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

Under both the old Guidance and the new Rules and Guidance, the eligibility requirements in family reunion cases where the applicant is a parent or sibling of the sponsor – including where the sponsor is a minor child – contain four elements: (a) “exceptional circumstances”; (b) the “unjustifiably harsh consequences” of a refusal; (c) breach of article 8 of the ECHR; and (d) “compassionate factors”. The relationship between those elements is not very clearly spelt out, but I believe the correct analysis is as follows.

I start with element (a), “exceptional circumstances”. It is reasonably clear from the language both of the old Guidance and of paragraph FRP 7.1 (and the associated Guidance) that “exceptionality” is not intended as a criterion in its own right. Wherever the phrase “exceptional circumstances” appears, it is accompanied by an explanation of what the circumstances in question are – in short, that refusal of leave would have unjustifiably harsh consequences (whether or not also constituting a breach of article 8) – and it is accordingly the presence of those circumstances which should be regarded as the criterion. The phrase appears to be intended to express the Secretary of State’s expectation that it will in practice be exceptional for the refusal of family reunion to give rise to unduly harsh consequences except in the case of partners and minor children. That expectation is said to be appropriate because the Rules are designed to reflect the requirements of article 8 in the generality of cases: see the penultimate sentence of passage in the old Guidance quoted at para. 25 above. Reference to “exceptional circumstances” in this sense has long been a feature of Home Office drafting in the immigration field, and not only in the context of family reunion: see, for example, paras. 38-44 of the judgment of this Court in MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192, [2014] 1 WLR 544 (referred to by Lord Reed at para. 37-38 of his judgment in Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60, [2016] 1 WLR 4799). (I would add that the use of exceptionality as a distinct criterion is not generally appropriate in this field: see the observations of Lord Hamblen at para. 38 of his judgment in HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22, [2022] 1 WLR 3784.)

Although I have no doubt that that is the explanation for the use of the phrase “exceptional circumstances” in this context, there may be a need for caution about its relevance to the specific case of family reunion for child refugees. It is important to appreciate that the rules and guidance in which the phrase is deployed are not concerned only with such cases but with all applications for family reunion otherwise than by partners and minor children. I have no difficulty with the proposition that it would be exceptional for the refusal of leave to parents or siblings of an adult refugee to have “unjustifiably harsh consequences” or to constitute a breach of article 8. But it is not at all obvious that that would be so in the case of a child refugee. Although of course each case would depend on its own facts, the support of a parent (or sometimes an adult sibling) is inherently more likely to be important for a child refugee than for an adult, and there is no a priori reason to suppose that permitting family reunion should be exceptional in such a case.

The focus is thus on elements (b) and (c) – that is, “unjustifiably harsh consequences” and breach of article 8. The two might at first appear to be intended to constitute a single criterion. The language of “unjustifiably harsh consequences” is very close to the kind of test applied in the article 8 case-law (and indeed legislation (Footnote: ⁹)) in broadly analogous situations involving family separation; and I find it hard to conceive of a case where the refusal of entry to the parents or siblings of a child refugee would be held to result in unjustifiably harsh consequences and yet not constitute a breach of article 8 rights. Nevertheless, as explained above, both the old and the new provisions are drafted in a way which contemplates that there will be cases where element (b) is present but element (c) is not. I am not sure that that was really intended but it is prudent to respect the distinction in the formal analysis.

That being so, the correct approach to applying the policy in the case of an application for family reunion by a parent or sibling of a child refugee is as follows:

It follows that, under the policy, family reunion decisions in the case of a child refugee have to be made on a case-by-case basis involving an evaluative assessment, based on the evidence supplied by the applicant, of whether refusal of reunion (i.e. continued separation) would create unjustifiably harsh consequences for the child and/or the family member(s) concerned. It will be apparent that that approach is structurally different from that followed in the case of the partners and minor children of adult refugees, who are eligible automatically. That difference is at the heart of the Claimant’s case.

Although the policy refers without differentiation to parents and siblings, any case based on unjustifiably harsh consequences is likely to focus on the child refugee’s relationship with his or her parents: the policy behind allowing minor children to be reunited with adult refugee parents is based on the child’s dependence on the parents – see para. 21 above – and that would apply equally in this context. There may be unusual cases where a relationship of dependency exists with an older sibling (for example, if both parents have died), but typically the case for granting leave to enter to the siblings will be parasitic on the grant to the parents (because if they are granted leave their other dependent children cannot be left behind).

Ms Giovannetti was anxious to draw to our attention the fact that both the old and the new Guidance refer extensively to section 55 of the 2009 Act. Both have sections near the start headed “Application[s] in respect of Children” which set out the need in every such case to treat the child’s best interests as a primary consideration and cross-refer to the Secretary of State’s general guidance on the application of section 55 in the immigration context, Every Child Matters (see para. 64 below). Both also refer to section 55 in the sections which set out the policy with which we are concerned in this case – see paras. 25 and 35 above. However, those references can only be relevant to the taking of decisions in individual cases: they are not concerned with the terms of the policy itself, which is the framework within which those decisions have to be taken. I will have to return to this point later.

Finally, I should mention one point of terminology. Mr Husain formulates his various challenges as being to “the Rules”, on the basis that it is the Claimant’s case that the Rules should have provided for child refugees to have an automatic right to sponsor their parents and siblings. I understand that, but I have preferred generally to refer to the Secretary of State’s “policy”, since, as we have seen, the position of child refugees overall is the result of her policy expressed in a combination of Rules and guidance.