The Court of Appeal (CoA) ruled that the Secretary of State for the Home Department (SSHD) was in breach of a mandatory statutory duty to review her policy on family reunion for child refugees, specifically failing to conduct the legally required assessment of the best interests of the child under Section 55 of the Borders, Citizenship and Immigration Act (BCIA) 2009 when that legislation came into force.
Facts:
The claimant is a refugee child, born in October 2002 and a national of Eritrea, who was separated from his family. He arrived in the UK in May 2017 and claimed asylum, which was granted in November 2018. His parents and his five younger siblings initially remained in Eritrea but, at some point in 2018, they moved to Ethiopia because of a fear that the other children would be conscripted. On 8 September 2020, they applied to the Entry Clearance Officer (ECO) in Addis Ababa for leave to enter the UK on the basis of family reunion.
On 30 September 2020, and before any decision was taken on the family application, the claimant challenged the SSHD’s policy concerning family reunion for child refugees, as contained in the Immigration Rules and associated guidance, arguing that it was unlawful on three main grounds: breach of the statutory duty under Section 55 of the BCIA 2009 (the duty to have regard to the best interests of the child), discrimination under Article 14 of the European Convention on Human Rights (ECHR) read with Article 8 (Right to Family Life), and irrationality (Wednesbury unreasonableness).
The essence of that policy is that a child refugee can sponsor their parents or siblings only where a refusal to admit them would lead to "unjustifiably harsh consequences," which typically would constitute a breach of the right to respect for family life under Article 8 of the ECHR.
The family’s application was refused, and the claimant’s action was amended to include a challenge to that refusal.
Decision:
The CoA allowed the appeal on Ground 1 (breach of Section 55 duty), leading to a mandatory requirement for the SSHD to review her policy, but the claimant failed on Ground 3 (irrationality), and the Court declined to rule definitively on Ground 2 (discrimination).
The core reasoning was that when Section 55 came into force in November 2009, the SSHD was immediately obliged to "make arrangements" to ensure that her existing policies were formulated with due regard to the best interests of the child. However, the SSHD never performed this initial, mandatory Section 55 assessment of the policy, relying instead on pre-existing arrangements such as the Every Child Matters guidance, which only addressed individual decisions, and not the policy framework itself.
Regarding Ground 3, the decision to maintain the policy involved balancing the unquantifiable risk of incentivising the "anchor child" phenomenon against the quantifiable harm of family separation for children already in the UK. This is a quintessential area of social policy judgement where the Court must afford the executive a wide margin of appreciation.
Implications:
This case will result in a policy review concerning the family reunion route for child refugees. The incumbent SSHD is now legally compelled to reconsider their department’s policy on family reunion for child refugees, which may result in a new policy or a properly justified decision to maintain the current one. This reconsideration must explicitly balance the welfare needs of separated refugee children against the government's policy concerns (including deterring the "anchor child" phenomenon).
The case sets an important precedent regarding the scope and nature of the Section 55 duty in the context of immigration policy. The ruling clarifies that the Section 55 duty is not merely a box-ticking exercise but rather a substantive, continuing legal obligation – one that applies to the formulation of immigration policy, and not just to individual casework decisions.
