Case No. UKUT-00227-(IAC)

for ensuring that— (a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and (b) any services provided by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection (2) are provided having regard to that need. (2) The functions referred to in subsection (1) are— (a) any function of the Secretary of State in relation to immigration, asylum or nationality; (b) any function conferred by or by virtue of the Immigration Acts on an immigration officer; (c) any general customs function of the Secretary of State; (d) any customs function conferred on a designated customs official. (3) A person exercising any of those functions must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (1)… (6) In this section— “children” means persons who are under the age of 18; “customs function”, “designated customs official” and “general customs function” have the meanings given by Part 1” . The statutory guidance made pursuant to section 55(2) is, for convenience, reproduced in the Appendix to this judgment. This will hopefully serve to give this measure the substantially greater prominence which, given my experience in children’s immigration and asylum cases, it merits. 15. The United Nations Convention on the Rights of the Child (“ UNCRC ”), which has been ratified by the United Kingdom, contains, in Article 3(1) the provision wherein the genesis of section 55 reposes. Article 3(1) provides: “ Article 3 1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” The argument developed on behalf of the Appellants also pray in aid certain other provisions of UNCRC. Article 6(2) “States Parties shall ensure to the maximum extent possible the survival and development of the child.” Article 9 “1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence. 2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known. 3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests. 4. Where such separation results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death (including death arising from any cause while the person is in the custody of the State) of one or both parents or of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent member(s) of the family unless the provision of the information would be detrimental to the well-being of the child. States Parties shall further ensure that the submission of such a request shall of itself entail no adverse consequences for the person(s) concerned.” Article 22 “1. States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties. 2. For this purpose, States Parties shall provide, as they consider appropriate, co-operation in any efforts by the United Nations and other competent intergovernmental organizations or non-governmental organizations co-operating with the United Nations to protect and assist such a child and to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family. In cases where no parents or other members of the family can be found, the child shall be accorded the same protection as any other child permanently or temporarily deprived of his or her family environment for any reason , as set forth in the present Convention.” 16. In this context the Appellants also draw on the United Nations General Comment Number 6/2005, “Treatment of Unaccompanied and Separated Children outside their Country of Origin” and, in particular, the following passages: Paragraph 79 “The ultimate aim in addressing the fate of unaccompanied or separated children is to identify a durable solution that addresses all their protection needs, takes into account the child’s view and, wherever possible, leads to overcoming the situation of a child being unaccompanied or separated. Efforts to find durable solutions for unaccompanied or separated children should be initiated and implemented without undue delay and, wherever possible, immediately upon the assessment of a child being unaccompanied or separated. Following a rights-based approach, the search for a durable solution commences with analysing the possibility of family reunification.” Paragraph 82 “Family reunification in the country of origin is not in the best interests of the child and should therefore not be pursued where there is a “reasonable risk” that such a return would lead to the violation of fundamental human rights of the child. Such risk is indisputably documented in the granting of refugee status or in a decision of the competent authorities on the applicability of non-refoulement obligations (including those deriving from article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and articles 6 and 7 of the International Covenant on Civil and Political Rights). Accordingly, the granting of refugee status constitutes a legally binding obstacle to return to the country of origin and, consequently, to family reunification therein. Where the circumstances in the country of origin contain lower level risks and there is concern, for example, of the child being affected by the indiscriminate effects of generalized violence, such