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

At the time of the Judge’s decision paragraphs 352A-352F of the Immigration Rules provided for family reunion in the case of the partners and minor children of refugees: paragraphs 352A-352C cover partners, and paragraphs 352D-352F cover children. Those paragraphs (to which I will refer as “the old Rules”) were first introduced with effect from 2 November 2000 and had not been materially altered since then. Family reunion of this kind is of course of marginal significance for child refugees, who will typically wish to be joined in the UK not by a partner or child but by their parents and/or siblings; but it is nevertheless relevant to the issues, and I need to go through the relevant provisions.

In fact, in the interval between Lavender J’s two judgments the provisions relating to family reunion were re-framed (“the new Rules”): see paras. 29-37 below. It is common ground that that did not involve any change in the relevant policy, and since the real significance of this appeal is for the current and future position it might at first sight seem sensible to proceed solely by reference to the new Rules (and the accompanying guidance). However, the old Rules and guidance are a necessary part of the history, as well as being in the relevant respects rather more clearly formulated, and I need to explain them.

As regards both partners and minor children (Footnote: ⁴), I need only set out the paragraph in each case which sets out the substantive requirements for leave to enter or remain. These are as follows:

“Family Reunion Requirements for leave to enter or remain as the partner of a refugee

352A. The requirements to be met by a person seeking leave to enter or remain in the United Kingdom as the partner of a person granted refugee status are that:

(i)

the applicant is the partner of a person who currently has refugee status granted under the Immigration Rules in the United Kingdom; and

(ii)

the marriage or civil partnership did not take place after the person granted refugee status left the country of their former habitual residence in order to seek asylum or the parties have been living together in a relationship akin to marriage or a civil partnership which has subsisted for two years or more before the person granted refugee status left the country of their former habitual residence in order to seek asylum; and

(iii)

the relationship existed before the person granted refugee status left the country of their former habitual residence in order to seek asylum; and

(iv)

the applicant would not be excluded from protection by virtue of paragraph 334(iii) or (iv) of these Rules or Article 1F of the Refugee Convention if they were to seek asylum in their own right; and

(v)

each of the parties intends to live permanently with the other as their partner and the relationship is genuine and subsisting

(vi)

the applicant and their partner must not be within the prohibited degree of relationship; and

(vii)

if seeking leave to enter, the applicant holds a valid United Kingdom entry clearance for entry in this capacity.

…

Requirements for leave to enter or remain as the child of a refugee

352D. The requirements to be met by a person seeking leave to enter or remain in the United Kingdom in order to join or remain with the parent who currently has refugee status are that the applicant:

(i)

is the child of a parent who currently has refugee status granted under the Immigration Rules in the United Kingdom; and

(ii)

is under the age of 18; and

(iii)

is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit; and

(iv)

was part of the family unit of the person granted asylum at the time that the person granted asylum left the country of their habitual residence in order to seek asylum; and

(v)

the applicant would not be excluded from protection by virtue of paragraph 334 (iii) or (iv) of these Rules or Article 1F of the Refugee Convention if they were to seek asylum in their own right; and

(vi)

if seeking leave to enter, holds a valid United Kingdom entry clearance for entry in this capacity.”

In broad terms, the effect of those rules is that the eligibility for family reunion of a partner or minor child of a refugee depends simply on the fact of their relationship with the sponsor (sub-paragraph (i) in both rules), provided that the relationship pre-dated the sponsor’s departure (paragraph 352A (ii) and (iii) and paragraph 352D (iv)) and is continuing (paragraph 352A (v) and paragraph 352D (iii) and (iv) (Footnote: ⁵)). It is important to appreciate that as regards a minor child eligibility is evidently based on a presumption that a child under 18 is dependent on their parents, in the sense of being entitled to the support – emotional and personal, just as much as material – that typically comes from a child having a home with their parents: that is why paragraph 352D (iii) provides that eligibility is lost where the child has become “independent” in one of the specified ways. (The bright-line cut-off at 18 is artificial, but it is of course applied across many areas of the law.)

That prima facie eligibility may be lost as a result of the public policy considerations identified at paragraph 352A (iv) and (vi) and paragraph 352D (v), but we are not concerned with those here.

