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

The Claimant’s new case, as pleaded in the Amended Grounds of Appeal, is that “the Respondent exercised a relevant function … when she operated her overall system for refugee family reunion”. On that basis, he says, the Secretary of State has unquestionably failed to comply with section 55 because it is common ground that she has never made arrangements for ensuring that the policy governing family reunion for child refugees, as opposed to decision-making in individual cases, has had regard to the best interests of children.

The submissions of Mr Pobjoy, who argued this part of the case for the Claimant lucidly and intelligently, can be summarised as follows. He candidly acknowledged that the new case might at first sight appear ambitious, because in the great majority of cases it was sufficient to analyse the relevant functions of the Secretary of State as comprising the initial establishment of the system, in the form of the relevant rules and guidance, and taking individual decisions within that framework, so that there was no need to rely on a distinct function of “operat[ing] her overall system”. However, he submitted that it was nevertheless necessary to recognise the existence of a broader function of that character because otherwise in at least some cases the evident statutory purpose would not be achieved. He gave two examples. The first was where there had been a material change of circumstances since the system was first established: as he put it, “you cannot just set up a system and forget about it”. The second, which was the case here, was where the system was designed prior to the coming into force of section 55 and had not been the subject of a section 55 exercise on its implementation. In cases of this kind it was necessary to treat the operation of the system as itself a function as a “guard-rail” to ensure that it always took into account the best interests of children.

Mr Pobjoy submitted that that approach was supported by a number of authorities. He referred us to six cases, concerned almost exclusively with the PSED, but he relied principally on the judgment of this Court (Sir Terence Etherton MR, Dame Victoria Sharp P and Singh LJ) in R (Bridges) v South Wales Police [2020] EWCA Civ 1058, [2020] 1 WLR 5037. That case concerned the deployment by the South Wales Police (“the SWP”), on what was said to be a trial basis, of a system of automatic facial recognition (“AFR Locate”, or simply “AFR”). The use of the system, both generally and on two particular occasions, was said to give rise to breaches of article 8 of the ECHR, the Data Protection Act 2018 and the PSED. The Court held that there had been a breach of the PSED. The relevant part of its judgment is at paras. 163-202. The SWP had in fact carried out an equality impact assessment (“the EIA”) before AFR Locate was deployed, but the claimant made clear that his essential challenge was to what was described (see para. 167) as a “continuing failure to discharge the PSED [italics in original]”: his case, as I understand it, was that the EIA was necessarily based on predictions of how AFR would operate but that it was inevitable that new information would be acquired in the course of actual operation. The Court accepted that submission. Most of its reasoning is in fact directed to other issues, but it quoted with evident approval item (4) in McCombe LJ’s well-known summary of the effect of section 149 inR (Bracking) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345, namely that “the duty is a continuing one”.

I should refer in more detail to one passage in Bridges on which Mr Pobjoy relied. At para. 200 of its judgment the Court says:

“Finally, we would note that the Divisional Court placed emphasis on the fact that SWP continue to review events against the section 149(1) criteria. It said that this is the approach required by the PSED in the context of a trial process. With respect, we do not regard that proposition to be correct in law. The PSED does not differ according to whether something is a trial process or not. If anything, it could be said that, before or during the course of a trial, it is all the more important for a public authority to acquire relevant information in order to conform to the PSED and, in particular, to avoid indirect discrimination on racial or gender grounds.”

The observation by the Divisional Court to which that paragraph is directed is to be found at para. 158 of its judgment ([2019] EWHC 2341 (Admin), [2020] 1 WLR 672). It is not entirely clear what point the Court was making there or, therefore, what point this Court was seeking to address in para. 200. However, Mr Pobjoy relies on the statement that it did not matter whether the introduction of AFR was by way of trial or not: in either case the SWP was required to “continue to review events” – to put it another way, to monitor its effects – to ensure that due regard continued to be had to the section 149 criteria.

Mr Pobjoy submitted that there was in this respect no real difference between the PSED and the section 55 duty. The PSED is a process duty (a point explicitly made in para. 176 of the judgment in Bridges), but the Court clearly regarded it not just as applying to the decision to introduce AFR Locate but also as imposing obligations so long as it remained in operation: if the reference in section 149 (1) to “the exercise of [the] functions” of a local authority could be read as covering the monitoring of a system, so also could and should the reference in section 55 (1) (a) to the discharge of the Secretary of State’s functions.

The other cases relied on by Mr Pobjoy were R (DMA) v Secretary of State for the Home Department [2020] EWHC 3416 (Admin), [2021] 1 WLR 2374, (Robin Knowles J); R (Elkundi) v Birmingham City Council [2022] EWCA Civ 601, [2022] QB 604, (Court of Appeal); R (DXK) v Secretary of State for the Home Department [2024] EWHC 579 (Admin), [2024] 4 WLR 46, (Paul Bowen KC sitting as a deputy High Court Judge); R (Refugee and Migrant Forum of Essex and London (RAMFEL)) v Secretary of State for the Home Department [2024] EWHC 1374 (Admin), [2024] 1 WLR 4950 (Cavanagh J); and R (Awale) v Secretary of State for Justice [2024] EWHC 2322 (Admin) (Ellenbogen J).I do not propose to review them individually. Only one – Elkundi – is a decision of this Court, and it is far from clear whether the short observation in para. 114 of the judgment of Lewis LJ on which Mr Pobjoy relied was directed to the question before us. In response to questions from the Court Mr Pobjoy did not press his reliance on DXK (Footnote: ¹⁸); and the passage to which he referred us in Awale does no more than summarise the relevant passages in Bridges. DMA and RAMFEL are rather more substantial. In the former Robin Knowles J found a breach of the PSED on the basis of a failure by the authority in question to monitor the operation of the policy in question (see paras. 311-312 and 324-325 of his judgment); and in RAMFEL counsel for the Secretary of State conceded that the PSED was “engaged” in circumstances where the Secretary of State had simply maintained a long-standing policy (para. 225). But the circumstances in which the question arose were very different from those of the present case and it is not clear exactly what points were argued. It is fair to say that in broad terms all these cases show an understanding that a breach of the PSED may occur, at least in some circumstances, by reason of a failure to monitor the ongoing effect of a policy or practice which was PSED-compliant at the point of its introduction; but they contain no consideration of how that position is to be analysed by reference to the language of section 149 (1), and accordingly they do not advance the argument beyond what appears from Bridges.