risks must be given full attention and balanced against other rights-based considerations, including the consequences of further separation. In this context, it must be recalled that the survival of the child is of paramount importance and a precondition for the enjoyment of any other rights.” Paragraph 83 “Whenever family reunification in the country of origin is not possible, irrespective of whether this is due to legal obstacles to return or whether the best-interests-based balancing test has decided against return, the obligations under article 9 and 10 of the Convention come into effect and should govern the host country’s decisions on family reunification therein. In this context, States parties are particularly reminded that “applications by a child or his or her parents to enter or leave a State party for the purpose of family reunification shall be dealt with by States parties in a positive, humane and expeditious manner” and “shall entail no adverse consequences for the applicants and for the members of their family” (art. 10 (1)). Countries of origin must respect “the right of the child and his or her parents to leave any country, including their own, and to enter their own country” (art. 10 (2)).” 17. I record at this juncture that, invoking the well known “opt out” TEU mechanism, the United Kingdom (in common with Ireland and Denmark) does not subscribe to the soi-disant family reunification directive viz Council Directive 2003/86/EC of 22 September 2003. As a result, the Appellants are unable to invoke directly the benefits of Article 3, which provides: 1. This Directive shall apply where the sponsor is holding a residence permit issued by a Member State for a period of validity of one year or more who has reasonable prospects of obtaining the right of permanent residence, if the members of his or her family are third country nationals of whatever status. 2. This Directive shall not apply where the sponsor is: (a) applying for recognition of refugee status whose application has not yet given rise to a final decision; (b) authorised to reside in a Member State on the basis of temporary protection or applying for authorisation to reside on that basis and awaiting a decision on his status; (c) authorised to reside in a Member State on the basis of a subsidiary form of protection in accordance with international obligations, national legislation or the practice of the Member States or applying for authorisation to reside on that basis and awaiting a decision on his status. 3. This Directive shall not apply to members of the family of a Union citizen. 4. This Directive is without prejudice to more favourable provisions of: (a) bilateral and multilateral agreements between the Community or the Community and its Member States, on the one hand, and third countries, on the other; (b) the European Social Charter of 18 October 1961, the amended European Social Charter of 3 May 1987 and the European Convention on the legal status of migrant workers of 24 November 1977. 5. This Directive shall not affect the possibility for the Member States to adopt or maintain more favourable provisions.” However, I consider that indirect reliance on aspects of this measure may be possible via the guidance published by the Secretary of State under section 55(2) of the 2009 Act: see [31] infra . 18. In contrast, Council Directive 2004/83/EC of 29 April 2004, the co-called “Qualification Directive” does apply in the United Kingdom, having been transposed by the Refugee or Person in need of International Protection (Qualification) Regulations 2006. This prescribes “ minimum standards for the qualification and status of third country nationals or stateless persons as persons who otherwise need international protection and the content of the protection granted. ” Article 23 provides: “ Maintaining family unity 1. Member States shall ensure that family unity can be maintained. 2. Member States shall ensure that family members of the beneficiary of refugee or subsidiary protection status, who do not individually qualify for such status, are entitled to claim the benefits referred to in Articles 24 to 34, in accordance with national procedures and as far as it is compatible with the personal legal status of the family member. In so far as the family members of beneficiaries of subsidiary protection status are concerned, Member States may define the conditions applicable to such benefits. In these cases, Member States shall ensure that any benefits provided guarantee an adequate standard of living. 3. Paragraphs 1 and 2 are not applicable where the family member is or would be excluded from refugee or subsidiary protection status pursuant to Chapters III and V. 4. Notwithstanding paragraphs 1 and 2, Member States may refuse, reduce or withdraw the benefits referred therein for reasons of national security or public order. 