JR-2026-LON-001331
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The decision
Case No: JR-2026-LON-001331
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR
3rd November 2026
Before:
UPPER TRIBUNAL JUDGE PINDER
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Between:
THE KING
on the application of
(1) IZ
(2) INA
(3) NZ by her litigation friend IZ
(4) LZ by her litigation friend IZ
(5) NIZ by his litigation friend IZ
(6) ZZ by his litigation IZ
(7) IIZ by her litigation friend IZ
(Anonymity Orders made)
Applicants
- and -
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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Ms M Knorr and Ms A Patyna, Counsels
(instructed by Leigh Day) for the Applicants
Mr J Holborn, Counsel
(instructed by the Government Legal Department) for the Respondent
Hearing date: 24th September 2026
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J U D G M E N T
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Judge Pinder:
A. Introduction
1. This is an application for judicial review, in which the Applicants seek to challenge two decisions of the Respondent. The first decision is the Respondent’s refusal dated 29th January 2026 of the Applicants’ request to have their entry clearance applications predetermined (‘the predetermination decision’) (TB [122]). The second decision is the Respondent’s refusal dated 23rd April 2026 to grant biometric excusal (‘the excusal decision’) (TB [126]).
2. The Applicants are Palestinian citizens and are a family. The first Applicant, IZ, is resident in the UK and has permission to stay on humanitarian protection grounds.
3. IZ’s wife is the second Applicant, INA. They have five children together, who are the third to seventh Applicants. Their interests in their proceedings, as minor children, are represented by IZ, as their litigation friend. The second to seventh Applicants continue to live in Gaza and they applied together for entry clearance under Appendix Family Reunion (protection) to join the first Applicant IZ in the UK. Those applications were accompanied by a request for predetermination under the Respondent’s policy entitled ‘Unable to Travel to a Visa Application Centre to enrol biometrics (overseas applications)’. This policy has also become commonly known as the ‘Unsafe Journey Policy’ (‘the Policy’).
4. Following a refusal to have their applications predetermined, the Applicants applied for biometric excusal under the Policy.
5. The central question in these proceedings is whether the Respondent’s refusals to either excuse the enrolment of biometric information or to predetermine the entry clearance applications are unlawful on public law grounds and/or fail to comply with the UK’s obligations under Article 8 ECHR.
6. I am grateful to each advocate, the parties and their respective legal teams for their comprehensive and very helpful written and oral submissions and trial bundles.
B. Procedural history and factual background
7. The background and procedural history are well known to both parties and I do not rehearse this in detail.
The Applicants’ own circumstances
8. IZ is a medical doctor, who ran a clinic in Gaza. He left Gaza in September 2023, in order to visit his brothers, who live in the USA. IZ was in the USA in October 2023 when Hamas attacked Israel and the current conflict started. As a result of the conflict, IZ was unable to return to Gaza and his family. He subsequently travelled to the UK, which he entered on 13th February 2025, claiming asylum that same day. IZ provided the details of his wife and children to the Respondent when interviewed in connection with his protection claim. IZ was granted humanitarian protection by the Respondent on 7th August 2025.
9. The first and second Applicants’ children are aged between 7 and 17 years old. When I refer to the Applicants in the plural, I refer to the second to seventh Applicants, unless I stipulate otherwise.
10. The Applicants’ circumstances as presented to the Respondent are that they are living in very poor and distressing conditions. Their home has been destroyed and they initially stayed in the building where the first Applicant’s mother lives. After some time, they were displaced from there and went to stay in a tent in a refugee camp in Rafah. The living conditions and the risks that they were exposed to there were so poor that the Applicants returned to their mother-in-law’s/grandmother’s building in Al Nuseirat. That building has also been damaged by bombings and there is no running water. There are pest infestations and the Applicants do not have access to the most basic amenities.
11. The Applicants have witnessed or been exposed to horrific conditions and events and they continue to live in fear for their own lives. The Applicants have lost many family members to the conflict. They have lost weight, they are hungry all the time, and do not have sufficient food every day.
12. As well as suffering from physical health conditions, such as malnutrition and skin rashes, the Applicants have been suffering from poor mental and emotional health. The children have nightmares and the third Applicant who is 7 years old has been wetting her bed. All, including the first Applicant, are experiencing high levels of anxiety.
13. The first Applicant has been suffering from mental ill-health. He feels depressed, anxious and is unable to sleep due to the distressing separation and concerns for his family. All of the Applicants try to remain in contact over the telephone/video-calls but this is not always possible as a result of a poor connection.
The judicial review proceedings
14. Following the Respondent’s predetermination decision, the Applicants engaged on 30th January 2026 in pre-action correspondence with the Respondent. In parallel, the Applicants also requested on 5th March 2026 for the Respondent to consider granting biometric excuse, which the Respondent agreed to do on 31st March 2026.
15. On 17th April 2026, the Applicants issued their application for judicial review against the Respondent’s predetermination decision dated 29th January 2026. At this time, a decision on the Applicant’s biometric excuse request had not yet been taken.
16. On 23rd April 2026, the Respondent issued her decision to refuse to grant biometric excuse. Pre-action correspondence ensued and on 22nd May 2026 - before the Respondent had filed her Acknowledgment of Service - the Applicants applied to amend their claim and grounds of challenge, so as to permit a challenge to the Respondent’s second (biometric excusal) decision.
17. Upper Tribunal Judge Blum granted expedition of the judicial review permission application and made various other orders including the appointment of litigation friend and the making of anonymity orders
18. Upper Tribunal Judge Reeds granted permission to the Applicants, in an order sealed on 17th June 2026, to apply for judicial review against both decisions on each of the grounds pursued.
C. The relevant legal and policy framework
19. I note that the relevant legal framework has already been set out in two recent decisions of this Tribunal, namely R (oao MS & others) v Secretary of State for the Home Department (JR-2026-LON-000669) (‘MS & others’) at paras 11-27 and the linked cases of R (oao HA, LS & others) v Secretary of State for the Home Department (JR-2026-LON-002050 & JR-2026-LON-002408) (‘HA & Others’) at paras 9-23.
20. For ease of reference within this decision, I outline as succinctly as possible the relevant legal framework below. For the avoidance of doubt, I have otherwise very carefully considered in full the statutory and regulatory provisions, as well as the accompanying policy guidance.
The requirement to provide biometric information
21. Section 5 of the UK Borders Act 2007 (‘the 2007 Act’) permits the Respondent to make regulations requiring the registration of biometric information by persons subject to immigration control and how such requirements are to be administered and used.
22. Those regulations have since been made: the Immigration (Biometric Registration) Regulations 2008 (‘the Regulations’). Regulation 3A provides that a person subject to immigration control (‘the person’), who applies for entry clearance, “must” apply for the issue of a biometric immigration document. Under Regulation 5(1), an “authorised person” – such as an immigration officer – may require the person (who makes an application for the issue of a biometric immigration document) to provide a record of their fingerprint and a photograph of their face. Regulation 5(2) mandates the person to provide those records when required by an authorised person. Regulation 5 is discretionary as to whether or not the person will be required by the authorised person to provide biometric information.
23. Regulation 8 makes broad provision for the process by which the biometric information may be obtained, if it is required. In summary, the authorised person has discretion to require the person to attend appointments at specific dates, times and locations, or within specific timescales, with any necessary specified identity documents.
24. As such, whilst the requirement to apply for a biometric immigration document is strict, whether or not a person is required to provide the biometric information and if so, the time and place at the relevant records are provided, is a matter of discretion under Regulations 5 and 8.
‘Unable to travel to a Visa Application Centre to enrol biometrics (overseas applications)’ policy guidance
25. The exercise of discretion as to whether or not a person applying for a biometric immigration document will be required to provide biometric information is also the subject of published policy guidance. A person may be excused from providing their biometric information in certain circumstances. One such circumstance is where a person is applying to come to the UK from overseas and claims it is too unsafe for them to travel to a Visa Application Centre (‘VAC’) to enrol their biometrics.
26. The published policy guidance that applies to those circumstances is the Respondent’s ‘Unable to travel to a Visa Application Centre to enrol biometrics (overseas applications)’. This is commonly referred to as the ‘Unsafe Journeys Policy’ (‘the Policy’) and has been amended from time to time. Within these proceedings, the parties are agreed that the relevant version of the Policy is ‘Version 4’, published on 21st August 2024. It is under this Policy that the Applicants requested predetermination of their entry clearance applications and later biometric information excusal.
27. The ‘introduction’ section of the Policy emphasises, in summary, the following points:
• The purpose of a biometric enrolment is to record an individual’s biometric information, to seek to verify their claimed identity and to undertake background checks on them;
• Biometric enrolment of facial image and fingerprints underpins the UK’s immigration system, to support identity verification and suitability checks;
• Granting biometric excusal, such that a person does not have to attend a VAC to enrol their biometrics prior to travelling to the UK, creates a heightened risk to the UK’s nationality security as the opportunity to conduct checks with the provided biometrics is lost;
• Predetermination of an entry clearance application should therefore be preferred, where suitable, to biometric excusal;
• Biometric excusals should be limited in scope to reflect the strong public interest in protected UK national security and public safety, as well as protected the UK’s borders;
• The Policy anticipates 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.
28. The above-summarised points are reiterated in the section ‘important principles’ at internal p.11 (AB [2417]), where it is emphasised that caseworkers “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.” (emphasis original) The following is also stressed in the same ‘important principles’ section:
“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.”
29. As is clear from the above and the ‘introduction’ section of the Policy, two specific and distinct processes have been developed for the Respondent to consider in the context of persons claiming unsafe journeys: requests for predetermination and requests for biometric excusal. The former is to be preferred if predetermination is deemed to be “sufficient” and all four criteria (outlined below) are met. This is because of the greater risks involved when excusing the requirement to enrol biometrics.
30. The Policy also states in the introductory paragraphs at internal p.8 (AB [2414]) that “(w)here travel to a VAC in a preferred third country is not possible due to that country’s border restrictions, they should normally either find an alternative VAC in a different location or wait until they can meet the border and immigration requirements of that third country.”
31. The Applicants requested both predetermination and biometric excusal. The Respondent refused to exercise her discretion under both of these processes. Both decisions are the subject of this judicial review challenge and the Applicants pursue their challenge against the biometric excusal decisions in the first instance and in the alternative, against the predetermination decisions.
