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

DIFFERENTIAL TREATMENT

I believe, with respect, that Lavender J was wrong to find against the Claimant on the differential treatment issue, whether the case is analysed as one of primary or Thlimmenos discrimination.

I start with primary discrimination. In my view a minor child who has been granted asylum in the UK and who seeks to be joined by a parent is in a relevantly similar, or analogous, situation to a parent who has likewise been granted asylum and who seeks to be joined by a minor child. In both cases the relationship of parent and minor child has been disrupted by their separation, and the aim of family reunion is to restore it. I cannot see that it makes a difference in principle whether it is the child who is in the UK and the parent who is still abroad or vice versa. Yet the two situations are treated differently: in the former reunion will be possible only if the unjustifiably harsh consequences criterion is satisfied, whereas in the latter it will be automatic.

Lavender J’s reasoning at para. 154 depends on the fact that parents are not eligible for automatic family reunion whether the sponsor is a child or an adult. But the two situations are not the same. As pointed out at para. 21 above, the concept underlying the treatment of minor children under the Rules is dependency: a child is presumed to be dependent on his or her parents up to the age of 18 but not thereafter. Thus where a child and an adult refugee are both seeking reunion with a parent, the relevant relationships are fundamentally different: one is a relationship of (presumed) dependency and the other is not.

The point made in the last paragraph also provides the basis for a Thlimmenos analysis. For the reason given, a child refugee and an adult refugee seeking reunion with a parent are in different situations; yet both are treated the same. Lavender J’s point that in some cases there will be adult refugees for whom their parents and siblings constitute a “nuclear family” may be an answer to a particular way in which Mr Husain expressed himself below; but it does not address the fact the Rules recognise and apply the well-recognised conventional distinction between children and adults as regards dependency on their parents.

In the foregoing paragraphs I have referred only to the parent-child relationship. That is appropriate because in the great majority of cases siblings will be granted leave because leave is granted to the parent: see para. 45 above.

JUSTIFICATION