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

Lavender J addressed the issue of differential treatment at paras. 148-156 of his first judgment. He concluded that neither primary nor Thlimmenos discrimination had been established.

As regards primary discrimination, at para. 154 he says:

“I do not accept … that the matters complained of in this case constitute a difference of treatment for the purposes of Article 14. The relevant Immigration Rules treat child and adult refugees the same: neither child nor adult refugees are permitted by the relevant Immigration Rules to sponsor applications for leave to enter by their parents or siblings.”

That statement needs a little amplification. Lavender J is right to say that under the Rules neither child nor adult refugees could sponsor their parents or siblings. That is not the whole picture because under the guidance they were entitled to do so in exceptional circumstances; and that has since become the position under the Rules themselves. However, that does not affect his basic point: the Secretary of State’s policy as regards reunion with parents and siblings was the same for both child and adult refugees.

At para. 155 he observed that Mr Husain had not explicitly relied on Thlimmenos discrimination, but he said that in substance his case appeared to be that child refugees were in a relevantly different position from adult refugees because their “nuclear family” consisted of their parents and/or siblings whereas an adult refugee’s nuclear family consisted of their partner and children and that that difference required different treatment. He rejected the case so formulated at para. 156, where he said:

“… I do not find this to be a helpful way of looking at the matter. The concept of ‘nuclear family’ is not as clear-cut as Mr Husain suggested. For instance, some adult refugees will be individuals who are 18 or more years old and who may have been living with their parents as dependent relatives before they left their country of habitual residence. For these adult refugees, their nuclear family may well consist of their parents and siblings, so that their situation is substantially similar to that of many child refugees.”

He goes on to amplify that point, but I need not reproduce the whole passage.

As a result of that conclusion Lavender J did not go on to consider the question of justification.