Refugee Week - Seeking a new home: The reality of safe and legal routes to the UK for Palestinians

Our journey often begins with a clear sense of home and belonging, usually the place of our birth, ancestry or early childhood. But as we traverse through life, we find ourselves in many different places we can call home. Home, therefore, is not a static concept synonymous only with a place of origin. For decades, migrants entering the UK, from the older generation of settlers to their British-born descendants, have drawn profound inspiration from their unique cultural, religious, and linguistic heritage. They actively and creatively reinterpret these resources to rebuild their lives on their own terms, creating what Roger Ballard aptly described as a desh pardesh, a "home from home”.[1] These serve as a symbolic tether to the past, while simultaneously fostering the creation of a new vision of home.

Home is more than just a physical space; it is the intangible feeling of safety, comfort, and joy derived from loved ones, a sanctuary where one feels a true sense of belonging. The belief that refugees are intrinsically tied only to their original homes fuels arguments for their return there, despite potential repercussions. Throughout history, due to the exigencies of circumstances people have sought safety in new homes. Their departures are frequently perilous and hasty, affording little opportunity to plan routes to safety or bring cherished possessions along.

So, how does the UK decide who is welcome in her home?

First, anyone entering the UK without documentation or not via a ‘safe and legal route’ is criminalised and excluded from our asylum system, because of the Nationality and Borders Act 2022 and the Illegal Migration Act 2023. Any asylum seeker who comes to the UK outside of these routes, perhaps by small boat, or in the back of a lorry, can be disregarded by the Government as an illegal entrant. They are seen as looking to subvert the UK’s borders and undermine our laws, criminalising those desperately seeking international protection. The argument supporting the Act is straightforward: the UK is 'our home,' we are reclaiming control, and we should determine who crosses our borders.

A key component of the incumbent Government’s strategy to address those entering the UK is the Rwanda Scheme, first announced in April 2022. This policy dictates that anyone arriving in Britain without permission will be sent to Rwanda, deemed a ‘safe third country’ by the UK Government. In Rwanda, these asylum seekers will have their claims processed with no possibility of returning to the UK. The policy, unsurprisingly, has faced widespread criticism for aggravating existing inequities within the asylum system, while marking a significant departure from the UK's traditional methods of handling asylum claims.

This is now supplemented by the Safety of Rwanda (Asylum and Immigration) Act 2024, declaring in law that Rwanda is a safe place for refugees and asylum seekers, notwithstanding the Supreme Court’s conclusion to the contrary last year. The effect of the Government’s recent legislation, on its face, is to require the courts to pretend that Rwanda is safe, even where there is conflicting evidence [2]. Both our commitment to international law, and the country’s tradition of independent legal scrutiny, are expected to fall away in the Government’s fervour for keeping certain asylum seekers away from the UK.

The rationale for all of this depends on the Government’s condemnation of asylum seeker’s failure to use the UK’s ‘safe and legal routes’, which it calls “some of the most generous anywhere” in the world [3]. But the reality is that such routes are virtually non-existent for most asylum seekers. What is more, the few available ‘safe and legal routes’ which do exist clearly favour our European neighbours. A closer examination of the figures show that nearly half of the people offered safety via these routes between 2015 and 2022 came to the UK under Ukraine Scheme visas, with another third coming under the scheme for Hong Kong British National Overseas status holders and their family members [4].

Outside of these two major schemes, a comparatively small number of Afghan and Syrian nationals have been offered resettlement. The Syrian scheme has now been closed (replaced with a general resettlement programme taking a small number of referrals from the UNHCR), and the Afghan scheme has stringent requirements excluding most, including many with family ties to the UK. 

In the case of AB [5], while the courts acknowledged the stark disparity, primarily based on nationality, between how Ukrainian and Afghan refugees are treated, they upheld the UK Government’s justification for this differential treatment on grounds of immigration control and national security. Thus, the Government is permitted by law to give refuge to one group while presenting another, just as desperate, with a closed door.