32. “Predetermination” is defined as follows in the Policy (internal p.4, AB [2410]):
“(W)e 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 them attending a VAC to enrol their biometrics and enabling us to complete background checks on them and their documents.”
33. “Biometric excuse” is defined as follows (ibid.):
“(T)he 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”
34. There are four criteria set by the Policy, for both processes of predetermination and biometric excuse. The first three criteria for each process are common to each other, albeit with a different standard of proof to be applied for the first criterion. The fourth criterion then differs depending on which process is followed.
35. The four criteria are as follows, with Criteria 1 being on the balance of probabilities for requests for predetermination (internal pp.12 and 14, AB [2418] & [2420):
“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.”
36. With regards to excusing attendance at a VAC, the Policy provides in the guidance for Criterion 4B that “(g)iven 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.” (internal p.29, AB [2494])
37. The two specific processes of predetermination and biometric excusal, and their respective criteria contained in the Policy, do not restrict or otherwise curtail the Respondent’s consideration since she retains a residual discretion as well.
38. Moreover, the Respondent’s decisions need to be compliant with Article 8 of the European Convention on Human Rights (‘ECHR’). This is expressly confirmed in the ‘about this guidance’ page of the Policy where it is stated that “(t)his guidance has been updated to: ensure the guidance reflects that there are residual discretionary powers”. It is also confirmed at internal p.12 of the Policy (AB [2418]), where it is stated:
“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.”
39. The residual discretion that is retained by the Respondent within the Policy is demonstrated by the use of the words “in most circumstances”, “normally” and “ordinarily”. This, and the residual discretion under the Regulations, is considered further below in my ‘analysis’ section under Ground 1.
Exceptional consular assistance from the Foreign, Commonwealth and Development Office (‘FCDO’)
40. As part of the Respondent’s defence of the Applicants’ judicial review application, the Respondent has raised that the Applicants ought to approach the FCDO for exceptional consular assistance instead of, or prior to, pursuing the route of requesting either predetermination or biometric excusal under the Unsafe Journeys Policy. I have set out further below in my ‘analysis’ section the Respondent’s rationale for her position and I summarise immediately below the parameters of any such FCDO approach.
41. There is both published information on the assistance that the FCDO is able to provide, specifically in the context for persons currently in Gaza, as well as a record of what this entails in the judgment of Sheldon J in R (oao RKC1 & others) v Secretary of State for Foreign, Commonwealth & Development Affairs and Secretary of State for the Home Department [2026] EWHC 440 (Admin) (‘RKC1’).
42. The FCDO considers all requests for consular support and publishes its own guidance on this. This is separate from the Respondent’s decision-making under the Unsafe Journey Policy. This was confirmed by Ms S Pickering, in her witness statement at para 40 (TB [694]) adduced on behalf of the Respondent in MS & Others, and which was also part of the Respondent’s evidence before me.
43. The FCDO’s published guidance on who the FCDO will assist during a crisis abroad entitled ‘Guidance: If you’re affected by a crisis abroad’ sets out the following (emphasis original) (last updated on 2nd August 2024) (TB [990]):
“Who we can help in a crisis
In a crisis abroad we can usually provide help to:
• British nationals
• British nationals with another nationality: ‘dual nationals’
In some circumstances we can also help:
• nationals of other Commonwealth countries, in places where their country does not have a local embassy or consulate
• during a crisis or large-scale incident, non-British immediate family members (e.g. spouse or partner and children under 18, if the British national is a child under 18 then their parents and siblings under 18) travelling with a British national
We cannot usually help:
• nationals of other countries, even if you have been living legally in the UK
We make decisions about who we can help based on the specific circumstances of the person or people involved. Decisions on UK entry clearance are for the Hom Office.”
44. The FCDO’s published guidance entitled ‘Foreign travel advice: Palestine’ sets out the following under the section ‘Leaving Gaza’ (TB [985], with the version in the trial bundle published and “still current at: 23 March 2026” (TB [979]1):
“Border crossings out of Gaza have been closed to civilians and general traffic since the Israeli military took control of the Rafah crossing on 6 May 2024. Consular support is not available from within Gaza. If you are a British national in Gaza who wants to leave Gaza, you should make contact with us as soon as possible. There are currently no exit routes available for foreign nationals to depart Gaza independently. We are working with the Israeli, Palestinian and other authorities in the region to help British nationals leave via safe routes.
If you are a UK visa holder who meets all of the following criteria, you can contact us to request support to leave Gaza if:
◦ you have a spouse/partner or a child aged 17 or under currently living in the UK, and
◦ you hold valid permission to enter or remain in the UK longer than 6 months”
45. What FCDO support entails has been the subject of change over the many months since the conflict in Gaza started and since the VAC in Gaza closed in October 2023. There has been further change since the exit from Gaza via Egypt at the border crossing in Rafah was closed by Israel (to most persons save for on occasion medical evacuees and their family members) on 6th May 2024. The parties are agreed that the support involves the following processes:
• Exiting Gaza via the Kerem Shalom crossing into Israel and later into Jordan;
• There are various requirements for use of this crossing, including (from August/September 2025) the requirement of the Jordanian government that the UK government “provide explicit assurances of UK onward travel regardless of the outcome of biometric checks (“OTAs”) for individuals transiting through Jordan, and that (such persons) remain in Jordan for no longer than 72 hours” (TB [695] witness statement of Ms Pickering, para 41). The reference to ‘OTAs’ stands for Onward Travel Assurances;
• Since biometrics cannot be enrolled at a VAC in Gaza, the issuing of an OTA has to be issued if persons are to exist via Jordan, regardless of the enrolling and the outcome of biometric checks.
46. Ms Pickering also details the following in her witness statement at para 44 with regards to referrals being received from the FCDO (ibid.):
“In September 2025, the SSHD agreed to allow individual cases to be referred by the FCDO and/or other government departments where they had identified exceptional reasons and they wished to support the individual travelling to the UK, outside of the USJ policy, for consideration on a case-by-case basis. Because the FCDO owns the relationship with the third country government, assurances of onward travel would only be provided by the FCDO with the agreement of the SSHD. Accordingly, the provision of onward travel assurances is dependent upon the FCDO being willing and able to provide consular support and the FCDO’s assessment that it is necessary for the Home Office to provide an onward travel assurance to achieve entry into the third state. The Home Secretary has not agreed as a policy position to make case-by-case decisions on onward travel assurances absent FCDO confirmation of pipeline and capacity to support exit.”
47. The FCDO’s position has been described as follows by Chamberlain J in R (BEL & Others v FCDO and SSHD) [2025] 4 WLR 103, [2025] EWHC 1970 (Admin) (‘BEL’) at [28] and [37]:
“Ms Taylor (Director for Consular and Crisis at the FCDO) refers to the process of providing consular assistance to exit Gaza as “an immensely complex exercise” which “involves sustained work and negotiation with multiple foreign state actors, and with international humanitarian partners … [and] a sustained expenditure of political and diplomatic capital with Israel and others”. She gives eight reasons for this.
(…)
“The FCDO’s position is that it is essential to maintain a limited and targeted approach to providing consular assistance in order to make effective use of its resources (in particular, diplomatic capital).”
48. Sheldon J held in RKC1 that Article 8 ECHR does not impose a positive obligation on the UK to provide extraterritorial consular assistance. This was specifically with regards to the issuing of OTAs, with the claimants in those proceedings seeking to challenge an initial purported failure to assist the claimants to exit Gaza and transit through the Kingdom of Jordan for onward travel to the UK. Within the duration of those proceedings, a subsequent decision was issued by the Secretary of State for the Home Department to refuse OTAs to the claimants, which they also sought to challenge in the same proceedings.
General principles arising from the authorities before me
49. The meaning of a policy published by the Respondent is ultimately a matter for the Tribunal to determine. Such policies are not to be construed with the same degree of strictness as would apply to a statute or statutory instrument. Rather, they should be read sensibly and objectively, having regard to their context and to the natural and ordinary meaning of the language used.
50. Matters concerning national security and the protection of the public are, by their nature, areas in which primary responsibility rests with the executive and, where appropriate, Parliament. Accordingly, where such considerations are engaged, considerable weight should be afforded to the Respondent’s assessment and decision-making.
51. Insofar as the Applicants challenge the rationality of the outcome reached in the Respondent’s decisions, rather than the process by which those decisions were reached, they face a demanding threshold. That remains so even where the case raises compelling humanitarian considerations or important rights. At the same time, I bear in mind that a finding of irrationality is not excluded merely because the subject matter concerns, for example, national security where considerable respect to the Respondent’s area of expertise is to be given – see the authorities cited by the Respondent at para 27 of her skeleton argument.
D. The Respondent’s decisions – predetermination and biometric excusal
The predetermination decision of 29th January 2026 (TB [122])
52. The Respondent confirms having considered the Applicants’ request for a predetermination in accordance with the Policy (version 4). The Respondent also confirmed that she was satisfied that the Applicants met the first three criteria but was not satisfied that they met Criterion 4 (travel).
53. I summarise the Respondent’s conclusions in relation to the first three criteria in less detail since she did not seek to dispute these criteria in this decision. The Respondent confirmed being satisfied that the Applicants’ identities have been established to a balance of probabilities (TB [124]).
54. With regards to Criterion 2 and 3, the Respondent stated that she was satisfied that the Applicants “have met this criterion for a Predetermination in line with the (Policy)” (ibid.).
55. On Criterion 4a of travel, the Respondent extracted the relevant guidance from the Policy that stated that an applicant 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. The Respondent then cited from the written representations stating that “(a) grant of Entry Clearance subject to biometric enrolment (predetermination) is essential in order for our clients to evacuate from Gaza. We would therefore be grateful if the SSHD could agree to grant Entry Clearance subject to biometrics as a matter of urgency” and “(i)f granted Entry Clearance subject to biometrics, the Applicants will approach the FCDO requesting assistance to leave Gaza.”
56. From the above, the Respondent concluded as follows at para 12 (TB [125]-[126]):
“While the above statement is acknowledged, it does not confirm that your clients are able to travel to a VAC within 240 days of submitting their online application. Furthermore, in accordance with the (Policy) (…), it is stated that “neither the Home Office nor the Foreign, Commonwealth and Development Office (FCDO) 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” and that “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.” Accordingly, given the absence of confirmation regarding your clients’ ability to travel to a VAC, and considering that the purpose of a Predetermination is not to aid border crossings, it is considered that your clients have not met this criterion in line with the (Policy) (…)”.
