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

Normally in circumstances where the judge did not address an issue which has become live as a result of the appeal we would determine the issue ourselves, unless it had to be remitted so that findings could be made on disputed issues of fact. But the present case is unusual because of the combination of a number of circumstances.

First, our decision on ground 1 means that the Secretary of State will be obliged in any event to reconsider her policy as regards family reunion for child refugees. And in fact her recent announcement means that her entire policy as regards family reunion is suspended pending the introduction of significant changes. There is, to put it no higher, a real risk that any conclusion that we reach now on the justifiability of the current policy will be academic.

Second (though this may in truth be another aspect of the same point), Mr Husain made it clear that the only relief that he was seeking on ground 2 was a declaration that the rules in their current form were discriminatory, on the basis that the Secretary of State would then conduct a reconsideration: he conceded that that reconsideration might in principle result in her maintaining them in their current form. Such a reconsideration will now be required in any event. It is possible that if we determined ground 2 our conclusion, or the underlying reasoning, might be of assistance to the Secretary of State for the purpose of her reconsideration; but that is not obviously the case, particularly in view of the passage of time since the first hearing before the Judge (see para. 165 below).

Third, the fact that Lavender J did not himself address the issue of justification means that we are deprived of the benefit of his own analysis and judgment. That might not normally be a sufficient reason by itself for our not deciding the issue, but it is a relevant consideration.

Fourth, the state of the evidence on the issue of justification is unsatisfactory. It is rather surprising that the Secretary of State filed no witness statement setting out her case on justification and the evidence relevant to it: indeed in her Summary Grounds of Defence she had indicated that she might adduce such evidence, but that did not happen. It would be unfortunate if this Court had to proceed to a decision on the basis of piecemeal material such as the Belgian EMN request and the responses to it. When we asked Ms Giovannetti why there had been no witness statement on this issue she referred to the confused way in which the issues had developed, and also to her submission that the degree to which making automatic family reunion available for child refugees would incentivise the use of anchor children was a matter of judgement and not readily capable of empirical proof. I see some force at least in the latter point, and I do not say that the Secretary of State’s case could not in principle be proved without witness evidence. But I remain troubled by its absence. At the very least, it would have provided a coherent presentation of the materials before us, identifying the conclusions which the Secretary of State drew from them; but it may also be that the exercise of preparing a witness statement would have produced material that enabled the Court to arrive at a more solidly-based decision. (It would also avoid a potential issue of Parliamentary privilege to the extent that she wishes to rely on Ministers’ responses in Parliament.) If a determination on this issue were necessary in order to establish the Claimant’s entitlement to some substantive relief, we might have to do our best on the basis of such evidence as there was; but that would be unsatisfactory, especially on an issue of this importance.

Fifth, the unfortunate procedural history of this case means that over three years have passed since the first hearing before the Judge, and longer than that since the creation of the various pieces of evidence which were before him on this issue; and it is appropriate to take judicial notice of the fact that there have been significant developments relevant to immigration policy during that time. Quite apart from the particular points made above, a judgment, either way, on the justification issue based on that evidence is likely to be of limited value either generally or for the purpose of the Secretary of State’s reconsideration.

The effect of those factors in combination is that I do not believe that this Court ought itself to determine the issue of justification. The choice is between, on the one hand, dismissing the discrimination claim altogether on the basis that its determination is no longer of practical value and, on the other, remitting the issue to the Administrative Court, possibly coupled with a stay pending the outcome of the Secretary of State’s reconsideration. I would give the parties the opportunity to make written submissions following the hand-down of this judgment about which of those courses we should take.

I should say that this decision does not render redundant my summary of the parties’ cases on justification at paras. 151-159 above, since both relied on essentially the same material in connection with ground 3, to which I now turn.