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

I have found it easier as regards this ground to consider the issues directly rather than through the lens of Lavender J’s reasoning.

I start by identifying the primary elements involved in the Secretary of State’s assessment that it is right to maintain her current policy about family reunion for child refugees. The first is that there is in fact a phenomenon of “anchor children” – that is, that at least some families facing persecution in their own countries are willing to send a child unaccompanied on a hazardous journey to claim asylum in a European country in the expectation that they can then be joined by the rest of the family. The second is that the incidence of such children seeking to come to the UK would be significantly greater if family reunion for children were automatic. The third is that that benefit outweighs the harm to child refugees from having a less straightforward route to family reunion where that is both desired and desirable.

The first two of those elements are essentially matters of assessment rather than primary fact. They require taking a view on what motivates the conduct of the families and children involved, which in turn involves assessing what information is available to them, whether from reliable sources or from what they are told by fellow asylum-seekers or agents and smugglers. That inquiry can certainly be informed by what the families and children themselves say, and the opinions of those working with them; but those sources will not necessarily provide a clear or objective answer. The third element is obviously evaluative, since it involves balancing unquantifiable risks against harms which are not susceptible to absolute measurement and are in any event by their nature incommensurable with the risk. It is also material that the decision falls to be made in a sensitive area of public policy.

So understood, the Secretary of State’s decision to maintain the policy is quintessentially of a kind to which the Courts should apply the least intensive standard of review, on grounds both of constitutional principle and institutional competence, and that the threshold for proving a case of irrationality is correspondingly very high. I do not think it is necessary or helpful to consider the vexed question of the relationship between the standard of review in such a case and that which would apply if we had to consider the justification issue under ground 2.

I do not believe that the evidence before the Judge satisfied that threshold. I will review the evidence in question, but we were not addressed on it in detail and I will only do so briefly. I take in turn the three elements in the decision identified at para. 175 above.