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

The Claimant’s overall case is most conveniently summarised in the introduction to a schedule put in by Mr Husain in the course of the hearing setting out various references relevant to the issue of justification (“the justification schedule”). It reads:

“The burden of justification is on R. R is required to show that, balancing the severity of the effects of her differential treatments of refugee children against the importance of her objective, to the extent that the differential treatment will contribute to its achievement, the former outweighs the latter. The sources below establish that there is no evidence that the differential treatment of refugee children furthers R’s sole objective: namely, deterring children who would otherwise (if a straightforward path to family reunion were made available) undertake hazardous journeys to the UK. The absence of such evidence over a 25-year period, despite R’s efforts to obtain it, founds a strong inference that the contribution to R’s objective is non-existent, or (at best) minimal. The question for the Court is whether, in light of this, R’s view of the deterrent effect – unquantified, unevidenced, and dubious as it is – is sufficient to justify the well-established and extensive harms the differential treatment causes to vulnerable refugee children. A’s submission is that, on any standard of review (and certainly on the searching standard appropriate here), it is not.”

Those points were developed in Mr Husain’s oral submissions. He also made the point that there was no evidence that the Secretary of State had herself ever carried out any evaluation of the balance between her objective and the identified harms.

The justification schedule identifies the evidence on which Mr Husain relied on support of his submissions. This consisted of the evidence of his own and UNHCR’s witnesses, and the reports exhibited by them, as enumerated at para. 55 above, together with the Parliamentary materials and the report of the Chief Inspector. That evidence covers the elements that go into both sides of the proportionality balance. On the one hand, it questions the reality of the phenomenon of anchor children relied on by the Secretary of State. On the other, it contains accounts of the distress and difficulty which it is said that the absence of a straightforward route to family reunion causes to refugee children.

For reasons which will appear, I do not propose to go into further detail about that evidence or to attempt to assess its weight. However, it is fair to record that at paras. 69-70 of his first judgment Lavender J said that it was not seriously contested by the Secretary of State that:

“(1)

in general, it is in the best interests of unaccompanied refugee children to be reunited with their families; and

(2)

in general, it is in the best interests of unaccompanied refugee children to have a straightforward path to that result.”

Thus the focus of the dispute has mostly been on the other side of the balance – that is the weight to be given to the claimed risk that allowing automatic family reunion for child refugees would encourage the use of anchor children.