Tribunal decisions

The decision

JR-2026-LON-000669
In the Upper Tribunal
(Immigration and Asylum Chamber)
Judicial Review

In the matter of an application for Judicial Review

The King on the application of

MS (first applicant)
RA (second applicant)
MMS (third applicant, a minor by his litigation friend, MS)
SMS (fourth applicant, a minor by her litigation friend, MS)
Applicants
and

Secretary of State for the Home Department
Respondent

FINAL ORDER

UPON hearing from Ms Michelle Knorr and Ms Agata Patyna, Counsel instructed by the Greater Manchester Asylum and Immigration Unit for the Applicants and Ms Lisa Giovannetti KC and Ms Sian Reeves, Counsel instructed by the Government Legal Department, for the Respondent at a hearing on 24 April 2026.

IT IS ORDERED THAT:

1. The Applicants’ application for judicial review is granted on Grounds 1 and 3 for the reasons set out in the Judgment.

2. There be a declaration that the Respondent’s decision dated 24 November 2025 refusing biometric excuse breaches Article 8 ECHR.

3. The Respondent’s decision dated 24 November 2025 refusing biometric excuse is quashed and the Respondent shall reconsider whether to grant the Second-Fourth Applicants biometric excuse as expeditiously as possible.

4. The Applicants’ challenge to the predetermination decision dated 13 February 2026 is refused.

5. The Respondent shall pay 80% of the Applicants’ costs of the application on the standard basis to be assessed if not agreed.

6. The Applicants’ legally aided costs be subject to a detailed assessment.

7. Permission to appeal is refused.

Permission to appeal: reasons
1. Ground 1 has no realistic prospect of success. The Applicants’ case had been put on the basis that there was only one rational outcome in respect of the application of the 4 Criteria under the UJP. This involved a demanding threshold for the Applicants to overcome and the Tribunal was clearly entitled to conclude that both the predetermination and excusal refusals were rational. The grounds perhaps lose sight of the fact that all cases are fact-specific and that unreported judgments of the Tribunal which pre-dated significant developments were of little assistance.

2. Ground 2 has no realistic prospect of success. The Applicants’ application for judicial review was granted in respect of Article 8, albeit on a narrow basis. The Tribunal was entitled to conclude that the failure of the respondent to address Article 8 was effectively bound up with the failure to have considered the exercise of discretion.

Signed: H. Norton-Taylor
Upper Tribunal Judge Norton-Taylor

Dated: 2 June 2026

The date on which this order was sent is given below

For completion by the Upper Tribunal Immigration and Asylum Chamber

Sent / Handed to the applicant, respondent and any interested party / the applicant's, respondent’s and any interested party’s solicitors on (date): 04/06/2026

Solicitors:
Home Office Ref:

Notification of appeal rights

A decision by the Upper Tribunal on an application for judicial review is a decision that disposes of proceedings.
A party may appeal against such a decision to the Court of Appeal on a point of law only. Any party who wishes to appeal should apply to the Upper Tribunal for permission, at the hearing at which the decision is given. If no application is made, the Tribunal must nonetheless consider at the hearing whether to give or refuse permission to appeal (rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008).

If the Tribunal refuses permission, either in response to an application or by virtue of rule 44(4B), then the party wishing to appeal can apply for permission from the Court of Appeal itself. This must be done by filing an appellant’s notice with the Civil Appeals Office of the Court of Appeal within 28 days of the date the Tribunal’s decision on permission to appeal was sent (Civil Procedure Rules Practice Direction 52D 3.3).

Case No: JR-2026-LON-000669
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)

Field House,
Breams Buildings
London, EC4A 1WR

2 June 2026

Before:

UPPER TRIBUNAL JUDGE NORTON-TAYLOR

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Between:

THE KING
on the application of

MS (FIRST APPLICANT)
RA (SECOND APPLICANT)
MMS (THIRD APPLICANT, A MINOR BY HIS LITIGATION FRIEND, MS)
SMS (FOURTH APPLICANT, A MINOR BY HER LITIGATION FRIEND, MS)
Applicants
- and -

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

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Michelle Knorr
Agata Patyna
(instructed by Greater Manchester Immigration Aid Unit), for the applicants

Lisa Giovannetti KC
Sian Reeves
(instructed by the Government Legal Department) for the respondent

Hearing date: 24 April 2026

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J U D G M E N T

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Judge Norton-Taylor:

