R (DM) v SSHD

The claimant, an Eritrean who was a child when granted refugee status in the United Kingdom, challenged the Home Secretary's policy and practice that refugees who are children do not have a route under the Immigration Rules to sponsor parents or siblings for family reunion. The claimant relied on (1) an alleged breach of the Secretary of State’s duty under section 55 of the Borders, Citizenship and Immigration Act 2009 to have regard to the welfare and best interests of children in the United Kingdom; (2) unlawful discrimination contrary to Articles 8 and 14 ECHR; and (3) irrationality.

The court held that the claimant lacked a viable section 55 complaint because the Secretary of State had not, since section 55 came into force, actively considered or taken a decision to amend the Immigration Rules to create a new route for child sponsors; merely maintaining an existing rule from 2000 does not itself trigger a fresh section 55 function. The court further held that there was no discriminatory treatment within Article 14 as pleaded: the Immigration Rules do not differentiate between child and adult refugees in the way asserted (neither can sponsor parents or siblings under the Rules) and the difference of treatment relied upon did not engage Article 14. Grounds 1 and 2 were dismissed. The court adjourned consideration of the irrationality ground to allow the claimant an opportunity, if advised, to pursue a targeted challenge to any specific ministerial decision or active consideration (if such can be identified) giving rise to a section 55 obligation.

Background and parties: The claimant was an Eritrean who left his country as a child and was granted refugee status in the United Kingdom. He sought judicial review of the Secretary of State’s position that the Immigration Rules provide family reunion routes for adult refugees (partners and minor children) but not for child refugees (parents and siblings must apply outside the Rules). The application was supported by the UNHCR as intervener and resisted by the Secretary of State.

Nature of the application and relief sought: The claimant sought (i) a declaration that the Secretary of State had failed to comply with the section 55 duty under the Borders, Citizenship and Immigration Act 2009; (ii) a declaration that the Immigration Rules discriminate unjustifiably against child refugees contrary to Articles 8 and 14 ECHR; and (iii) a declaration that the position is irrational.

Procedural posture: This was a first instance judicial review claim in the Administrative Court. Permission had been granted. The claimant’s family’s separate appeals succeeded in the First-tier Tribunal, narrowing the issues in this claim; the Secretary of State served no evidence before the hearing but later filed witness evidence and submissions.

Issues for decision: The court framed the issues as (i) whether the Secretary of State had discharged a function triggering the section 55 duty in respect of maintaining or considering a change to the Immigration Rules so as to permit child-sponsored family reunion; (ii) whether the Immigration Rules discriminated contrary to Article 14 in conjunction with Article 8; and (iii) whether the impugned policy was irrational.

Reasoning and findings: (i) Section 55: the court adopted the view that making or amending Immigration Rules is a function for the purposes of section 55, but maintenance of a pre-2009 rule does not alone engage section 55. The duty is engaged where ministers or the Secretary of State actively consider and decide policy changes (for example, by conducting formal review and making a considered choice between options). After review of the documentary and witness material, the court found that ministers had not actively considered since 2 November 2009 the specific policy option of changing the Rules to create a route for child sponsors, so section 55 was not triggered in the manner alleged. (ii) Discrimination: the court held that, as a matter of legal characterisation, the Rules operate so that neither child nor adult refugees may sponsor parents or siblings under the Rules; the difference of treatment relied on by the claimant was not established as one within Article 14. The Article 14/8 challenge therefore failed. (iii) Irrationality: the court accepted that legitimate policy considerations (safeguarding, avoiding creating incentives for hazardous journeys) had been relied on by the Secretary of State, and noted the evidential debate. Because the Secretary of State had not identified a specific contested decision since 2009, and in light of the late production of evidence, the court adjourned an adjudication on irrationality to allow the claimant to consider pursuing a focused challenge to any ministerial decision or active review (if identified).

The court dismissed the claimant’s section 55 and discrimination (Articles 8 and 14) challenges and adjourned consideration of the irrationality challenge. Rationale: the section 55 duty was not triggered because ministers had not actively reviewed or decided to maintain the policy since section 55 came into force; the asserted differential treatment under Article 14 was not made out on the characterization of the Rules; and the irrationality ground was adjourned to permit a focused challenge to any identifiable ministerial decision or active consideration.