The Home Office’s unsafe journeys policy is dangerous

Despite a series of successful legal challenges against it, the Home Office’s current policy on handling requests to defer or be excused from biometric enrolment where an applicant cannot travel safely to a visa application centre remains unfit for purpose. The policy is frustrating access to family migration and reunification and pushing people to make dangerous journeys through conflict zones.

The problem

The Home Office has long required foreign nationals applying for entry clearance to go and enrol their biometric data at a nearby visa application centre. Biometrics enable caseworkers to run security checks and prevent immigration fraud; without biometrics, the Home Office regards a person’s application as incomplete.

The UK’s visa application centre network, which it outsources to two private companies, is dotted across the globe. However, there are no centres in Gaza, Sudan, Afghanistan and other war-torn countries. The Home Office therefore expects persons applying for a visa from these countries – for example, the family members of recognised refugees – to go and enrol their biometrics in a nearby country.

The consequences of this have been well documented by non-governmental organisations. It forces people to travel through active conflict zones and pay exorbitant sums of money to be smuggled to cities in neighbouring countries. Even after enrolling their biometrics, it can take months to receive entry clearance, forcing applicants to remain in a foreign country with a precarious status or attempt another perilous journey back home.

The policy 

There is, in fact, no statutory obligation on the Home Office to take biometrics. Under regulation 5 of the Immigration (Biometric Registration) Regulations 2008, it is a matter of discretion.

That became the subject of two court cases in 2022 and in May 2023 the Home Office finally published policy guidance on how it would exercise discretion on biometrics. The policy stated that a person could ask to “defer” travel to a visa application centre until they received a positive “in-principle” decision on their application, or to be completely excused from this. Caseworkers would grant the request if certain criteria were met.

First, the applicant had to provide satisfactory identity documents. They had to evidence that travelling to a visa application centre would be dangerous, though if requesting a deferral they also had to assure the caseworker that they would risk travelling to a visa application centre if their entry clearance application was approved in principle. Finally, they had to provide compelling reasons why they needed to travel to the UK without delay. Free Movement’s full guide to the criteria can be found here.

Following the publication of this policy and renewed conflict in Gaza and Sudan, further litigation ensued. Over 2023 and 2024, multiple judicial reviews in the Upper Tribunal found that the policy was leading caseworkers to fetter their discretion, act irrationally and incompatibly with the European Convention of Human Rights.

Then and now, the critical issue is how the policy interprets a person’s right to respect for private and family life under Article 8 of the convention. Most people who make a deferral or excusal request do so because they are in a conflict-affected country and are seeking to reunite with family in the UK, such as a spouse, child, parent or other dependant. In these cases, the Home Office is bound to consider how any request engages the UK family member’s Article 8 rights and to balance those rights against the public interest in biometric enrolment.

Crucially, across the cases of MRS & Anor v Entry Clearance Officer [2023] UKUT 00085, RM & Ors v SSHD [2024] UKUT 82 and AK & Ors v SSHD [2024] UKUT 689, the Upper Tribunal found that the public interest in refusing a deferral request is usually low. The fraud and security risks that biometric enrolment is designed to mitigate are very limited when a person’s application is tied to a UK sponsor. Further, when a person requests deferral they are still committing to go to a visa application centre before travelling onwards to the UK. In other words, the UK’s security procedures are not being undercut but merely deferred, so the applicant can avoid at least one perilous journey.

The Tribunal also found that if an entry clearance application engages Article 8 and the applicant tells the Home Office they cannot safely travel to a visa application centre, it would rarely be justifiable to refuse a deferral request because it would effectively bar them from getting a hearing on their actual visa application. The Tribunal referred to this as a “procedural” breach of Article 8.

The problem with the policy

All this has forced the Home Office to repeatedly revise the policy – three times in less than two years. The fourth and current iteration was published in August 2024 and is still unfit for purpose, as experience and a close read of the text show.

First, the policy does not give effect to the legal position on Article 8. Rather than instructing caseworkers to properly weigh the security risks present in a particular entry clearance case, it incorrectly states (at page 12) that there is a strong and fixed public interest in refusing deferral and excusal requests. The Home Office makes no mention – as the Tribunal did in RM – of the different protective factors that can mitigate security risks, such as high-quality identity documents, children on the application, a sponsor in the UK, or assurances that applicants will enrol their biometrics before entering the UK.

Secondly, the premise of the policy’s “compelling circumstances” criterion is misguided. If a person can evidence that travelling to a visa application centre would place their life at risk, that in itself should be regarded as compelling. By demanding additional compelling reasons, over and above that, the Home Secretary is fettering her discretion.

The compelling circumstances exercise has also become completely muddled with the Article 8 balancing exercise, which was inserted into the policy text after the RM judgment. These two tests are incompatible, as they tend to pull the standard of proof in different directions.

Although “compelling circumstances” is a lower bar than “exceptional and extraordinary” (which was the policy pre-MRS), it is still a high threshold. The policy says compelling circumstances must both “go beyond simply joining relatives” and “a desire … to join family settled in the UK is not, in isolation, usually sufficient”.

However, as I outlined above, the Tribunal has set a low threshold for committing a procedural breach of Article 8 when a person’s application engages their right to family life. The policy merely reminds caseworkers to consider “what impact” an adverse decision could have on a person’s Article 8 rights but does not elaborate any further. It is a model of equivocation and, in my experience, is directing caseworkers to make irrational and unlawful decisions.

The procedure

These evidential hurdles are mirrored by the procedural barriers people are faced with when contemplating a dangerous journey. There is no Home Office webpage with straightforward information about the policy. There is also no application form. The 59-page policy document, which is written for Home Office staff, directs people to apply through the visa application centre operator’s website which in turn sends them to the UKVI Contact Centre. The AI assistant of VFS Global, one of the commercial operators, unhelpfully redirects users to the policy document. It appears as if the Home Office has sought to limit applicants’ awareness of the policy or how to access it.

Conclusion

Anthony Cooper and his colleagues wrote in 2014 that “the traditional idea that borders lock down territory” is today “supplemented with the idea of the border as a manageable conduit, speeding up transit where necessary, blocking passage when required.” The Home Office’s architecture of biometric centres, policy acrobatics and procedural knots is integral to the UK’s contemporary border. It is a diffuse, externalised system fit for a hyperconnected yet unequal world.