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

I prefer Ms Giovannetti’s submissions. It is common ground that when the Secretary of State makes (or amends) a particular rule she discharges a function within the meaning of subsection (1) (subject to my caveat at para. 69 above). But that involves a substantive act on her part. It does not follow that she should be regarded as discharging a function on every occasion that she declines to consider whether to change her policy. That could in some sense be described as a decision, but it does not involve what would on any ordinary understanding be regarded as an exercise of the Secretary State’s statutory functions. Neither section 55 itself (subject to the Claimant’s new case) nor any other statutory provision requires the Secretary of State to review her policy from time to time, whether with regard to the best interests of children or otherwise. (Footnote: ¹⁷) I cannot see how the fact that she may from time to time confirm (typically in response to pressure from parliamentarians or campaign groups) that she does not intend to change her position should convert the maintenance of the status quo into the discharge of a function within the meaning of section 55.

It may be a little over-simple to regard the distinction in question as being between action and inaction, since Ms Giovannetti concedes – I think correctly – that in some circumstances a decision to maintain the status quo will constitute the discharge of a function. But in my view her contention that that will only be so where the decision is the result of a substantive review process makes sense: it is the process of substantive reconsideration, embodied in a formal process, that makes it appropriate to describe the Secretary of State as discharging a function. In short, she will only have discharged a relevant function within the meaning of section 55 if she made a decision not to change the Rules (or policy expressed in guidance) as a result of a substantive review process in the sense identified at para. 103 above: she will not have done so if her only decision was not to embark on such a process.

On that basis, I also believe, for the reasons given by Ms Giovannetti, that Lavender J was right to find that the Secretary of State had not at any material time discharged a relevant function as regards family reunion for child refugees. Although it is unsatisfactory that we do not have fuller evidence about the 2016 and 2018 “decisions”, it is in my view reasonably clear that neither constitutes a decision of the necessary character. I take them in turn.

As regards the 2016 episode, I agree that it is reasonable to infer that the content of the Guidance was changed in response to the decision in AT; and that no doubt involved a decision of some kind, possibly taken or approved by a Minister. But the question is whether the making of that change justifies the inference that there was a substantive review of the policy as regards family reunion for child refugees. The starting-point must be para. 10 of the written submissions quoted at para. 83 above, confirmed by Mr Büültjens, which says explicitly that no such review took place. It would be possible to reject that evidence if the only possible explanation of the changes in the 2016 Guidance were that there had been a substantive review by the Secretary of State of the necessary kind. But the introduction of the key passages in 2016 is equally explicable on the basis that AT had revealed a need, not for a substantive review of the Secretary of State’s policy, but only for that policy to be clearly stated in the Guidance. It is in fact prima facie most unlikely that the Secretary of State had not previously had a policy of permitting family reunion where that was necessary in order to avoid a breach of article 8 and/or in compelling and compassionate circumstances. I accept that at para. 11 of his decision McCloskey P says that a previous policy of broadly that kind was “extinguished” in 2006, but he gives no particulars and what he says not only is unlikely to be the case but is inconsistent with Mr Büültjens’ evidence. In short, this episode does not justify an inference that the Secretary of State discharged a relevant function in 2016.

As for the 2018 decision, the statements from the Home Office that it was “currently reviewing the policy on refugee Family Reunion” and “reviewing the approach to Family Reunion” do not by themselves get the Claimant home. “Reviews” can be of a variety of kinds and for a variety of purposes. It appears from the Chief Inspector’s 2018 report (see para. 5.36, quoted by the Judge in para. 57 of his judgment) that the relevant teams within the Home Office aimed to “review” family reunion policy every twelve months. It is also unsurprising that officials should “review” the policy in response to criticisms from parliamentarians and others. But it does not follow that such reviews would develop into proposals for a change of policy to be considered by the Secretary of State; and the evidence is that throughout the relevant period the Secretary of State made it clear that she was not prepared to consider any such change.

Although I am content to base that conclusion on the material that was before Lavender J when he delivered his first judgment, there is also relevant evidence in the witness statement of Dr Meirav Elimelech, Deputy Director of the Asylum and Protection Unit in the Home Office (filed following the first judgment, for the purpose of ground 3). In particular, at para. 8 she refers to a “compelling, compassionate circumstances” policy being in place in 2007, which is inconsistent with McCloskey P’s statement that such a policy was “extinguished” in 2006. And at para. 12 she says that

“Home Office ministers have been consistently clear with officials that they do not wish to amend the policy position with regards to children sponsoring parents or other family members under the family reunion policy”.