5. Member States may decide that this Article also applies to other close relatives who lived together as part of the family at the time of leaving the country of origin, and who were wholly or mainly dependent on the beneficiary of refugee or subsidiary protection status at that time.” Per Article 3: “ More favourable standards Member States may introduce or retain more favourable standards for determining who qualifies as a refugee or as a person eligible for subsidiary protection, and for determining the content of international protection, in so far as those standards are compatible with this Directive.” 19. The governing legal framework is completed by certain well established principles of domestic, international and European human rights law. I summarise these in no particular hierarchical order. First, there is the familiar principle that every state has the right to control entry into and stay in its territory, sometimes described as the “sovereignty principle”, which finds expression in the opinion of Lord Bingham of Cornhill in R (Bapio Action Limited) v SSHD [2008] 1 AC 1003, at [4]: “ It is one of the oldest powers of a sovereign state to decide whether any, and if so which, non-nationals shall be permitted to enter its territory and to regulate and enforce the terms on which they may do so. ” The Strasbourg decisions belonging to this sphere give emphasis to the consideration that the central issue in these appeals is that formulated in [10] above. Thus, in one of its leading pronouncements, the ECtHR has stated: “ The Court reiterates that in the context of both positive and negative obligations, the State must strike a fair balance between the competing interests of the individual and of the community as a whole. However, in both contexts the State enjoys a certain margin of appreciation. Moreover, Article 8 does not entail a general observation for a State to respect immigrant’s choice of the country of their residence and to authorise family reunion in its territory. ” See Rodrigues v The Netherlands [2007] 44 EHRR 34, paragraph [39]. 20. The margin of appreciation enjoyed by the State in this context is emphasised in Draon v France [2006] 42 EHRR 40, where, in a moderately detailed treatise, the Grand Chamber pronounced at [105] – [108]: “ 1. While the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, it does not merely require the State to abstain from such interference: there may in addition be positive obligations inherent in effective “respect” for family life. The boundaries between the State’s positive and negative obligations under this provision do not always lend themselves to precise definition; nonetheless, the applicable principles are similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and the community as a whole, and in both contexts the State is recognised as enjoying a certain margin of appreciation (see, for example, Nuutinen v. Finland , no. 32842/96, 27 June 2000, § 127, and Kutzner v. Germany , no. 46544/99, 26 February 2002, §§ 61 and 62). Furthermore, even in relation to the positive obligations flowing from the first paragraph, “in striking [the required] balance the aims mentioned in the second paragraph may be of a certain relevance” (see Powell and Rayner v. the United Kingdom , judgment of 21 February 1990, Series A no. 172, § 41). 2. “Respect” for family life implies an obligation for the State to act in a manner calculated to allow ties between close relatives to develop normally (see Marckx , cited above, § 45). The Court has held that a State is under this type of obligation where it has found a direct and immediate link between the measures requested by an applicant, on the one hand, and his private and/or family life on the other (see Airey v. Ireland , judgment of 9 October 1979, Series A no. 32, § 32; X and Y v. the Netherlands , judgment of 26 March 1985, Series A no. 91, p. 11, § 23; López Ostra v. Spain , judgment of 9 December 1994, Series A no. 303-C, p. 55, § 55; Guerra and Others v. Italy , judgment of 19 February 1998, Reports 1998-I, p. 227, § 58; Botta v. Italy , judgment of 24 February 1998, Reports 1998-I, § 35; and Zehnalova and Zehnal v. the Czech Republic (dec.), no. 38621/97, ECHR 2002-V). 3. However, since the concept of respect is not precisely defined, States enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention with due regard to the needs and resources of the community and of individuals (see Abdulaziz, Cabales and Balkandali v. the United Kingdom , judgment of 28 May 1985, Series A no. 94, § 67, and Zehnalova and Zehnal , cited above). 4. At the same time, the Court reiterates the fundamentally subsidiary role of the Convention. The national authorities have direct democratic legitimation and are, as the Court has held on many occasions, in principle better placed than an international court to evaluate local needs and conditions (see, for example, Handyside v. the United Kingdom , judgment of 7 December 1976, Series A no. 24, p. 22, § 48, and Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 97, ECHR 2003-VIII). In matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy-maker should be given special weight.” 