Held, claim allowed in part. (1) The Secretary of State would discharge a “function” for the purposes of section 55 of the Borders, Citizenship and Immigration Act 2009 when she made a change to the Immigration Rules. In order to discharge that function, she had to consider from time to time whether to make any, and if so what, what changes to the rules and, accordingly, she could properly be said to be discharging a function when she actively engaged in that consideration. That might require a choice between various options, one of which might be to make no change to the rules, and therefore choosing to make no change could still be still a discharge of her functions. However, the duty imposed by section 55 of the 2009 Act had to have to be kept within sensible bounds and, in particular, once the Secretary of State had decided to adopt one policy rather than another she was not to be treated as, in effect, remaking that decision every time she applied, repeated, defended or declined to change that policy. A decision was an act or event, not an ongoing state of affairs. On that analysis, the Secretary of State could not be said to be making an “ongoing decision” that the parents and siblings of refugee children would not be entitled to family reunion under the Immigration Rules on the same basis as the spouses and children of adult refugees. As the evidence showed that the relevant decision-makers, namely, the Secretary of State and Home Office ministers, had not, since the 2009 Act came into force, given active consideration to the policy option of changing the Immigration Rules so as to create a route to family reunion for refugee children, the proper conclusion was that the Secretary of State had not in that time exercised a relevant function for the purposes of section 55 in relation to the option of creating a route to family reunion for refugee children. Consequently, she had not been obliged to comply with the section 55 duty in relation to that policy option (paras 133, 134, 137, 140–142, 173).

(2) While the relevant Immigration Rules fell within the ambit of article 8 of the Human Rights Convention, and being a child refugee was an “other status” for the purposes of article 14, the matters of which the claimant complained did not constitute a difference of treatment for the purposes of an article 14 discrimination claim because the relevant Immigration Rules treated child and adult refugees the same. Neither child nor adult refugees were permitted by the relevant Immigration Rules to sponsor applications for leave to enter by their parents or siblings. In so far as the claim could be framed instead as a complaint that relevantly different situations were treated the same, on the basis that child refugees were in a relevantly different situation from adult refugees in that the “nuclear family” of an adult refugee consisted of their partner and minor children whereas that of a child refugee consisted of their parents and siblings, that claim also failed because the concept of the nuclear family was not so clear-cut and, for instance, some adult refugees of 18 years old or more might have been living with their parents as dependent relatives before they left their country of habitual residence. The guidance of the United Nations High Commissioner for Refugees did not assist the claimant as it regarded dependent children as part of the nuclear family whether they were under or over 18 and, further, it set out the view that the principle of family unity required the reunification of adult refugees with their parents, if their parents were dependent on them (paras 12, 145, 154–157, 173).

(3) A further challenge based on irrationality, which would arguably require the permission of the court to amend his grounds of claim, was adjourned to give the claimant the opportunity to pursue such a challenge if so advised in the light of the developments since the hearing and/or the contents of the present judgment (paras 171, 172).