Introduction
1. The core question in this application for judicial review is whether, in the context of the exceptionally difficult circumstances prevailing in Gaza, the respondent’s refusals to either excuse the enrolment of biometric information or to predetermine applications for entry clearance are rational and/or compliant with Article 8 obligations.
2. At the outset, I express my gratitude to Counsel and their respective legal teams for the extremely hard work put into this case in light of what was on any view a very tight timeframe.
Factual background
3. The first applicant (“A1”) is a Palestinian national from Gaza, born in 1996. He resides in United Kingdom as a refugee with permission to stay until July 2030 based on his well-founded fear of persecution as a result of being targeted by Hamas in the past.
4. A1 is the husband of the second applicant and the father of the third and fourth applicants (“A2-4”). A3 and A4 are aged 5 and 4, respectively. A2-4 reside in Gaza in what only can be described as truly dreadful circumstances. They are currently in the area of Zeitoun, which borders what is known as the ‘Yellow Line’/’ Yellow Zone’, imposed by the Israeli forces following the ceasefire agreement with Hamas. They are having to spend the day in a makeshift tent, whilst at night finding shelter in an extremely overcrowded apartment owned by A2’s uncle. They struggle to find adequate food and have no access to running water. Such water that they are able to obtain is unclean. Their environment is unhygienic and generally unsafe. It is difficult to access medical treatment. Looking at the photographic evidence, it is plain to see that they are literally living amongst the rubble of destroyed buildings.
5. Until 2023, the family unit lived together in Al Tufah. In September 2023, A1 left Gaza in fear of Hamas. On 4 October 2023, A2 gave birth to a son, M. Hamas attacked Israel on 7 October 2023, which resulted in war. M developed breathing difficulties due to dust and pollution caused by bombing and was admitted into intensive care at a hospital in Gaza City. Israeli troops surrounded the hospital and it ceased to function. It appears as though M died in the hospital, although his body was never recovered.
6. A2-4 were displaced from their home in Al Tufah. The family home was subsequently destroyed and a number of extended family members killed. They travelled to Al Nasser and lived in a ruined building. They were then forced to leave by the Israeli authorities. They attempted to get to the south of Gaza, but it seems as though this was unsuccessful.
7. A3 and A4 have witnessed bombings and shootings at first hand.
8. Unsurprisingly, the events recounted above have had a very significant impact on the applicants’ emotional and mental state. A1 suffers from PTSD, severe Major Depressive Disorder, and severe co-morbid anxiety. A particular aspect of his mental health difficulties relates to the death of M. Communications with his family are intermittent, which exacerbates his sense of worry.
9. I turn to the circumstances leading up to the challenged decisions. Having arrived in the United Kingdom on 23 March 2025 and being granted refugee status on 23 July of that year, A2-A4 made family reunion entry clearance applications on 2 September. On 9 October 2025, the applicants made a request to the respondent for a predetermination decision on that application. On 27 October, a further request was made, this time for biometric excusal. That request was refused by the respondent on 24 November 2025 (“the excusal decision”). The original request for predetermination was refused by the respondent on 13 February 2026 (“the predetermination decision”).
10. Pre-action protocol correspondence ensued. This application for judicial review was made together with an application for expedition on 23 February 2026. By an order sealed on the same day, Upper Tribunal Judge Blundell granted expedition. Permission on all grounds was granted by Upper Tribunal Judge Owens on 26 March 2026, with an expedited timeframe for the substantive hearing.
The provision of biometric information in general
11. The enrolment of biometric information (fingerprints and facial images) is provided for by the Immigration (Registration) Regulations 2008, as amended, which themselves were made pursuant to sections 5-7 of the UK Borders Act 2007.
12. In summary, the enrolment of such information is a mandatory requirement before an application for entry clearance under the Immigration Rules (and permission to stay) will be considered, subject to limited exceptions and a discretion, which must be exercised compatibly with fundamental rights, the best interests of relevant children, and public law principles.
13. The respondent’s current guidance, “Biometric enrolment: policy guidance”, updated on 30 March 2026, states that:
“Biometrics, in the form of fingerprints and facial images, underpin the current UK immigration system to support identity assurance and suitability checks on foreign nationals who are subject to immigration control.”
14. As there is no dispute regarding the general requirement to enrol biometrics, I need not say anything further about this particular issue.
The Unsafe Journeys Policy
15. As a result of conflict and instability in a number of countries around the world which resulted in putative applicants being unable to enrol biometrics at a Visa Application Centre (“VAC”), and following litigation, on 3 May 2023 the respondent issued a policy addressing this particular scenario: “Unable to travel to a Visa application Centre to enrol biometrics (overseas applications), version 1.0. This, and its subsequent iterations, has become known as the Unsafe Journey Policy (“UJP”).
16. For the purposes of the present case, I am concerned with version 4.0 of the UJP, published on 21 August 2024, and extant at the time of the two challenged decisions.
17. The UJP begins with the following:
“This policy guidance tells you how to handle requests from individuals who are applying to come to the UK from overseas and claim it is too unsafe for them to travel to a Visa Application Centre (VAC) to enrol their biometrics.
Some individuals who are applying to come to the UK may request that their application be predetermined before they attempt to travel to a VAC or ask to be excused from having to attend a VAC to enrol their biometrics before travelling to the UK because they claim the journey to the VAC is unsafe. This guidance is primarily aimed at individuals who are applying to join UK based sponsors who are family members, such as those who have protection status, are settled in the UK, or are British citizens.”
18. The following definitions are provided:
“’biometric excuse’ means the individual is excused from attending a VAC to enrol their biometric information. The requirement to provide biometrics will normally be deferred until after the individual has been granted entry clearance and arrived in the UK
‘predetermination’ means we assess the individual’s entry clearance application before they give their biometrics and, if we are likely to grant entry clearance, we notify them that we are minded to grant them entry clearance subject to then attending a VAC to enrol their biometrics and enabling us to complete background checks on them and their documents.”
19. These definitions relate to the two challenged decisions: the excusal decision and predetermination decision, respectively.
20. There is confirmation that the UJP includes residual discretionary powers and no longer includes an exceptionality requirement attached to an individual’s need to demonstrate that the journey to a VAC would be unsafe.
21. The importance of biometrics to the United Kingdom’s immigration system, as stated in the policy on biometrics enrolment referred to previously, is reiterated. The following additional points are made:
“They [biometrics] enable comprehensive checks to be made against immigration and criminality records to identify those who pose a threat to our national security, public safety, immigration controls or are likely to breach our laws if they are allowed to come to the UK.
…
Granting an individual a biometric excusal, such that they do not have to attend a Visa Application Centre (VAC) to enrol their biometrics prior to travelling to the UK, creates a heightened risk to our national security. By doing so, we lose the opportunity to identify individuals whose fingerprints are linked to terrorist activities or serious criminality until after they have arrived in the UK. In some cases, this could prove to be too late to protect the British public. Therefore, if an individual is suitable for a predetermination, then this must be offered instead. Biometric excusals should be limited in scope to reflect the strong public interest in protecting UK national security and public safety, as well as protecting the border. It is anticipated that biometric excusals will only be granted where the individual presents circumstances that are sufficiently compelling as to outweigh the wider and heightened public interest resulting from excusing the requirement to attend a VAC.”
22. Under the heading “Important principles”, one finds the following:
“You must take account of the requirement to protect the public and the risk to national and border security when an individual makes a request to predetermine their application or to be excused from the requirement to attend a VAC to enrol their biometric information. This is because you will not be able to undertake a full range of background suitability checks until the person has enrolled their biometric information. You should only offer to predetermine an application or excuse an individual from the requirement to attend a VAC to enrol their biometric information, where they meet all 4 criteria (detailed below) and there are no alternative options, such as travelling to an alternative VAC location or delaying their journey.
Any offer to predetermine the individuals’ application or excuse individuals from the requirement to attend a VAC to enrol their biometric information should be justified and proportionate to enable them to complete their application to come to the UK. This means you should not offer to excuse the requirement for individuals to attend a VAC in circumstances where predetermining their application would be sufficient. If individuals sought to be excused from attending a VAC, they need to provide you with evidence that explains why predetermining their application would not address their circumstances.
Ordinarily, you must not offer to predetermine an application or excuse the requirement to attend a VAC to enrol biometric information in circumstances where individuals have no reasonable prospect of being able to travel to the UK. This includes circumstances where they are detained in prison or where they are unable to leave their country due to the prevailing circumstances there.”
[Emphasis in the original]
23. There is then the all-important section of the UJP; “Considering requests”. It is provided that:
“You must consider all 4 criteria listed below. In most circumstances, you must only agree to predetermine an application or excuse individuals from the requirement to attend a VAC to enrol their biometric information where they can demonstrate they meet all 4 criteria. Your decision needs to be compliant with Article 8 of the European Convention on Human Rights (ECHR).
You must balance the right to family life against the need to protect our national and border security and to reduce the risk of children being exploited or trafficked into the UK. The need to establish the individual’s identity (criterion 1) is a factor that must be accorded significant weight. The reason for this is because without sufficient assurance on an individual’s identity we cannot perform suitability checks on them or check whether they are vulnerable.