21. In decision making contexts in which the public interest engaged has the democratic stamp of parliamentary scrutiny, debate and decision, culminating in primary legislation, the public interest is especially strong and the role of the court or tribunal as arbiter of proportionality is correspondingly reduced: see SS (Nigeria) v SSHD [2013] EWCA Civ 550, per Laws LJ at [42]: “ But the margin of discretionary judgment enjoyed by the primary decision maker, though variable, means that the Court’s role is kept in balance with that of the elected arms of government and this serves to quieten constitutional anxieties that the Human Rights Act draws the Judges onto ground they should not occupy ….. ” [and at 47]: “ Upon the question whether the principle of minimal interference is fulfilled, the primary decision maker enjoys a variable margin of discretion, at its broadest where the decision applies general policy created by primary legislation. ” The variable nature of the primary decision maker’s margin of appreciation, or discretionary area of judgment, is illustrated in R (Quila) v SSHD [2012] 1 AC 621 where the legal rule in play which precluded the claimants from securing leave to remain in the United Kingdom was a provision of the Immigration Rules which do not, of course, have the status of parliamentary legislation and do not, therefore, attract the equivalent imprimatur of democratic approval: Huang v SSHD [2007] 2 AC 167, at [17]. Furthermore, it is appropriate for the court or tribunal to take into account whether the Secretary of State had access to “ special sources of knowledge and advice ” in formulating the rule or rules under scrutiny: per Lord Wilson JSC at [46]. 22. Moreover, as noted by this Tribunal recently in ZAT and Others v SSHD (Article 8 ECHR – Dublin Regulation – Interface – Proportionality) IJR [2016] UKUT 61 (IAC), after [57]: “ Lesser weight is to be accorded to the Secretary of State’s assessment to the balance to be struck between the public interest and the rights of the individual in circumstances where the Secretary of State’s insistence upon full adherence to the [rule in question] embodies a generalised assessment, a broad brush, to be contrasted with a specific, considered response and decision on a case by case basis. ” The ensuing sentence in the same paragraph resonates, as it applies fully to the present appeals: “ …. The platform upon which the Secretary of State has contested these proceedings is quite unrelated to the individual circumstances, the needs and merits of any of the seven Applicants. ” As in ZAT and Others , the present proceedings concern a blanket exclusion, or prohibition. 23. In Secretary of State for the Home Department v SS (Congo) and Others [2015] EWCA Civ 387 the Court of Appeal paid specific attention to the factor of children in the context of applications for leave to enter and leave to remain in the United Kingdom. Having noted that the “Article 8 code”, contained in Appendix FM to the Immigration Rules, constituted an “ attempt ” by the Secretary of State to reflect “ more precisely than before ” the relevant balance to be struck between the public interest and the interests of the individual in Article 8 cases, the Court formulated some general principles in [39]. These include the principle, expressed in [39](iii) that: “ A Court will be slow to find an implied positive obligation which would involve imposing on the State significant additional expenditure, which will necessarily involve a diversion of resources from other activities of the State in the public interest, a matter which usually calls for consideration under democratic procedures ”. This is followed immediately by the following passage: “(iv) On the other hand, the fact that the interests of a child are in issue will be a countervailing factor which tends to reduce to some degree the width of the margin of appreciation which the state authorities would otherwise enjoy. Article 8 has to be interpreted and applied in the light of the UN Convention on the Rights of the Child (1989): see In re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27; [2012] AC 144, at [26]. However, the fact that the interests of a child are in issue does not simply provide a trump card so that a child applicant for positive action to be taken by the state in the field of Article 8(1) must always have their application acceded to; see In re E (Children) at [12] and ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4; [2011] 2 AC 166, at [25] (under Article 3(1) of the UN Convention on the Rights of the Child the interests of the child are a primary consideration – i.e. an important matter – not the primary consideration). It is a factor relevant to the fair balance between the individual and the general community which goes some way towards tempering the otherwise wide margin of appreciation available to the state authorities in deciding