Using DNA Test Evidence in Immigration Cases
Many immigration applications require proof of a family relationship. Although such relationships can often be proven through documentary evidence, there are some circumstances in which such evidence will not be available, or where the documents that are available may not be accepted as genuine or sufficient by the Home Office. The question then arises as to what alternative means an applicant could use to demonstrate a family relationship. One option is DNA testing evidence.
DNA evidence has previously been the subject of controversy in the Home Office. Back in 2018, the Home Secretary apologised after publishing a review into DNA testing. It was revealed that the Home Office had been telling applicants that genetic testing was mandatory for certain family visas, despite having no legal basis to do so. Since this apology, the Home Office has provided detailed guidance for its caseworkers on inviting applicants to volunteer DNA evidence. In this post, we will use this guidance to provide answers to some of the common questions likely to arise when considering whether to use DNA evidence to prove a family relationship.
Do I have to provide DNA evidence if doing so is suggested by the Home Office?
The Home Office’s new guidance makes it clear that the answer to this is no. As stated above, the Home Office has no power to require DNA evidence. However, the Home Office can give individuals the opportunity to provide DNA evidence as one of a range of options.
If this evidence is not provided, an application cannot be refused solely on the basis that an applicant has failed to provide it and no negative inferences will be drawn from the failure to provide evidence. Further, any explanations for the failure to provide DNA evidence must not be taken into account in the consideration of the application. In the absence of DNA evidence, an application must be determined on the basis of the available evidence only. Although an application cannot be refused on the basis that DNA evidence was not provided, it may of course still be refused on the grounds that the relationship is not accepted if the alternative evidence is not considered to be sufficient.
What are the requirements for the collection and testing process for DNA evidence?
The guidance advises applicants who wish to provide DNA evidence to meet certain collection standards to ensure that the samples are securely collected before being sent to a DNA testing laboratory. These requirements include, but are not limited to, observation from an independent witness, facial photographs certified by the independent witness and provision of a photographic identity document to the independent witness. The guidance advises applicants that they must demonstrate that the collection of DNA samples was secure and free from tampering by showing that these requirements were met.
Further, the testing laboratory itself must hold an accreditation to a suitable International Organization for Standardization (ISO) standard, which is usually ISO/IEC17025. The easiest way to ensure you are selecting an accredited laboratory is to refer to the list published on Gov.UK here.
If you choose a DNA testing laboratory that holds accreditation to an alternative ISO standard, the Home Office will request that you obtain a copy of the testing laboratory’s schedule of accreditation to demonstrate that the laboratory’s accredited scope includes the testing for the relevant biological relationship. The accreditation of the testing laboratory must be awarded by an accreditation body that has demonstrated its technical competence in issuing such accreditations. This can be determined through examining whether the accreditation body is a signatory to the European or International Mutual Recognition Arrangements. Laboratories established in the UK must seek accreditation from the United Kingdom Accreditation Service.
Can I provide DNA evidence relating to one family member to demonstrate my relationship to another?
The guidance confirms that although DNA tests are normally used to establish a biological parental relationship, DNA tests against another immediate family member may help to validate a claimed parental relationship. However, it is recognised that they will not offer the same level of matching as a direct parental test. Applicants must demonstrate that the laboratory holds suitable accreditation to undertake testing for that particular biological relationship.
Evidence of an alternative biological will only be accepted in exceptional or compassionate circumstances. The examples of relevant circumstances given in the guidance are where the parents have died or where not allowing the evidence would unreasonably disadvantage the applicant, because there is no other way to prove the relationship. The relative providing the DNA must be an immediate relative to the person who is unable to provide the DNA, such as either their parent or sibling. Relevant documentary evidence would need to be provided to demonstrate the existence of the relationship.
What will the Home Office look for in the results of the DNA test?
A caseworker is required to carefully read the DNA testing laboratory’s explanation of the headline results of the test. The use of a likelihood ratio for the specified relationship (versus the alternative that there is no such relationship) is said to support greater transparency and enables the courts to determine the specified nature of any differences of opinion between experts. While reliance on likelihood ratios is encouraged, the guidance prohibits reliance on the percentage chance that an individual is related to the relevant person (e.g., that there is a 99.9% chance that they are related). It is therefore important to ensure that your DNA test includes the likelihood ratio in its results, as well as meeting the required collection and testing processes outlined above.
DNA evidence can be a useful tool in immigration cases, although applicants are never under any obligation to use it. If you do choose to provide DNA evidence, there are detailed rules for the standards that the test must meet, and it is important that you follow these in order to ensure that the results of a test will be taken into account and will be considered significant in the Home Office’s assessment of a case.
Contact our Immigration Barristers
For expert advice and assistance in relation to an application to enter or remain in the UK on the basis of a family relationship, contact our immigration barristers in London on 0203 617 9173 or via the enquiry form below