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

It is fair to say that at the hearing before us the irrationality ground was rather the poor relation. It was only addressed by Mr Husain very briefly, and he largely relied on his skeleton argument. Ms Giovannetti’s response was correspondingly brief. That being so, in addressing the issue I propose to confine myself to the essentials.

I start with the pleading of the relevant ground of claim. During the adjournment between the first judgment and the second hearing the Claimant applied for permission to re-amend the parts of the claim form and the Statement of Facts and Grounds setting out ground 3. The application was supported by witness evidence. It was resisted by the Secretary of State, also with the support of witness evidence. In his second judgment Lavender J granted permission. The summary re-amended ground reads:

“[T]he Secretary of State’s failure to afford refugee children the opportunity to access reunion with their parents and siblings on the same basis as adult refugees are able to access reunion with their spouses and children is, and has since its inception been, irrational; further or in the alternative, her failure or refusal to give active consideration to amending the Immigration Rules to afford refugee children this opportunity is irrational”.

That ground was analysed by the Judge at para. 23 of his second judgment as comprising distinct challenges to the rationality of (i) the Secretary of State’s decision to make the original Rules in 2000; (ii) her subsequent refusals to give active consideration to amending them; and (iii) the Rules themselves. He dismissed all three challenges. The Claimant does not dispute the decision as regards limb (i), and we are thus only concerned with limbs (ii) and (iii).

Ground 3 of the grounds of appeal reads:

“The Administrative Court erred in holding that (i) the Respondent’s repeated refusals to review the relevant paragraphs of the Immigration Rules were rational, and/or (ii) the Rules themselves, the Respondent’s maintenance of them, and/or the Respondent’s refusal to amend them to provide a straightforward route to family reunion for refugee children were rational.”

Elements (i) and (ii) correspond in substance to limbs (ii) and (iii) respectively in the re-amended ground of challenge as analysed by the Judge. Element (ii) is elaborated so as to refer not only to the Rules themselves but to the Secretary of State’s maintenance of them and/or refusal to amend them, but I do not think that that refinement affects the substance of the distinction: whichever way one puts it, the ultimate challenge is to the policy as it stood throughout the period.

Mr Husain emphasised that limb (ii) represented a more modest challenge than limb (iii). If he succeeds on limb (iii) the result would be that the Secretary of State’s policy itself is unlawful, an outcome which he accepted was “ambitious”. If, however, he succeeds on limb (ii) the result is only that she is obliged to reconsider that policy: he expressly acknowledged that in principle the result of the reconsideration could be that she maintains the present policy.

I have considered whether it would be appropriate for us to take the same course as regards this ground as I propose in relation to the discrimination ground: since the Secretary of State will be obliged to consider her policy in any event as a result of our decision on ground 1, it might be thought that there was no value in our expressing a view on its rationality. But I do not believe that the position as regards the two grounds is the same. The Claimant’s case under limb (iii) is squarely that the Secretary of State’s current policy as regards family reunion for child refugees cannot be sustained on any rational basis. That is, at least arguably, a more fundamental challenge than that under article 14; and it would at least potentially reduce the options open to her in the reconsideration which she is obliged undertake. I believe that we should accordingly determine at least limb (iii), which I therefore take first.