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

Ms Giovannetti accepted that the making of Immigration Rules constituted the discharge by the Secretary of State of a function for the purpose of section 55: cf. para. 69 above. She also, unsurprisingly, accepted that the same was true of the making of a change to the Rules.

More significantly for our purposes, Ms Giovannetti also accepted that a decision not to change the Rules could in principle constitute the discharge of a function. However, she contended that that would only be so in the case of a decision taken by the Secretary of State as the result of a process under which she considers a particular option, or options, for change. Making a decision to maintain the status quo following such a process could properly be regarded as the discharge of a function; but a mere failure, or refusal, to undertake a review (which is what is relied on by the Claimant – see ground 1 (i)) could not. Ms Giovannetti said that typically such a process would take the form of a proposal by officials setting out the various options – which would include (explicitly or not) the option of doing nothing – on the basis of which the Secretary of State would make her decision. I will as a shorthand refer to that as a process of “substantive review”.

Ms Giovannetti submitted that on the basis of that approach Lavender J was right to conclude that Mr Büültjens’ evidence established that the Secretary of State had not discharged a relevant function – that is, a function as regard family reunion for child refugees – at any time since the coming into force of the 2009 Act. Her policy was established prior to that date and she has not been prepared to reconsider it at any point since then: as the Judge said, it was a “red line”. Neither of the “decisions” relied on by the Claimant contradicted that evidence: in so far as any decision was taken, it was not of the necessary character.

That is essentially the approach taken by Lavender J at para. 133 of his judgment, answering his question “What constitutes the discharge of a function?”. The Respondent’s Notice reflects a concern that his reference to the Secretary of State “actively engaging” in a consideration of whether to change the Rules may not fully reflect the kind of formal decision-making process which she says is necessary; but in so far as there is a real difference between his formulation and Ms Giovannetti’s it seems to me to be marginal.