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

Fecha: 08-Oct-2025

The Hearing

76.

At paras. 101-116 of his first judgment Lavender J recorded how the arguments on ground 1 had developed in the course of the hearing and the subsequent written submissions.

77.

His starting-point is a careful analysis of the Claimant’s references to the Secretary of State “formulating and maintaining” the impugned policy. At paras. 103-104 he says:

“103.
As to this, three points emerged during the course of the hearing:
(1)
The claimant’s complaint is really about the relevant provisions of the Immigration Rules, rather than the published guidance on the application of those Rules. As I have already noted, Mr Husain acknowledged that the Secretary of State could not have used an amendment to the Family Reunion Guidance, or anything else short of a change to the Immigration Rules, to introduce the change for which the claimant contends.
(2)
The ‘establishment’ of the relevant ‘position’ under the Immigration Rules took place in 2000, long before section 55 came into force. The claimant cannot complain about a failure to comply with section 55 in 2000, when section 55 was not in force.
(3)
Consequently, the claimant’s case is that the Secretary of State failed to comply with section 55 when ‘maintaining’ the relevant position after section 55 came into force.
104.
This last point led me to ask during the hearing what the claimant contended was the relevant ‘function’ which the Secretary of State had discharged on one or more occasions since 2 November 2009. I invited the parties to make written submissions on this point after the hearing. …”

Before us Mr Husain did not dispute this analysis of his case. I respectfully agree with the Judge that it is an essential part of the analysis to identify the function for the purpose of discharging which the section 55 exercise is said to have been required.

78.

At paras. 105-108 Lavender J also analysed the Secretary of State’s response in the DGD. He concluded that neither of her answers addressed the Claimant’s case as pleaded. Specifically:

As to the first answer, he points out at para. 105 that the Claimant’s challenge is not to the guidance given to caseworkers as to how to apply the Rules in particular cases but to the Rules themselves.

As to the second answer, he says at para. 107 that the Claimant’s case on this ground is not that it might not be open to the Secretary of State, having conducted a section 55 exercise, to decide to maintain her current policy, but rather that she had never undertaken any such exercise. That being so, the argument at para. 32 of the DGD that the current policy is in the best interests of children generally because it disincentivises the use of “anchor children” is beside the point. If the Secretary of State had formed that view after conducting a proper section 55 exercise that would be an answer to ground 1 (even if her conclusion could be challenged on other public law grounds); but the case against her was that she had not done so.

79.

Against that background, the Judge says at para. 108:

“In the hearing, it did not appear to me that Miss Giovannetti was submitting that the Secretary of State had ever made arrangements which were compliant with section 55 in relation to ‘maintaining’ the position established when the Immigration Rules were changed in 2000. Miss Giovannetti confirmed that that was the case. In essence, therefore, the case which she advanced was that the Secretary of State had not discharged a relevant function since 2 November 2009. In putting the Secretary of State’s case in that way, Miss Giovannetti, as I understand it, quite properly accepted that, if the Secretary of State had discharged a relevant function during those years, she had not complied with her duty under section 55 when discharging that function.”

Ms Giovannetti did not suggest to us that that was a mis-statement of her position before the Judge.

80.

The upshot of all that is that the issue as it crystallised at the hearing came down simply to whether the section 55 duty had ever arisen – or, more precisely, whether in “maintaining” her position under the Rules following 2 November 2009 the Secretary of State could be said to have been discharging any function for the purpose of section 55 (1). It is important to appreciate that it was never the Secretary of State’s case that she had conducted a section 55 exercise in formulating the policy as it stood as at 2 November 2009.