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

The burden of proving justification is on the Secretary of State. Her case on justification was pleaded at para. 42 of the DGD as follows:

“Any difference in treatment between groups in an analogous position is justified in any event. Age is not a suspect reason (nor, indeed, is the ‘status’ on which the Claimant relies). Furthermore, this is an issue of social policy where a wide margin should be accorded to the state: SC, paras 115(2), 129(2), 143-161, 203. The SSHD has explained on numerous occasions, including in Parliament, why she has adopted the policy she has. Plainly, this is not a matter capable of empirical proof; rather, it is a matter of judgement. Against that background, any difference in treatment has objective and reasonable justification.”

No reference is given for the “numerous” explanations of her policy, but para. 11 of the DGD quotes two statements by a Minister in the House of Lords and the Government response to the first report of the HL EU Committee.

The Secretary of State’s skeleton argument below closely followed the DGD but it was rather fuller. Paras. 42 and 43 read:

“42.

The SSHD has legitimate concerns about the welfare of child refugees. The SSHD’s consistent policy judgment has been that allowing children in this position to become sponsors could have the unintended consequence of incentivizing some families to send their children alone on long and dangerous journeys to the United Kingdom to act as ‘anchors’ to facilitate later asylum applications by family members. The SSHD is especially concerned that such journeys put children at risk of being trafficked or otherwise abused. Contrary to the Claimant’s claim, there is evidence to support the SSHD’s position: see, for example, an ‘ad-hoc query’ sent by Belgium to other members of the European Migration Network in which it asked several questions in relation to the ‘anchor child phenomenon’ which it described as ‘increasing’ in Belgium … Germany, Cyprus, the Netherlands, Sweden, Finland and Norway all replied to the effect that they recognised the phenomenon in their own States.

43.

But in any case, this is not a matter which is readily capable of empirical proof; rather, it is a matter of judgment. The SSHD’s judgment on this issue is not manifestly without reasonable foundation: to the contrary, it is entirely reasonable. Against this background, any difference in treatment between adult refugees and child refugees is justified.”

The Secretary of State filed no witness evidence in support of that case in advance of the first hearing, and the later witness statements of Mr Büültjens and Dr Elimelech do not address it. Concerns about the anchor child phenomenon were, however, referred to in various contemporary documents which were before the Court, including the Secretary of State’s response to the report of the Chief Inspector referred to at para. 53 above, the various ministerial statements referred to in the DGD, and the ad hoc query addressed by the Belgian government to the EMN (“the Belgian EMN query”) to which the skeleton argument refers and the responses to it.

Of those references, the Belgian EMN query, which is dated 8 June 2017, is the most substantial source of evidence for the existence of the anchor child phenomenon. The preamble to the request (headed “background information”) reads:

“The Belgian Immigration Office notes an increasing number of unaccompanied minors who lodge an asylum application in Belgium and for which it, soon afterwards, is requested (mostly by the Greek authorities) to take over the parents or other family members in the framework of Dublin III. The Belgian authorities are concerned about these young children who are left alone at the hands of smugglers and they wish to know whether other Members States are confronted with this phenomenon (‘unaccompanied minors who lodge an asylum application in the Member State and for which the authorities, soon afterwards, are requested to take over the parents and other family members’, sometimes referred to as ‘anchor child phenomenon’).”

The questions read:

“1.

Are your authorities confronted with the so called ‘anchor child phenomenon’? If so, please describe the overall phenomenon that you experience

2.

If yes to the first question: In which procedure is this phenomenon visible: Dublin, other?

3.

If yes to the first question: Which age group do the children fall into?

4.

If yes to the first question: Which nationalities are concerned by this phenomenon?

5.

If yes to the first question: Has you recently noticed an increasing number of such cases? Please provide estimates

6.

Which measure do you have in place to prevent and tackle the so-called ‘anchor child phenomenon’? Please elaborate on when the measure was taken, possible impacts etc.

The Belgian Immigration Office answered those questions itself in some detail. The answer to question 1 echoed the preamble, but I should also note answer 3, which reads:

“The Belgian Immigration Office notices that the children concerned are increasingly younger of age. The youngest was 3 years of age. A large portion of them is under 12 years old. These children are extremely vulnerable during their illegal trip from Greece to Belgium. Most parents pay smugglers to get them to Belgium. Younger children cost less to smuggle.”

As the Secretary of State notes, Germany, Cyprus, the Netherlands, Sweden, Finland and Norway all answered that they recognised the phenomenon (as also in fact did Austria, although it did not use the label). I need not summarise the details of their answers to the other questions.

Before us Ms Giovannetti submitted that the Secretary of State’s policy of denying automatic family reunion to child refugees represented a proportionate means of achieving the legitimate objective of disincentivising the sending of unaccompanied children on a hazardous journey initially (in most cases) across the Mediterranean and then across Europe and finally in small boats across the Channel: that was an objective peculiar to the case of child refugees and justified the adoption of a different policy from that applied to adults. As regards proportionality, she emphasised that the difference in treatment was not that family reunion was denied to child refugees but only that it was considered on a case-by-case basis, applying the “unjustifiable hardship” criterion, rather than granted automatically. A case-by-case approach was not inherently inappropriate: the circumstances of unaccompanied child refugees varied greatly, and not all, particularly those nearing the age of 18, would be truly dependent on their parents. Those points were summarised in the introductory section of her skeleton argument (at para. 2) as follows:

“The Respondent recognises that it will usually be in the best interests of children not to remain separated from their parents and siblings. However, the strength of that consideration will vary from case to case, depending on the age, maturity, personal history and life experiences of the child, and all the individual circumstances of the case. Conversely, the Respondent considers that, in general terms, there is a legitimate concern not to encourage or incentivise families to send a child on a long and dangerous journey to claim asylum, with the expectation that the rest of the family will then be entitled to join them. The best interest considerations do not all point in the same direction, nor will they be of equal force in all cases. The current system is a legitimate response to that tension.”

Ms Giovannetti also reminded us of factors which she said required a less intensive standard of review. These were enumerated at para. 62 of her skeleton argument as follows:

“(i)

This is a systemic challenge and so the question is whether the scheme is incapable of being operated in a proportionate manner: R (JCWI) v SSHD [2021] EWCA Civ 542; [2021] 1 WLR 1151 at [117-119]; MM (Lebanon) v SSHD [2017] UKSC 10, [2017] 1 WLR 771 at [55]-[58].

(ii)

The Court should afford a wide margin of appreciation to the state: age is not a core status or suspect ground (whether or not in conjunction with refugee status) and the more peripheral a status is, the lower the burden of justification: Mathieson v SSWP [2015] UKSC 47, [2015] 1 WLR 3250 at [21]; R (Akbar) v SSJ [2019] EWHC 332 (Admin) at [92].

(iii)

Immigration control is a matter of socio-economic policy, and therefore a matter in respect of which a particularly wide margin is appropriate: see JCWI at [134(iv)].”