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

In an Article 8 immigration claim involving a child, the Secretary of State must have regard to the child’s welfare and best interests as a primary consideration. That duty does not require the decision-maker to reach the outcome most favourable to the child, and it does not require the court to substitute its own assessment. Family relocation may properly be considered where the claimant has no right to remain, including the availability of education and the absence of insurmountable obstacles. A supplementary decision may lawfully reconsider and add to an earlier decision where information continues to develop. A different conclusion is not enough to establish irrationality or unreasonableness.

The claimant, a Malawian national, sought judicial review of decisions refusing leave to remain. His claim concerned his relationship with his partner and her daughter, M, with whom he said he had lived as a family since 2010.

The first decision refused the application for failure to provide requested information and for failure to establish the claimed relationships and the requirements of the Immigration Rules. A later supplementary decision considered the relationships on an alternative basis, addressed the duty under the Borders, Citizenship and Immigration Act 2009, and concluded that removal would not breach Article 8 of the ECHR.

The issues were whether the Secretary of State had properly considered M’s best interests and whether the supplementary decision-making process was irrational or unlawful.

1. The claim was refused. The decisions, read together, were not unlawful.
2. The duty under section 55 of the Borders, Citizenship and Immigration Act 2009 required the Secretary of State to have regard to the need to safeguard and promote M’s welfare. The decision-maker had complied with that duty and had also considered M’s best interests in the Article 8 assessment.
3. It was lawful to assess the family’s position against the realities of the claimant’s lack of immigration status. The Secretary of State was entitled to consider whether the claimant’s partner and M could relocate with him to Malawi, including the absence of any previous connection with Malawi, the practical difficulties of relocation, and the availability and standard of education for M.
4. The fact that relocation would involve substantial difficulty did not make the decision irrational or disproportionate. The evidence did not establish that M would be denied viable educational facilities or that removal would have a disproportionate effect on her best interests. The ultimate choice whether to relocate was for M’s mother.
5. The court could not substitute its own judgment for that of the Secretary of State. A decision is not irrational or unreasonable merely because another decision-maker might have reached a different conclusion.
6. The Secretary of State was entitled to issue a supplementary decision nearly a year after the first decision. Where information is exchanged and develops over time, reconsideration and supplementary decision-making have a legitimate place in the process. The possibility that the decision-maker might seek to uphold the original decision did not establish an inevitable or disqualifying bias.
7. The preliminary issue concerning failure to provide information under section S-LTR.1.7 of Appendix FM of the Immigration Rules was not determinative and did not contribute to the decision.