That reinforces the Chief Inspector’s reference to a “ministerial red line”.

I am not shaken in that conclusion by the terms of the Treasury Solicitor’s responses to the RFI. I accept that, if on the Secretary of State’s case there were indeed no decisions by her of the kind identified by the Claimant as the premise for his request, the response ought to have been prefaced by a challenge to the validity of that premise. But it is much more likely that the failure to include such a challenge is the result of the author failing to appreciate the potential significance of the introductory parts – the request was on the face of it simply concerned with dates – than that it represents a considered acceptance of a case which was contrary to the finding of the Judge and to the Secretary of State’s consistent case throughout.

For the process of the reasoning above, I have remained loyal to the parties’ common position that the crucial question is whether the Secretary of State’s alleged decisions not to review the relevant Rules constituted the discharge of a function. But I would add that if, as I suggest at para. 69 above, the making of Immigration Rules is treated by the statute as the making of “arrangements” rather than as the discharge of a relevant function, the answer is the same, if not indeed a fortiori: I do not see how a decision not to review the Rules can possibly be regarded as the making of an arrangement.

I have reached that conclusion without reference to authority. We were in fact referred to three authorities in connection with this issue. None of them seems to me of central importance, but I will address them briefly. I take them in date order.

In R (Badmus) v Secretary of State for the Home Department [2020] EWCA Civ 657, [2020] 1 WLR 4609, the claim concerned the lawfulness of the amounts paid to immigration detainees for work voluntarily undertaken by them. The impugned rates were first set by a detention service order (a “DSO”) made in 2013, but they were maintained by a decision of Home Office Ministers following a review in 2018. It was important for limitation reasons to establish whether the only judicially reviewable decision was made at the time of the original DSO. This Court (Sir Terence Etherton MR, Hickinbottom LJ and Simler LJ) held that the 2018 review gave rise to a distinct decision. I agree with Lavender J that the facts were fundamentally different from those of the present case; and the outcome is entirely consistent with Ms Giovannetti’s submissions. As appears from paras. 11-15 of the judgment of the Court, the 2018 decision was the product of a formal review process commissioned by Ministers which produced a report offering them a choice between four options, including (which was the option chosen) to leave the rates unchanged. The case was not concerned with section 55, but it is clear that a decision taken as a result of a process of that kind would indeed be the discharge of a function in the relevant sense.

InR (Adiatu) v Her Majesty’s Treasury [2020] EWHC 1554 (Admin), [2020] PTSR 2198, the claimant contended, among other things, that in deciding not to accord benefits to the self-employed under the Coronavirus Job Retention Scheme the Government failed to comply with the PSED established by section 149 of the Equality Act 2010. The claim was rejected by the Divisional Court (Bean LJ and Cavanagh J). Among other things, it held that the PSED only obliged an authority “to have regard to the equalities implications of the decision that is actually taken, not other decisions that might have been taken instead”. At para. 242 of its judgment the Court said:

“The ‘exercise of the [public authority’s] functions’ for the purposes of s 149 (1) consists of the implementation of the measures that the public authority decides upon. … A public authority must have regard to the equalities implications of the steps that it intends to take. It need not have regard to the equalities implications of other steps, which it is not taking, and is not even considering.”

I respectfully agree with that, and it is broadly in line with Ms Giovannetti’s submission; but the Court was not directly considering the question which arises in the present case.

In R (the 3million Ltd) v Minister for the Cabinet Office [2021] EWHC 245 (Admin) the claimant contended, among other things, that in omitting to make certain amendments to regulations governing the registration of EU nationals who wished to vote in the 2019 European Parliamentary elections the defendant minister failed to comply with the PSED. The Divisional Court (Lewis LJ and Supperstone J) did not in the end need to reach a decision on that contention, but at para. 130 of its decision dismissing the claim it expressed some doubt whether the duty arose: it acknowledged  that “if regulations are made, and quite possibly, when the issue of whether to amend regulations or not is being actively considered, a minister may be exercising functions”, but pointed out that on the facts the issue did not appear ever to have been actively considered. The passage in question may be the origin of Lavender J’s reference in the present case to “active consideration” but it does not otherwise advance the argument. The Divisional Court gives no detailed consideration as to the kind of process that would be necessary in order to give rise to the exercise of a function.

I should record, finally, that in her Respondent’s Notice the Secretary of State took the point that any claim based on decisions taken in 2016 or 2018 would be out of time and contends that permission to extend time should not be granted. That objection was not developed in either Ms Giovannetti’s skeleton argument or her oral submissions, but in any event on the basis of my conclusion above it does not arise.

THE NEW CASE