New guidance issued by the Home Office on DNA evidence to establish biological relationships in immigration cases
By Oshin Shahiean, managing partner at OTS Solicitors
On the 31 December, the Home Office issued updated guidance on UK Visas and Immigration inviting migrant applicants to participate in DNA testing to establish biological relationships.
There are many reasons why applicants need to provide evidence of their biological relationship to family members in order to enter or stay in the UK based upon their relationship with a relative who either is a British citizen or has permission to live in the UK.
DNA evidence is voluntary
Many migrants assume that they have no say over whether DNA evidence is taken from them. That is not the case in the UK.
Furthermore, the Home Office has no statutory power to require DNA evidence. DNA material is given on a voluntary basis. It is the applicant’s choice.
How can OTS Solicitors help?
OTS Solicitors are specialists in Immigration law matters. The firm is recommended for Immigration law in the Legal 500. OTS Solicitors have Law Society accredited solicitors status as trusted specialists in Immigration law.
For advice on Immigration applications and DNA testing or any other aspect of Immigration law, please call us on 0203 959 9123 to arrange an appointment to speak to one of our experienced London immigration solicitors.
Adverse inferences from not volunteering to do a DNA test
It is assumed by migrants that if they do not provide DNA evidence to establish a biological relationship that negative inferences will be drawn against them.
The top London immigration solicitors will tell you that is not the case.
If an applicant chooses not to provide DNA evidence, UK Visas and Immigration can draw no adverse or negative inferences from the decision.
Establishing a biological relationship without a DNA test
UK Visas and Immigration accept applications asserting a biological relationship without a DNA test report.
Any explanations offered about the reason why DNA evidence was not supplied must not form part of the UK Visas and Immigration decision on whether to refuse or grant the application.
If UK Visas and Immigration decide the documentary evidence is insufficient to establish a biological relationship, they will explain this and the applicant can chose to provide a DNA test. The test is always voluntary.
How is DNA evidence obtained?
DNA is usually taken by swabbing the inside of the cheek to collect some cells. The DNA is then analysed in a DNA testing laboratory and a report prepared.
Home Office officials cannot take DNA evidence from individuals. That is the case even if the applicant volunteers to provide their DNA.
The DNA testing has to be carried out officially by an accredited laboratory and the collection of the DNA material has to follow protocols. The identity of the people providing the DNA has to be verified by paperwork.
If the DNA resting is not carried out to the accredited standard, the DNA test report will not carry any weight with the Home Office and the DNA test results will be ignored.
Who needs to be DNA tested?
The question “who needs to be DNA tested” depends on the nature of the biological relationship that the DNA evidence is being used for.
To prove paternity, samples from both parents and the child are needed, although there are sometimes situations where this is not possible.
DNA testing and unavailability of family member
If an applicant is unable to obtain DNA evidence from the family member with whom they are seeking to prove a biological relationship, then DNA tests against another immediate family member may help to validate a biological relationship.
However, the DNA test result will not offer the same level of matching as a report on a closer family member.
The Home Office guide states that UK Visas and Immigration should only accept DNA evidence against another relative in exceptional or compassionate circumstances. For example, a bereavement means that parental DNA testing is not possible.
DNA test results
The DNA testing laboratories usually supply one of three results:
• Positive; or
• Inconclusive; or
• Unable to establish a biological relationship.
The outcome of the DNA testing is presented by the testing laboratory as a percentage to show the likelihood of the biological relationship.
Children and DNA testing
Children who are aged under 16 are advised to only volunteer DNA evidence where they have the consent of the person who has parental responsibility for them.
DNA test results and the confidentiality of the DNA report
UK Visas and Immigration must not disclose the results of any DNA tests provided for the purposes of proving or disproving a biological relationship outside of the Home Office.
Applying the DNA results
When the Home Office decides an Immigration application, the decision is based on all the evidence as well as policy and Immigration legislation. The result of the DNA test does not guarantee a successful application.
Who pays for DNA testing?
If an applicant volunteers to supply DNA evidence, they have to arrange and pay for the DNA testing.
In the opinion of top London immigration solicitors, it is sometimes sensible for an applicant to obtain a DNA test as proof of a biological relationship. That is because by obtaining the test they can provide proof of the relationship and not face the risk of UK Visas and Immigration saying that there is insufficient information to establish a biological relationship.
The advice by the best London immigration solicitors on whether to obtain a DNA test report will depend on the individual family circumstances and what other available evidence there is to establish a biological relationship.
How can OTS Solicitors help?
OTS Solicitors are specialist in Immigration law matters.
For advice on DNA testing and Immigration applications or any aspect of UK immigration law please call us on 0203 959 9123 to arrange an appointment to speak to one of our experienced London immigration solicitors who will be happy to help.