There have been urgent calls, currently unanswered, for the Government to provide safe and legal routes for people fleeing their homes in Gaza. Even where legal routes are available – for example, an application under Appendix FM – the Home Office insist on erecting insurmountable procedural barriers which makes submitting a valid entry clearance application unworkable in the circumstances.

Chief amongst these barriers is the requirement to provide biometrics before the Home Office will accept that an immigration application has been made. This poses a substantial barrier to Palestinians in Gaza seeking to come to the UK, their closest VAC being in Egypt. The Government has made clear, in response to questioning in Parliament, that there will be no general special treatment of Palestinians seeking to flee Gaza. [6]

First published on 3 May 2023, the policy instructs caseworkers on how to approach requests to defer provision of biometrics, either (i) until after an ‘in principle’ decision has been made on the immigration application or (ii) until after the applicant’s arrival in the UK. The former might be helpful where, for example, an applicant will be able to cross into a bordering country if they have evidence of a decision in principle to permit onward travel to the UK. The latter may be needed if there is no prospect of the applicant travelling to a neighbouring country, but they would be able to make the journey to the UK and provide biometrics once here.

The first two versions of the guidance set out four criteria to be met for either a pre-determination or an excusal of the requirement to enrol biometrics. Individuals were required (i) to establish their identity to a ‘reasonable degree of certainty’; (ii) to provide evidence that they need to make a visa application urgently, but the journey to a VAC to do so would be unsafe; (iii) to demonstrate that their circumstances are ‘so compelling as to make them exceptional’; and (iv) either to confirm that they could travel to a VAC after receiving a decision on their visa application, or explain why they cannot travel to any VAC but would be able to travel to the UK.

The application, and lawfulness, of this guidance in the context of visa applications made by Palestinians in Gaza has recently been considered in four cases in the Upper Tribunal: RM and WM (which were decided together by UTJ Gleeson and Jackson on 4 April 2024),[7] AK (decided by UTJ Smith on 18 April 2024),[8] and HS (decided by UTJ Kamara on 26 April 2024). [9]

Each case involved individuals, or families, in Gaza who were trying to join family members in the UK. All submitted – or had submitted on their behalf – online entry clearance application forms. In all the cases, the Home Office refused to make any decision in principle prior to biometrics being provided. The applicants challenged both the decisions in their case, and the Unsafe Journeys guidance under which the decisions were made. In all cases, the case-specific challenges were successful; in RM and WM and AK, so too were the challenges to the policy guidance. The Tribunal has been critical, in particular, of the requirement in versions 1 and 2 of the guidance that a journey be ‘particularly unsafe’ even by comparison with the situation of other Palestinians,[10] and the Home Office’s insistence that applicants show that their situation is more dire than that of Palestinians generally. [11]

Interestingly, it is noted in passing in RM and WM that the applicants had made, but did not pursue, a discrimination claim based on Article 14 ECHR. No details are given about the nature of that claim. But it is easy enough to see how the government’s treatment of Palestinians in the UK, with family trapped in Gaza, is less favourable than its treatment of, in particular, Ukrainians who were in a similar position two years ago when Russia’s invasion began. How far that might translate into a successful legal claim is a more difficult question.

Following these decisions, version 2 of the Unsafe Journeys guidance was withdrawn, and on 3 May 2024, interim guidance was published. The primary change appears that it is no longer a requirement to show that the applicant faces dangers ‘beyond the current situation that exists in their area’. This is a welcome clarification. It will assist applicants from Gaza, who were previously being refused biometrics deferral on the basis that their situation, whilst highly dangerous, was no more dangerous than that of others in Gaza.

