CA-2024-001818 - [2025] EWCA Civ 1273

There has for many years been a good deal of criticism of the Secretary of State’s policy as regards family reunion for child refugees. This is relevant to the discrimination and irrationality grounds, which are concerned with the substantive merits of the policy; but it is also, for reasons which will appear, relevant to the section 55 ground. I need to summarise the principal sources of that criticism, but I do not at this stage say anything about its validity.

Parliamentary criticism. There were before the Court excerpts from reports of three Parliamentary Committees addressing the issue of family reunion for child refugees. It is not necessary to summarise them in any detail, but in headline terms:

The Chief Inspector. The Independent Chief Inspector of Borders and Immigration (“the Chief Inspector”) considered the family reunion policy for child refugees in paras. 6.12-6.17 of a report sent to the Secretary of State on 7 January 2020 and subsequently published, with her response, on 8 October 2020. The report is not itself explicitly critical of the Secretary of the State’s policy, but it identifies criticisms by “stakeholders” and the Home Office’s response and recommends that the Government clarifies its policy.

“Without My Family”. In January 2020 Amnesty International, the Refugee Council and Save the Children published a report entitled Without My Family: the impact of family separation on child refugees in the UK. Recommendation 1 was that the Home Office should “permit the right to family reunion for unaccompanied children with international protection needs when this is in their best interests”.

UNHCR. In 2019 UNHCR published three reports – Families Together: Family reunification for refugees in the European Union (February 2019); Destination Anywhere: the profile and protection situation of unaccompanied and separated children and the circumstances which lead them to seek refuge in the UK (June 2019);and A Refugee and Then …: participatory assessment of the reception and early integration of unaccompanied refugee children in the UK (June 2019) – together “the UNHCR reports”. Each of these is critical of current UK Government policy as regards family reunion for child refugees. (We were also shown a report dated July 2024 entitled UNHCR’s Recommendations to the Government of the United Kingdom, but that contains nothing material for our purposes.)

One point picked up in many of these criticisms is that the great majority of developed countries allow family reunion for the parents and/or siblings of child refugees on the straightforward basis of their relationship with the sponsor: the only exceptions are apparently the United States, Canada and Switzerland. (Footnote: ¹²)

There are references in the materials before us to other occasions where the policy on family reunion for child refugees has been the subject of criticism both in Parliament and from the Chief Inspector and others; but the documents to which we were referred are sufficient by way of background.

In addition to those materials, there were before the Court witness statements from the Claimant and his mother, together with a report from a clinical psychologist, addressing the impact that the difficulties of the process of seeking family reunion had had on him. As regards the policy more generally, there were witness statements from Judith Dennis, Policy Manager at the Refugee Council, Anna Jones of RefuAid, Sheona York of Kent Law Clinic and Lawrence Bottinick, a Senior Legal Officer at UNHCR. Part of the purpose of these is to exhibit the reports referred to above, but they also contain, to varying extents, the witnesses’ own evidence about the impact on child refugees and their families of aspects of the policy.

The Government has expressed its response to these criticisms in various forms. I need only refer here to the most recent statement which was before the Court, being the Home Office’s response to the Chief Inspector’s recommendation that the Government clarify its position on child sponsors. This reads:

“4.3

The Government has made clear in the past its concern that allowing children to sponsor parents would risk creating incentives for more children to be encouraged, or even forced, to leave their family and attempt hazardous journeys to the UK. This would play into the hands of criminal gangs, undermining our safeguarding responsibilities.

4.4

Government policy is not designed to keep child refugees away from their parents, but in considering any policy we must think carefully about the wider impact to avoid putting more people unnecessarily into harm’s way. There is a need to better understand why people choose to travel to the UK after reaching a safe country. It is important that those who need international protection should claim asylum in the first safe country they reach – that is the fastest route to safety.”

The phenomenon referred to in para. 4.3 of children being sent on hazardous journeys so that they can then be joined by their families is elsewhere described as the use of “anchor children”. I return to this later.

It is convenient if I also quote at this stage a passage from the Chief Inspector’s report which is particularly material to the section 55 ground. At para. 6.15 he says:

“Home Office policy staff told inspectors that most major decisions about family reunion policy were made by ministers and ‘sometimes decisions taken are inevitably political. That is out of our control ultimately.’ The Home Office did not share any advice that it had put to ministers regarding policy options for family reunion. Inspectors asked for the rationale for excluding children from sponsoring family reunion applications. The Home Office’s response echoed what ministers had previously told Parliament:

‘If children were allowed to sponsor parents, this would risk creating incentives for more children to be encouraged, or even forced, to leave their family and risk hazardous journeys to the UK. This plays into the hands of criminal gangs who exploit vulnerable people and goes against our safeguarding responsibilities. This position supports our commitment to protecting vulnerable individuals.’”

Para. 6.17 notes that Home Office staff had told his inspectors that “child sponsors was a ‘ministerial red line’”. The relevance of these references is that they show that the Secretary of State has consistently declined to reconsider her policy as regards family reunion for child refugees.