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

The relevant parts of the Immigration Rules were re-drafted with effect from 12 April 2023. Paragraphs 352A-352F were replaced by a new “Appendix Family Reunion (Sponsors with Protection)” (“Appendix FRP”).

Paragraphs FRP 4.1-4.2 and paragraphs FRP 5.1 and 6.1-6.2 of Appendix FRP set out the eligibility requirements for applications by, respectively, partners and minor children of refugees. They involve complicated cross-references, and since they are acknowledged to be to substantially the same effect as paragraphs 352A and 352D of the old Rules I will not set them out here (Footnote: ⁷).

However, Appendix FRP differs from the old Rules inasmuch as it provides for at least some family reunion applications otherwise than by partners or minor children. Paragraphs FRP 7.1-7.2 are headed Eligibility under Article 8 of the Human Rights Convention. Paragraph FRP 7.1reads (so far as relevant):

“Where an applicant does not meet all the suitability or eligibility requirements …, the decision maker must consider, on the basis of the information provided by the applicant, whether there are exceptional circumstances which would make a refusal of the application a breach of Article 8 of the ECHR, because such refusal would result in unjustifiably harsh consequences for the applicant or their family member, whose Article 8 rights it is evident from the information provided would be affected by a decision to refuse the application.”

Read literally, that says only that the decision-maker must “consider whether” refusal of family reunion would be a breach of article 8. But the effect of section 6 of the Human Rights Act 1998 (“the HRA”) is that if that were the case leave to enter would have to be granted.

Like the key passages in the old Guidance, paragraph FRP 7.1 is not concerned specifically with applications for family reunion for a child refugee: it applies to any application by a family member of a refugee other than a partner or child. However, its language plainly covers such applications.

It will be appreciated that the change effected by the introduction of paragraph FRP 7.1 is formal rather than substantive: it brings within the framework of the Rules cases which had previously been dealt with by way of guidance. Although the language is not identical to that of the old Guidance, it continues to refer to whether there are “exceptional circumstances” such that refusal would lead to “unjustifiably harsh consequences” in breach of article 8. But it should be noted that it does not reproduce the full effect of the old Guidance because it does not refer to “compassionate factors”: these remain the subject of guidance rather than Rules (see para. 35 below).

Paragraph 277 was not affected by the changes in April 2023 and remains in force.

The introduction of Appendix FRP was accompanied by a new version of the Family Reunion Guidance (version 11) (Footnote: ⁸) (“the new Guidance”). Guidance on the application of paragraph FRP 7.1 appears at pp. 26-27 in a section headed “Eligibility under Article 8 of the Human Rights Convention”, which has a part within it headed “Unjustifiably harsh consequences”. This is a good deal more elaborate than the equivalent passages in the old Guidance, but no points were taken before us on the details of its drafting: I need only note that it includes specific reference to section 55 of the 2009 Act. That section is followed (at p. 28) by a separate section headed “Compelling compassionate factors”. This corresponds, though the wording is not identical, to the treatment of “compassionate factors” in the section of the old Guidance quoted at para. 26 above. Thus the grant of leave in such cases remains part of the Secretary of State’s policy, albeit not brought within the framework of the Rules.

The upshot is that, although the most relevant provisions now appear in the Rules rather than only in the Guidance, the Secretary of State’s substantive policy as regards family reunion for child refugees is unchanged by the introduction of Appendix FRP. As I have said, that was common ground before us.

It is an oddity that, unlike the old Guidance, the new Guidance contains no express reference to applications for family reunion by the parents and siblings of a child refugee. This does not of course qualify the effect of paragraph FRP 7.1 as explained at para. 31 above, but it does mean that the attention of caseworkers is not specifically drawn to the fact that it can apply in such cases. No point was taken by Mr Husain on this omission, and accordingly we heard no explanation of it from Ms Giovannetti. But it seems desirable that the effect of the Rules as regards child refugees should be explicitly stated in the accompanying Guidance.

Finally, I should record that the suspension referred to at para. 12 above is effected by a Statement of Changes (HC 1298)whichsubstitutes for the previous paragraph FRP 1 a paragraph which begins:

“This Appendix, also known as refugee family reunion, is now closed to new applications pending a review.”