57. The decision’s 12th and final paragraph confirms that it is open to the Applicants to complete their applications by attending a visa application centre to enrol their biometrics within 240 days from the date of last submission of their online applications.
58. There is otherwise no mention of a residual discretion within the Policy having been considered, nor of any balancing exercise under Article 8 ECHR having been conducted.
The biometric excusal decisions of 23rd April 2026 (TB [126]
59. Similarly, the Respondent confirmed at para 2 of her decision (TB [127]) that the Respondent agreed to exceptionally consider the Applicants’ request for biometric excusal of their entry clearance applications in accordance with the Policy.
60. In this decision, the only criterion with which the Respondent was satisfied was Criterion 2.
61. In respect of Criterion 1 (identity), the Respondent noted the submission of the Applicant’s passport copies as well as the minor children’s birth certificates. The Respondent confirmed remaining satisfied that the Applicants’ identities have been established to a balance of probabilities. With regards to the higher standard of proof of ‘reasonable degree of certainty’ that applies, the assessment was not carried out since the Respondent concluded that Criteria 4 was not met.
62. On Criterion 3, the Respondent stated that she was not satisfied that the Applicants’ “circumstances outweigh the public interest in national and border security that they would warrant a Biometric Excusal, even if this was accepted in (the Applicants’) Predetermination assessment”. The reasons given span ten paragraphs and can be summarised as follows:
(a) The Respondent accepted that the Applicants had demonstrated the biological and familial ties as claimed and that for the purposes of the Unsafe Journey request, the Sponsor’s Article 8 ECHR rights are engaged (para 17, TB [130]). It was also accepted that there was sufficient proof of an on-going relationship and dependency between the Applicants (paras 18-19, TB [130]-[131]);
(b) With regards to the need to consider the likely impact on the Sponsor if the Applicants are unable to join them in the UK, against the need to protect public safety, the UK’s national security, public health and the UK’s immigration laws – as is required under the Policy at internal p.23 (AB [2429]) – the Respondent concluded as follows (para 20, TB [131]):
“It is noted that no evidence has been submitted to demonstrate the likely impact on the sponsor if your clients were to delay enrolling biometrics, which is the overall remit of an Unsafe Journey consideration, until circumstances change to complete their visa application. Again, noting the elevated national and border security risks which are involved with Biometric Excusals, your omission to cover this point as sought for in our guidance means that your clients’ circumstances have not been made out in this regard to outweigh the public interest and border and national security risks.”
(c) When assessing the circumstances specific to the second Applicant, the Respondent stated as follows (para 21, TB [131]-[132]):
“The humanitarian situation in Gaza is acknowledged and afforded some weight in my assessment of compelling circumstances. It is noted that your client can receive additional support from the Sponsor’s mother, who they are indicated to be living with. Furthermore, your client has not demonstrated that they require the care of the UK Sponsor or that they are unable to look after themself given that they have the support of external family members.”
(d) On the children Applicants’ circumstances, the Respondent similarly acknowledged the humanitarian situation in Gaza and concluded as follows (para 22, TB [132]):
“It is noted that the above claims (of not going to school, being of low mood, having nightmares, crying and begging to be reunited with their father) are supported by testimony and have not been supported by medical evidence. In addition, they are able to receive the support of their grandmother who they are stated to be living with. Furthermore, your clients have not demonstrated that they require the care of the UK Sponsor or that they are unable to look after themselves given that they have the support of their mother and external family members.”
(e) The spirit of the duty held under s.55 of the Borders, Citizenship and Immigration Act 2009 (‘the 2009 Act’) was considered and the Respondent concluded that the “minor (Applicants) are in a conflict zone and have stated to be experiencing low mood and nightmares, however this has not been supported by any medical evidence.” (para 22, TB [132]);
(f) The last two paragraphs considering Criterion 3 (paras 24-25, TB [132]-[133]) draw the conclusion together that the Respondent was not satisfied that the Sponsor’s and Applicants’ circumstances outweigh the interests of national and border security which would warrant biometric excusal, taking into account that the Applicants are from a territory where terrorists operate.
63. Lastly, on Criterion 4b, the Respondent noted at para 28 (TB [134]) that the Applicants did not fall within the categories set by the FCDO for assistance with evacuation from Gaza, which had been cited to the Respondent in the Applicants’ written representations. She added the following in the same paragraph:
“(T)he purpose for an Unsafe Journey request is to consider whether your clients are simply unable to attend any VAC before coming to the UK as it is unsafe. In your representations you have not covered how your clients can travel to the UK but not to any VAC on route should your clients’ request to be excused from the requirement to attend a VAC to enrol their biometric information be granted. It is noted that there is no direct travel from Gaza to the UK; therefore, any travel from Gaza will include travel to a third country from where a VAC could then be accessed. As a consequence of the above, your clients’ request to be excused from the requirement to attend a VAC and enrol your biometrics is refused in accordance with (the Policy)”.
64. The same concluding paragraph is then set out at the end of the decision, as it was in the predetermination decision – see above at para 57. As was the case with the predetermination decision, there is otherwise no mention of a residual discretion within the Policy having been considered.
E. The Applicants’ judicial review application
65. The Applicants were granted permission to apply for judicial review against both decisions of the Respondent, each challenged on the basis of rationality (Ground 1) and the decisions breaching Article 8 ECHR (Ground 2).
Preliminary matters
66. Leading up to the hearing, each party made an application to adduce further evidence. The Respondent did not oppose the Applicants’ application on the basis that there would be parity if each application was granted. The Applicants opposed the Respondent’s application. Both parties explained that the short notice of the respective applications resulted from matters arising from a different set of linked proceedings, listed and heard by the Upper Tribunal on 9th and 15th September 2026 – HA & Others, JR-2026-LON-002050 & JR-2026-LON-002408. Each party had formed the view that I would be assisted by further evidence to address certain matters and need for clarification that had become apparent as part of those other proceedings.
67. I considered these two applications at the outset of the hearing, considering brief submissions from each party’s advocates. I granted permission to each of the parties to rely on their respective evidence submitted. I gave my reasons for doing so at the hearing: I took into consideration that each party was seeking to adduce further information as to the Respondent’s practice both within and outwith the Policy and to clarify certain matters following the other set of judicial review proceedings, as referred to above. I also took into account that whilst each application was made at short notice and not long before the listed hearing, the situation was a dynamic one, also influenced by the hearing in the other set of proceedings only the week before, and I was likely to be assisted by the further evidence.
68. The further evidence admitted takes the following form and was helpfully included in a separate and supplementary bundle (‘SB’), alongside each party’s skeleton arguments:
(a) On behalf of the Respondent, a witness statement dated 22nd September 2026 from Ms Charlotte Breen, Deputy Director for the Passport, Identity and Nationality Unit, in the Migration, Borders, and International Policy and Programmes at the Home Office;
(b) On behalf of the Applicants, a witness statement dated 21st September 2026 from Ms Decla Palmer, Solicitor at Greater Manchester Immigration Aid Unit and legal representative for one of the families in the proceedings heard earlier in September 2026.
69. I also agreed for the Applicants to make an application, if so advised, for permission to respond to the witness statement of Ms Breen by way of any further evidence. Similarly, for the Respondent to respond to any such application, if so advised.
70. Lastly, the parties also made me aware that the Upper Tribunal’s judgment in HA & others, referred to at para 66 above, was due to be handed down on 30th September 2026. The parties requested permission to make brief written submissions on that judgment, again if so advised. I granted that permission considering that this would be of assistance to this Tribunal considering the proximity in which both hearings took place and the two sets of proceedings being heard by different judges. I confirm that I have very carefully considered those sets of submissions and have taken these into account when reaching my own decision.
71. I issued directions accordingly setting timescales, with agreement from the parties, for the various sets of submissions and applications and for me to address these post-hearing as part of my decision. On the whole, those directions were complied with by both parties.
72. Following resolution of the preliminary matters, I heard both parties’ submissions on each ground. At the end of the hearing, I reserved my decision, which I now give below with my reasons. I have also addressed, where relevant and necessary, the submissions and evidence received and admitted post-hearing in my analysis below.
73. The parties’ submissions were very comprehensive and detailed and I have very carefully considered these before reaching my conclusions. I do not set those submissions out at length in this decision but rather, I have attempted to incorporate these within my analysis and conclusions below.
Post-hearing applications and written submissions
74. I have decided not to admit the (third) witness statement dated 30th September 2026 of Ms Powell, solicitor for the Applicants, which was the subject of the Applicants’ application post-hearing and provided for by my directions referred to above. The Applicants sought permission to rely on this statement in response to the witness statement of Ms Breen. On the whole, Ms Powell’s statement consists of comments and observations on Ms Breen’s statement and of submissions which have already been made on the Applicants’ behalf as part of the hearing or which arise in any event from the applicable legal framework.
75. I have also decided not to admit the set of written submissions dated 7th October 2026, which has been filed by the Applicants post-hearing addressing in reply the Respondent’s submissions on the judgment of HA & Others. As I have recorded above, I gave permission to both parties to address me, if so advised, on any matter that they each may think relevant in respect of the HA & Others judgment. They both did so in compliance with my directions. The parties’ submissions were not directed to be sequential in order and I did not provide for one party to reply to the other. I consider therefore that my directions were fair and made in agreement with the parties at the hearing. To allow the Applicants’ submissions in response would not be fair - each party has had one opportunity to make the points they each wished to raise. It is now for me to consider the points raised, which as confirmed above, I have done.
76. For the avoidance of doubt, neither judgment in MS & Others and in HA & Others is binding upon me. I have however had regard to these judgments in light of the common issues raised and the proximity in time of each set of proceedings.