Four criteria
1. Individuals need to satisfy you about their identity to a reasonable degree of certainty before they come to the UK.
2. They need to provide you with evidence that they are required to make an urgent journey to a VAC that is unsafe 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 need to demonstrate that their circumstances go beyond simply joining relatives who are living in the UK and that they outweigh the interests of national and border security. 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 need to confirm they are able to travel to a VAC if they want their application to be predetermined (Criterion 4a), or where they are requesting you to excuse them from the requirement to attend a VAC (Criterion 4b) to enrol their biometrics. They should explain why they cannot attend any VAC, but are able to travel to the UK.”
24. For reasons which will become apparent, it is only criterion 4 which is in issue in this case.
25. Criterion 4 is then addressed in more detail. It is divided into two elements: Criterion 4a (predetermination) and Criterion 4b (biometric excuse). In respect of Criterion 4a, the guidance is as follows:
“Some individuals may request you to predetermine their application before they attend a Visa Application Centre (VAC) to enrol their biometric information, so they know whether their application is likely to be granted based on eligibility before they travel to the VAC. This is particularly likely where individuals can cross international borders to travel to a VAC but want to avoid risking an unnecessary unsafe journey.
The purpose of predetermining an application is to enable individuals to assess the risks of making an unsafe journey before travelling to a VAC. It is not intended to be used for the purposes of aiding other authority exit permits or entry visa requirements to enable individuals to travel to other countries. Predetermined decisions should not be seen as confirmation that individuals are guaranteed onwards travel to the UK. In most circumstances, you must disregard any requests for an application to be predetermined where the individual cannot confirm they are able to travel to a VAC, including crossing any international borders where required to travel to a VAC.
Where you decide to predetermine an application, it means you consider the individual’s circumstances are sufficiently compelling for their application to be handled outside of the normal application process. Where you refuse to predetermine an application, you do not need to consider whether the entry clearance application itself would be successful, as this is a separate decision.
Where you decide to offer to predetermine the individual’s application, it should not automatically follow that their circumstances will be sufficiently compelling or relevant in respect of meeting the requirements of their application for entry clearance. You must not conflate compelling circumstances to predetermine an application with the eligibility requirements for the immigration permission being sought by the individual.
Neither you or the Foreign, Commonwealth and Development Office are responsible for facilitating individuals to cross international borders. Where an individual claims they need their application to be predetermined to enable them to cross an international border to attend a VAC, they must provide evidence to support this.
Able to travel to a VAC
Where individuals request their application is predetermined, they must confirm that they will be able to travel to any VAC to enrol their biometric information within 240 days of submitting their online application, before they travel to the UK if you informed them you are minded to grant their application subject to satisfactory biometric and biographic background checks. Where individuals fail to comply with this requirement their application may be disregarded under the Immigration (Biometric Registration) Regulations 2008.
You must not guarantee individuals safe passage to a VAC or provide them with any assistance to enable them to cross international borders. Individuals will be responsible for meeting any associated travel and accommodation costs that arise from having to wait for checks to be completed and entry clearance documents to be issued to them.”
[Emphasis in the original]
26. In respect of Criterion 4b, the guidance is as follows:
“In most circumstances, you must only agree to excuse the requirement for individuals to attend a VAC to enrol their biometric information, where the individual can satisfactorily explain how they can travel to the UK, but not to any VAC including any on route to the UK.
Some individuals may have circumstances that are so compelling that they outweigh the significant public interest in ensuring that biometric security and identity checks are carried out prior to them travelling to the UK, where not granting a biometric excusal would significantly and disproportionately affect the sponsoring relative based in the UK as the individual would be prevented from coming to the UK.
Ordinarily, they must meet all 4 criteria to warrant excusing the requirement for them to attend a VAC. Individuals will not generally be excused from having to attend a VAC to enrol their biometrics solely because they have a UK sponsor. The individual must provide evidence they have an urgent need to come to the UK that overrides the need for the Secretary of State to protect the border, our national security and ensure public safety. Given the importance of the public interest, such decisions can only be made by Ministers. If you consider the requirements are met, you must send a submission to a Home Office minster who has responsibility for immigration and citizenship recommending that a biometric excusal is granted.
Ordinarily, individuals must be able to demonstrate they face insurmountable barriers to attending any VAC and have exhausted all other options available to them, alongside evidence they meet the 4 criteria. In most circumstances, you must not agree to excuse them from the requirement to attend a VAC to enrol biometric information where you consider the individuals could travel to an alternative VAC, even if it would be more inconvenient or costly for them. In such circumstances, you must consider whether they meet the 4 criteria to have their applications predetermined.
Where a Minister decides to authorise the individual to be excused from the requirement to attend a VAC to enrol biometric information, you will be making a substantive decision on the individual’s application for entry clearance without completing all the suitability checks as they will not have enrolled their biometric information prior to arriving in the UK.
Ability to travel to the UK
In addition to individuals demonstrating they face insurmountable physical obstacles to attending any VAC, they must provide you with evidence that these barriers would not prevent them from travelling to the UK. For example:
• they are high profile individuals who could be identified if they attempted to attend a VAC placing themselves or VAC staff at risk of harm
• it is in the UK’s national security interests to get them to the UK without being identified
• a UK police force has identified them as either vulnerable victims or witnesses and has requested you to assist the individuals to come to the UK to assist with an investigation or prosecution of serious criminality and could be placed at risk of harm if they attended a VAC
Where individuals are unable to obtain their entry clearance documents, the Secretary of State may be unable to assist the individual to travel to the UK, even if their application for entry clearance is otherwise likely to be successful.
In most circumstances, you must not normally excuse the requirement for individuals to attend a VAC to enrol their biometrics on the basis they:
• do not hold suitable documentation to cross an international border into a country that hosts a VAC
• claim it is too expensive to travel to any VAC
• chose to make a journey to a location without a VAC and are now unable to travel onwards to a location where a VAC is available
These factors are unlikely to be relevant to meeting the required threshold for excusing the requirement to attend a VAC.
Unable to evidence they can travel to the UK but not a VAC
Where individuals fail to satisfy you that they can travel to the UK but face unsurmountable barriers to attend any VAC to enrol their biometric information, you must follow the process set out in the Refusal decisions section.
Approval