what to do. The age of the child, the closeness of their relationship with the other family member in the United Kingdom and whether the family could live together elsewhere are likely to be important factors which should be borne in mind.” The Court further noted that Article 3(1) of UNCRC forms part of municipal law via section 55 of the 2009 Act, in observing that some of the principles and obligations contained in this international law measure have influenced domestic law. 24. There is a further, discrete dimension of the Article 8 jurisprudence which the Court of Appeal noted en passant in SS (Congo) , at [39](v), namely the principle, or test, of the “ direct and immediate link ” forging a nexus between the measures requested by an applicant and his family life. This principle approximates to the familiar common law concept of casual nexus. In Draon v France ( supra ), the Grand Chamber, having reiterated certain well established principles, stated at [106]: “ ’Respect’ for family life …. implies an obligation for the State to act in a manner calculated to allow ties between close relatives to develop normally. The Court has held that a State is under this type of obligation where it has found a direct and immediate link between the measures requested by an Applicant, on the one hand, and his private and/or family life on the other. ” This direct and immediate link is unlikely to be established in circumstances where family life can be carried on elsewhere: see Botta v Italy [1998] 26 EHRR 241 and Gül v Switzerland [1996] 22 EHRR 93, at [42]. 25. The scope for further development and refinement of the principles, tests and touchstones to be applied in Article 8 cases of this genre , in the context of what is of course a “ living instrument ”, is illustrated by a trilogy of decisions of the ECtHR. It is unnecessary to dwell on the first of these, Sen v Netherlands [2003] 36 EHRR 7. In the second, Tuquabo-Tekle and Others v Netherlands [2005] ECHR 803 [Application No 60665/00], which followed two years later, the Court emphasised, firstly, that every case is fact sensitive: see [43](a). In formulating an inexhaustive list of touchstones to be applied, it highlighted the age of the children concerned, their current situation in their country of origin and the extent of their dependency on their parents. In [47] it formulated the test of “ the most adequate means for the various members to develop family life together ”. The Court also acknowledged, in [49], the relevance of the age of the child or children concerned, the extent of the child/parent dependency, whether the child had been reared in the cultural and linguistic environment of his country of origin, whether there are relatives there and whether it could be expected of the parents to return there: see [49]. 26. This was followed by Mayeka and Mitunga v Belgium [2008] 46 EHRR 23 in which the main factors were pre-existing family life between the separated persons concerned, an unaccompanied minor and special vulnerability. Both decisions illustrate the Court’s willingness, in appropriate cases, to recognise Article 8 ECHR as the vehicle for achieving family reunification on the territory of the Council of Europe State where one of the family members is present or established. 27. As the sponsor was a child (aged 17) when the impugned decisions of the ECO were made, section 55 of the 2009 Act applied. Accordingly, his best interests had the status of a primary consideration. As in so many cases involving children, there is no evidence that the statutory duty imposed by section 55(2) to have regard to the Secretary of State’s statutory guidance was discharged. I readily infer that it was not. This, sadly, seems to be the rule rather than the exception in cases of this kind. This, notwithstanding that the decisions of this Tribunal in JO and Others (Section 55 Duty) Nigeria [2014] UKUT 517 (IAC) and MK (Section 55 – Tribunal Options) [2015] UKUT 223 (IAC) have drawn attention emphatically to this aspect, and others, of section 55. 28. Section 55 has been considered by the United Kingdom Supreme Court in ZH (Tanzania) v SSHD [2011] 2 AC 166 and Zoumbas v SSHD [2013] 1 WLR 3690. As these decisions make clear, no other material consideration can be treated as inherently more significant than the best interests of any affected child, albeit this can be outweighed by the cumulative effect of other considerations and it does not rank as the primary, or paramount, consideration. Per Lord Kerr in ZH (Tanzania) at [46]: “ It is not merely one consideration that weighs in the balance along side other competing factors. Where the best interests of the child clearly favour a certain course, that course should be followed unless countervailing reasons of considerable force displace them. ” Notably, while section 55 did not apply directly to the second Appellant when the decisions were made, as he was outside the United Kingdom, the Secretary of State’s Immigration Directorate Instruction (“IDI”) invites ECOs to consider the aforementioned statutory guidance, as noted by this Tribunal in Mundeba (Section 55 and paragraph 297(i)(f)) [2013] UKUT 88 (IAC), at [36] and [37] especially: see further [31] infra . 