F. Discussion and Analysis
The Respondent’s biometric excusal decision of 23rd April 2026
77. In respect of this decision, I address both of the Applicants’ grounds.
Ground 1 – irrationality of and within the biometric excusal decision
78. Irrationality has been pleaded in various different ways by the Applicants. By that I mean, that the Applicants have pleaded that the Respondent’s conclusion under Criterion 3 is irrational and inconsistent, with the Respondent also failing to take relevant matters into consideration and having taken irrelevant matters into account (‘Criterion 3 irrationality’). The Applicants also plead that faced with “the extreme and compelling circumstances” of the Applicants’ case, the only rational decision open to the Respondent, which is consistent with the guidance in her own Policy, is to exercise discretion with respect to biometrics and consider their entry clearance applications substantively. Like the parties, I will refer to this as “outcome irrationality”.
79. Lastly, as I understand the Applicants’ pleadings, the Applicants also argue that the Respondent irrationally failed to consider the exercise of her (residual) discretion, whether within the Policy itself or outside of it as a result of the broad discretion under the Regulations themselves (‘the Respondent’s residual discretion’).
80. The Applicants do not seek to challenge the lawfulness of the Policy itself. I also make it plain that I am not being asked to determine the lawfulness, or otherwise, of the FCDO’s own published guidance. Neither is any decision of the FCDO or the Respondent with regards to any OTA request (or lack of any such decision) been impugned in the Applicants’ judicial review. Indeed, the Applicants have not yet – as at the time of this hearing - approached the FCDO to seek assistance in leaving Gaza.
81. I otherwise consider, in turn, each of the above-summarised rationality components to the Applicants’ first ground, in so far as these are argued in respect of the biometric excusal decisions.
Criterion 3 – ‘sufficiently compelling circumstances’ - irrationality
82. Within her assessment under Criterion 3, the Respondent accepted the family life and dependency established between each of the Applicants and the Sponsor.
83. As I have recorded above, the Respondent was satisfied that Criterion 3 was met by the Applicants in respect of her predetermination decision but not in respect of her biometric excusal decision. That is, the Applicants say, irrational and internally inconsistent, for reasons listed at para 55(1)-(8) of the Applicants’ grounds. These include (but are not limited to) that the Respondent accepted the urgency of family reunification for the purpose of Criterion 2 but not for Criterion 3 and accepted the family’s dependence on each other, acknowledging the humanitarian situation, while at the same time suggesting that there was no evidence of the impact of prolonged separation on the first Applicant and/or that the family could rely on additional support in Gaza in the meantime. The Applicants also pleaded that the Respondent had failed to have regard to relevant matters, including the unreasonableness of expecting medical evidence in light of the well-documented conditions in Gaza. They further contended that those circumstances were relevant to the assessment of the children’s best interests, which they argued was deficient. In addition, the public interest assessment was unreasonable, failed to take relevant matters into account and inadequately reasoned, relying on generic security concerns without identifying any specific risk posed by the Applicants.
84. In response, the Respondent submits that the assessments undertaken as part of the biometric excusal decision, in particular but not only under Criterion 3, involved striking a balance between the Applicants’ circumstances and interests in family reunion against the public interest in national and border security. She maintains that it was open to the Respondent to favour the public interest in the biometric excusal decision.
85. The Respondent otherwise submits as follows:
(i) The conclusion that the Applicants do not require the first Applicant, their husband and father, to care for them is well-made. It is the situation in Gaza, which has been acknowledged by the Respondent, not the lack of the first Applicant’s presence, that is significant;
(ii) The witness statement of the second Applicant providing further information as to her circumstances was adduced as part of these judicial review proceedings, not to the Respondent in preparation for her decision. In any event, the contents of the same do not undermine the reasoning reached by the Respondent;
(iii) The criticism of the Respondent’s conclusion as to there being additional support available to the Applicants in Gaza amounts to a mere disagreement;
(iv) The Respondent correctly noted that the claims made by the Applicants as to their health were not supported by medical evidence. In any event, the situation is Gaza was acknowledged;
(v) The Respondent plainly had regard to the minor Applicants’ best interests but found that these were insufficient to outweigh the national and border security interests – a conclusion she was entitled to reach;
(vi) The public interest was considered.
86. With regards to the specific reasoning given by the Respondent under Criterion 3, summarised immediately above, I am satisfied that the Applicants have demonstrated that the Respondent’s assessment under Criterion 3 is irrational. There was no difference, material or at all, in the Applicants’ own circumstances, as presented to the Respondent as part of the first request for predetermination and then subsequently as part of the second request for biometric excusal.
87. The Respondent did not require medical evidence to be submitted by the Applicants in order to be satisfied of the second to seventh Applicants’ physical and mental health complaints. This aspect of the Applicants’ claims is entirely consistent with the background evidence that was also referred to by the Applicants in support of their request to the Respondent. The Respondent expressly acknowledges in her assessment the humanitarian situation in Gaza and does not consider whether it would be reasonable to expect the Applicants to be able to furnish medical evidence.
88. This flaw has also impacted the lawfulness of the Respondent’s assessment of the children Applicants’ best interests at para 22 of her decision, which consists of a single sentence after recounting that a summary of their circumstances:
“Your minor clients are in a conflict zone and have stated to be experiencing low mood and nightmares, however this has not been supported by any medical evidence.”
89. The above does not amount to applying the spirit of the duties arising from s.55 of the 2009 Act and to suggest otherwise is irrational.
90. It is also irrational to conclude that it is the situation in Gaza that is significant, not the lack of the first Applicant’s presence. It is also irrational to state that the first Applicant has not demonstrated the likely impact on him if the Applicants were to delay enrolling their biometrics. The first Applicant’s witness statement dated 16th April 2026 referring to his deteriorating mental health, caused or certainly exacerbated by the on-going separation, was before the Respondent. The Respondent must have been satisfied of the compelling nature of the impact on the first Applicant under Criterion 3, since this was accepted in the predetermination decision. The Respondent’s conclusion is all the more irrational when she accepts, in the biometric excusal decision, that the need and urgency of travel, under Criterion 2, is met.
91. On any view therefore, it was irrational of the Respondent to conclude that Criterion 3 was not met in the biometric excusal decision.
92. Insofar as the Respondent justifies her differing conclusion under Criterion 3 in the biometric excusal decision on grounds that there is a higher threshold to meet for there to be ‘sufficiently compelling circumstances’, in light of the stronger public interest arising from the greater border and national security risks involved in such decisions, there is no indication in the instructions contained in the Policy section ‘Criterion 3’ that such a higher threshold is to be applied when assessing the particular circumstances of applicants and their sponsor.
93. In support of the Respondent’s position, I was assisted by the information provided by Ms Breen in her statement. She states as follows at paras 5-7 (bold emphasis original; underlined emphasis added):
“5. Around April 2026 policy officials, following the litigation in RKC1 v SSFDA and SSHD [2026] EWHC 440 (Admin), became aware that many caseworkers were accepting criterion 3 to be met for both pre-determination and biometric excusal, even though the public interest considerations were much higher for the latter. See for example page 6 of the UJP which provides:
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.
6. In response to this, on 22 April 2026 the operational lead of UJP caseworkers held a meeting with her team to clarify the approach to criterion 3 should be as set out at page 6 of the UJP. The case work training guidance for new caseworkers was updated with an additional slide which repeated the above wording from page 6 of the UJP. I exhibit this as [CB/1]. Page 30 of the training guidance provided:
Biometric excusals should be limited in scope, reflecting the strong interest in protecting UK national security, public safety, and the integrity of the border.
Accordingly, biometric excusals will only be granted where an individual presents circumstances that are sufficiently compelling to outweigh this heightened public interest.
7. Since the 22 April 2026 meeting, and the training guidance being updated, caseworkers have been considering Criteria 3 in line with the policy intention. Those decisions, after April 2026, are consistent with the decisions Ministers have made when being asked to give OTAs – OTAs present border and national security risks that are not quite as great as biometric excusal and yet in 36 of 37 cases (outside of those eligible for support under the HMG Gaza process) Ministers have refused to agree to provide OTAs.”
94. The date of the decision before me is 23rd April 2026.
95. I note the guidance in the Policy at internal p.6 (AB [2412]), which is contained in an introductory section of the Policy, as acknowledged by Ms Breen. There is nothing however to indicate, as I summarise below, the differentiating thresholds when the individual circumstances assessment is to be undertaken under Criterion 3. If such differentiating thresholds were, or are, in fact intended to apply specifically to the assessments under Criterion 3, it is reasonable to expect for that to be specifically and expressly set out under Criterion 3, as it is already the case under Criterion 1.
96. Furthermore, if caseworkers needed that to be clarified to them, as explained by Ms Breen at para 6 of her statement, it is again reasonable to expect that that is not an understanding that would be reached by members of the public, and indeed their lawyers, from reading the published guidance to Criterion 3.
97. From the above, I am not suggesting that the border and security risks that arise from biometric excusal are the same as with predetermination. The Applicants do not suggest this and the Policy and the Respondent’s reasoning on this is clear and justified. The very fact that an applicant may be excused from providing their biometric information does entail a greater risk to border and national security. That is why presumably the requirements for biometric information were introduced once the technology was available: for enhanced and greater protection of the UK’s borders and national security. That is also why only a Minister can decide whether to excuse an applicant from this requirement.
98. However, as I referred to above, the guidance contained within the Policy directs decision-makers to assess the circumstances of applicants themselves. The section on Criterion 3 is worded throughout against predetermination or excusal, in the same breadth so-to-speak, and the Criterion 3 guidance does not differentiate between the two. For instance, the first two paragraphs under Criterion 3 state as follows (emphasis added):
“This section tells you about how to assess the circumstances of individuals and their sponsor to determine whether you should agree to predetermine their application or excuse the requirement to attend a Visa Application Centre (VAC) to enrol biometric information.
The purpose of considering the individual’s and their sponsor’s circumstances under this policy is solely to determine whether the individual’s circumstances in relation to the journey to a VAC warrant either predetermining their application to enable them to assess whether it is worth risking a journey to a VAC or being excused from the requirement to attend a VAC to enrol their biometric information.”
99. This is reinforced in the fourth paragraph where again both predetermination and excusal routes are considered together (emphasis added):
“Ordinarily, you should only agree to predetermine an application or to excuse the requirement to attend a VAC to enrol biometric information where individuals provide you with evidence that they have compelling reasons, such as to look after a close relative in the UK who is unable to care for themselves and for whom no other support is available, for having their application considered this way. A desire to travel to the UK, or to join family settled in the UK is not, in isolation, usually sufficient as there are many other individuals who need to delay joining relatives in the UK for various reasons.”
100. The only distinction made in this section of the Policy, in the fifth paragraph, relates to what type of applicants may otherwise be excused from the biometric requirements:
“In most cases, an individual’s circumstances will not be sufficiently compelling to meet the requirements to be excused from having to attend a VAC unless they are applying to join a direct family member in the UK and their journey cannot wait.”
101. For completeness, I record here that I did not understand the Respondent to suggest in her decision that the Applicants’ circumstances were not sufficiently compelling because their journey could wait since the Respondent accepted the urgency claimed under Criterion 2. That Criterion expressly considers whether applicants need to travel urgently.
102. The rest of the guidance contained in the Policy under Criterion 3 directs decision-makers to assess the sponsor’s circumstances, the circumstances of each relevant individual and children-specific considerations that may arise under s.55 of the 2009 Act, or its spirit. As I have noted above, there is no express distinction of the standards to be applied under Criterion 3 between the two different routes (predetermination and excusal), unlike under Criterion 1. Moreover, there are no instructions to suggest or to guide decision-makers as to what “sufficiently compelling circumstances” may entail to outweigh the public interest in predetermination cases vs a stronger public interest in excusal cases. Exceptionality requirements have also been removed from the Policy, as confirmed at internal p.5 (AB [2411]).
103. I have very carefully considered Ms Breen’s explanation to which I have attached significant weight, but I do not consider that this cures the defects in the Respondent’s assessment under Criterion 3 for the reasons above. It is well established that applicants are entitled to have a policy applied to them in a consistent and fair manner. A policy is to be read sensibly and objectively, in context, and in accordance with the natural and ordinary meaning of the words used. The clarifications and training provided to the Respondent’s own caseworkers has not otherwise, to my understanding, been published in the public domain. Nor has the Policy, and its relevant version for these proceedings ever been amended after the developments recounted by Ms Breen in her statement from April 2026. This also applies to any comparison made by Ms Breen at para 7 between the decision-making involved in excusal decisions and that involved in the giving of OTAs.
104. For the reasons above, I am satisfied that it was irrational of the Respondent to conclude that the Applicants’ circumstances were not sufficiently compelling under Criterion 3. This is both in respect of the Respondent’s reasons in her decision, as set out above, but also because the Respondent has not demonstrated that the stronger public interest factors are in issue, on the wording of her own Policy, when assessing applicants’ circumstances under Criterion 3 as part of a biometric excusal decision compared with predetermination. If I am wrong on the latter, I am also satisfied that the Respondent has not given any reasons in her decision, against the Policy guidance or at all, for her conclusion under Criterion 3 not meeting the standard required to outweigh the stronger public interest involved.
105. Whilst the Applicants succeed in their submissions raising irrationality against the Respondent’s assessment under Criterion 3, that is not sufficient in itself to give rise to relief in the form of a quashing order. That is in the first instance because the Respondent has also assessed the Applicants as being unable to meet Criterion 4b. I thus turn to the other components of the Applicants’ irrationality challenge under Ground 1.
‘Outcome irrationality’
106. At para 53 of their grounds of challenge, the Applicants argue that “in the extreme and compelling circumstances of the Applicants’ case, the only rational decision open to the (Respondent), and consistent with the guidance in her own (P)olicy, is to exercise discretion with respect to biometrics and consider their (entry clearance) applications substantively”. The factors and reasons relied upon at para 53 from sub-para (1) to (8) are Applicants-specific, either relating to their current circumstances, their ability to meet the substantive family reunion immigration rule requirements, the Respondent accepting that Criterion 3 is met in the predetermination decision and that Criterion 2 is met in both decisions and finally that they are otherwise unable to progress their entry clearance applications as a result of not currently being able to independently leave Gaza.
107. The ‘outcome irrationality’ ground raised against the Respondent’s application of the Policy to the Applicants is premised on the only rational decision being one that exercises discretion in favour of the Applicants with respect to biometrics excusal. Whilst such an argument may have force for Criterion 3 for the reasons considered above (with Criterion 2 not being in issue), I am not satisfied that the Applicants have demonstrated this against Criterion 4b nor that the only rational exercise of discretion falls in favour of the Applicants.
108. With regards to Criterion 4b, there is logical and rational underpinning to the starting point in the Policy and in Criterion 4b that “(o)dinarily, (applicants) must meet all 4 criteria to warrant excusing the requirement for them to attend a VAC” and “(i)n most circumstances, (decision-makers) 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.”
109. Criterion 4b is directly concerned with the Respondent’s ability to carry out the best possible checks on an individual prior to their arrival in the UK and the reasons presented as to why an applicant might be able to travel to the UK but not to a VAC. The Applicants themselves do not argue that they can travel to the UK but not to a VAC, they simply are currently unable to exit Gaza, whether it is for the purposes of travelling to the UK directly or to travel to a VAC prior to an onward journey to the UK.
110. Against the terms of the Policy and Criterion 4b extracted above, it cannot be said that the only rational decision was for the Respondent to accept that discretion fell to be exercised in the Applicants’ favour. That is also the case even with the Applicants succeeding in their challenge in respect of the Respondent’s assessment under Criterion 3.
111. However, I do not consider that that is the end of the matter for the reasons that I have set out below.
The Respondent’s residual discretion
112. As is clear from the Policy itself, the Respondent retains a residual discretion within the Policy itself. For instance, we have seen above at para 108, the otherwise mandatory terms of Criterion 4b, and the need to meet all four criteria, are prefaced with the words “in most circumstances” and “ordinarily”. The need for the Policy to be Article 8 compliant is also clear from the third paragraph of Criterion 4b:
“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.”
113. The above is also confirmed by Ms Pickering in her statement at para 30, where she also stated that “(t)his language providing for the exercise of residual discretion was added in Version 4.0 of the USJ policy.” I also note that other judges of this tribunal have recently reached the same conclusion (see HA & Others and MS & Others).
114. In addition, it is clear from the Regulations themselves that the Respondent is empowered with a broad discretion. Indeed, the Policy is one iteration of how the Respondent may exercise her discretion. The Applicants argued, correctly, in my view, that the Policy does not represent the limits of the Respondent’s discretion since the discretion flows from Regulation 5 itself. The Respondent is also correct in stating that the Policy was not formulated with the current Gaza situation in mind. This was first published in May 2023. Thus, the residual discretion afforded by the Policy itself and by the Regulations enables the Respondent to retain inherent flexibility so as to be able to discharge her decision-making functions in a dynamic context, which is not unusual in this jurisdiction.
115. Indeed, at para 31, Ms Pickering stated as follows:
“There is no published guidance on the application of residual discretion for decision makers. However, they are provided with training that covers scenarios they may encounter, and where cases are complex or novel, advice is sought from Policy, Complex Casework and Home Office Legal Advisers on how to proceed on a case-by-case basis. Residual discretion can take many forms and is purposefully not set out in guidance or strictly defined as it depends entirely on the particularities of a case. The decision-maker uses their judgement to assess whether discretion can and should be applied. The expectation is that caseworkers will consider Article 8 of the European Convention on Human Rights and consider whether there are good reasons for predetermination or biometric excusal to be granted outside the terms of the policy. The application of such discretion must always consider the border and national security implications.”
116. The Respondent accepts that the question of discretion under Criterion 4b was not specifically addressed in the decision (para 34 of her skeleton argument). She argues instead that there was no properly articulated request for the exercise of discretion under Criterion 4b and that consequently, the situation that arises here differs from that considered by the Upper Tribunal in MS & Others at [72]. The Respondent states that the Upper Tribunal in MS & Others was applying Behary & Anor, R (on the application of) v Secretary of State for the Home Department [2016] EWCA Civ 702 (‘Behary’).
117. The Respondent also acknowledges that there was a claim that refusal would breach Article 8 but it is stated that that is not the same as a request for the general consideration of discretion outside of the Policy.
118. Contrary to the Respondent’s submissions, I am satisfied that there was a properly articulated request for residual discretion to be exercised. In particular, the request and the Applicants’ addressing of Criterion 4b was premised on the very particular and real difficulties that arise from the current inability of Palestinian citizens to independently leave Gaza. The request was also premised on the Applicants being willing to provide their biometrics at a VAC prior to collecting their visas. This was expressly stated as enabling security and identity checks to be completed prior to travelling to the UK – see paras 24, 26 TB [378]. I consider that this is so clearly set out that it amounts to a request for what could be termed as a time-limited or conditional excusal, which would enter the realm of the Respondent’s discretion.
119. In addition, whilst it is correct that a claim raised under Article 8 ECHR is different to an express request for residual discretion to be exercised by the Respondent, the Applicants’ Article 8 claim was also framed on the basis that even if the four criterion were not met, a refusal would be in breach of their Article 8 rights. The Applicants expressly raised that there was a positive obligation on the Respondent to ensure effective access to a procedure for achieving family reunification (para 35, TB [379]). Reading this together with the remainder of the representations made, it is irrational to conclude that the Applicants were only seeking for consideration of the stricter criteria of the Policy.
120. Even if I am wrong on the above, as I have considered at paras 113-114 above, the Respondent’s residual discretion is not confined to a discretion to be applied under either, or all of the four, criteria within the Policy. The discretion is derived from the Regulations themselves. The very premise of the Applicants’ entire request is a request for discretion to be exercised in their favour so as to permit biometric excusal, or as I have set out above, a time-limited or conditional excusal from the same. The Respondent currently operates a Policy on how to exercise that discretion but that cannot otherwise fetter the discretion that she holds under the Regulations themselves.
121. The present scenario, with which these proceedings are concerned, is not the same as an application being presented to the Respondent under the Immigration Rules, utilising a specific or specified form. The latter entails a set of (often mandatory) requirements to be met and an applicant is expected to demonstrate how they fulfil those criteria. In such circumstances, it is only rational to expect the Respondent to consider any exercise of residual discretion to grant leave to remain outside the Immigration Rules, derived from statute, only when requested to do so. That is the situation considered by the Court of Appeal in Behary. At [38], Burnett LJ noted in his judgment that no request had been made in combination with the application for leave to remain as a Tier 4 student that the Home Office exercise discretion outside the Rules in favour of the applicant. He also noted at [39] that the applicant had not made any application for leave outside the rules.
122. In these proceedings, the Applicants have applied for discretion to be exercised and exercised in their favour. That discretion ultimately flows from Regulation 5. As I have already considered above, the Policy does not reflect the only way that discretion is to be exercised nor did I understand the Respondent to suggest that it does. Thus, in the alternative to my conclusion above, I consider that in this context, there was an obligation on the Respondent to consider exercising her discretion in the event that the Applicants could not meet the circumstances ordinarily expected to be met under Criterion 4b.
123. I consider that the facts raised by the Applicants, both specific to each of them and specific to the situation in Gaza, in a context whereby they are requesting for discretion to be exercised from a power that the Respondent holds, which is entirely of a discretionary nature, were so striking that it would be irrational in a public law sense not to consider such exercise of discretion, or at least seek clarification whether the Applicants were seeking this.
124. For completeness, I note and have carefully considered the information provided by Ms Pickering at para 33 of her statement:
“Applicants do not necessarily need to make an express request for the exercise of residual discretion to be considered. However, I would not expect decision makers to make express reference to residual discretion unless the applicants or their representatives have raised it expressly.”
125. It is not clear on what basis Ms Pickering states her expectation and I do not consider that this displaces the considerations that I have taken into account above.
126. Thus, for the reasons above, 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. As the Respondent accepts, there is nothing in the decision to indicate that discretion within the Policy, or outwith, has ever been considered. For instance, there is no consideration of the Applicants’ indication that they were willing to attend the VAC in Jordan to enrol biometrics prior to travelling to the UK, if they can be excused from providing these until then. Following the consideration of the four criteria, the Respondent concluded her decision with the following:
“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 04 September 2025.”
127. I now come to address the Respondent’s secondary submission, which is that even if the Respondent had considered to exercise her discretion, she would inevitably have refused to do so in favour of the Applicants. The submissions made (paras 37 and 40 of her skeleton argument) are made on the basis that the Respondent was entitled to find that Criterion 3 was also not met, which is a conclusion I have found to be irrational at paras 82-104 above.
128. The other submissions made concern the process which the Respondent argues is available to the Applicants for consideration of an OTA and which she states is a process “specifically designed to facilitate discretionary consideration of exceptional cases arising out of the situation in Gaza”. I have considered in more detail the Respondent’s defence lying in the OTA and FCDO processes further below in my judgment.
129. In the context of the Respondent’s exercise of discretion, I do not accept the Respondent’s submission at para 38 of her skeleton argument, paraphrased immediately above, for the following reasons. It has been established that the requirement to provide biometric information and her exercise of discretion under Regulation 5 has to remain compliant with any obligations that arise under Article 8 ECHR. This is now expressly stated in the Policy at internal p.12 TB [2418].
130. It is therefore not sufficient of the Respondent to refuse to consider exercising her discretion either within or outwith the Policy and to instead point to an entirely different process, (initially) conducted by a different government department. This is particularly so when the other government department, in this case the FCDO, has no duties to administer or consider applications for family reunion entry clearance.
131. As considered above, the Respondent has discretion to excuse biometrics all together or to place certain conditions on the provision of biometric information. Whilst the Policy was not formulated with the Gaza situation in mind, it very clearly anticipates circumstances in which there may be “insurmountable physical obstacles” to attending any VAC – see internal p.30 TB [2436]. It may be reasonable to conclude that currently, Palestinian citizens who wish to apply for entry clearance to join a close family member are encountering such obstacles. The examples of such obstacles detailed in the Policy at internal p.30 (dealing with Criterion 4b) are not exhaustive.
132. In addition, in the same section of the Policy, it is stated as follows (emphasis added):
“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 (…)”
133. The Respondent is correct to note that the Applicants do not currently hold suitable documentation to cross an international border into a country that hosts a VAC, as a result of the restrictions put into place by the Israeli authorities, not by the Respondent. However, I return to the use of the words under the Policy and Criterion 4b, which I have underlined for emphasis above and which clearly entail a residual discretion.
134. This is reinforced, importantly in a different section of the Policy which sets out the “important principles” governing the Policy (emphasis added):
“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.”
135. Whilst as I have already noted, the Policy was not formulated with the current Gaza situation in mind, it does not preclude discretion being exercised even in circumstances whereby an applicant may be unable to leave their country due to the prevailing circumstances there, whatever those may be. I consider that this also disposes of the submissions arguing that the Respondent’s decision is not consistent with the Policy’s purpose.
136. Lastly, it has been submitted on behalf of the Respondent that, similar to the case of Moses Asiweh v Secretary of State for the Home Department [2019] EWCA Civ 13, the Respondent has otherwise considered the facts, as presented by the Applicants, that would have underpinned the exercise of that discretion. If that is a submission limited to the Criterion 3 consideration, as addressed at para 127 above, that argument fails for the reasons that I have given.
137. If the submission and reliance on Moses Asiweh is a more general one, I do not consider that it succeeds either. For instance, the Respondent failed to consider whether the Applicants’ willingness to provide their biometrics at a VAC in Jordan may warrant an exercise of discretion in their favour. I also return to this in more detail under Ground 2.
138. For the above reasons, I am not satisfied that it is highly likely that the Respondent would have reached substantially the same decision had the public law errors identified above not occurred.
139. It follows from the above that the Respondent’s decision should be quashed. This is as a result of irrationality in the Criterion 3 assessment, an irrational failure to consider exercising her residual discretion under the Policy and the same under Regulations 5 and 8. The exercise of discretion is one that remains to be exercised by the Respondent and no one else.
The Respondent’s reliance on the FCDO and OTA processes as a defence
140. As I understand it, one of the Respondent’s responses to the rationality challenge raised in these proceedings, is that it is not the decisions under challenge that prevent the Applicants from leaving Gaza but rather the current situation on the ground. The Respondent submits therefore that there can be - and is not in this case – any proper challenge to the lack of assistance to leave Gaza. Orally before me, the Respondent’s submissions were that effectively, the Applicants’ circumstances were not, and could not be, covered by the Policy. Thus, they should look to the FCDO instead.
141. Firstly, the above is not part of the Respondent’s decision. The Respondent did not refuse to exercise her discretion, whether within or outwith the Policy, on the basis that the Policy and/or the exercise of the Respondent’s discretion could not be applied to them. Indeed, as I have noted above, the Policy states that “in most circumstances” excusal should “normally” be refused excusal if a person does not hold suitable documentation to cross an international border. It does not state that the Policy does not apply to such applicants nor that such applicants should always be refused excusal. As I have considered above, there appears to be flexibility within the Policy itself and the Respondent holds a broad discretion under Regulation 5.
142. If the Respondent’s position is that her Policy, and/or any exercise of residual discretion cannot be applied to them, then this needed to be stated in her decision with reasons. I consider that she had ample opportunity to do so particularly since the Applicants’ written representations themselves addressed the ability of the FCDO to provide assistance in leaving Gaza in certain circumstances. Those circumstances included if a person has a close family member in the UK and they hold permission to enter/remain in the UK for longer than six months, as referred to at para 44 above. In those circumstances and when the Applicants do not yet hold any such permission to enter/remain, it was reasonable for the Applicants to approach the Respondent to first make use, as I have considered above, of the discretion available to her with regards to biometric excusal and predetermination of entry clearance applications. The conditional grant of entry clearance was found not to have been considered or taken into account by the decision-makers at the FCDO in BEL (at [113]-[118]) despite two ways in which the significance of this status could have been considered to determine whether there was a sufficient basis for granting consular assistance: first, as a basis for regarding those applicants’ case as exceptional or second, as a basis for extending the “established eligibility criteria” (‘EEC’).
143. Secondly, I agree with the Applicants that sign-posting the Applicants to seeking initial assistance from a different UK government department is not an answer to the Applicants’ request. As addressed above, the discretion and procedures available to the Respondent to administer entry clearance applications, which include any requirement for biometric information, are to be compliant with Article 8 ECHR, when engaged.
144. The FCDO and its processes for OTAs (alongside the Secretary of State for the Home Department’s involvement in the decision-making for the issuing of OTAs) are under no such compliance requirement – that has already been decided by the High Court in BEL and RKC1:
“120. (…) Whilst the facilitation of the Claimants’ family reunion could give rise to positive obligations under Article 8 on the part of the United Kingdom, those obligations would not be unlimited. They would not, in my judgment, extend to the provision of onward travel guarantees to the Kingdom of Jordan which is the focus of the Claimants’ challenge. (….)
121. In BEL, Chamberlain J held that positive action in the form of diplomatic and
consular assistance to persons outside of the territory of the United Kingdom was outwith the scope of the Convention, and I see no reason to depart from Chamberlain J’s analysis, or to distinguish it on the facts of the present case.
122. (… & citing BEL)
123. I consider that this analysis is equally applicable here. The positive obligation that the Claimants call for would apply extra-territorially as it applies to the treatment of non-British nationals resident in Gaza. Furthermore, the positive obligation that the Claimants call for would involve the provision of diplomatic and consular assistance involving the Kingdom of Jordan. Whether or not to provide onward travel assurances to the Kingdom of Jordan with respect to RKC2-7 is not the same or substantially similar to the provision of “travel documents to enable an individual to get to the border” with the United Kingdom: an example provided by Chamberlain J in BEL as falling within the positive obligation under Article 8.”
145. Thirdly, I acknowledge the Respondent’s submission that the Respondent has agreed to consider providing OTAs to those who may fall outside of the “cohorts” so far defined, when a referral is received from the FCDO. As addressed above, that assessment is undertaken on a case-by-case basis with otherwise no criteria or any other guidance published. As I have already referred to, that is also an assessment outwith the scope of the Convention.
146. Thus, drawing the above together, in circumstances where the Respondent has a published Policy on how to exercise discretion to excuse from the otherwise standard requirements to provide biometric information – a Policy which includes set criteria as well as residual discretion - in addition to an inherent discretion under the Regulations, I do not accept that the Respondent’s position in sign-posting to the FCDO, on all of the information before me, is an answer to the Applicants’ rationality challenge.
147. Because the Applicants have challenged the Respondent’s decision for being in breach of the Applicants’ rights under Article 8 ECHR, I turn to that separate ground now, in so far as it targets the Respondent’s excusal decision.
