[2025] UKUT 00089 (IAC)

The Grounds for Review open with the sentence; “This extremely urgent case concerns two young children aged 6 and 9…” At paragraph [10] it is said:

“The Applicants seek an urgent mandatory order requiring the SSHD to admit EK and SK to the UK. The Applicants submit that her failure to do so to date is not only an egregious breach of Article 8 ECHR and the SSHD’s section 55 Borders Citizenship and Immigration Act 2009 (‘BCIA 09’) duty, but also amounts to inhuman and degrading treatment of all the Applicants under Article 3 ECHR. The SSHD’s failure to admit the parents including by initially leaving them to try to make their way by boat placing their lives at risk, and where evidence shows that the children have already been seriously harmed and every passing day carries with it an increasing risk of long-term damage to the children’s physical and psychological health and development, amounts to treatment contrary to Article 3 ECHR.”

The Grounds for Review set out the factual background at some length and, in summary, claim the respondent is: (i) in breach of her duties under Article 8 ECHR and section 55 of the Borders, Citizenship and Immigration Act 2009 (“s55 of the 2009 Act”); and (ii) in breach of Article 3 ECHR. At paragraph [57] of the Grounds for Review the applicants claim that in light of the fact that there can be no reasonabledispute about the ultimate outcome, namely that SK and EK must be reunited with MIKand MAK in the UK, the applicants request:

On 30 September 2024 Upper Tribunal Judge Canavan abridged the time for the respondent to file and serve Summary Grounds of Defence. On 15 October 2024 Upper Tribunal Judge Reeds listed the application for interim relief and permission to claim JR for an oral hearing. On 31 October 2024Upper Tribunal Judge Kamaragranted permission to claim judicial review and,in a separate order, directed that the “respondent is to make arrangements to admit [the parents] to the UK as soon as practicable”.

On 1 November 2024 the respondent applied for a stay of the interim relief order. On 11November 2024 the applicants sought an order requiring the respondent to act upon the order made by Judge Kamara forthwith. The two applications were listed for hearing and, on 14 November 2024, Upper Tribunal Judge Hirst refused the respondent’s application for a stay and directed that the respondent shall by 4pm on 15 November 2024 confirm to the applicants, inter alia, that arrangements have been made to admit them to the United Kingdom.

On 19 November 2024 Lady Justice Elisabeth Laing granted the respondent a stay of the order made by Upper Tribunal Judge Kamara and listed the application for permission to appeal to the Court of Appeal for a rolled up hearing. The application for permission, and the appeal, was heard by Lord Justice Underhill, Lord Justice Singh and Lord Justice Baker on 17 December 2024 and the order for interim relief of Upper Tribunal Judge Kamara (made on 31 October 2024) and the order of Upper Tribunal Judge Hirst (made and issued on 14 November 2024) were set aside; [2024] EWCA Civ 1601. We will return to the judgment of Underhill LJ later in this decision. For the sake of completeness we note that the decision of the Court of Appeal was the subject of an application for permission to appeal to the Supreme Court. This however was refused by the Court of Appeal in an order dated 13 January 2025.

As far as the claim before the Upper Tribunal is concerned, on 21 November 2024 the applicants made an urgent application stating again that “This claim is extremely urgent” and in a draft order invited the Upper Tribunal to order that the full hearing of the judicial review be listed for a one day hearing on 11 December 2024. On 22 November 2024 I declined to make an order in the terms sought by the applicants but balancing the competing interests and the importance of the issues that arise, on 28 November 2024I directed that the claim be listed for hearing on 9 January 2025 with consequential directions.