The effect of those Rules was described before us as conferring “automatic” eligibility on a refugee’s partner and minor children. I am content to adopt that label, but it should not obscure the fact that, even apart from the public policy conditions, eligibility is not totally automatic: as noted above, minor children will lose eligibility if they have ceased to be dependent on their families.

Those provisions do not themselves distinguish between the positions of adult and child refugees. However, paragraph 277 of the old Rules, which was introduced in order to discourage forced marriages, provided:

“Nothing in these Rules shall be construed as permitting a person to be granted entry clearance, leave to enter, leave to remain or variation of leave as a spouse or civil partner of another if either the applicant or the sponsor will be aged under 18 on the date of arrival in the United Kingdom or (as the case may be) on the date on which the leave to remain or variation of leave would be granted. …”

Thus, while it seems that a child refugee could in principle sponsor a minor child of his or her own (though such cases will surely be very rare), they were unable to sponsor a partner.

As I have said, family reunion with a partner or minor child will rarely be of significance for a child refugee. Typically the family members with whom a child will wish to be reunited will be their parents and/or siblings. As to that, although the old Rules made no provision, the Secretary of State did have a policy governing family reunion outside the Rules which covered, though it was not limited to, the case of child refugees. This was set out in Home Office Guidance entitled Family reunion: for refugees and those with humanitarian protection (“the Family Reunion Guidance”, or simply “the Guidance”). Page 19 of the version of the Guidance which was before the Judge (version 4) contains a section headed Parents and siblings of a child recognised as a refugee. This reads:

“The parents and siblings of a child who have been recognised as refugees are not entitled to family reunion under the Immigration Rules. Where an application does not meet the requirements of the Immigration Rules, the caseworker must consider the ‘Family life (as a partner or parent), private life and exceptional circumstances’ guidance or consider whether there are any compassionate factors which may warrant a grant of leave outside the rules. Each case must be considered on its individual merits and include consideration of the best interests of the child in the UK [emphasis supplied]. As the Immigration Rules are specifically designed to meet our obligations under the European Convention on Human Rights (ECHR) in respect of family or private life, it is not expected there will be significant numbers granted outside the rules. However, it is important that evidence relating to exceptional circumstances is carefully considered on its individual merits.”

The reference to “the best interests of the child” which I have italicised is a summary reference to the requirements of section 55 of the 2009 Act: as to this, see para. 46 below.

The phrases which I have underlined in that paragraph are hyperlinked. The relevant links for our purposes are to “exceptional circumstances” and “compassionate factors”. These appear to lead to the immediately following section in the Guidance (pp. 19-20) (Footnote: ⁶), which is headed Exceptional circumstances or compassionate factors and reads:

“Where a family reunion application does not meet the requirements of the Immigration Rules, caseworkers must consider whether there are any exceptional circumstances or compassionate factors which may justify a grant of leave outside the Immigration Rules. There may be exceptional circumstances raised in the application which make refusal of entry clearance a breach of ECHR Article 8 (the right to respect for family life) because refusal would result in unjustifiably harsh consequences for the applicant or their family. Compassionate factors are, broadly speaking, exceptional circumstances, which might mean that a refusal of leave to remain would result in unjustifiably harsh consequences for the applicant or their family, but not constitute a breach of Article 8 [emphasis supplied]. It is for the applicant to demonstrate as part of their application what the exceptional circumstances or compassionate factors are in their case. Each case must be decided on its individual merits. Entry clearance or a grant of leave outside the Immigration Rules is likely to be appropriate only rarely and consideration should be given to interviewing both the applicant and sponsor where further information is needed to make an informed decision.”

The italicised sentences state the essence of the policy. The passage goes on to give some particular examples but none are material to the present case.

It is the passages from the Family Reunion Guidance quoted at paras. 25 and 26 above which state the Secretary of State’s policy, as at the date of the Judge’s decision, as regards family reunion for child refugees: I will refer to them as “the key passages”. I analyse their effect at paras. 39-45 below.

It seems that the key passages first appeared in the Family Reunion Guidance in July 2016. It does not, however, necessarily follow that prior to that date the Secretary of State had no policy permitting family reunion for child refugees: I do not consider that question here, but it is potentially relevant to the section 55 ground.