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

Although the new case is framed in terms of the relevant function being “the operation of the system”, the substance of Mr Pobjoy’s submission was that the Secretary of State is under an obligation to review her policies in the field of immigration (whether expressed as Rules or guidance) from time to time or in any event in response to a material change of circumstances. I see difficulties with that submission. Mr Pobjoy made it clear, in response to questions from the Court, that it was his case that such an obligation was implicit in section 55 (1) itself, but the way that section 55 works is by reference to existing functions rather than by the creation of new ones. If it were sought to get round that difficulty by relying on a general public law duty to review existing policies, that would raise very wide issues on which we were not addressed.

It is true that Bridges appears to lend support to Mr Pobjoy’s argument, but I am not sure that it is decisive. Even assuming for these purposes that the differences in the drafting of section 149 (1) and section 55 (1) are immaterial, I see force in Ms Giovannetti’s argument that in the particular circumstances of that case the authority was under a duty to monitor the operation of AFR Locate because it was a new technology being introduced avowedly by way of trial. At first sight that argument might appear to be contradicted by para. 200 of the judgment. However, that passage is rather opaque, and I am inclined to think that the Court’s point was only that the potential equality impacts of AFR required ongoing monitoring because of its inherent nature and/or its novelty, irrespective of whether it was explicitly labelled as a trial.

However, I do not believe that I need to reach a concluded view on this aspect of the case, and I prefer not to do so. In my view the Claimant is entitled to succeed on the basis of Mr Pobjoy’s much more particular argument that the Secretary of State was obliged at the point that section 55 came into force – that is, on 2 November 2009 – to consider whether her policy as regards family reunion for child refugees had regard to the best interests of children. As at that date it became the Secretary of State’s duty to make arrangements to ensure that individual immigration decisions which provided the framework for those decisions were taken with regard to the best interests of children. In my view those arrangements necessarily involved ensuring that the Rules and policy guidance applying to such decisions were themselves formulated with regard to the best interests of children. That way of putting it, focusing on the language of making arrangements, seems to me the most natural fit with the statutory language; but if it is necessary to use the language of the exercise of a function the point of substance is the same. Mr Pobjoy’s overall label of “the operation of the system” may not be particularly apt to this aspect of his case, but what matters is that the Secretary of State was obliged as at 2 November 2009 to conduct, or have conducted, an exercise that ensured that her family reunion policy had regard to the best interests of children.

If the Secretary of State was, as I believe, under such an obligation it is clear that she did not discharge it. It has never been part of her case that she conducted a section 55 exercise as regards the policy at or around the time of the coming into force of the section, and, as we have seen, it is a positive part of her case that she has not conducted a substantive review since then. Since the obligation has never been discharged, it remained in force up to and including the date of Lavender J’s judgment.

The explanation of what may seem to be a surprising omission on the Secretary of State’s part seems to be that she took the view in 2009 that it was a sufficient discharge of her duty under section 55 (1) to issue the guidance in Every Child Matters; and indeed at para. 58 of her skeleton argument (though not in her oral submissions) Ms Giovannetti advanced that as a fallback answer to the Claimant’s case. But, as Lavender J pointed out, the fact that the decision-makers in individual cases are required to have regard to the best interests of the child does not address the Claimant’s case that the policy which they are obliged to implement (whether expressed in the Rules or in guidance) must also be formulated with regard to those interests: see paras. 78 (first bullet) and 79 above.