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

As noted above, there were extensive written submissions following the hearing. The sequence is as follows:

At paras. 110-111 Lavender J summarised the Claimant’s case appearing from those submissions as being that, taking a “broad and non-technical approach”, the relevant functions for the purposes of section 55 “include formulating, amending/updating and considering whether to alter or maintain [emphasis supplied] the Immigration Rules and associated policies”. Mr Husain’s primary position was that it was not necessary for him to identify precisely the point when the Secretary of State had discharged a relevant function or functions; but in case that was not accepted he identified at least ten occasions since 2 November 2009 when he said that she had done so. These are recorded at para. 110 of the judgment but I need not set them out because, as will appear, in his submissions before us Mr Husain took a more focused approach.

The Judge records the Secretary of State’s response to that case at para. 113 as follows:

“The Secretary of State submitted that she had not, since 2 November 2009, discharged any function (such as making a rule or subordinate legislation) which triggered section 55 and that:

‘… it would be a significant extension of the ambit of s. 55 to hold that it applies where the SSHD does not propose to make any changes to her current policy or practice. While the SSHD will, of course, consider representations or recommendations that she should do so, declining to accede to such representations or recommendations is not a ‘function’ engaging s. 55.’”

Her third round submissions, settled by Ms Giovannetti, included the following passage:

“9.

The Secretary of State is not aware of any occasion since s.55 came into force (2 November 2009), when the relevant decision makers (namely Home Office Ministers or the Secretary of State) decided to review the Immigration Rules in order to consider providing a route to family reunion for child refugees (i.e. introducing criteria within the Rules governing decisions whether or not to grant leave to enter to the parents and siblings of refugee children).

10.

Records since 2015 indicate that the consistent position of the relevant decision makers, as communicated to officials, has been that they are not prepared to change the existing and long-standing policy of considering applications for leave to enter by immediate family members of child refugees on a case-by-case basis outside the Immigration Rules. Thus, for example, Ministers were clear that changing that policy was not one of the options to be included in 2021 consultation on the New Plan for Immigration (which fulfilled the statutory obligation to review legal routes to the UK from the European Union (EU) for protection claimants, set out in the Immigration and Social Security Co-Ordination (EU Withdrawal) Act 2020).

11.

As to the position before 2015, a search has been conducted, but the Secretary of State been unable to find relevant communications from Ministers to officials dating back beyond that date. To the best of the Secretary of State’s knowledge, even prior to 2015, the relevant decision makers were consistent in their position that they intended to maintain the existing policy, as summarised above. This is supported by Family Reunion Guidance from 2007 to 2011 (see Jason Büültjens’ witness statement, para 7).”

The factual content of these paragraphs was expressly confirmed in Mr Büültjens’ witness statement.

I should note one point arising out of the reference in the submissions quoted by the Judge to “the relevant decision makers (namely Home Office Ministers or the Secretary of State)”. The reference to “Ministers or the Secretary of State” reflects the language of the contemporary documents, which tend to refer generically to “Ministers”. Although we were not referred to any authority on the formal constitutional position, I am sure Ms Giovannetti is right that the duty imposed by section 55 (1) (a) on the Secretary of State extends also to Ministers in her department taking decisions in their areas of responsibility. However, for economy I will in this judgment continue to refer simply to the Secretary of State.

On the basis of that analysis Lavender J in his first judgment addressed the issue before him by reference to two questions – (1) “What constitutes the discharge of a function?”; and (2) “Did the Secretary of State discharge a relevant function?”.

He considered the first of those questions at paras. 120-136 of the judgment. After reviewing the authorities, at paras. 133-134 he concludes:

“133.

It is not disputed that the Secretary of State discharges a function when she makes a change to the Immigration Rules. In order to discharge that function, she has to consider from time to time whether to make any and, if so, what changes to the Immigration Rules. It seems to me that she can properly be described as discharging a function when she actively engages in that consideration. As part of that consideration, she may have to choose between various options, one of which may be to make no change to the Immigration Rules. It seems to me that when she decides to choose one option rather than another, including the option of making no change to the Immigration Rules, she is discharging her function of reviewing the Immigration Rules and considering and deciding whether to change them in one or more ways.

134.

However, the decision in Adiatu [R (Adiatu) v Her Majesty’s Treasury [2020] EWHC 1554 (Admin), [2020] PTSR 2198] is a salutary reminder that both the public sector equality duty and the duty imposed by section 55 of the 2009 Act have to be kept within sensible bounds. In this context, there are a spectrum of possibilities.

(1)

At one end of the spectrum, Badmus[R (Badmus) v Secretary of State for the Home Department [2020] EWCA Civ 657, [2020] 1 WLR 4609] concerned a relatively formal process, resulting in a decision which was amenable to judicial review, and including a review of existing policy, a report containing a recommendation that consideration be given to changing the policy and ‘a clear and considered policy choice’ between identified options. It seems to me that if the Secretary of State were to take a decision in the immigration, asylum or nationality context similar to the 2018 Review Decision in Badmus, she would be discharging a function for the purposes of section 55 of the 2009 Act, even if the decision were to make no change to existing arrangements.

(2)

At the other end of the spectrum is the claimant’s submission that the Secretary of State was exercising a relevant function when she responded to the pre-action protocol letter. It cannot be the case that the section 55 duty is triggered whenever a claimant sends a letter contending that the Secretary of State should change her policy.

(3)

Indeed, once the Secretary of State has decided to adopt one policy rather than another, I do not consider that she is to be treated as, in effect, re-making that decision every time she applies, repeats, defends or declines to change the policy which she has adopted.”

As regards the second question, at paras. 137-140 he considered whether, in accordance with his answer to the first question, the Secretary of State had at any time after 2 November 2009 “taken a positive decision, following active consideration, not to change the Immigration Rules so as to create a route to family reunion for refugee children” (para 138). He identified at para. 139 various occasions appearing from the documents which suggested that ministers might have taken such a decision. However, he concluded at para. 140 that

“… the evidence served after the hearing [i.e. the evidence of Mr Büültjens confirming the Secretary of State’s post-judgment submissions (see para. 83 above)] makes clear thatthe relevant decisionmakers, i.e. the Secretary of State and Home Office ministers, have not given active consideration since 2 November 2009 to the policy option of changing the Immigration Rules so as to create a route to family reunion for refugee children. That evidence is consistent with what is recorded in paragraph 6.17 of the Chief Inspector’s 2020 [report], i.e. that, while Home Office staff were considering the issue of child sponsors, ‘child sponsors was a “ministerial red line”’.”