Where you are satisfied the individuals meet the requirements to be excused the requirement to attend a VAC, and you are satisfied that it is not at all possible for them to attend any VAC to enrol their biometric information before coming to the UK, even on route to the UK, you must obtain approval from a Home Office minister before notifying them of your decision to excuse them from the requirement to attend a VAC before they travel to the UK.”
[Emphasis in the original]
27. Two general points arise from the guidance on Criterion 4. The first is that, notwithstanding the clearly-expressed expectation that individuals will need to satisfy the particular elements set out, there is a discretion within the policy in relation to Criterion 4a and Criterion 4b. The second is the equally clearly-expressed importance of the public interest relating to biometric excuse under Criterion 4b. That expression is consistent with the important principle set out at the beginning of the UJP and also reflected in the need for ministerial approval of any decision to excuse the enrolment of biometrics.
The excusal decision
28. The decision confirms that version 4.0 of the UJP was applied. It confirms that Criteria 2 and 3 were met, but that Criterion 1 was not met as a result of Criterion 4 not being satisfied.
29. In respect of Criterion 4b, the decision first refers to the applicants’ representations of 27 October 2025 in which it was said that leaving Gaza at that time was impossible without consular assistance and an onward visa, that possessing a predetermination decision was insufficient because it did not guarantee onward travel to the United Kingdom, as required by the Jordanian authorities (no other routes of departure were viable at that time), and that biometric excuse and a visa for the United Kingdom was the only possible means of exiting Gaza.
30. The respondent’s conclusions are as follows:
“15…While the above statements are acknowledged they do not demonstrate how your clients will be able to travel to the UK but not to any VAC should your clients’ requests to be excused from the requirement to attend a VAC to enrol their biometric information be granted, noting that your clients’ claim, although not substantiated, that your clients face significant danger which would prevent your clients from travelling to any VAC Furthermore it is noted that there are no direct flights between Gaza and the UK; therefore any travel by air will include travel to a third country from where a VAC could then be accessed to register their biometric information. Therefore the request for your clients to be excused from the requirement to attend a VAC and enrol their biometrics is refused in line with the Unable to travel to a Visa Application Centre to enrol biometrics (overseas applications)...
16. Given the above it is considered that Biometric Excusal cannot be offered on this occasion.
17. It is open for your clients to complete their applications by attending a Visa Application Centre to enrol their biometrics within 240 days from the date they submitted their online applications which was on 02 September 2025.”
31. There is no mention of residual discretion within the UJP having been considered, or of Article 8.
The predetermination decision
32. Again, the decision confirms that the relevant UJP was applied. It confirms that Criteria 1-3 were satisfied.
33. In addressing Criterion 4a, the decision refers to the applicants’ representations of 27 January 2026 in which it was asserted that they could travel to a VAC to enrol biometrics within 240 days of making the entry clearance application, “provided assurances of onward travel are given to enable them to travel to Jordan or, alternatively they will be able to attend a VAC when the borders between Gaza and neighbouring countries re-open”.
34. The respondent’s conclusion is put in the following terms:
“11…While the above statement is acknowledged, it does not confirm that your clients are independently able to travel to a VAC within 240 days of submitting their online applications, without any assistance. It is also noted that the purpose of a Predetermination is not to aid border crossings. Furthermore, in accordance with the guidance it is also noted, “Neither you or the Foreign, Commonwealth and Development Office are responsible for facilitating individuals to cross international borders. Where an individual claims they need their application to be predetermined to enable them to cross an international border to attend a VAC, they must provide evidence to support this.” In light of the above point made and based on the evidence provided, I am not satisfied that your clients have met this criterion in line with the Unable to travel to a Visa Application Centre to enrol biometrics (overseas applications) (accessible) - GOV.UK guidance, version 4, published 21August 2024 (updated 02 October 2025).
12. It is open for your clients to complete their applications by attending a Visa Application Centre to enrol their biometrics within 240 days from the date they submitted their online applications, which was on 02 September 2025.”
35. As with the excusal decision, there is no reference to discretion or Article 8.
The grounds of challenge
36. Three grounds of challenge have been put forward, the first two asserting that the excusal and predetermination decisions are irrational, whilst the third contends that the decisions breach the applicants’ Article 8 rights. In a little more detail, the arguments runs as follows.
37. Relying heavily on what are described as the “extreme and compelling” circumstances of the applicants and A1’s refugee status in this country, Ground 1 asserts that the only rational decision open to the respondent was to have excused biometrics in accordance with the UJP, or to have exercised her residual discretion outside it. The purpose of the UJP is to permit the completion of an entry clearance application where the particular circumstances of the case are sufficiently compelling. The respondent’s excusal decision frustrates that purpose because its effect is to render impossible the ability of A2-4 to leave Gaza and be reunited with A1. The sole reason for refusing the excusal request is “irrational and circular” because the only way in which A2-4 can leave Gaza is with an excusal decision, but the only way in which they could then get to the United Kingdom would be via Jordan (at least at the time of the excusal decision), which was a country with an operating VAC.
38. This argument is put in another way at [44(3)] of the grounds (repeated at [49(3)] of the skeleton argument:
“Put another way, alternatively, even if Criterion 4 is not technically met, in the Applicants’ circumstances where biometric excuse is needed to be able to complete EC processes, it was irrational not to exercise discretion to grant biometric excuse either under the UJP (which makes clear discretion can be exercised even where all four criteria are not met – see p12) or outside it. Further, there is no evidence that the SSHD’s discretion to issue biometric excuse even if criterion 4 is not met has even been considered in the decision, which itself renders the decision unlawful.”
39. Ground 2 is put as an alternative to Ground 1 and is predicated on the reasoning set out in the excusal decision. A2-4 had demonstrated that there was a “reasonable prospect” of them being able to attend a VAC (in Jordan) within the stipulated 240 days if the respondent made a predetermination decision and there was an Onward Travel Assurance (“OTA”) in place to permit entry into Jordan. The issuance of a predetermination decision would, in effect, act as a precursor to OTA, but there was no need for the applicants to prove that their ability to attend a VAC had to be unassisted.
40. Ground 2 relies on what is said to be a “Catch-22 situation” (a phrase which will play a part in my conclusions later in this judgment):
“It is unlawful and irrational for the Applicant’s to be left in a catch-22 situation, with the [respondent] refusing biometric excuse on the basis that [the second, third and fourth applicants] would travel through a third country and thus can attend a VAC to give biometrics, while also refusing predetermination on the basis that [the second, third and fourth applicants] cannot travel to a third country to attend a VAC.”
41. There is a single, brief reference to an alternative argument that if the UJP fetters the respondent’s discretion and is incompatible with Article 8, the policy itself is unlawful.
