[2025] UKUT 00349 (IAC)

In a human rights or protection appeal, the tribunal will not normally need to investigate whether the respondent has complied with her section 55 duty. This is because it has the jurisdiction to decide for itself whether the respondent’s decision is incompatible with the UK’s obligations under the ECHR, and where article 8 is engaged, it must identify and give due weight to the best interests of any relevant children. It also has procedural tools sufficient for collecting the information that it needs in order to do so. CAO at [68].

Where the tribunal is reviewing the respondent’s decision on public law grounds, by contrast, it cannot substitute its own decision for the respondent’s. In such a case, it will need to decide whether the respondent complied with her section 55 duty. This is a question of substance, rather than form. The respondent’s decision should not be treated as presumptively lawful simply because it refers to section 55, nor as unlawful because it fails to do so: CAO at [67]. Here, “the usual public law rationality test” applies. CAO at [90].

Without first establishing where in the decision-making process the best interests of a child was relevant, however, it will be difficult for a tribunal to assess the rationality or materiality of what the respondent did or did not do. This is because, as noted above, the section 55 duty “cannot be interpreted to require procedural steps to be taken which have no practical bearing on the matter which arises for determination”. CAO at [89] The respondent’s decision may not have clearly identified where section 55 was treated as relevant, either because the decision did not explicitly engage with the section 55 duty at all, or because it was addressed as a freestanding requirement, without an express link being drawn to the specific issues before the decision-maker. The latter is often the case, for example, in entry clearance decisions, which may contain a free-standing statement that “This decision takes into account as a primary consideration the best interests of any relevant child in line with section 55 of the Borders, Citizenship and Immigration Act 2009.”

Bringing these various principles together, we consider that in a deprivation appeal affecting children, a tribunal must approach the question of the children’s best interests in the following way: