SGW v Secretary of State for the Home Department

A: INTRODUCTION

1. On a purely human level, this case illustrates the significant dangers encountered by would-be migrants to Europe when attempting to pass through Libya. As will be seen, the series of events which have befallen the applicant’s brother, FGW, in that country, induce sympathy and an appreciation of the potential consequences of irregular status there, and indeed in numerous other countries around the world.

2. However, I am of course concerned not simply with the human dimension to this case, but also the legal framework within which it must be considered. The first issue in this case is one of process. It arises prior to any consideration of the substance of an application and can be stated as follows: Is the enrolment of biometrics a necessary condition for the making of a valid application for entry clearance? Hereafter, I shall refer to this question as the “validity issue”.

3. The case also includes challenges to: the respondent’s policy guidance, “Family reunion: for refugees and those with humanitarian protection”, version 5.0, published on 31 December 2020 (“the Family Reunion guidance”) - the “family reunion issue”; the lawfulness of the respondent’s assessment of FGW’s age - the “age issue”; and the lawfulness of the respondent’s exercise of discretion - the “exercise of discretion issue”.

4. On the facts of this case, the matters described above arise in the context of family reunion outside the scope of the relevant Immigration Rules (“the Rules”).

5. In the event, and following significant developments in these proceedings, including a final matter occurring during the writing of this judgment, the applicant’s essential complaint, namely that the respondent had acted unlawfully by effectively preventing the making of a valid application for entry clearance, has been resolved in his favour. On 4 November 2021, I received an email which had been sent by the applicant’s solicitors to the respondent on that same date, confirming that FGW had in fact enrolled his biometric information earlier that day.

6. On the face of it, this event has rendered the applicant’s claim for judicial review academic. As a consequence, it may then be appropriate to issue only a short judgment refusing the claim, or at least not granting any relief. However, in this particular case, and exceptionally, I adopt a different course of action. This is for the following reasons.

7. Firstly, the question posed in paragraph 2, above, is of significance beyond the applicant’s case. The same applies to what I say about the respondent’s Family Reunion guidance.

8. Secondly, notwithstanding the most recent development on 4 November, the issue of FGW’s age retains a certain relevance. As matters stand, the respondent deems him to be an adult. If that position is flawed, appropriate relief would be potentially relevant to the consideration of the substance of the entry clearance application.

9. Thirdly, the timing of the enrolment of biometric information is such that no meaningful additional time and effort need be expended by the parties or the Tribunal. The work has already been done, as it were. B: FACTUAL BACKGROUND

10. Aside from FGW’s age, much of the essential factual background to this case is uncontentious. The applicant himself is an Eritrean national who has at all material times been recognised as a refugee by the respondent and has indefinite leave to remain in the United Kingdom. FGW is also an Eritrean national, who it is said was born in February 2004.

11. FGW left Eritrea in October 2016 and eventually entered Libya in the spring of 2018. He made an unsuccessful attempt to leave Libya by boat, but after the craft was intercepted and sent back, he was held for almost two years at a detention centre. Whilst in detention, FGW obtained assistance from UNHCR who regarded him as an unaccompanied minor. That organisation began advocating for his release. At the same time, the applicant instructed the Migrants’ Law Project, who then made contact with the respondent to advise that an application would be made for FGW to join the applicant in the United Kingdom by way of family reunion, albeit outside the scope of the relevant Rules. Evidence relating to FGW’s identity and age was submitted.

12. UNHCR secured FGW’s release from detention in October 2020 and then provided him with accommodation.

13. Following an exchange of correspondence, further representations and supporting evidence (from, amongst other sources, UNHCR) were provided by the solicitors to the respondent. This led to the decision, dated 22 December 2020, which is a subject of the challenge in these proceedings. The relevant passages of the decision letter read as follows: “Thank you for your correspondence. As explained in the letter dated 4 September 2020 it was confirmed that a Family Reunion application had not been lodged for us to consider as your client had not attended a VAC [Visa Application Centre] or provided his biometrics. Your request for biometrics for this application to be waived pre-assessment was rejected as it was considered there was insufficient evidence to waive the usual application process. Whilst the further DNA evidence and email from UNHCR has been noted, it is considered that this does not warrant a reconsideration of the original request. It is still considered that a biometric waiver pre-application is not considered appropriate, as UKVI maintains its position that [FGW] is an adult. Furthermore, it is noted that all Libyan nationals and irregular migrants in Libya are in the same position of having to leave Libya and attend a VAC in another country. As such, it is considered a full entry clearance application has not been submitted for UKVI to consider. … Applications for leave outside of the rules should be made on the application form for the route which most closely matches their circumstances and pay the relevant fees and charges… …”