Ground 2 – breach of Article 8 ECHR
148. As I understand the parties’ respective positions, the following is not contentious:
(a) The second to seventh Applicants, being outside of the UK, would not ordinarily come within the jurisdiction of the ECHR but the presence of the first Applicant in the UK, on Humanitarian Protection grounds, may bring the complaint within the territorial jurisdiction;
(b) The Respondent did not seek to argue that the complaint was outside the territorial jurisdiction;
(c) The complaint raised by the Applicants is one that is understood to raise a complaint that the Respondent has allegedly failed to comply with positive obligations;
(d) There is no general obligation on ECHR member states to authorise family reunification on its territory - MA v Denmark (Application no. 6697/18) at [131]. The Respondent has a positive obligation under Article 8 to provide a procedure for achieving family reunification which is accessible and effective and strikes a fair balance between the competing interests involved. Factors to be taken into account in such a balancing exercise are the extent to which family life would effectively be ruptured, the extent of the ties in the state in question (here the UK), whether there are insurmountable obstacles in the way of the family living in the country of origin of the sponsor/applicants concerned and whether there are factors of immigration control (or other public interest considerations) – MA v Denmark, [164];
(e) As per the Respondent’s own decision, the Applicants and the Sponsor (also the first Applicant) have a family life together and are co-dependent upon each other. They are a nuclear or core family unit.
149. The Respondent maintains that her decision does not breach her positive obligations. She argues that compliance with any positive obligations is to be judged against the ‘overall outcome’, relying on FWF v Secretary of State for the Home Department [2021] 1 WLR 3781 (‘FWF’). In other words, the focus should not be on whether a given decision violated Article 8 ECHR but should instead be on whether the decision demonstrates that the state must do more than it has done to facilitate family reunion. She gives a number of reasons, helpfully summarised at para 52 of her skeleton argument.
150. The Applicant argues, relying on R (on the application of BAA and Another) v Secretary of State for the Home Department (Dublin III: judicial review; SoS’s duties) [2020] UKUT 00227 (IAC)2 (‘BAA’), that the question of whether or not there has been a violation of Article 8 ECHR is a question for the Upper Tribunal to determine for itself weighing the facts before it. This exercise must only be conducted if it has been found that the decision under challenge contains illegalities and is an operative cause in the exercise of the decision-maker’s positive obligations.
151. As set out above, the biometric excusal decision of the Respondent is flawed by reason of irrationality and the decision is operative in respect of the positive obligations engaged in this case.
152. Addressing the Respondent’s reasons at para 52 of her skeleton argument, the Respondent first relies on a conclusion reached by the Upper Tribunal in MS & others at [96], which is that the request for predetermination in that case was explicitly based on both a decision from the Respondent and an OTA. I do not understand this to be the case here, or that to be the only case here. As I have rehearsed already, the Applicants have not yet sought the assistance of the FCDO and they do not challenge a decision, policy or any failure to make a decision from the FCDO or indeed the Respondent as far as OTAs are concerned. There is also force in Ms Knorr’s submission that biometric excusal/discretion may still assist the Applicants in leaving Gaza should the Rafah border crossing become an option for leaving Gaza independently again, even if any subsequent OTA request remains pending and/or is refused.
153. Secondly, the Respondent urges the Tribunal to be slow to intervene in cases like the instant case, as it is required to afford a substantial degree of weight to the decision-maker. Moreover, if it does intervene, the Tribunal should approach the balancing exercise in a way that accords the same margin as the formulation of “manifestly without reasonable foundation”, which has frequently been used by the Strasbourg Court - see RKC1 at [187]-[188] citing R(SC) v Secretary of State for Work and Pensions [2022] AC 223 at [160]-[161].
154. I have at the forefront of my mind the strong public interest factors concerning border and national security and the margin of appreciation held by the Respondent in this area.
155. Thirdly, the Respondent submits that the decision plainly did consider the Applicants’ Article 8 rights and the balance struck by the Respondent must plainly be given significant weight. It is entirely correct that the Respondent did consider the Applicants’ Article 8 rights in her decision, unlike the case of MS & others - there are repeated references in the Respondent’s impugned decision to the competing interests under Article 8. That consideration was flawed under Criterion 3 however for the reasons that I have set out above and which I do not repeat here.
156. Fourthly, the Respondent argues that there is an alternative process by which the “necessary package of support could be obtained (comprising a request for consular support to the FCDO and, if necessary, a request by the FCDO to the SSHD to agree the provisions of OTAs)” (para 52(4) of the Respondent’s skeleton argument). For the same reasons as I have considered at para 140-146, that cannot be an answer to the Respondent’s own positive obligation that arises from the Applicants’ request for facilitation of their family reunion applications. As considered above, the refusal to provide onward travel assurance was found in RKC1 to fall outside of the scope of Article 8 (see citations above and RCK1, [120], [165] and [184]).
157. Lastly, the Respondent emphasises that the decisions taken in respect of the Applicants are not final, namely they are not substantive refusals of entry clearance. They nevertheless represent an operative cause in the Applicants not being able to progress their entry clearance applications, which has been made on a flawed premise pursuant to my findings above.
158. In light of the above, I conclude that I am permitted to consider for myself whether the Respondent has failed to comply with positive obligations under Article 8 and whether a fair balance has been struck, subject to the Respondent’s margin of appreciation, between the competing interests of the individuals concerned and of the community as a whole. The European Court cases demonstrate that regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the state enjoys a certain margin of appreciation – Jeunesse at [106]; Laing LJ in FWF at [114], with reference to Baroness Hale of Richmond DPSC (as she then was) in R (MM (Lebanon) & others) v Secretary of State for the Home Department [2017] 1 WLR 771 at [38]-[43].
159. The Court of Appeal approved the Upper Tribunal’s judgment in BAA, in which the Upper Tribunal said as follows:
“(1) Although Article 17(2) of Dublin III confers a wide discretion on the respondent, it is not untrammelled.
(2) As is the case with any other discretionary power of the respondent in the immigration field, Article 17(2) must be exercised in an individual’s favour, where to do otherwise would breach the individual’s human rights (or those of some other person), contrary to section 6 of the Human Rights Act 1998.
(3) An Article 17(2) decision is susceptible to “ordinary” or “conventional” judicial review principles, of the kind described by Beatson LJ in paragraph 85 of ZT (Syria) as “propriety of purpose, relevancy of considerations, and the longstop Wednesbury unreasonableness category”.
(4) Where the judicial review challenge involves an allegation of violation of an ECHR right, such as Article 8, it is now an established principle of domestic United
Kingdom law that the court or tribunal must make its own assessment of the lawfulness of the decision, in human rights terms.
(5) If, in order to make that assessment, the court or tribunal needs to make findings of fact, it must do so. (…)”
160. Whilst the context in BAA was different, being a Dublin III challenge, the decision in question was one that also involved the exercise of the Respondent’s discretionary powers, through the lens of Article 8 ECHR, taking account of the best interests of a child (see BAA, [27]), as is the case here. In BAA however, the Dublin III process was complete or had lapsed. Here has I have found above, the Respondent will need to reconsider her decision so as to specifically consider her exercise of discretion both within and outwith the Policy.
161. The Court of Appeal summarised the various approaches that are to be taken in principle when considering the Secretary of State’s appeal in BAA [2021]:
“98. In such a situation what is the proper course to be taken on behalf of an unaccompanied minor? This may be a generally academic point, given the end of the Dublin III process in January 2021. However, in principle, where a proper case can be made that public law errors brought the process wrongly to a conclusion, a public law challenge can be made. If a public law error is established, other than an “incidental” error which did not alter the outcome, then the court will consider evidence as to the underlying article 8/article 7 rights. If, on the facts, the transitional provisions enfranchise a resumed Dublin III process, then it would be consistent with the approach of this court in FWF to identify the public law errors, give declaratory relief and set a timetable for a fresh decision pursuant to Dublin III. The court will have to consider whether, on the facts, the delay involved in that process would breach those rights. That delay would itself be a consequence of the illegality.
99. What if there are no public law errors, or they were mere “incidental illegalities”? It seems to me then that the principle formulated by Elisabeth Laing LJ must be applied, and the approach to any claim based on rights said to arise pursuant to article 8/article 7 will be unaffected by Dublin III: the rights of the unaccompanied minor cannot be supplemented or increased by the fact that he or she has gone through that process, by that point unsuccessfully.
100. In any such case it will be open to the UT to admit fresh evidence bearing on the article 8/ article 7 issue.
101. For those reasons, I would dismiss the appeal on ground 2.”
162. I stress that the fair balance must be undertaken by reference to the particular facts of this case and the evidence presently before the Tribunal. Should further relevant information emerge, whether from the Respondent or the Applicants, such further information would necessarily be considered by the Respondent. In particular, if I find for the Applicants, there is nothing to prevent the Respondent from considering any additional matters arising from any further identity checks, which may fall to be made once she reconsiders the Applicants’ request for biometric excusal and once she considers whether to exercise her residual discretion.
163. Any future decision would therefore be taken after consideration of the findings reached below and any other matters that may subsequently arise outside of these proceedings. This process does not involve the Tribunal usurping the functions of the executive or of Parliament. Rather, it reflects the Tribunal’s obligation to determine the case before it and, as a public authority, to act compatibly with Convention rights pursuant to section 6 of the Human Rights Act 1998. It is also a process, subject to the remits referred to at para 148 above, and supported by authority from the higher courts, as I have summarised above at para 148 and 158-161. Ultimately, a decision to excuse the Applicants from providing biometric information, whether completely or on certain condition(s), is a decision for the Minister.