42. A further argument deployed by Ground 2 is that the respondent has acted unlawfully by failing to treat the applicants’ case consistently with similar cases, including those concerning other families from Gaza, those in need of medical treatment, and certain students.
43. Ground 3 asserts that there is clearly family life between A1 and A2-4, that the respondent’s excusal and predetermination decisions had to be compatible with Article 8, and that decisions are not so compatible. The decisions fail to even address Article 8. It is also said that the decisions fail to have any regard to the best interests of A3 and A4.
The parties’ submissions in outline
44. The parties’ submissions were detailed and I have considered them with care before determining the issues. Rather than setting them out at length here, I have attempted to subsume them within my analysis and conclusions.
45. In summary, Miss Knorr essentially followed the grounds and her skeleton argument. She emphasised A2-4’s circumstances and the impact of these on A1. I was taken at some length through the process by which FCDO assistance might be provided, in conjunction with the respondent’s input to this. I was referred to several unreported judgments of the Upper Tribunal which had considered, in particular, requests to make predetermination decisions. Beyond these, reliance was placed on a number of passages in the judgments of Chamberlain J in R (BEL) v SSFCDA [2025] 4 WLR 103 and Sheldon J in R (RKC1) v SSFCDA and SSHD [2026] EWHC 440 (Admin) (both cases concern the situation in which consular assistance had been requested.
46. Miss Knorr submitted that predetermination decisions had been made in a number of other cases similar to that of the applicants. A positive predetermination decision was relevant to obtaining assistance from the FCDO and an individual was not required to make a request for such systems as a prerequisite for a predetermination. The respondent’s excusal and predetermination decisions effectively defeated the purpose of the UJP, namely to allow an individual to complete the entry clearance process. Miss Knorr highlighted the existence of a discretion within the UJP, even where all four of the specific Criteria had not been satisfied.
47. As regards Article 8, Miss Knorr submitted that the applicants’ case did engage the provision and either RKC1 was distinguishable or alternatively the contrary view taken in RKC1 was wrong.
48. Miss Giovannetti KC emphasised the importance of all four Criteria being met. Criterion 4 was not simply a peripheral consideration, as it concerned questions of national security and public protection. I was urged to exercise real caution before placing value on other decided cases which pre-dated relevant developments in the Jordanian authorities’ attitude to the entry of third country nationals which came about in September 2025. The same caution should be applied to reliance on cases in which I had not been provided with the full evidential picture.
49. It was submitted that Article 8 was not engaged, but even if it was, the challenged decisions struck a fair balance between the applicants’ rights and important national security and foreign policy considerations.
50. In reply, Miss Knorr submitted, amongst other things, that Criterion 4 was purely practical in nature and that the national security and public protection considerations have been addressed in the favourable assessment of Criterion 3. She re-emphasised the significance of the applicants having either an excusal or predetermination decision in hand before potentially making a request for assistance from the FCDO.
General self-directions on the correct approach
51. In her written and oral submissions, Miss Giovannetti KC referred me to a number of authorities relating to the general approach I should adopt in this case. I need not cite these, but I set out the principles arising therefrom and by which I am guided.
52. The meaning of a policy published by the respondent is a matter for the relevant court or tribunal to determine. Policies should not be construed with all the strictness applicable to the interpretation of a statute or statutory instrument. Rather, they should be read sensibly and objectively, in context, and in accordance with the natural and ordinary meaning of the words used.
53. Matters of national security and the protection of public safety are inherently the territory of the executive and/or Parliament and very considerable weight should be attached to the respondent’s decisions insofar as those considerations are engaged.
54. To the extent that the applicants’ challenge concerns outcome rationality (as opposed to process rationality), the threshold is demanding, even in cases raising compelling humanitarian considerations or important rights. I note that even in cases concerning, for example national security, a finding of irrationality is not precluded.
55. I am not concerned with any decisions taken, or indeed not taken, by the Foreign Commonwealth and Development Office. No direct request has been made by the applicants to it for any assistance in leaving Gaza.
56. I remind myself that there is no front-on challenge to the UJP itself. Decisions taken by the respondent for political reasons are a matter for her. She is entitled to have regard to domestic political considerations and the geopolitical developments which invariably take place over the course of time. The respondent also cannot answer for positions taken by governments of other sovereign states as to how they police their borders.
Conclusions on Ground 1: Biometric excuse
57. I am bound to say that the first aspect of the applicants’ challenge has not perhaps been put forward in the clearest and/or most concise form. Certain matters relied on have either been arguably irrelevant or over-complicated.
58. Having said that, I conclude that the applicants have made out their case under Ground 1, albeit on a narrow basis within its overall scope.
59. I intend to keep my reasoning as concise as possible. That is not to say that I have ignored the detailed submissions put to me by both sides. The parties are the informed readers of this judgment: they know what has been said in support of the competing arguments.
60. To the extent that the applicants have asserted that the UJP itself is unlawful, I reject the argument. As mentioned earlier, it was only included as something of an afterthought or at most very much a secondary contention. The UJP does not unlawfully fetter the respondent’s discretion: that discretion is clearly stated in the policy and exists beyond the normal requirements of having to meet all four Criteria. If it were felt that the UJP itself is unlawful in respect of its purpose and all the terms, I would have expected this to feature ‘front and centre’ of the challenge: it has not.
61. I therefore turn to consider the application of the lawful UJP to the applicants’ case.
62. The respondent accepted that Criteria 2 and 3 were satisfied. That was significant, particularly with respect to Criterion 3. Criterion 3 is important because it, in a sense, acts as a consideration of substantive matters relating to the circumstances of individual(s) concerned. It goes well beyond the assessment of matters which might be described as more hard-edged, such as identity and the logistics of undertaking journeys.
63. As I read Criterion 3, it requires an individual to demonstrate compelling circumstances, such that they “outweigh the interests of national and border security.” It might appear as though the satisfaction of Criterion 3 would, without more, provide the complete answer to national security and public protection concerns. At points, Miss Knorr’s reliance on Criterion 3 suggested that that contention was being offered up. Whether this is so or not, I conclude that Criterion 4 stands on its own two feet, as it were, with regards to national security and public protection considerations. That much is apparent from the introduction to the UJP itself, the statement of “important principles” contained within its body, and the evidence of Ms Pickering, which I accept is both reliable and deserving of considerable weight. There is a logical and rational underpinning to Criterion 4: matters considered under Criterion 3 go to the particular circumstances of the individual(s) concerned, whereas Criterion 4 is directly connected to the respondent’s ability to carry out the best possible checks on an individual prior to their arrival in the United Kingdom. This is particularly important when it comes to biometric excuse.
