AJ v Secretary of State for the Home Department

The duty to have regard to the need to safeguard and promote children’s welfare under section 55 of the Borders, Citizens, and Immigration Act 2009 applies to every immigration, asylum and nationality function within the statutory wording. It is not confined to appealable removal decisions. A refusal of leave to remain may therefore engage the duty where the decision affects a child. On judicial review of a non-appealable immigration decision, the court must consider whether the Secretary of State had regard to section 55 and the statutory guidance. Failure to do so renders the decision unlawful and justifies quashing it. The court left open the circumstances in which section 55 need not be considered and whether the proper course is remittal rather than the court making its own assessment.

The appellant, a Nigerian national, challenged by judicial review the Secretary of State’s refusal of 9 March 2010 to grant him leave to remain on Article 8 grounds. The decision was non-appealable because it did not include a decision to remove. Ouseley J refused the application on 18 October 2010.

While the appeal was pending, the Supreme Court decided ZH (Tanzania), and the Court of Appeal directed consideration of the applicability of section 55 of the Borders, Citizens, and Immigration Act 2009 to non-appealable decisions. The Secretary of State ultimately conceded that the duty applied and that the decision letter had not visibly considered the best interests of the appellant’s child. The central issue was the consequence of that failure in judicial review proceedings.

1. Appeal allowed. The Secretary of State’s decision of 9 March 2010 was quashed.
2. Section 55 of the Borders, Citizens, and Immigration Act 2009 applies to all functions of the Secretary of State in relation to immigration, asylum or nationality. A non-appealable refusal of leave to remain falls within section 55(2)(a); the duty is not restricted to appealable decisions to remove.
3. On an application for judicial review of a non-appealable immigration decision, the court must take into account whether the Secretary of State had regard to the section 55 duty and the statutory guidance issued under section 55(3). The obligation is engaged where the decision affects a child. Here, the Secretary of State accepted that the decision letter did not visibly consider what was in the best interests of the appellant’s 16-year-old child, despite submissions and evidence drawing attention to the effect on him. That failure made the decision unlawful.
4. The court declined to determine, without oral submissions, the circumstances in which section 55 need not be considered or whether the Administrative Court should make its own decision rather than quash and remit. Those questions were left open. Any future removal decision would arise in materially different circumstances.

• Court of Appeal (Civil Division): [2011] EWCA Civ 1081 — appeal allowed and the Secretary of State’s decision of 9 March 2010 quashed.
• Administrative Court: Ouseley J refused the judicial review application on 18 October 2010.