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

Ground 1 of the Claimant’s Amended Grounds of Appeal reads:

“The Administrative Court erred in holding that the Respondent had not exercised a relevant function for the purposes of s 55 of the Borders and Citizenship Act 2009 at any point since that provision came into force. On a proper interpretation and application of s 55, the Respondent exercised a relevant function (i) on the multiple occasions when, as the Administrative Court found, she made judicially reviewable decisions not to review the relevant paragraphs of the Immigration Rules to consider whether (inter alia) she should provide a more straightforward route to family reunion for refugee children and/or (ii) when she operated her overall system for refugee family reunion. Further or in the alternative, the Respondent is in breach of s 55 as that section does not permit (and it would frustrate Parliament’s intent in enacting it for) the Respondent to refuse to discharge a relevant function indefinitely, as has been the case here.”

The underlined words were added by amendment, with the consent of the Secretary of State, by order of Lewis LJ dated 16 January 2025. It is accepted that they raise an argument not advanced before Lavender J. I will refer to the two arguments identified at (i) and (ii) as “the original case” and “the new case” respectively.

By a Respondent’s Notice the Secretary of State seeks to uphold the Judge’s decision for the reasons that he gives but also relies on the following additional ground:

“In relation to ground 1, at §133 of his judgment, Lavender J held that when the Respondent ‘actively engages’ in considering whether to amend the Immigration Rules she is engaging a function. The Respondent submits that she is not exercising a function when she does not propose to make any changes to her current policy or practice (whether or not she is considering any representations or recommendations that she should do so).”

It is important to appreciate that the Judge’s analysis at paras. 105-108, not challenged by the Secretary of State, means that the defences originally advanced in the DGD are no longer relied on. In particular, the Secretary of State no longer contends that the fact that decision-makers in individual family reunion applications treat the best interests of the child as a primary consideration is an answer to the Claimant’s case that they were not so treated in the formulation of the overall policy.

I will consider the original and the new cases separately, addressing the Respondent’s Notice in the context of the former.

THE ORIGINAL CASE