164. I weigh the following factors in favour of the Respondent in my assessment of whether a fair balance has been struck:
(a) There is a margin of appreciation to the Respondent in setting the policies and procedures for the checking of identity and whether a person poses any risk to the UK’s border and national security. Thus, there is considerable weight to be attached to the Respondent’s procedures for ordinarily requiring a person to provide their biometric information. These requirements ordinarily apply to all applicants and there is no distinction otherwise to be drawn between the type of applications. This is undisputed by the Applicants and I afford great weight to this;
(b) There is a margin of appreciation to the Respondent in concluding that it is a relevant factor that the Applicants reside in and originate in a territory where terrorists operate as set out (in those terms) at para 25 of her decision. The Respondent does not otherwise raise any specific concerns relating to each of the second to seventh Applicants. Nevertheless, I attach significant weight to this factor, which means that there is accordingly significant public interest in taking biometrics before a decision is made in this case on the Applicants entering the UK;
165. I weigh the following factors, set out at (a)-(c) below, in favour of the Applicants in my assessment of whether a fair balance has been struck:
(a) The Applicants have a close, co-dependent family life with each other being husband and wife and their minor children. This is a factor that is accepted by the Respondent, as is the urgency of their circumstances, assessed under Criterion 2 of the Policy. I attach significant weight to this;
(b) There are insurmountable obstacles in the way of the family living together in Gaza – they became separated as a result of the conflict and the first Applicant holds Humanitarian Protection leave to remain in the UK. He is currently unable to return to Gaza and the circumstances in which the second to seventh Applicants live in Gaza are not sustainable. The Respondent has accepted the compelling nature of the Applicants’ circumstances in her predetermination decision and per my findings above, her conclusions on this same issue, including on the assessment of the children’s bests interests, in the biometric excusal decision are irrational. I attach significant weight to this;
(c) The Applicants have offered to enrol their biometric information at a VAC prior to travelling to the UK, requesting the Respondent to exercise her discretion in their favour on that basis. This would currently be the VAC in Amman, Jordan but could be a different VAC in a different country, such as Egypt, should alternative options become available to the Applicants in the near future enabling them to leave Gaza independently via the Rafah or another border. The Respondent has argued that this does not lessen the risks that the public interest considerations guard against since it is an offer made entirely voluntarily by the Applicants, which could be withdrawn by the Applicants at any point. That is the premise under which the Respondent appears to have understood the Applicant’s position but this need not be the case.
As I have considered above, the Respondent holds a discretion under Regulation 5 to require the provision of biometric information. Under Regulation 8, if the Respondent decides to require an individual to provide their biometric information, then she has the power to specify the way in which this is provided. This includes the location, the date that can be specified or the timescale by which this must be provided. It also includes under Regulation 8(e) the power to require the individual to provide a record of the individual’s fingerprints or a photograph of the individual’s face by electronic means.
Whilst it is correct that that “biometric excuse” is defined in the Policy (internal p.4, AB [2410]) as meaning “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”, this is again premised on what is “normally” expected. There is nothing under the Policy restricting how the Respondent determines that a person should be excused and whether any such excusal should be conditional or time-limited. The failure to consider these options, together with her residual discretion, as raised by the Applicants, is a factor that I weigh significantly in their favour in the balance.
166. Balancing all of the above competing interests, I conclude that a fair balance has not been struck in the Respondent’s decision and that she has failed to comply with her positive obligation under Article 8 ECHR. In other words, I conclude that the Respondent should do more in order to ensure that she meets her positive obligations in this case. I have had regard to the margin of appreciation held by the Respondent and the strong public interest considerations raised by the Applicants’ request for biometric excusal. However, the failures to consider exercising residual discretion and the failure to consider in particular whether any conditions could be placed on the Applicants’ request under Regulation 8 places the Respondent in breach of her positive obligation under Article 8 ECHR, in the very particular and compelling circumstances of this case and on all of the material available to me within these proceedings.
167. The Respondent holds a positive obligation in this matter under Article 8 and following my decision to quash the Respondent’s decision, the Respondent is to reconsider her biometric excusal decision to include consideration of her residual discretion both within and outwith the Policy. Pursuant to the fair balance conducted above, I declare that, on the materials before me and on the facts known to me, the Respondent’s decision breached the positive obligation owed to the Applicants under Article 8 ECHR.
The Respondent’s predetermination decision of 29th January 2026
Ground 1– irrationality and predetermination
168. As referred to above, the Applicants pursue their challenge to the Respondent’s predetermination decision in the alternative. The grounds of challenge raised by the Applicants against this decision are irrationality and breach of Article 8 ECHR.
169. In so far as the same grounds of ‘outcome irrationality’ were pursued by the Applicants against the predetermination decision as well as the biometric excusal decision (para 53 of the grounds), those grounds also fail, for the same reasons that I have given above. This is because the Respondent was entitled to assess, as her starting point, that the Applicants could not meet Criterion 4a and I do not agree that the only rational decision was to exercise discretion in the Applicants’ favour.
170. The specific irrationality challenge to the Respondent’s assessment under Criterion 4a also fails. The Applicants argue at para 57 of the grounds that there is a “reasonable prospect” of being able to attend a VAC if the Applicants receive a positive predetermination decision - they do not need to confirm that they can attend a VAC as asserted in the predetermination decision. This does not engage with the guidance provided for at internal p.25 of the Policy (AB [2431]) (emphasis added):
“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. (…) 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.”
171. The Applicants succeed however in the same way as the biometric excusal since the Respondent did not consider whether to exercise her discretion, within the Policy, in her predetermination decision, as argued at para 57(7) of the grounds. I do not rehearse the reasons that I have given above for finding that the Respondent holds such a discretion and for finding that she should have considered whether to exercise this discretion, even if I am wrong about this not explicitly arising from the manner in which the request was presented to the Respondent by the Applicants’ solicitors. I consider that my findings above apply to the Respondent’s predetermination decision as well.
172. It is also clear that the Policy itself with Criterion 4a does permit for predetermination to assist a person to cross international borders with the following passage (ibid.):
“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.”
173. The above cited passage is supplemented with the following at internal p.26 (AB [2431]):
“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.”
174. Reading the above with the simple and ordinary meaning of those words, I interpret the above-cited guidance as meaning that the Respondent’s caseworkers are not to provide tangible assistance and/or guarantees concerning the crossing of international borders. Nor do they hold any responsibilities in this respect. This is because this is not within their remit or powers. The passages above, when read together however, do not preclude predetermination decisions otherwise assisting a person’s travel to a VAC, for example by assisting in any request to the FCDO for assistance, as argued by the Applicants at para 57(4) of their grounds.
175. This is also expressly confirmed in the Respondent’s own evidence by Ms Pickering in her statement at paras 21-22, where she states at para 22 that “(a)greeing to a predetermination where an individual establishes they can attend a VAC conditionally upon a positive predetermination being provided is not seen as inconsistent with the scope and purpose of the USJ policy. This is just one way an individual might satisfy criterion 4a while seeking a predetermination for the ordinary purpose”.
176. The Respondent holds a discretion with the Policy therefore to consider requests where, outside most circumstances (see emphasised words above at para 170), a person cannot confirm in their request for predetermination that they are able to travel to a VAC but would be able to do so, or have a realistic prospect of such travel, should their predetermination application be successful. I do not consider that the information provided by the Applicants in their request was a bare assertion that predetermination would assist them. They cited the FCDO guidance in support and explained each step of the process as they understood this and as documented in the public domain and/or in the relevant authorities.
177. Lastly with regards to the Applicants’ irrationality challenge against the predetermination decision, I turn to the Applicants’ inconsistency of treatment submission at paras 58-59 of the grounds. There the Applicants give examples whereby the Respondent has granted predetermination in other Gaza family reunion cases and in cases of a different kind such as Medevac and Chevening scholar/family member cases. The Applicants submit that there is no rational justification for the difference in treatment.
178. As found in RKC1, there were rational reasons distinguishing the Medevac and student cohorts. In any event, those cases involved an exercise of discretion with factors that would have been relevant to those cases, and perhaps only relevant to those cases. In this case, the Respondent is yet to consider exercising the discretion that she holds both under the Policy and more widely under the Regulations. Thus, on the information and materials available to me within these proceedings, I am not satisfied that the Applicants have demonstrated that this submission is made out.
179. It follows from the above that the Respondent’s predetermination decision should also be quashed. This is because of an irrational failure to consider exercising her residual discretion under the Policy. The exercise of discretion is one that remains to be exercised by the Respondent and no one else.
Ground 2 – Article 8 ECHR and predetermination
180. This ground also succeeds against the Respondent’s predetermination decision. This is because this fails to even consider her obligations under Article 8 ECHR or the best interests of the minor children and the decision is deficient on public law grounds as considered above.
181. Unlike the biometric excusal decision, there is no reference to Article 8 ECHR in the predetermination decision. This is notwithstanding the Applicants’ circumstances as raised in the request for predetermination inherently raising issues that fell to be considered under Article 8 ECHR and the Respondent accepting that Criteria 2 and 3 were met. Moreover, the Policy instructs caseworkers that their decision needs to be compliant with Article 8 of the ECHR – internal p.12, AB [2418].
182. I do not rehearse the fair balance assessment that I have carried out above in the context of the Respondent’s biometric excuse decision since I consider that this applies to the predetermination decision as well with the factors weighing in favour of the Applicants holding even more significant weight in light of the lower level of risk to border and national security that predetermination decisions involve compared to biometric excusals.
183. The Respondent holds a positive obligation in this matter under Article 8 and following my decision to quash the Respondent’s predetermination decision, the Respondent is to reconsider her predetermination decision to include consideration of her residual discretion both within and outwith the Policy. Pursuant to the fair balance conducted above, I declare that, on the materials before me and on the facts known to me, the Respondent’s decision breached the positive obligation owed to the Applicants under Article 8 ECHR.
G. Conclusion
184. In light of the above, I grant the Applicants’ application for judicial review on both grounds of challenge relating to the Respondent’s biometric excusal decision. Thus, I quash the Respondent’s decision of 23rd April 2026.
185. I grant the Applicants’ application for judicial review on both grounds relating to the Respondent’s predetermination decision. Thus, I quash the Respondent’s decision of 29th January 2026.
186. I also declare that, on the materials before me and on the facts known to me, the Respondent’s decisions of 29th January 2026 and 23rd April 2026 breached the positive obligations owed to the Applicants under Article 8 ECHR. Consequently, I remit the matter to the Respondent for reconsideration of her decisions.
187. In respect of both the biometric excusal and predetermination requests which now remain extant, considering the complexities of the situation on the ground and the public interest considerations, I do not set a timetable for fresh decisions to be made. Rather, I urge the Respondent to undertake that reconsideration at the earliest practicable opportunity, having regard to the compelling circumstances which continue to affect each of the Applicants on a daily basis.
188. I do not address the damages claim at this stage and if this is pursued, I invite brief submissions or draft directions as to how this should be conducted.
189. The parties are directed to agree an order to reflect the terms of this judgment. The order should address any consequential matters, including any application for permission to appeal and costs, as well as any submissions or draft directions provided for above at para 188.
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