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

Section 55 came into force on 2 November 2009. So far as material, it reads as follows:

“Duty regarding the welfare of children

(1)

The Secretary of State must make arrangements for ensuring that—

(a)

the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and

(b)

any services provided by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection (2) are provided having regard to that need.

(2)

The functions referred to in subsection (1) are—

(a)

any function of the Secretary of State in relation to immigration, asylum or nationality;

(b)

any function conferred by or by virtue of the Immigration Acts on an immigration officer;

(c)

any general customs function of the Secretary of State;

(d)

any customs function conferred on a designated customs official.

(3)

A person exercising any of those functions must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (1).

(4)

-(5) …

(6)

In this section—

“children” means persons who are under the age of 18;

…

(7)-(8) …”

The genesis of those provisions is helpfully summarised at para. 70 (i) of the judgment of David Richards LJ in R (Project for the Registration of Children as British Citizens) v Secretary of State for the Home Department [2021] EWCA Civ 193, [2021] 1 WLR 3049, (“the PRCBC case”) as follows:

“Section 55 was enacted to give effect in domestic law, as regards immigration and nationality, to the UK’s international obligations under article 3 of the 1989 United Nations Convention on the Rights of the Child (‘UNCRC’). The UK is a party to the UNCRC and in 2008 withdrew its reservation in respect of nationality and immigration matters. Article 3 provides that:

‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’.

Although section 55 uses different language, it is conventional and convenient to refer to a duty under section 55 as being to have regard, as a primary consideration, to the best interests of the child.’”

Like David Richards LJ, I will in this judgment use the phrase “have regard to the best interests of the child” as a convenient paraphrase for the language of section 55 (1) (a).

I should note that subsections (2) and (4) of section 11 of the Children Act 2004 impose duties in substantially the same terms as section 55 (1) and (3) of the 2009 Act on a variety of public bodies whose functions may affect children.

Although section 55 does not as such impose an obligation on the Secretary of State to issue guidance about its application, it is evident from subsection (3) that the intention was that she would do so. In November 2009 the Minister of State for Borders and Immigration and the Parliamentary Under-Secretary of State for Children, Young People and Families issued guidance entitled Every Child Matters on the application of both section 55 of the 2009 Act and section 11 of the 2004 Act. This sets out a number of arrangements designed to ensure that the functions of the UK Borders Agency (Footnote: ¹³), including the making of individual immigration decisions, are discharged having regard to the need to safeguard and promote the welfare of children. But, as noted at para. 46 above, it is not concerned with the making of the Rules or other general policies governing decisions outside the Rules.

There is a good deal of case-law about the meaning and effect of section 55, but most of it is of no more than background relevance to the issue before us. I need only quote the remaining points under para. 70 of the judgment of David Richards LJ in the PRCBC case, which is a distillation of the case-law up to that date:

“(ii)

The duty is imposed on the Secretary of State. She is bound by it, save to the extent (if any) that primary legislation qualifies it; we were not referred to any qualifying legislation.

(iii)

The duty applies not only to the making of decisions in individual cases but also to the function of making subordinate legislation and rules (such as the Immigration Rules) and giving guidance. The fact that subordinate legislation or rules are subject to the affirmative vote of either or both Houses of Parliament does not qualify the Secretary of State’s statutory duty under section 55.

(iv)

The best interests of the child are a primary consideration, not the primary consideration, still less the paramount consideration or a trump card. This does, however, mean that no other consideration is inherently more significant than the best interests of the child. The question to be addressed, if the best interests point to one conclusion, is whether the force of other considerations outweigh it.

(v)

This in turn means that Secretary of State must identify and consider the best interests of the child or, in a case such as the present, of children more generally and must weigh those interests against countervailing considerations.”

I will refer to the process referred to at (v) as “the section 55 exercise”. At para. 108 of his judgment in R (SG) v Secretary of State for Work and Pensions [2015] UKSC 16, [2015] PTSR 471, Lord Carnwath defined the essence of what was required as follows:

“[T]he evaluation needs to consider, where relevant, the interests both of children in general and of those directly affected by the action. It also needs to indicate the criteria by which the ‘high priority’ given to children’s interests has been weighed against other considerations. In so far as that evaluation shows conflict with the best interests of the children affected, it needs either to demonstrate how that conflict will be addressed, or alternatively what other considerations of equal or greater priority justify overriding those interests.”

It will be seen that section 55 imposes two duties –

We are in this case concerned with the duty under subsection (1). Two things should be noted about its structure:

We asked counsel if they were aware of any precedent for the use of a “make arrangements” structure of this kind, or any discussion of it in the authorities, but they could find none. I think, however, that it must reflect a deliberate distinction between the Secretary of State’s functions in making individual decisions in relation to immigration, asylum or nationality, which will in practice be discharged by civil servants on her behalf in accordance with the Carltona principle, and her role in setting the policy which will be applied in the making of such decisions, which will be discharged by her (or Ministers in her Department – see para. 84 below) personally. This distinction is recognised, albeit in a different context, at para. 55 of the judgment of Lord Sales and Dame Siobhan Keegan in CAO v Secretary of State for the Home Department [2024] UKSC 32, [2024] 3 WLR 847.

It appears from subsection (3) that the principal means by which it is envisaged that the Secretary of State will perform her duty under subsection (1) is by giving guidance. But para. 70 (iii) of the judgment in the PRCBC case makes it clear that the duty applies also to the making of Immigration Rules. That reflects a statement by Lady Hale and Lord Carnwath at para. 92 of their judgment in R (MM (Lebanon)) v Secretary of State for the Home Department [2017] UKSC 10, [2017] 1 WLR 771) that:

“The duty imposed by section 55 of the 2009 Act … applies to the performance of any of Secretary of State’s functions including the making of the rules [my italics].”

That was, as I have said, common ground before us; and I am content to proceed on the basis that it is correct. I would, however, venture to suggest, in case the issue falls to be considered elsewhere, that a better analysis might be that the making of the Rules does not itself constitute the discharge of a function of the kind referred to in subsection (2), which is concerned only with the function of making decisions in individual cases: rather, the Rules are to be regarded as constituting “arrangements” within the meaning of subsection (1). That is in my view conceptually more satisfactory, and it seems to be how the drafter regarded guidance – see the reference in subsection (3) to “guidance … for the purpose of subsection (1)”: if guidance is treated as part of the “arrangements”, surely the same should be the case as regards the Rules. However, the two analyses have the same effect in substance, since in order that individual decisions are taken with regard to the best interests of children it is necessary that the Rules which provide the framework for those decisions should themselves have regard to that consideration.

It will be convenient to mention at this point section 149 of the Equality Act 2010, which establishes the public sector equality duty (“the PSED”). It is to some extent analogous with section 55 of the 2009, although its drafting is not identical, and we were referred to several authorities about it. The PSED is established by subsection (1), which reads:

“A public authority must, in the exercise of its functions, have due regard to the need to—

(a)

eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;

(b)

advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

(c)

foster good relations between persons who share a relevant protected characteristic and persons who do not share it.”

The similarities between section 149 and section 55 of the 2009 Act are obvious. (Footnote: ¹⁴) Like section 55, it imposes a process duty – that is, a duty in the exercise of public functions to have regard to a specified need: the differences between “regard” and “due regard” and between the “exercise” and the “discharge” of the functions are surely immaterial. But it is notable that section 149 (1) does not impose a duty to “make arrangements” but imposes the “have regard” duty directly on the authority.