29. The issue of the status of unincorporated or partly incorporated international treaties in domestic law continues to intrigue. It has proved nothing if not organic during recent years. The determination of these appeals does not require a detailed treatise. Rather, it suffices to draw attention to three matters. The first is the opinion of Lord Wilson in Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47, at [42] – [44], which merit reproduction in full: “[42] In ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166, Lady Hale at para 21 quoted with approval the observation of the Grand Chamber of the ECtHR in Neulinger v Switzerland (2010) 28 BHRC 706, para 131, that "the Convention cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law". The Court of Appeal concluded, however, that the circumstances of the present case left no room for either of the international conventions to give a steer to the proper interpretation of Cameron's rights. Consistently with that conclusion, the Secretary of State proceeds to submit that it is in principle illegitimate to have regard to the conventions and in this regard he relies upon the recent decision of this court in the SG case cited at para 39 above. [43] It is clear that in the SG case the Secretary of State submitted that, while an international covenant might inform interpretation of a substantive right conferred by the Convention, it had no role in the interpretation of the parasitic right conferred by article 14 and thus, specifically, no role in any inquiry into justification for any difference of treatment in the enjoyment of the substantive rights. But his submission was not upheld. While Lord Reed did not expressly rule upon it, it was rejected by Lord Carnwath (paras 113-119), by Lord Hughes (paras 142-144), by Lady Hale (paras 211-218) and by Lord Kerr (paras 258-262). Lord Carnwath, for example, pointed out at paras 117-119 that the Secretary of State's submission ran counter to observations in the Court of Appeal in the Burnip case, cited at para 23 above, and indeed to the decision of the Grand Chamber in X v Austria (2013) 57 EHRR 405. The decision of the majority in the SG case was not that international conventions were irrelevant to the interpretation of article 14 but that the UN Convention on the Rights of the Child was irrelevant to the justification of a difference of treatment visited upon women rather than directly upon children: para 89 (Lord Reed), paras 129-131 (Lord Carnwath) and para 146 (Lord Hughes). [44] The noun adopted by the Grand Chamber in the Neulinger case, cited above, is "harmony". A conclusion, reached without reference to international conventions, that the Secretary of State has failed to establish justification for the difference in his treatment of those severely disabled children who are required to remain in hospital for a lengthy period would harmonise with a conclusion that his different treatment of them violates their rights under two international conventions.” In short, certain provisions of international treaties, in particular the UNCRC, have gently, seamlessly and progressively influenced and seasoned domestic law via the Human Rights Act 1998, as a result of the duty imposed on courts and tribunals by section 3(1) thereof and the long established practice of the ECtHR of taking into account relevant provisions of international law. 30. Second, bearing in mind section 55 of the 2009 Act, it is clear that Article 3(1) of UNCRC cannot be considered in a vacuum, isolated from the remaining provisions of the Convention. The meaning and reach of Article 3(1) must take their colour from, and be informed by, other provisions of this instrument. Article 31 of the Vienna Convention on the Law of Treaties requires no less. It provides, in material part: “General rule of interpretation 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes …. “ 31. Third, decisions which give proper effect to both of the duties enshrined in section 55 may legitimately be influenced by unincorporated provisions of international law, having regard to the expression of the Secretary of State’s policy in the statutory guidance made under section 55(2). This is found in “ Every Child Matters: Change For Children ”, which contains, at paragraph 2.6, the following passage: “ The UK Border Agency acknowledges the status and importance of the following: the European Convention for the Protection of Human Rights and Fundamental Freedoms, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the EU Reception Conditions Directive, the Council of Europe Convention on Action against Trafficking in Human Beings and the UN Convention on the Rights of the Child. The UK Border Agency must fulfil the requirements of these instruments in relation to children whilst exercising its functions as expressed in UK domestic legislation and policies. ” [Emphasis added] Within this passage one finds the clearest of assurances that, as a matter of policy, these several instruments of international law will be given effect when the Secretary of State and her various alter egos , which include UKBA, UKVI and ECOs, are making immigration (and related) decisions which affect children. Moreover, the absence of any territorial limitation comparable to that contained in section 55(1) is notable. 