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

The Claimant’s case is that the Secretary of State was discharging a relevant function within the meaning of section 55 on each occasion that she decided, as pleaded in ground 1 (i), “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 that Lavender J had himself recognised that she had made such decisions on “multiple occasions”. The relevant discharge of a function for the purpose of section 55 is thus said to consist in the making of a decision not to review the Rules. (Footnote: ¹⁵) Before us Mr Husain in the end relied on only two such alleged decisions; but I need to explain how that position was reached.

The starting-point is that as part of his order granting permission to appeal Lewis LJ gave a direction requiring the Claimant to “identify precisely each act, and the date of each act, said to amount to an exercise of a function within the meaning of section 55”. His concern was in fact with a potential time point; but for present purposes what matters is that, in order to be able to comply with the direction as to dates, the Claimant made a Request for Further Information (“RFI”) to the Secretary of State, and her response prompted a further request. In summary:

It does not appear that the Claimant proceeded, with the benefit of those responses, to file a separate document identifying the relevant decisions as directed by Lewis LJ; but that does not matter, since his case was sufficiently identified in paras. 54-58 of Mr Husain’s amended skeleton argument, which are headed “The decisions made by the Respondent”. The decisions relied on are the four identified in the RFI; but before us Mr Husain abandoned his reliance on two of them (being those identified in para. 57), and relied only on the two decisions identified in para. 58. These are said to have occurred in 2016 (para. 58.1) and 2018 (para. 58.2): I will refer to them as “the 2016 decision” and “the 2018 decision” respectively. There is no direct evidence of either decision: instead, the Court is asked to infer that they were taken from various references in the contemporary documents. However, the Secretary of State has adduced no detailed evidence to rebut those inferences and indeed has appeared to accept that decisions of some kind were taken: the real issue is about their nature and who took them. I review them in turn.

The starting-point as regards the 2016 decision is a passage in the decision of the Upper Tribunal (McCloskey P sitting alone) in AT v Entry Clearance Officer of Abu Dhabi [2016] UKUT 00227 (IAC), promulgated on 29 February 2016. The case concerned the refusal of leave to enter on the basis of family reunion to the mother and younger brother of a child refugee. The appeal proceeded on the (correct) basis that the appellants had no such right under the Rules, but McCloskey P held that the refusal was a breach of the sponsor’s rights under article 8 of the ECHR. At paras. 10-11 of his Decision he described the Secretary of State’s policy at the material time as follows:

“10.

The Secretary of State’s policy in the realm of family reunification, as expressed in the Immigration Rules, dates from the year 2000. Its most important feature, for the purposes of these appeals, is that no provision has ever been made for family reunification in the case of a child who has gained refugee status in the United Kingdom. This discrete regime is currently contained in Part 8 of Appendix FM to the Rules, at paragraphs 352A-352G and 819L-819U. In short, spouses and minor children of a ‘sponsor’ can, subject to satisfying the governing conditions, secure family reunification in the United Kingdom by the grant of leave to enter. However, this possibility does not exist where the sponsor is a child.

11.

Thus a blanket prohibition is in operation. Historically, there was a short lived exception to this prohibition relating to the parents of unaccompanied children who had fled Kosovo and secured asylum in the United Kingdom. This concession was confined to the short time frame of July to September 1999. With effect from 02 October 2000, the family reunification regime enshrined in the Immigration Rules contained the aforementioned blanket prohibition. From then to 2006 the Secretary of State operated a policy of permitting the parents or siblings of unaccompanied minor refugees to enter the United Kingdom for the purpose of reunification only where compelling and compassionate circumstances were demonstrated. Since 2006 the Secretary of State’s policy has extinguished this possibility. …”

McCloskey P is of course right that the Rules did not provide for family reunion in the case of a child refugee. That would not itself constitute a “blanket prohibition”, since it would be perfectly possible for the Secretary of State to have a policy of permitting family reunion in some circumstances outside the Rules. However, there is no mention of any such policy in the version of the Guidance then in force (being the July 2011 Guidance). The first version of the Guidance which contains the “key passages” quoted at para. 25 and 26 above appears to be what is described as version 2, dated 29 July 2016.

Mr Husain submits that the clear inference from the foregoing is that the key passages were inserted in the Guidance in response to the decision in AT and that that evidences a “decision” by the Secretary of State attracting the duty under section 55 (1) (a). On that basis the first RFI referred to “the decision … to remove the ‘blanket prohibition’ on children sponsoring their parents for family reunion and instead to allow them to do so in ‘exceptional circumstances’ outside the Immigration Rules”. Mr Husain points out that the Secretary of State in her response did not query that description but simply answered the request, giving the date “April-May 2016”.

I turn to the 2018 decision, which Mr Husain described as being his best case on this issue. He relied on two pieces of evidence.

The first is an “ad-hoc query” submitted to the European Migration Network (“the EMN”), being an arm of the European Commission, in February 2018 by a civil servant in the Home Office designated as the “national contact point” (“NCP”). The subject-matter of the query was described as “Evidence on the impact that policy changes on the right to refugee family reunion may have on asylum intake and the number of family reunion applications received”, and it comprised six questions about aspects of member states’ policy and procedures as regards family reunion for refugees. For our purposes it is only necessary to set out qu. 5, which reads:

“Do you allow children recognised as refugees or granted subsidiary protection to sponsor relatives for purposes of family reunion? If yes; When did you start allowing child sponsors and what impact did this have? If yes; How many family reunion visas have you granted, in the last five years, where the sponsor was a child?”

Those questions were preceded by a section, evidently drafted by the NCP (or someone else in the Home Office), headed “Background information”, which reads (so far as relevant) as follows:

“The UK are currently reviewing the policy on refugee Family Reunion and listening to the concerns from Non-Government Organisation’s [sic] that the current policy and the Immigration Rules on family reunion are too narrow. This work is part of our wider asylum and resettlement strategy. We are gathering evidence on whether changes to policy creates a ‘pull factor’ that may lead to more people risking dangerous journeys to Europe, and on the number of refugee family reunion applications that could be expected with associated analysis of the impact of the cost on public services.”

The second piece of evidence arises out of a report from the Chief Inspector in 2018 in which he had observed that family reunion policy development had ceased to be a priority within the Home Office. The Home Office’s response, published in September 2018, included a statement that it was “… reviewing the approach to Family Reunion as part of the wider asylum and resettlement strategy” and considering recent parliamentary debates on the issue and discussions with NGOs.

In the first RFI the Claimant asserted (a) that that evidence established that a substantive review of the Government’s child refugee policy was being undertaken and (b) that since it was the Secretary of State’s case that her consistent position had been that she was not prepared to change her policy it must necessarily be inferred that she “made a decision to this effect either before, during, or following the review”. The RFI asked for the date of that decision. Again, the Secretary of State in her response did not dispute that there had been such a decision but merely responded “after July 2018”.