64. The fact that a decision to excuse biometrics must first be approved by a Minister in person only goes to underline the particular significance of national security and public protection in cases where an individual will only have their biometrics checked once they have arrived in this country.
65. Having regard to the above, together with a sensible and objective reading of the plain words used, it was rational for the respondent to conclude that the applicants had failed to satisfactorily explain how they could travel to the United Kingdom without going through a third country in which there was a VAC. Put shortly, it is common ground that the applicants could not have travelled directly from Gaza to this country (that has never been possible and there is clearly no realistic prospect of that position changing in the foreseeable future). In light of the circumstances pertaining at the dates of both challenged decisions, the only route which might feasibly have been open to A2-4 was to cross into Jordan, from where they would potentially be able to travel on to the United Kingdom. There is a VAC in Jordan. Even if the Rafah crossing had been opened, there is a VAC in Egypt.
66. There is nothing irrational about the UJP’s firm starting point that individuals “must” meet all four Criteria.
67. This brings me to the question of discretion. As I have already mentioned, it is readily apparent from the UJP that there is a discretion within the policy itself to excuse biometrics (and to predetermine an application), as evidenced by the use of the words “in most circumstances” and “ordinarily” at several points and as confirmed by Ms Pickering at [30] of her first witness statement.
68. Five questions then arise:
(a) Was there a request to exercise discretion?
(b) Was the discretion exercised, expressly or impliedly?
(c) Has the point been properly pleaded in this case?
(d) Is the respondent’s excusal decision unlawful?
(e) Is it highly likely that the outcome would not have been substantially different if any public law error had not been committed?
69. I have considered the applicants’ letter of 27 October 2025 requesting biometric excusal. Having referred to the relevant section of the UJP on Criterion 4b, and accepting that it was “impossible to leave Gaza without consular assistance and an onward visa”, and seemingly recognising that the only potential route out of Gaza would be to cross into Jordan, it is said that: “in the particular circumstances of this case and in reliance on all the evidence submitted, the applicants have established that they are able to travel to the UK if a visa is issued but not to a VAC.” That of itself does not represent a request to exercise discretion beyond the terms of Criterion 4b: it was an assertion that those terms were met. I have already found that the respondent’s contrary conclusion was rational.
70. However, the next passage in the letter is relevant and states:
“Furthermore, it is submitted that, for all the reasons set out above, the circumstances of the applicants in this case are ‘so compelling that they outweigh the significant public interest in ensuring that biometric security and identity checks are carried out prior to them travelling to the UK, where not granting a biometric excusal would significantly and disproportionately affect the sponsoring relative based in the UK as the individual would be prevented from coming to the UK.’”
71. Four specific factors are then set out relating to why A2-4 would represent a “low risk” in terms of the public interest: the existence of identity documents; that A4 was exempt from providing fingerprint biometrics biometric information in any event by virtue of his age; none of the applicants had ever left Gaza before; and that they would all be subject to Israeli security clearance before being able to leave Gaza.
72. I am persuaded that the passage quoted above did represent a properly-articulated request for discretion to be exercised even if, on a strict reading, Criterion 4 could not be satisfied. There are three reasons for this. First, it comes after the assertion that Criterion 4b was satisfied and the relevant passage begins with “Furthermore”, which represented a clear indication of an additional contention/submission that already made. Second, the first reason has to be seen in the context of the UJP, which, as we have seen, contains its own discretionary element. Third, the evidence of Ms Pickering is that decision-makers are provided with training that covers discretion, which suggests that there should be a general awareness of/alertness to the discretionary element within the UJP.
73. Even if the letter did not include a sufficiently clear request for the exercise of discretion going beyond satisfaction of the four Criteria, it would have been irrational not to consider the exercise of discretion, or at least to seek clarification as to whether there was in fact a request for this to be done. In saying this, I refer back to the three reasons previously given. Further, Criteria 1-3 had been satisfied and the applicants were in what can accurately be described as a Catch-22 situation: they could not satisfy Criterion 4a because of an inability to cross into Jordan and attend a VAC; they could not satisfy Criterion 4b because the only possible way they could get to the United Kingdom was to cross into Jordan, where there was a VAC, which in turn precluded the satisfaction of Criterion 4a1.This predicament, combined with all the other circumstances, were signal indicators which in my view clearly called for a consideration of discretion, to the extent that it would have been irrational not to have done so.
74. It follows from the above that I reject the respondent’s submission that there was no requirement to consider the exercise of residual discretion when making a decision on the applicants’ request for biometric excusal.
75. The discretion point could have been pleaded more prominently in the grounds of challenge. Having said that, [44(3)] does fairly and properly challenge the decision of 24 November 2025 on the basis that even if Criterion 4 was not “technically met”, there was nothing to indicate that discretion within the UJP had even been considered, or, if it had, that a failure to exercise it in the applicants’ favour was irrational.
76. The next question is whether the excusal decision of 24 November 2025 demonstrates that the discretion which existed beyond the four Criteria, but still within the terms of the UJP, was actually considered and then exercised.
77. The decision says nothing about discretion within the terms of the UJP itself. Within the section entitled “Criterion Four: Compelling circumstances”, there is nothing to indicate that the discretion was considered, let alone exercised one way or another. There is no reference to the specific factors set out in the applicants’ letter. The decision simply concludes that in order to get to the United Kingdom the applicants would have to travel through a third country in which a VAC could be accessed, thereby precluding satisfaction of Criterion 4b under the UJP. It is then said that it was “open for [the applicants] to complete their applications by attending a Visa Application Centre to control their biometrics within 240 days…”.
78. Miss Giovannetti KC suggested that because decision-makers are aware of the discretion and have had training on the application of the UJP as a whole, it could be inferred that discretion had in fact been considered. I disagree. An express reference to the consideration of the exercise of discretion was required, even if it was simply to have stated something to the effect of, ‘even though you cannot satisfy Criterion 4, all of your particular circumstances have been considered, but it is concluded that discretion should not be exercised in your favour.’ Indeed, the fact that decision-makers are made aware of the discretion through training is all the more reason for that discretion to be expressly addressed in a decision.
79. I acknowledge that it would be for the respondent to determine the relevance or otherwise of a particular factor when considering discretion, subject to rationality review. Yet there has been no determination of relevance at all. In addition, the factors set out in the applicants’ letter, together with other considerations which the respondent accepted constituted compelling circumstances, had substance to them and it might have proved difficult to defend the conclusion that some or all of them were irrelevant to the exercise of discretion.