32. Thus the principle enunciated in R v Secretary of State for the Home Department, ex parte Launder [1997] 1 WLR 839 applies fully. Applying orthodox principles of public law, it matters not that the materials, or considerations, identified in ”Every Child Matters (etc)” have the status of unincorporated international treaties. If this publication had the standing of a (mere) governmental policy, the Secretary of State would be expected to give effect to it: Lumba v Secretary of State for the Home Department [2011] UKSC 12 at [26], per Lord Dyson JSC. I consider that this duty applies a fortiori given that the publication is an instrument made pursuant to a duty imposed by primary legislation. By formulating the statutory guidance in this way the executive has chosen to give indirect status in domestic law to certain measures of international law which have not been incorporated by legislation. 33. The international law/domestic law dichotomy in United Kingdom law traditionally conjured up notions of polarisation and insularity. Having regard to the developments mapped above, the gulf between the two notional extremes has narrowed significantly and this is illustrated by the decision making context under scrutiny in these proceedings. The so-called dualist doctrine has evolved and has undergone some dilution in consequence. All of this is, ultimately, a reflection of the intrinsically organic nature of the common law. Conclusions 34. At this juncture I remind myself of the fundamental question to be determined in these conjoined appeals: is the interference with the family life of the Appellants and M, brought about by the refusal decisions of the ECO, a proportionate means of securing the legitimate aims in play? Or, alternatively, one might ask which is to prevail: the interests of the three family members or the public interest? 35. On one side of the scales there is a strong family unit whose members are clearly united and fortified by strong bonds of love, affection and interdependency. They long to be reunited and have gone to substantial lengths and have made considerable sacrifices to achieve this goal. For as long as separation continues, this will be a disfunctioning, debilitated and under achieving family. The main feature of this under achievement will be the family’s inability to attain its potential as one of the key elements of modern societies throughout the world. The under performance of family members and family units, in this respect, does not further any identifiable public interest. On the contrary it is antithetical to strong and stable societies. These features of the family unit under scrutiny in these appeals are exposed in a context where M, being the older of the two male sons, is, culturally, considered to be the head of the family. This family, bereft of its natural head by circumstances and not by choice, is now deprived of his successor and has been thus bereft for almost four years. 36. The evidence establishes clearly that the sponsor is under achieving as a person. This means that his contribution, actual and potential, to United Kingdom society is diminished. This arises in circumstances where he has demonstrated his willingness to adapt to United Kingdom culture and to study earnestly in this alien country. The prediction that society will secure some benefit if the sponsor achieves family reunification in this country is readily made. Thus reunification will promote, rather than undermine, the public interest in this respect. It will be manifestly better for society than maintenance of the status quo. 37. Furthermore, if family reunification cannot be achieved in the United Kingdom, M will be driven to consider alternatives, some of them manifestly dangerous given his youth and unaccompanied and unsupported status. These include the precarious journey involved in attempting to reunite with the Appellants wherever they may be at present. The evidence points to the probability that they are either in Khartoum or the UNHCR refugee camp several hundred kilometres away. The situations in both locations are fraught with danger and imbued with deprivation. Reunification of this family in their country of origin, Eritrea, is not a feasible possibility, having regard to the factual framework rehearsed in [5] – [9] above. 