SS, R (on the application of) v The Secretary of State for the Home Department (Declaratory Orders)

The Upper Tribunal has a discretionary power to grant a declaration under Tribunals, Courts and Enforcement Act 2007, section 15(1)(d). Where judicial review establishes unlawful public decision-making but quashing, mandatory or prohibitory relief is inappropriate, a declaration will normally be suitable. The Tribunal should exercise that discretion with regard to judicial review’s educative and corrective function.

A declaration may properly mark material public-law errors, guide future decisions and vindicate the claimant, even where an independent lawful basis means that the impugned decision cannot be quashed.

The applicant sought judicial review of the Secretary of State’s refusal of an application for a derivative residence card under the Immigration (European Economic Area) Regulations 2006. The refusal relied both on the absence of the required identity document and on alleged insufficient evidence that the applicant was the child’s primary carer.

The Tribunal found that the evidence established that the applicant was the child’s mother and that the contrary assessment was irrational. It also held that the decision-maker had materially misunderstood and failed to discharge the duties under section 55 of the Borders, Citizenship and Immigration Act 2009. Since the identity-document requirement independently sustained the refusal, the central issue was whether declaratory relief should nevertheless be granted.

1. Declaration granted. The judicial review succeeded on two substantial public-law grounds. Although a quashing order was inappropriate because the applicant had not met the identity card or passport requirement in regulation 18A(1)(a), the Tribunal exercised its discretion to make a declaration under section 15(1)(d) of the Tribunals, Courts and Enforcement Act 2007.
2. The Secretary of State’s assessment that the applicant had not shown that she was the child’s direct relative or legal guardian was materially erroneous and irrational. The evidence, including the birth certificate, established that she was the child’s mother. On the totality of the material, it was also not rationally open to find insufficient evidence of primary-carer status.
3. The decision materially breached section 55(1) and (3) of the Borders, Citizenship and Immigration Act 2009. It misstated the statutory obligation as a “duty of care”, thereby asking the wrong legal question. It also treated unspecified checks as discharging the duty, invoked an irrelevant provision of the Children Act 2004, and failed to ensure that the child’s best interests were a primary consideration or to have regard to the published guidance.
4. Following the approach described in Hunt v North Somerset Council [2015] UKSC 51, a declaration will usually be appropriate where unlawful action has been established but coercive judicial-review relief is unsuitable. Relief remains discretionary. Here, a declaration served the public interest by correcting decision-making practice, providing future guidance and vindicating the applicant.
5. The Tribunal declared that the refusal involved failures to discharge the section 55(1) and (3) duties and an unlawful assessment of the applicant’s relationship to the child. The Secretary of State was expected to reconsider the application afresh. Costs were awarded to the applicant and permission to appeal was refused.

• Upper Tribunal (Immigration and Asylum Chamber): At the permission stage, a challenge concerning the passport requirement was disallowed. On the substantive judicial review, the Tribunal found two material public-law errors but declined to quash the refusal because regulation 18A(1)(a) of the Immigration (European Economic Area) Regulations 2006 independently sustained it. It instead granted declaratory relief and refused the respondent permission to appeal.