80. Bringing all of the above together, I conclude that Ground 1 is made out, but only on the limited basis that the respondent’s decision of 24 November 2025 failed to have regard to the discretion contained within the UJP, which in turn renders the decision irrational.
81. The final question in respect of Ground 1 is whether section 31(2A) of the Senior Courts Act 1981 applies through the mechanism of section 15(5A) of the Tribunals, Courts and Enforcement Act 2007. I have taken account of what is said in R (Bradbury) v Awdurdod Parc Cenedlaethol Bannau Brycheiniog (Brecon Beacons National Park Authority) [2025] EWCA Civ 489 and R (Hippolyte) v SSHD [2025] EWCA Civ 1493.
82. I exercise caution in order to avoid stepping onto the “forbidden territory” of reaching my own view on the merits.
83. Somewhat unhelpfully, the applicants have not addressed the section 31(2A) issue. Notwithstanding this, for the following reasons I cannot be satisfied that it is highly likely that the decision would not have been substantially different but for the error I have identified above. First, the decision is completely silent on the question of discretion. Second, Criteria 2 and 3 were satisfied and so this is not a case in which discretion would not have been exercised in the applicants’ favour because of other failings. Third, on the undisputed facts, there were matters of substance resting in the applicants’ favour, including: the compelling circumstances acknowledged by the respondent; the fact that A4 was not required to enrol fingerprints in any event; the fact that A1 was a refugee and on any view a close family member of A2-4; and the existence of what I have previously described as a Catch-22 situation. Fourth, Ms Pickering’s evidence does not provide a sufficient basis on which to conclude that section 31(2A) applies. Fifth, for me to conclude that the “in any event” provision applies would in reality entail forming a view on the merits. Sixth, the fact that it was at the time literally impossible for A2-4 to leave Gaza by any route is not a fatal blow. As I understand it, the respondent accepts that possession of a biometrics excusal decision would act as a valuable precursor to a request for an OTA. As the situation on the ground may change, this remained a potential mechanism for facilitating departure. I note also that within the “Important principles” section of the UJP, it is said that:
“Ordinarily, you must not offer to predetermine an application or excuse the requirement to attend a VAC to enrol biometric information in circumstances where individuals have no reasonable prospect of being able to travel to the UK. This includes circumstances where they are detained in prison or where they are unable to leave their country due to the prevailing circumstances there.”
[Emphasis added]
84. The merits will need to be looked at again by the respondent in the exercise of her discretion. Having said that, I am clear that it is not the case that there is only one rational outcome, namely the exercise of discretion in the applicants’ favour. That over-states the position and fails to recognise the respondent’s wide discretion and the important competing factors of national security and public protection.
Ground 2: Predetermination
85. For the following reasons, I conclude that Ground 2 fails.
86. On an objective reading of the plain words used in the UJP relating to Criterion 4a, the respondent was rationally entitled to conclude that A2-4 had failed to demonstrate that they would be able to travel to a VAC within 240 days of submitting their entry clearance application.
87. It is expressly stated in the UJP that predetermination did not also involve responsibility for the facilitation of crossing international borders. Given the diplomatic connotations surrounding the policy, that was a rational limitation.
88. At all material times, predetermination would not of itself have allowed A2-4 to have crossed into Jordan because of that country’s tight restrictions, which as of September 2025 required a guarantee that they would be able to make the onward journey to the United Kingdom (i.e. an OTA).
89. Probably with this in mind, the applicants’ letter of the 27 October 2025 sought to substitute a biometrics excusal request in place of the initial predetermination request made 9 October of that year. Further, Ground 2 states in terms that the applicants’ argument for asserting that they had demonstrated a “reasonable prospect” of attending a VAC was predicated on both a predetermination and an OTA: [45(2)]. Even assuming that the “reasonable prospect” threshold was appropriate, it is, to all intents and purposes, a conditional argument.
90. There are three main problems with this. First, it relies on the type of facilitation which is expressly excluded from the terms of the UJP. Second, the applicants’ submission that it is irrational for the respondent to impose a condition that a journey to a VAC must be possible without assistance fails to appreciate the preceding point. Third, the applicants have never in fact made a request for an OTA, either to the respondent or the FCDO. This materially distinguishes the applicants’ case from, for example, BEL and RKC1. It also means that there is no decision (or failure to make a decision) which can be the subject of challenge now.
91. Unlike Ground 1, Ground 2 does not include a contention that even if Criterion 4a was not satisfied, there had in any event been a failure to exercise discretion within the terms of the UJP. To the extent that the applicants’ position shifted at the hearing (I was not entirely clear if this was the case), I reject it. The grounds have not been amended and I see nothing in the skeleton argument which clearly suggests an alternative submission to the effect that the predetermination decision is irrational absent any need to rely on an OTA. In my view, what is said at [52(6)] of the applicants’ skeleton argument does not read consistently with what is said at [45(2)] of the grounds. Both the respondent and the Tribunal are entitled to know in advance the case which they must meet and determine, respectively.
92. The applicants assert that a further irrational aspect of the predetermination decision is the respondent’s failure to treat their case consistently with similar cases. I conclude that the respondent’s detailed grounds of defence provide the complete answer to this. First, the respondent was rationally entitled to keep her practice under constant review, in light of the changing situation prevailing in Gaza and, importantly, Jordan. In particular, the tightening of entry requirements into Jordan in September 2025 was clearly a significant development which brought with it diplomatic and logistical implications. Second, those indications were directly connected to consular assistance and, as already noted, the applicants have not made a request for such assistance. Third, virtually all of the other cases relied on by the applicants (most of which are unreported judgments of the Upper Tribunal) pre-dated that specific development in September 2025 and thus their relevance is significantly diminished, if not entirely extinguished. With respect, the same applies to much of the information contained in Ms Ormsby’s witness statement. Fourth, the trite proposition that cases such as the present are fact-specific is clearly relevant to the rationality of the respondent’s decision-making. Fifth, I conclude that, on a general level, the difference in treatment between those in the applicants’ position and the medevac and student cohorts is not irrational. Whilst considering this issue in the context of Articles 8 and 14 in RKC1, Sheldon J’s reasoning is both relevant and persuasive for the purposes of a rationality review. With reference to [193] of the judgment, there were high-level foreign policy objectives in play which justified treating those in the medevac and student cohorts differently from those in the applicants position. Sixth, the whole question of consistency is tied up with the approach taken by not only the respondent, but also the FCDO. Again, I come back to the fact that the latter has not been approached by the applicants and is not a respondent in these proceedings.
Ground 3: Article 8
93. It is clear that decisions taken under the UJP should be compliant with Article 8. In the context of the circumstances with which the policy is concerned, such compliance can only be predicated on positive obligations under Article 8 which may, depending on the facts of any given case, require certain steps to be taken in order to show respect to family life (should it exist).
94. It is common ground that there is family life between A1 and A2-4.