38. I consider it distinctly possible that if family reunification cannot be secured in the United Kingdom, the sponsor will depart these shores in the dangerous pursuit of one of the alternatives mooted above. This would deprive him of the protections which he has obtained as a result of being recognised a refugee. This would be manifestly undesirable for him, contrary to the public interest and incompatible with the philosophy and rationale of the Refugee Convention. It would also expose him to a risk of violating his Convention rights, in particular those protected by Articles 3 and 4. In the real world, recognition of this possibility is far from fanciful. I consider this to be a potent factor in the balancing exercise. Resort to this Tribunal is very much a measure of last resort for him. 39. Next, it is necessary to give effect to the principles enunciated in Mathieson – ( supra ) together with those aspects of the Secretary of State’s statutory guidance noted in [31] above. I do not deduce from any of these principles or sources that the Secretary of State is under a duty to facilitate reunification for this family in the United Kingdom with the result that the impugned decisions of the ECO are vitiated. The existence of an absolute duty of this nature was not argued and I do not consider that such duty exists. However, in my view the orientation of these principles and policies is to favour, rather than undermine, what the Appellants seek to achieve by these appeals. They qualify for substantial weight in the proportionality balancing exercise. 40. On the other side of the scales lies the public interest. This engages the provisions in sections 117A and 117B of the 2002 Act, reproduced in [13] above. Thus, in summary: the public interest in the maintenance of effective immigration controls is engaged; I shall assume that neither of the Appellants speaks English; and I further assume that neither Appellant is, or will be, financially independent, at least for the foreseeable future. Section 117B(4) does not apply. Nor does section 117B(5), given the concession – properly made – of Mr Poole on behalf of the Secretary of State that the M’s immigration status in the United Kingdom has not been precarious, given the grant of five years leave to remain qua refugee. Nor does section 117B(6) apply. 41. Is any other public interest engaged? Mr Poole, in his skeleton argument, sought to identify two such interests: (a) the safeguarding of children, specifically those in the position of the sponsor, who would be at risk of trafficking and exploitation in their quest to reach the United Kingdom; and (b) additional pressure on publicly funded childrens’ services. There is no primary legislation underpinning either of these asserted public interests. Moreover, there is no evidence underlying them – in the form of, for example, reports or commentaries. I recognise that evidence of this kind is not a prerequisite to the recognition of a public interest in the Article 8(2) balancing exercise. However, I cannot overlook that these public interests are advanced through the medium of counsel’s written and oral submissions. 42. Furthermore, this unsatisfactory dimension of the Secretary of State’s case is highlighted by the belated production of certain data. While I have considered this material, I observe that it does not have the benefit of related reports or the illumination or elaboration of witness statements. Nor is there any financial data even at a general level. In addition, the figures require clarification, which is lacking. In my judgment, the only conclusion which can safely be made is that there has been some increase in the advent of unaccompanied children to the United Kingdom during the past two years. That said, the figures are substantially smaller than those applicable to the years 2008 and 2009. While I take all of this evidence, including counsel’s submissions, into account, I consider that its potency is questionable for the reasons given. Furthermore, I reiterate my analysis of the governing legal principles above. 43. This brings me to my overarching conclusion. Taking into account the considerations, assessments and reasons highlighted in [34] – [42] above, it is my conclusion that, balancing everything, the impugned decisions of the ECO, acting on behalf of the Secretary of State, interfere disproportionately with the right to respect for family life enjoyed by the Appellants and M. As the ultimate arbiter of proportionality I decide accordingly. Thus I re-make the decision of the FtT by allowing the appeals. Decision The appeals are allowed under Article 8 ECHR. Signed: THE HON. MR JUSTICE MCCLOSKEY PRESIDENT OF THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER Dated : 29 February 2016 APPENDIX EVERY CHILD MATTERS CHANGE FOR CHILDREN Statutory guidance to the UK Border Agency on making arrangements to safeguard and promote the welfare of children Issued under section 55 of the Borders, Citizenship and Immigration Act 2009 November 2009 Fo r ewo r d Int r oduction Pa r t One – General A r rangements to