to obtain safe and legal entry to the UK. 

FGW’s journey to a positive entry clearance decision

FGW arrived lawfully in the UK. Whether the route was safe and quick should be considered in the context of the UN Human Rights Commission’s Fact-Finding Mission (UNHRC) reports on Libya. The reports suggest that migrants (including refugees and asylum seekers) form an identifiable group of individual civilians defined by their vulnerability and absence of legal status in Libya.

The November 2021 report found that the Libyan Coast Guard’s interception of boats carrying migrants result in their detention in centres where acts of rape, torture, and other forms of inhuman and degrading treatment are routine. This treatment is part of a systematic and widespread attack directed at this group in furtherance of the state’s policy.  In its updated report of 23 March 2022, the UNHRC commented on the Libyan security forces’ raid in early October 2021 on the Gargaresh area of Tripoli which targeted foreigners and migrants. The report found that the raid took place in the context of xenophobic statements. Thousands were arrested, including women and children, and taken to detention centres. Excessive force was deployed towards those detained.

FGW, aged 14, attempted the dangerous crossing by sea from Libya. The boat was intercepted and he was subsequently detained in the Souk El Khamis detention centre. He was released after two years when the detention centre closed.

The judgment in SGW makes it clear that FGW was able to provide his biometrics following negotiations with the Home Office. However, it took over a year to get to that stage.

In the meantime, after his release from Souk El Khamis, FGW was detained on two further occasions and each time SGW had to pay to secure his brother’s release. The Home Office knew of these further periods of detention as proceedings were ongoing. None of this was sufficient to avoid a decision refusing FGW leave to enter the UK.

Whilst the entry clearance officer accepted, grudgingly, that FGW was a child, his circumstances were not considered exceptional for several reasons. FGW was no longer detained and was instead in UNHCR accommodation. His parents and siblings, who remained in Eritrea, could provide him with emotional support. There is also no provision in the immigration rules for people abroad to be able to travel to the UK to apply for asylum. Individuals who need international protection should claim asylum in the first safe country they reach as that is the fastest route to safety. The savvy amongst you will note that Libya is not a signatory to the Refugee Convention and the entry clearance officer did not enlighten FGW as to which first safe country they had in mind if not the UK.

Whilst the appeal progressed as urgently as procedural constraints permit, SGW said that he slept with his phone next to him. He always expected a message to tell him that FGW had perished attempting to find that elusive first safe country, by trying to make the crossing by sea. 

One adjournment later, an urgent hearing was finally listed in early June this year. Two days before that hearing the catchily named “Appeals, Litigation and Administrative Review” team informed the Tribunal that the decision to refuse FGW entry clearance was being withdrawn. They also recommend that the decision be reconsidered. 

The team tasked with reconsidering the matter had no notion of urgency and apparently also had difficulty accessing the Home Office file. In early August, the Tribunal was informed that FGW had been granted leave to enter the UK. But that wasn’t quite the end of the story.

Getting FGW’s documents to travel

As an undocumented person, FGW had to be issued with a “Form Affixing Visa” from the Home Office. This is usually sent to a Visa Application Centre for collection by the applicant. In the judicial review proceedings, the Home Office had accepted that FGW could not travel out of Libya to access a centre.

His biometrics were instead gathered in Libya using mobile biometric equipment taken there by a British Embassy official. Notwithstanding this fact, my request for the document to be sent to the UNHCR office had to be authorised by the Home Office’s “integrity unit”.  A quick search on the internet for the location of the integrity unit revealed only a job vacancy from 2019, at the British Embassy in Abu Dhabi.  Fortunately, the UNHCR agreed that a member of staff from the office in Tunis would collect the document and arrange for it to be sent on.

What came from the case of SGW?

It took over two years and access to a legal representative before FGW could travel lawfully and reunite with his brother. Can others trapped in Libya seeking to join their families in the UK now access the mobile biometrics facility that FGW was able to and seek to enter the UK lawfully? Of course not. Those machines are in the process of being decommissioned. 

On 5 June 2022, the British Embassy in Tripoli reopened but, predictably, it currently does not have the facility to enable individuals to enrol their biometrics there. In response to the judgment in SGW, the Home Office introduced a policy in March 2022 to defer or waive biometrics in “exceptional and extraordinary” circumstances. That policy was successfully challenged in the unreported case of R (MRS & FS) v ECO (JR-2022-LON-000178). This was followed by an amendment to the Biometrics Enrolment Policy Guidance on 18 July 2022. It now states that biometrics can be deferred or waived if the circumstances are exceptional and there is no operational alternative. If anyone can suggest a formulation to make this clear at the first bullet point under the heading ‘Exceptional Individual Circumstances’, please do share.

On 6 October 2022, the Administrative Court handed down its judgment in R (KA & ors) v SSHD & another [2022] EWHC 2473 (Admin). The hearing of the claim pre-dates the 18 July 2022 Guidance. You can read more about this case here. In short, the Home Office agreed to consider the waiver or deferral of biometrics as part of the substantive merits of the entry clearance applications that those claimants who remain in Afghanistan would be making. Given that the Home Office position was specific to that case, others seeking deferral or waiver will have to argue why the same approach should be adopted in their cases. It remains to be seen how the Home Office will decide whether the particular circumstances of a case are “exceptional” even where there is no other viable alternative to enrol biometrics.

What can we take from FGW’s story?

FGW arrived in Libya aged 14. He is now 18. He endured more than two years in detention in Libya. To travel lawfully to the UK, he needed legal representation which involved Court proceedings and an appeal.

Yes, he arrived in the UK lawfully, but he was not safe whilst that route was pursued nor was the process quick. Perhaps I am being cynical, but I do not believe that the Home Office is particularly interested in facilitating lawful routes to travel to the UK.

FGW’s reunion at the airport was joyful and emotional. But what about others in Libya who also want to travel lawfully to be safe with family in the UK? According to the Home Office, their situation is not exceptional since all migrants face the same dangers in Libya. Unlike Afghanistan, there is a UK presence in Libya since the British Embassy re-opened, albeit there is no facility to provide biometrics there.

Accessing legal representation is a difficult task in itself. But for those lucky enough to find a lawyer, that lawyer would have to seek a waiver or deferral of biometrics under the latest Guidance, as well as ask for a substantive decision on the entry clearance application. An applicant will need to be prepared to stay in a high-risk environment whilst the legal process takes its course. As FGW’s case shows, that process is not quick.

Even if the Home Office agrees to consider a waiver or deferral of biometrics as part of the substantive merits of the entry clearance application, the anticipated decision-making times are lengthy. For leave to enter applications for refugee family reunion that fall outside of Part 11 of the Immigration Rules, the processing times have doubled from 12 to 24 weeks.

There is also no official route for the prioritisation of cases. Emailing a generic address and making your case for urgency is the only way to try and get applications prioritised. Otherwise, the “choice” is to remain trapped in an unsafe country or attempt a lethal journey by sea, hoping that the boat is not pushed back to shore or that you survive the crossing. As our young clients often say, “I’m dead if I stay so I have nothing to lose by getting on the boat”. Not much of a choice and little sign of any safety amidst elongated decision-making times.