TS, R (on the application of) v Secretary of State for the Home Department

When exercising immigration or asylum functions concerning a child, the decision-maker must have regard to the need to safeguard and promote the child’s welfare. The duty requires a sufficient and proper decision-making process conducted with an open mind. Under the applicable guidance, the child’s best interests must ordinarily be treated as a primary consideration, unless cogent reasons justify a different approach.

The duty is distinct from asking whether the child’s medical condition is sufficiently compelling to justify departure from ordinary removal practice. Best interests remain an important consideration, but they do not necessarily determine the outcome. Other public interests may outweigh them after a lawful balancing exercise.

The claimant, an unaccompanied Afghan child, challenged the Secretary of State’s decision to remove him to Belgium under the Dublin II Regulation so that Belgium could determine his asylum claim. He relied on evidence of post-traumatic stress disorder, the likely adverse effect of removal on his mental health, his integration in the United Kingdom, and concerns raised by his social worker about his education and welfare.

The challenge concerned the proper application of section 55 of the Borders, Citizenship and Immigration Act 2009, including the duty to have regard to welfare and the statutory guidance, the rationality of the welfare assessment, the treatment of medical evidence, and the adequacy of arrangements in Belgium.

1. Grounds relating to section 55. The decision to remove the claimant was an immigration and asylum function within section 55. The decision-maker therefore had to have regard to the need to safeguard and promote the claimant’s welfare and to the relevant statutory guidance.
2. The phrase “have regard to” imposed a mandatory duty requiring a sufficient and proper decision-making process. The decision-maker had to address the substance of the welfare considerations, although express reference to the statutory duty was unnecessary if the written decision demonstrated compliance.
3. The statutory guidance required the best interests of the child to be treated as a primary consideration, unless cogent reasons justified a different approach. The decision-maker was not bound to give that consideration decisive weight, but any departure from the guidance required clear reasons.
4. The decision-maker failed to address the evidence that removal itself would exacerbate the claimant’s post-traumatic stress disorder and failed to engage with the social worker’s evidence concerning the adverse effect of removal on the claimant’s welfare. Asking whether the claimant’s medical condition was sufficiently compelling to justify departure from ordinary removal practice did not discharge the statutory duty.
5. The best-interests duty arose independently of any reliance on article 8 of the ECHR. A formal balance-sheet exercise was not legally required, although an approach of that kind might be practically useful in a case involving serious disagreement about the child’s best interests.
6. Belgium’s status as a friendly EU state bound by international and European obligations entitled the decision-maker to expect appropriate treatment and medical care. It did not remove the duty to inform himself of facts relevant to the individual case. On the particular facts, attention was also required to the claimant’s schooling and wider social welfare on arrival in Belgium.
7. The court quashed the decision dated 15 December 2009. It declined to determine that removal would necessarily be disproportionate. The matter required reconsideration, taking account also of the claimant’s further time in the United Kingdom and its apparently beneficial consequences.

This was a first-instance judicial review in the Administrative Court. The court quashed the Secretary of State’s decision dated 15 December 2009 and required the matter to be reconsidered.