James Packer
The roll-out of the Home Office’s eVisa system has created a number of practical difficulties for particularly vulnerable clients in recent months, who often do not possess the relevant documentation required to create a UKVI account and access an eVisa, now the only way to establish immigration status in the UK. This has led many cases where people face months of uncertainty, forcing them to deal with an unresponsive Home Office and online systems not set up with them in mind.
These challenges have presented further difficulties for Transgender clients, who already have to overcome additional obstacles to have their identities reflected on official paperwork. Our Public Law Team’s Client “S”, was exemplary of this. Despite winning her asylum appeal in June 2024, S only obtained an eVisa confirming her status, and reflecting her true identity, in April 2025.
In her appeal, all parties had been directed to refer to her by her acquired name. Shortly before the substantive hearing, the Secretary of State issued a letter indicating they accept S is a Trans woman and would grant her discretionary leave on the basis of Article 3 ECHR, which prohibits torture and inhuman or degrading treatment. They sent her paperwork in her previous (masculine) name requesting she arrange an appointment to provide her biometrics necessary to provide her with a BRP, confirming her discretionary leave.
We responded to this request by pointing out that S had changed her name. We provided evidence of her use of her acquired name for all purposes and a copy of a deed poll changing her name, as required by the governmental policy. Despite this, the Secretary of State for the Home Department (SSHD) refused to amend her position.
In response, our team made clear that if we were forced to bring a claim against the SSHD, we would argue that their refusal to simply update our client’s name was discriminatory under the protected characteristic of ‘gender reassignment’ and a breach of the public sector equality duty. We also presented arguments that their position was discriminatory on the basis of race, comparing the extensive evidence S required to that of British citizens amending their name on their passport
We further stated that the Secretary of State’s position was in breach of Articles 8 (the right to respect for private and family life, home, and correspondence) and 14 (all rights and freedoms must be protected and applied without discrimination) of the ECHR. The issues related to her very identity and immigration status, of central importance under Article 8. We argued that our client’s enjoyment of her Article 8 right was being interfered with in a way that was discriminatory on grounds of race and ‘gender reassignment’. We further argued that the position the SSHD held in their pre-action responses represented a secret policy, because it was not reflected in any of the published policy guidance on name changes and immigration documents.
This letter finally led the Secretary of State to back down and accept that immigration documents could be issued to S in her chosen name.
We share this experience to highlight the practical obstacles faced by Trans people within the immigration system, even to secure the most basic administrative steps from the SSHD. This experience is a reminder that despite the recent Supreme Court decision in For Women Scotland Ltd v Scottish Ministers and the ensuing public debate, Trans people are still protected from discrimination under the Equality Act 2010 and the SSHD must always act compatibly with the ECHR when managing the cases of Trans people within the immigration system. Lawyers must be alert to this and the arguments available when it is apparent a client is being treated less favourably, simply for being Trans.
Ongoing Administrative Failures in eVisa Implementation
Although the matter appeared settled, S was still forced to make an application for judicial review.
This is because during the period of delay, the cut off point for the production of BRPs passed, meaning our client’s status would have to be implemented via an eVisa. In common with many others, S did not have access to an expired immigration document that she could use to create her own eVisa account. All migrants in this situation have no option but to wait for the Secretary of State to set an e-visa account up for them in order to provide this vital documentation, without which they cannot access benefits, rent, take up employment or study in the UK and are also necessary to prove immigration status upon re-entry to the UK.
It is worth noting that when e-visa rollout was proposed, with the unnecessary element that all existing BRPs would become invalid and an e-Visa would be required on 01 Jan 2025, there was a torrent of warnings that the Home Office would not be able to cope with the volume of applications. Many sensible suggestions, such as only switching a migrant to an e-visa when a new BRP would otherwise have to be issued in any case, were ignored. Those familiar with Home Office’s refusal to listen to stakeholders, mismanaged digitisation projects, and its generally abysmal administrative performance, are unsurprised that yet again the Home Office has overestimated its own capacities, and proved unable to cope with this self-inflicted sudden influx of work.
As is sadly all too common, it was only when S commenced a claim for judicial review of the delay in providing her immigration documents that tangible steps were taken in relation to the implementation of our client’s status. Within weeks she was invited to a biometric enrolment appointment under her correct name, and following regular pressure on the GLD representative, she was eventually provided with the details of her eVisa account and the matter was settled by consent.
The deadline for applying for an e-Visa has twice been extended, currently until 01 June. And as Up to 700,000 migrants do not have UK eVisas, days before deadline, It seems very unlikely that this will resolve the many problems that plague this project.
Instructing Team
This matter was handled by Public Law Director James Packer and Solicitor Steffan Rees.
James Packer is a highly regarded public law Director, consistently recognised as “exceptional” and “outstanding” by Chambers and Partners and The Legal 500. He has extensive experience in high-stakes litigation, regularly conducting test cases on matters including access to the courts, unlawful detention, enforced removals, and legal aid refusals. James frequently appears in the Court of Appeal, particularly in costs and procedural challenges.
For advice on any public law and immigration matter contact James via email at jamieb@duncanlewis.com or via telephone on 07342 081719.
Steffan Rees is a Solicitor within the Immigration and Public Law departments based in Duncan Lewis’ Swansea office. Steffan assists on a range of immigration and asylum matters, including refugee family reunions and asylum applications.
Contact Steffan via email at SteffanR@duncanlewis.com, or by telephone at 02072752588.
We extend our thanks to Oliver Persey and Oscar Davies at Garden Court Chambers for their helpful advice through the tortuous pre-action process, as well as in the claim itself.
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