[2025] UKUT 00089 (IAC)

At the outset of the hearing Ms Knorr submitted that the applicants’ submissions as to the whether the Tribunal should grant or withhold consent to withdraw the claim are broadly aligned with the applicants’ submissions as to the substantive claim. Due to the time constraints we therefore heard the parties’ submissions as to the Notice of Withdrawal and then heard briefly from Ms Knorr and Sir James Eadie KC regarding the substantive claim. We said that we would reach a decision and set out our reasons in writing. Plainly if we give consent to withdraw, we do not need to address the substantive merits of the claim.

As far as the Notice to Withdraw is concerned, in summary, Ms Knorr submits this claim concerns a challenge to the delay in taking entry clearance decisions and in admitting the adult applicants to the UK. The applicants have now received decisions dated 30 December 2024 upon the applications for Entry Clearance that give rise to a right of appeal to the FtT. The applicants therefore have an alternative remedy. She submits the question whether reunification in France can be achieved within a reasonable timeframe or at all, and the outcome of the proceedings in the Family Division, will now be capable of being taken into account in the appeal before the FtT.

Ms Knorr submits the applicants have reflected upon the decision of the Court of Appeal. The applicants do not now seek any remedies in these proceedings and there is no good reason for the Tribunal to withhold its consent to the withdrawal of the claim as required by Rule 17(2) of The Tribunal Procedure (Upper Tribunal) Rules 2008 (“the Tribunal Procedure Rules”).

In response the respondent claims the decision of the applicants to withdraw the claim for judicial review is in truth, an attempt to ‘game the system’. It is an attempt to avoid the Tribunal from reaching a decision upon the claim and the applicants will seek, going forward, to present the immigration proceedings as complex, undetermined, ongoing and unlikely to be resolved soon. That will also be used to suggest in the parallel proceedings before the Family Division that there will be further prolonged disruption for the children. At the same time, the parents are not actively and urgently co-operating with the French authorities with a view to securing the earliest reunification with their children in France. The respondent submits the Tribunal should refuse to consent to the Notice of Withdrawal and to dismiss the pleaded claim for Judicial Review on its merits.

We have received written submissions filed by the interested party, Kent County Council. The interested party does not take any position in relation to the substantive legal disputes between the parties regarding immigration control. The focus of the interested party is upon its responsibility by reason of section 22(3) of the Children Act 1989 to safeguard and promote the welfare of the children. The interested party is still gathering evidence. The written submissions state:

“KCC relies on a witness statement filed on 6 January 2025 setting out its current position. KCC highlights the fact that the uncertainty about the best interests of the children arises largely because it remains unclear where the family can be reunited. KCC has no control over where reunification can take place.”

During the course of the hearing before us Ms Knorr maintained that the parents are anxious to ensure that they are able to be reunited with their children at the earliest opportunity. We canvassed with Ms Knorr the possibility that it is open to the parents, who have parental responsibility for the children, to withdraw their consent to the interested party accommodating the children and the effect of that would be that arrangements could be made for them to be reunited with their children without delay.

During the course of the hearing the Tribunal and the parties received an email from Virginia Cooper, a Partner at Bevan Brittan LLP, who act on behalf of the interested party. Having taken instructions upon the interested party’s position in the event that the parents withdraw their consent for the children to be accommodated, the interested party confirms that the children are currently accommodated under section 20 of the Children Act 1989. If that consent is withdrawn, the interested party has no legal basis to accommodate the children and arrangements would have to be made for them to be returned to France if that is what the parents seek. Best practice dictates that a handover plan is put before the court for approval, for example, by providing for a member of the social work team to fly with the children and reunite them with their parents in France. If there are concerns about the reception arrangements then an application for wardship or an interim care order might be considered. That is not currently anticipated as the interested party has no immediate parenting concerns and the parents have agreed to undergo an assessment to enable reunification. The interested party will work to achieve reunification as quickly as possible and the actual arrangements for sending the children to France is unlikely to take much time. The interested party would expect reunification could take place within a two to four week period.