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

This case is about child refugees – that is, children under the age of 18 who have been granted asylum or humanitarian protection (Footnote: ¹) – who came to this country on their own and whose parents and/or siblings wish to join them here. Applications by family members for leave to enter the UK to join a refugee are described as applications for “family reunion”. Although the application is made by the family members, I will generally refer to family reunion as being “for” the child, who is their “sponsor”.

It is the Claimant’s case that the Secretary of State’s policy governing family reunion for child refugees is unlawful. I will have to analyse that policy in some detail later; but the essence is that a child refugee can sponsor their parents or siblings only where a refusal to admit them would lead to “unjustifiably harsh consequences”, which typically would constitute a breach of the right to respect for family life under article 8 of the European Convention on Human Rights (“the ECHR”). The Claimant says that that policy is too restrictive: he points out that the “unjustifiably harsh consequences” test is not applied to applications by the partner or minor children of an adult refugee, who can (broadly speaking) join them in the UK automatically.

For reasons which will appear, we are not concerned with the facts of the Claimant’s own case, save to the extent that they afford an illustration of the situation with which we are concerned, and I need not set them out in detail. He is a national of Eritrea, born on 10 October 2002. As a result of his fear of enforced conscription (which in Eritrea is notoriously abusive), he left home at the age of 11, and after spending time in Ethiopia, Sudan, Libya, Italy and France he arrived in the UK, concealed in a lorry, on 7 May 2017, aged 14. He claimed asylum, and in November 2018, when he was 16, he was granted refugee status. His parents and his five younger siblings (“the family”) initially remained in Eritrea, but some time in 2018 they moved to Ethiopia because of a fear that the other children would be conscripted. On 8 September 2020 they applied to the Entry Clearance Officer (“the ECO”) in Addis Ababa for leave to enter the UK on the basis of family reunion.

On 30 September 2020 the Claimant commenced the present proceedings challenging the lawfulness of the Secretary of State’s policy as regards family reunion for child refugees. That was only three weeks after the family’s application, and before any decision had been taken on it; but in due course the application was refused, and the claim form was amended so as to include a challenge to that refusal.

The claim came on for hearing before Lavender J on 15 and 16 June 2022. Some three months previously the First-tier Tribunal had in fact allowed an appeal by the family, and although they had not yet been granted leave to enter it was clear that that would occur shortly (as it in fact did on 7 July). The challenge to the refusal of family reunion in the Claimant’s own case accordingly became academic. However, the originally pleaded challenge to the Secretary of State’s policy was allowed to proceed: Lavender J rejected a submission that the Claimant had no standing to pursue such a challenge. Shortly before the hearing the United Nations High Commissioner for Refugees (“UNHCR” (Footnote: ²)) was given permission to intervene.

Before Lavender J the Claimant advanced three grounds of challenge, each of which remains live before us. I give the details later, but in headline terms they are:

As will appear, the parties’ cases on the section 55 ground were substantially clarified in the course of the hearing before Lavender J, but that clarification led to a series of post-hearing written submissions (and some further evidence) which were not concluded until the end of November 2022.

Lavender J handed down judgment on 31 March 2023 ([2023] EWHC 740 (Admin), [2023] 1 WLR 4109). He dismissed the section 55 and discrimination grounds, but he felt obliged to adjourn the rationality ground in order to give the Claimant the opportunity to consider issues emerging from the post-hearing submissions. During that adjournment still further evidence and submissions were filed.

The adjourned hearing took place on 17 January 2024. By a judgment handed down on 26 April ([2024] EWHC 967 (Admin), [2024] 1 WLR 5309) Lavender J also dismissed the rationality ground.

It is obviously highly unsatisfactory that the Judge was only enabled to reach a decision after the complex process outlined above; and, as will appear, there have been further developments in the case as presented to this Court. I will say more about this at the end of my judgment.

This is an appeal, with permission granted by Lewis LJ, against Lavender J’s decisions in both judgments. Mr Raza Husain KC, Mr Jason Pobjoy KC and Ms Eleanor Mitchell have appeared for the Claimant, and Ms Lisa Giovannetti KC and Mr Jack Anderson have appeared for the Secretary of State. UNHCR has again been given permission to intervene and has been represented by Ms Sonali Naik KC, Mr Ali Bandegani and Ms Rebecca Chapman. All counsel also appeared below. For convenience I will refer to the skeleton arguments and written submissions as if they were solely the work of the leaders, although I am sure that that is far from being the case.

The recent suspension of family reunion. On 4 September 2025 the Secretary of State announced that the Government aims next spring to introduce changes to “the current rules for family reunion for refugees” and that in the meantime she was suspending their operation for new applications (although she drew attention to the availability of other routes for family members which might be available under the Immigration Rules). That is not directly relevant to the substantive issues raised by this appeal, which must be concerned with the position at the time of the judgments appealed from (though it is potentially relevant to the question of relief); and to avoid complication in the drafting I will refer to the policy as if it were still in force.

Anonymity. When he granted permission to appeal, Lewis LJ extended the anonymity order which had been granted in the High Court, but he suggested that the Court which heard the appeal might wish to consider whether it should continue thereafter, given that not only the Claimant but also his family were no longer at any risk of persecution in Eritrea. He rightly emphasised that the principle of open justice normally requires that the parties to proceedings should be identified and that a powerful justification was required for any departure from that principle. We asked for further submissions, which were provided in writing together with a psychiatric report on the Claimant’s mental health, following the hearing. Not without hesitation, I am persuaded that in the light of those submissions it would be wrong to withdraw the anonymity which has been accorded to the Claimant thus far. One factor in this conclusion, though it would not be decisive on its own, is that the issues which we have to decide are not in truth specific to his circumstances. As explained above, following the admission of his family to the UK his claim has become the vehicle of a general challenge to the Secretary of State’s policy as regards family reunion for child refugees, which in other circumstances might have been expected to be brought by a charity or other interested body and to have involved no reference to the details of his, or any other individual’s, case.

In this judgment I will start by identifying the components of the impugned policy. I will then consider the three grounds of appeal, which correspond to the three bases of challenge identified above.