Introduction

On 2 June 2026, the Upper Tribunal handed down its judgment in R (MS and others) v SSHD (JR-2026-LON-000669), granting judicial review and quashing the SSHD’s refusal to grant biometric excuse on the basis that the decision breaches Article 8 ECHR.

Background

Applicants seeking entry clearance to the UK must normally enrol their biometrics at a Visa Application Centre (“VAC”) before travelling.  The requirement is justified on public interest grounds, in that it enables the Home Office to identify individuals who pose a threat to national security and public safety before they arrive in the UK.

Where applicants cannot safely travel to a VAC, for example, due to conflict or border closures, they may request:

• predetermination: where the visa application is decided in principle, with biometrics to be enrolled before travel and once the applicant can safely reach a VAC; or
• biometric excusal: where biometrics are deferred until after arrival in the UK, and entry clearance is granted without prior enrolment.

Current guidance

The Home Office’s approach to predetermination and biometric excusal is set out in its Unsafe Journey Policy (current version 5.0), first issued on 3 May 2023 following litigation.  Under the Policy, for a predetermination or biometric excusal request to be considered, the applicant must satisfy the following four criteria:

1. They must be able to establish their identity (by producing a valid travel document).

2. They must demonstrate that they need to travel urgently but the journey to a VAC is unsafe, and there is no alternative (e.g. travelling to an alternative VAC or delaying their journey).

3. They must provide evidence that their individual circumstances are sufficiently compelling that outweigh the public interests in requiring applicants to enrol biometrics.

4. They must confirm that they are able to travel to a VAC within 240 days of their application (for predetermination), or demonstrate that they face insurmountable barriers to attending any VAC (for excusal).

Under the Policy, predetermination or biometric excusal will not be granted where the individual has no reasonable prospect of being able to travel to the UK.  Excusal decisions can only be made by Ministers.

R (MS and others) v SSHD 

In the case of MS, the main applicant, A1, is a Palestinian national from Gaza living in the UK with refugee status.  His wife and children, A2 – A4,  reside in Gaza in what was described as “truly dreadful circumstances”.  In September 2025, they made family reunion entry clearance applications, seeking predetermination, and then biometric excusal, under Version 4.0 of the Policy.

These requests were refused in November 2025 and February 2026, and the applicants were caught in a Catch-22 situation, where “they could not satisfy Criterion 4a because of an inability to cross into Jordan and attend a VAC; they could not satisfy Criterion 4b because the only possible way they could get to the United Kingdom was to cross into Jordan, where there was a VAC, which in turn precluded the satisfaction of Criterion 4a”.  The Upper Tribunal found that, in rendering such refusals, it was irrational not to consider exercise of discretion under the Policy, which included Article 8 ECHR considerations in relation to the family life between the applicants.

Conclusion

The current version of the Policy makes clear that predetermination decisions are not confirmation that individuals are guaranteed onwards travel to the UK, and that the FCDO are not responsible for facilitating individuals to cross international borders.  This is reiterated in the MS judgment.  However, the outcome in MS is an important reminder that the Policy includes residual discretionary powers, and that decisions refusing predetermination or biometric excusal requests need to be compliant with Article 8 of ECHR.

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