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

The balance of benefit and harm

This element too can be dealt with shortly. I cannot see how, if the Secretary of State could rationally conclude that there was a real prospect that making family reunion easier for child refugees could increase the number of unaccompanied children making hazardous journeys to the UK, it could be irrational for her to judge that it outweighed the difficulties which the absence of automatic family reunion causes to child refugees already here. It is important not to lose sight of the fact that, real as those difficulties are, they should not prevent family reunion in any case where refusal would be a breach of the article 8 rights of the child. As I have said, we have no information on how many family reunion applications for child refugees are refused under the current policy or, if refused, are allowed on appeal; but it may well be that the greater problem is the delay and difficulty of the process than a significant difference in outcomes if an application is pursued.

It is fair to say that, as Mr Husain emphasised, the Secretary of State did not present any evidence of the process by which she struck the balance between benefit and harm (or indeed how she assessed the other two considerations identified above). But we are not in this part of the case concerned with a process challenge but with the question of whether it was rationally open to her to adopt the policy that she did; and the burden is on the Claimant to show that it was not.