Oct 8
Under paragraphs 277 and 352A to 352G of the Immigration Rules adult refugees were permitted (subject to certain conditions) to obtain leave for their partners and minor children to enter the United Kingdom for the purposes of family reunion, but there was no automatic provision for child refugees to obtain leave for their parents or minor siblings to enter the United Kingdom for those purposes. A child refugee could sponsor their parents or siblings only where a refusal to admit them would lead to “unjustifiably harsh consequences”. The claimant, an Eritrean national who had been granted child refugee status after arriving in the United Kingdom, brought a claim for judicial review of what he described as the Secretary of State’s “ongoing decision” that the parents and siblings of refugee children would not be entitled to family reunion on the same basis as the spouses, partners and minor children of adult refugees under the Immigration Rules. The grounds were: (i) that the Secretary of State had breached her duty under section 55 of the Borders, Citizenship and Immigration Act 2009 to discharge her “functions” in relation to immigration, asylum or nationality having regard to the need to safeguard and promote the welfare of children in the United Kingdom; (ii) that the relevant Immigration Rules amounted to unlawful discrimination, contrary to article 14 read with article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms, in that child refugees were treated differently from adult refugees; and (iii) that the policy was irrational. In two separate judgments dealing first with grounds (i) and (ii) and then with ground (iii) the judge dismissed the claims. The claimant appealed contending, inter alia, that the judge had been wrong to dismiss the claim on the section 55 point relying on a new argument that the Secretary of State had exercised a relevant function when she operated her overall system for refugee family reunion, and on that basis had unquestionably failed to comply with section 55 since it was common ground that she had never made arrangements for ensuring that the policy governing family reunion for child refugees, as apposed to decision-making in individual cases, had had regard to the best interests of children.
On the claimant’s appeal—
Held, appeal allowed in part. The Secretary of State was obliged at the point that section 55 of the Borders, Citizenship and Immigration Act 2009 came into force to consider whether her policy as regards family reunion for child refugees had regard to the best interests of children. As at that date it became the Secretary of State’s duty to make arrangements to ensure that individual immigration decisions which provided the framework for those decisions were taken with regard to the best interests of children. Those arrangements necessarily involved ensuring that the rules and policy guidance applying to such decisions were themselves formulated with regard to the best interests of children. That way of putting it, focusing on the language of making arrangements, seemed the most natural fit with the statutory language; but if it was necessary to use the language of the exercise of a function the point of substance was the same. It was clear that the Secretary of State had not discharged that obligation. However, it did not necessarily follow that she would be obliged to change that policy. The duty was a process duty; and if, having gone through the necessary process, she concluded that the policy was in the best interests of children in the UK or that, to the extent that it was not, those interests were outweighed by other primary considerations, that would discharge the duty under section 55 (paras 128–129, 132,195, 196).
Per curiam. The outcome in the present case did not involve any decision about what the Secretary of State’s policy ought to be about family reunion for child refugees. It meant only that she had not, in formulating her current policy, gone through the exercise prescribed by section 55 of the 2009 Act for decisions in the immigration field which affect the interests of children. She would now have to do so, in the context no doubt of the review of family reunion policy which she had recently announced. Whatever decision about child refugees the Secretary of State reached as a result of that reconsideration, including a decision to maintain the current policy, would be a fresh decision that was capable of being challenged by judicial review if arguable grounds were shown: such grounds could in principle include a challenge under article 14 of the Convention (paras 193, 195, 196).
Raza Husain KC, Jason Pobjoy KC and Eleanor Mitchell (instructed by Duncan Lewis Solicitors) for the claimant.
Lisa Giovannetti KC and Jack Anderson (instructed by Treasury Solicitor) for the Secretary of State.
Sonali Naik KC, Ali Bandegani and Rebecca Chapman (instructed by Baker & McKenzie LLP) for the United Nations High Commissioner for refugees, intervening.