Introduction

Following Brexit, EU, EEA and Swiss nationals and their family members who were living in the UK before 31 December 2020 could apply to the EU Settlement Scheme (EUSS) to protect their UK residence rights. Many of those who were granted pre-settled status established their employment, family and home in the UK, and expected to become eligible for settlement after completing five years’ continuous residence.

We are increasingly hearing reports of pre-settled status holders who, on trying to apply for settled status, are informed by the Home Office that their pre-settled status was granted in error. The Home Office’s updated guidance contains examples of circumstances where the Home Office can decide that a person’s pre-settled status will be allowed to expire, rather than automatically extended or converted to settled status. The Independent Monitoring Authority (the body responsible for monitoring the implementation of the citizens’ rights provisions of the EU-UK Withdrawal Agreement) understands that the Home Office are checking an individual’s EUSS status where:

• An EUSS status holder applies to convert from pre-settled status to settled status; or
• A joining family member applies to the EUSS, and their sponsor’s EUSS status is checked as part of the joining family member’s application.

‘Granted in error’ Home Office guidance

Home Office guidance states that a person’s EUSS status will only be considered to have been granted in error, where there is information or evidence showing the person did not meet the requirements for obtaining that status.

The guidance gives a few examples of situations where this might happen:

• There is information or evidence which shows that an EUSS status holder only obtained an EEA nationality after 31 December 2020
• There is information or evidence which shows that an EUSS status holder was not resident in the UK before 31 December 2020
• A person applied as a joining family member of a relevant sponsor, but was incorrectly granted a status as a relevant EEA citizen

When the Home Office considers a person was granted EUSS status in error, they must request additional information and evidence from that person. If the Home Office are still not satisfied that the person’s original EUSS status should have been granted, they must refuse the person/their family member’s application and inform them that their EUSS status will not be automatically extended and expire at the end of its validity.

If you receive correspondence from the Home Office questioning your status under the EUSS, you can contact us for advice through our website, by phone on 020 7401 6887 or by email at contact@gryklaw.com. Depending on your circumstances, there may be options to challenge the decision or to switch to an alternative immigration route.

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.

We can be contacted through our website, by phone on 020 7401 6887 or by email at contact@gryklaw.com.

 

We have assisted many couples to obtain British citizenship for their children born abroad following an international surrogacy arrangement. The most common scenario involves an intended British parent or parents who have a biological connection to the child.

However, we have also successfully obtained British citizenship on numerous occasions when the intended parent or parents do not have a biological connection to the child, a scenario often referred to as “double donation”.

It would be very unlikely that a child born abroad following a double donation would be automatically British (this would require a British citizen surrogate), but this does not mean that we cannot acquire British citizenship by way of an application for registration under Section 3 (1) of the British Nationality Act 1981.

There is often confusion on this point. I believe it may arise because it is not possible to obtain a Parental Order where there is no biological connection; other family law solutions must be found. However, this does not mean there is no nationality law solution when a child is born to a British parent following double donation.

We would be happy to advise on this matter.

Barry O’Leary has practised exclusively in British immigration and nationality law for over 26 years. He is the author of the immigration law chapter in “Surrogacy, Law, Practice and Policy in England and Wales”; he teaches the Immigration Law Practitioners Association course on the subject; and he is acknowledged as an expert in this area by both Chambers and the Legal 500, with the Chambers review including the quote ‘Barry is the clear UK leader in immigration law for surrogacy’.