It remains the case, however, that applicants from Gaza – as elsewhere – will not be automatically entitled to biometrics deferral. While it seems likely that most or all in Gaza will satisfy the ‘dangerous journey’ requirement in the current guidance – the ICJ has recently observed the “catastrophic humanitarian situation” there, describing it as “disastrous” and "deteriorating" [12] – applicants will still need to be able to establish their identity, show that they will be able to travel outside of Gaza, and show that their circumstances are on the whole ‘exceptionally compelling’. Applications will need to be supported by as much evidence as can be mustered in relation to each of these issues, whilst bearing in mind the need for urgency. In relation to the practicalities of leaving Gaza, useful guidance can be had from each of RM and WM and AK. [13]

Lastly, in most cases there is unlikely to be a clearly applicable route under the Rules. It is therefore necessary to try to select the route, and application form, which ‘most closely matches’ the applicant’s circumstances. The Home Office has been known to be pointlessly difficult about the choice of forms. In RM and WM, where the UK sponsor held leave here under the Global Talent route, but the applications were made on the Family Reunion form, the Home Office sought initially to refuse to consider the applications on the basis that they should have been made under the Global Talent dependant route.

These cases, and the resulting amendment to the Home Office guidance, are positive steps. But, for the moment, they address only the procedural barriers to entry. Even if the Home Office agrees to biometrics deferral, there is a strong chance of them refusing the underlying application for entry clearance. That is what happened in RM and WM, where in response to the Tribunal’s decision the Home Office made decisions refusing the applicants entry clearance. [14]

Appeals in both cases have been brought, and it remains to be seen what approach the First-tier Tribunal will take to entry applications from Palestinians in Gaza seeking to join family in the UK. For those without family in the UK on which to hinge an application, while there is always in principle the possibility of seeking leave outside the Rules, it is difficult to see many circumstances in which such an application might be successful.

Given the lack of legal avenues for asylum seekers and limited resettlement schemes, what options are left for those fleeing persecution or civil war? The UNHCR notes that nearly 90% of refugees come from countries without direct flights to the UK, making legal travel nearly impossible.[15] The arrival of numerous refugees in the UK without permission highlights the absence of viable legal pathways and reflects their desperate circumstances: escaping civil war, state persecution, or human trafficking.

For Palestinians, like with Afghans, there is no open door, as was extended to Ukrainians in the wake of Russia’s invasion of Ukraine. This inconsistency in policy reflects a troubling blend of bias, economic pragmatism, and ignorance that continually reshapes immigration rules and our policy decisions on who is deserving of refuge and resettlement. It is also crucial to challenge the notion that ‘home’ is limited to a single point of origin. Such a divisive concept fosters an "us versus them" mentality, promoting separation instead of unity. We must advocate for a consistent and compassionate approach towards those fleeing conflict and persecution, recognising our shared sense of home and humanity that transcends religious and national boundaries.

Notes

[1] Roger Ballard, Desh Pardesh: The South Asian Presence in Britain, C. Hurst & Co. Publishers, 1994
[2] Claimants in a current legal challenge (AC-2024-LON-001789 & AC-2024-LON-001704) to the policy are contending that the Act, notwithstanding its apparently clear language, is in fact significantly more limited than this in effect, see the summary of the parties’ arguments given by Chamberlain J in his recent order, accessible online.
[3] https://www.gov.uk/government/publications/illegal-migration-bill-factsheets/safe-and-legal-routes
[4] Ibid.
[5] AB v Secretary of State for the Home Department & Ors _{[2023] EWHC 287 (Admin)}; R (AB) v Secretary of State for the Home Department [2024] EWCA Civ 369.
[6] https://questions-statements.parliament.uk/written-questions/detail/2024-02-27/15865
[7] https://www.bailii.org/uk/cases/UKAITUR/2024/JR2024LON000082.pdf
[8] https://www.bailii.org/uk/cases/UKAITUR/2024/JR2024LON000689.pdf
[9] https://www.bailii.org/uk/cases/UKAITUR/2024/JR2024LON000457.pdf
[10] See e.g. RM and WM at §§85 to 90.
[11] RM and WM at §§102 and 104.
[12] https://www.icj-cij.org/sites/default/files/case-related/192/192-20240524-ord-01-00-en.pdf
[13] RM and WM at §§112-122; AK at §§71-102.
[14] As recorded in AK at §19.
[15] UNHCR, ‘Why the UK Illegal Migration Bill is an Asylum Ban.’