SGW v Secretary of State for the Home Department

Under the Immigration (Biometric Registration) Regulations 2008, an applicant for entry clearance exceeding six months who must also apply for a biometric immigration document must provide required biometric information. Failure to comply requires the entry-clearance application to be treated as invalid, subject to the Regulations’ discretions concerning whether, when, where and how biometrics are enrolled.

Policy guidance is unlawful where it presents biometric enrolment as mandatory but fails to explain those discretions. A public authority must also engage rationally with material evidence concerning age, including detailed evidence from UNHCR, and give reasons if it rejects it.

The applicant, a recognised refugee in the United Kingdom, sought family reunion outside the Immigration Rules for his brother, who was in Libya. The respondent initially refused to treat the brother’s proposed entry-clearance application as valid because biometrics had not been enrolled and treated him as an adult.

During the judicial review proceedings, an exceptional arrangement enabled biometric enrolment by a British diplomat in Libya. The Tribunal nevertheless determined the wider legal issues because they were significant beyond the individual case. The central questions concerned the validity effect of biometric requirements, the lawfulness of the Family Reunion guidance, the respondent’s assessment of age, and the exercise of discretion.

1. Validity. The 2008 Regulations ranked above the Immigration Rules in the relevant hierarchy. The brother was required to apply simultaneously for a biometric immigration document and entry clearance. Under regulations 5 and 8, the Secretary of State retained discretion as to whether biometric information was required and as to the manner and timing of enrolment. Once a requirement was imposed, however, regulation 23(3) made refusal of the biometric-document application and invalidation of the entry-clearance application mandatory upon non-compliance.
2. The validity of a family-reunion entry-clearance application, whether within or outside the Rules, was therefore contingent on compliance with the applicable biometric provisions. The applicant’s submission that the Family Reunion guidance impermissibly introduced a new validity requirement failed because the requirement derived from the 2008 Regulations.
3. Guidance. The Family Reunion guidance strongly suggested that biometric enrolment was required before an application could be considered, but failed to explain the broader discretions under regulations 5 and 8. Read objectively, it presented a misleading account of the legal position and was unlawful within the category identified in [2021] UKSC 37. The Tribunal granted declaratory relief on that limited basis.
4. Age. The respondent had initially acted rationally in relying on the discrepancy in the asserted date of birth. Her later decision was unlawful because it failed to engage with the applicant’s explanation and with detailed UNHCR evidence concerning the brother’s age and the absence of serious doubts warranting a formal age assessment. The decision dated 22 December 2020 was quashed.
5. Discretion and relief. The exceptional arrangement for biometric enrolment was a lawful and rational exercise of discretion. No declaration was made concerning the earlier failure to exercise discretion. The respondent was ordered to expedite consideration of the now-valid entry-clearance application.

This was a judicial review claim in the Upper Tribunal. Permission was initially refused on the papers but granted at an oral hearing on 17 March 2021. The Tribunal subsequently granted limited declaratory relief, quashed the decision dated 22 December 2020 insofar as it treated the applicant’s brother as an adult, and ordered expedited consideration of the valid entry-clearance application.