14. Following receipt of this letter, the solicitors then attempted to make an online entry clearance application on 13 January 2021, clearly indicating that it was to be considered outside of the Rules. In written submissions following shortly thereafter, the solicitors asserted that the respondent was wrong to treat FGW as an adult and highlighted the potential difficulties in the enrolment of biometrics, given the lack of a British diplomatic presence in Libya. When no response was received, the solicitors sent a Pre-Action Protocol letter. The relevant passages in the response to that letter state: “v) The SSHD asserts that your client has not completed an application for Entry Clearance as of the date of this letter. In order for a valid application to be assessed, there are specific requirements varying in specifics depending on the application, notable payment of the relevant fee, enrolment of biometric details, provision of travel documents and so forth. vi) As such the SSHD is not duty-bound to follow the quoted guidance, subject to service standards, conduct interviews et cetera, until such time as a valid application is made. vii) You refer in your representations to the difficulties your client faces in travelling to enrolled biometric information in support of his application. You propose a course of action wherein your client attend a biometric appointment at the Italian Consulate/embassy in Tripoli. viii) the SSHD asserts that she does not share biometric enrolment equipment or data with the Italian authorities, and as such the proposed approach is not possible. ix) You further suggest in your representations that the SSHD agree to allow your client to enrolled them biometric details following their entry to the UK on a successful prospective application for Entry Clearance. x) The SSHD asserts that this is not a possibility. Entry Clearance of this kind to the UK is subject to security checks that rely on biometric data. These checks need to be completed before an entry clearance application is considered and could affect the decision to issue entry clearance, depending on the outcome of the cheques. As such they cannot be pre-empted. … xvi) The SSHD therefore asserts that there has not been an unreasonable or unlawful impediment in the handling of your client’s prospective application or your correspondence regarding the same.”

15. Unsatisfied with this response, the application for judicial review was made on 22 February 2021. The grounds of challenge can be condensed to three essential points: firstly, that the respondent’s refusal to accept that FGW was a minor was irrational; secondly, that the respondent had acted unlawfully, and was continuing to do so, by requiring the enrolment of biometric information prior to, or as a necessary condition for, the making of a valid entry clearance application; thirdly, that the respondent was acting unlawfully by failing to exercise discretion on the enrolment of that information.

16. The Acknowledgement of Service maintained the position adopted in the response to the Pre-Action Protocol letter and in respect of FGW’s age.

17. Permission to apply for judicial review was initially refused on the papers, but granted at an oral hearing on 17 March 2021. Upper Tribunal Judge L Smith considered it to be arguable that the respondent’s approach to FGW’s age and the apparent inflexibility of approach relating to the enrolment of biometrics prior to the consideration of an application was unlawful.

18. Once permission had been granted a good deal of correspondence between the parties ensued, with a focus on possible means of enrolling FGW’s biometrics. As alluded to in the Pre-Action Protocol letter response, quoted above, the possibility of allowing the Italian authorities to take the biometrics was again ruled out. This position was supported by evidence from Mr John Allen, Home Office policy lead on biometric policy for immigration and nationality, and Ms Sabrina Pickering, Technical Casework and Change Implementation Lead at UKVI Cross Cutting Operations. Another avenue explored was the possibility of FGW crossing from Libya to Tunisia (where a VAC does exist). Although UNHCR had confirmed their willingness in theory to assist with such a journey, the insuperable obstacle to this course of action was that a safe border crossing could only occur if the Libyan authorities were provided with documentary confirmation that FGW had already been given a visa to travel to the United Kingdom. Such confirmation by the respondent would not have been forthcoming and so this route was eventually discounted.

19. Notwithstanding the aforementioned difficulties, constructive endeavours continued, resulting in apparently tangible progress. On 22 September 2021 the respondent confirmed that an exceptional arrangement had been approved at Ministerial level whereby a British diplomat would travel from the Tunisian capital Tunis to Libya in order to enrol FGW’s biometric information.

20. Prior to this development, the solicitors received information from the applicant that FGW and many other irregular migrants had been detained and contact was lost following raids on accommodation in Tripoli. He managed to escape and contact was re-established, but his location was unknown and his situation was highly precarious.

21. Following further correspondence with the respondent, a date of 6 October 2021 was fixed for the enrolment of biometric information by the British diplomat. Three days prior to that, information came through that a large number of raids had taken place in Libya in which thousands of irregular migrants had been detained. It was unknown whether FGW was amongst those held. In the absence of contact with FGW, the enrolment of biometrics could not take place. The respondent did however confirm that once contact was re-established, the enrolment of biometrics through the exceptional arrangement could take place and consideration of the application for entry clearance would be expedited.

22. As of 14 October 2021, FGW’s whereabouts remained unknown. However, on an unknown date, it appears that contact was re-established. The exceptional arrangement to enrol FGW’s biometric information was seemingly implemented and as mentioned previously, that important event took place on 4 November 2021.

23. This is the factual scenario existing at the date of this judgment. I have already explained why, despite this, I am considering the various issues in this case substantively.