95. In so far as the applicants’ Article 8 challenge relates to the predetermination decision, I conclude that it must fail for two distinct reasons.
96. First, the predetermination request and Ground 2 are explicitly based on both a decision from the respondent and an OTA. In my view, this brings the applicants’ case within the scenario considered in RKC1 and BEL. For the reasons set out in those judgments, I conclude that this aspect of the applicant’s challenge does not fall within the ambit of Article 8.
97. Second, unlike Ground 1, Ground 2 does not, as I have said previously, include a fallback argument related to the discretion contained within the UJP. For reasons which follow, the discretion issue and Article 8 are inextricably bound up together. Without the former being in play, the latter has no real purchase.
98. However, the position in respect of the excusal decision is different. For reasons set out previously, I have concluded that an excusal decision would act as a valuable precursor to a future request for logistical assistance in getting across the border into Jordan. It would act as something akin to an OTA. Unlike the predetermination request and Ground 2, the excusal request and Ground 1 did not explicitly rely on the respondent granting an OTA and therefore does in principle fall within the ambit of Article 8 and can be distinguished from what is said in RKC1 and BEL.
99. In contrast to the predetermination decision, I have concluded that there is a public law error in respect of the excusal decision on the basis that there was a failure to consider the exercise of discretion within the terms of the UJP. In my judgment, the compatibility of that decision with Article 8 is bound up with the failure to consider exercising discretion. In other words, Article 8 considerations would inevitably form part and parcel of consideration of the exercise of discretion in order to achieve the compliance of the outcome decision with the need to respect family life, as required by the UJP. The absence of any reference to Article 8 in the excusal decision is of a piece with the absence of any reference to discretion.
100. I acknowledge that in R (FWF) v SSHD [2021] 1 WLR 3781, at [143], Laing LJ concluded that the not in accordance with the law limb of the staged approach to Article 8 did not apply in positive obligation cases. However, in light of what I have said about the relationship between discretion and Article 8 and their place within the UJP, the present case is more analogous (although not entirely on point) to the situation in Malcolm v SSJ [2011] EWCA Civ 1538, relied on by the applicants. There, the Court was concerned with the application of policy guidance in respect of how much time in the open air prisoners were entitled to. The case was argued on the basis that the policy guidance related to positive obligations under Article 8: [17(4)] and the Court appeared to base its analysis (as an alternative to the primary conclusion that there had been no interference with protected rights) on such obligations. In the absence of good reasons, a failure to follow a published policy would render the authority’s actions not in accordance with the law: [32].
101. Given that the need for compliance with Article 8 was, as with the existence of a discretion, an aspect of the UJP itself, I am driven to the conclusion that the excusal decision failed to consider Article 8, whether explicitly or by way of a considered exercise of discretion, and therefore failed to lawfully apply the policy, which in turn renders it not in accordance with the law.
102. Thus, Ground 3 succeeds on the narrow basis that there has been a procedural breach of Article 8 rights.
103. I make it clear that the success of Ground 1 is not dependent on that of Ground 3. Even if I were wrong in my conclusion that the excusal decision was not in accordance with the law for the purposes of Article 8, the discretion within the UJP would still have permitted the respondent to reach a conclusion in the applicants’ favour.
Damages
104. I begin with the general principles to be derived from the various authorities. It is for the applicants to demonstrate that it is necessary to award damages in order to afford just satisfaction. An award will not automatically follow from a breach of Article 8 and the applicants must establish that the effects of the breach are sufficiently serious to justify financial compensation. Declaratory relief is of itself an important remedy. There must be a causal link between the breach of Article 8 and any harm suffered. Significantly, the question of whether damages are appropriate is intensely fact-specific.
105. For the following reasons, which must be read cumulatively, I conclude that an award of damages is not necessary in this case.
106. First and with respect, I am bound to say that I have not been greatly assisted by the pleadings and submissions on behalf of the applicants. The grounds address damages in only three paragraphs. Only one of these deals with their circumstances and this is done in only very broad-brush terms. The authorities cited relate to a variety of factual circumstances, some of which are simply too different to have any real relevance, whilst others indicate that continuing separation of family members may, depending on the facts, lead to an award of damages.
107. I observe that the “preliminary estimate” put forward in the grounds of £15,000 for each applicant seem to me very high.
108. The question of damages is addressed in greater detail in the skeleton argument. However, the submissions made therein relate in very large part to Dublin III cases, with all their legislative and factual particularities.
109. There were no oral submissions on damages. There was ample time at the hearing for this to have been done (the case was listed for a whole day). There was no request for permission to provide post-hearing written submissions on damages.
110. It is not for me to make out the applicants’ case on damages for them.
111. Second, the breach of Article 8 was of a procedural nature. At this stage, the respondent has not substantively considered the applicants’ circumstances. Whilst that does not preclude an award of damages, it is a relevant consideration.
112. Third, this is not a case in which there has been an unlawful separation of family members by virtue of action which has split up a family unit, although as I have said previously, a continuing separation (such as in this case) can in principle lead to an award.
113. Fourth, there has been no delay in the respondent’s decision-making. The challenged decisions were made in good time following the requests.
114. Fifth, A2-4 have been and still are living in extremely difficult circumstances. A3 and A4 are young children. In addition, the evidence indicates that A1 has suffered, and is still suffering, real emotional and psychological distress as a result of the ongoing separation from his family. That is clearly important.
115. Sixth, and importantly, notwithstanding my conclusions on the value of obtaining a favourable excusal decision and the materiality of this to Grounds 1 and 3, the evidence before me indicates that developments on the ground mean that since February 2026 it is not possible for the applicants to actually leave Gaza and cross into Jordan (or anywhere else), as confirmed by Ms Pickering at [42] of her witness statement. This is a state of affairs which is clearly outside the control of the respondent (and indeed the FCDO).
116. Seventh, in light of the foregoing, declaratory relief and a quashing order in respect of the excusal decision represent sufficient remedies. The respondent is well-aware of the applicants’ circumstances and it can reasonably be expected that a fresh decision would be made as expeditiously as possible. The fact that departure from Gaza is practically impossible at the moment should not in my view permit a delay in the decision-making process. If the new decision is favourable, it will at least form a firm basis on which the applicants can then approach the respondent and FCDO for logistical assistance, or at least wait to see if circumstances on the ground change in the knowledge that they already have the decision in hand. If the new decision is adverse, the applicants can consider what further legal steps they may wish to take.
Summary
117. The applicants succeed on Grounds 1 and 3, but fail on Ground 2.
Disposal
118. The parties are invited to draft an order which reflects the terms of this judgment.

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