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

A statutory duty concerning children is engaged when the Secretary of State actively considers changing the Immigration Rules, including choosing to make no change after considering identified options. Mere continuation, application or defence of an existing policy does not itself discharge a function for that purpose. Article 14 does not require comparison between child and adult refugees where neither category may sponsor parents or siblings under the Rules. The concept of the nuclear family is fact-sensitive and cannot establish relevantly different situations in every case. A court reviewing the rationality of Immigration Rules must distinguish between reviewing their lawfulness and deciding what the Rules should provide.

The claimant, an Eritrean refugee who had been a child when he came to the United Kingdom, challenged the absence of an Immigration Rules route enabling child refugees to sponsor their parents and minor siblings for family reunion. His family’s applications were ultimately allowed by the First-tier Tribunal, so the challenge continued in relation to the Secretary of State’s policy and the claimant’s declaration of unlawfulness.

He alleged breach of section 55 of the Borders, Citizenship and Immigration Act 2009, discrimination contrary to Articles 8 and 14 ECHR, and irrationality. The United Nations High Commissioner for Refugees intervened. The court first considered standing, then the scope of the section 55 duty, the alleged discrimination, and the rationality challenge.

1. Standing. The claimant had sufficient interest under section 31(3) of the Senior Courts Act 1981. He had been directly affected by the policy and its more difficult and stressful application process, and no identified claimant was better placed.
2. Section 55. Making Immigration Rules is a function for the purposes of section 55 of the Borders, Citizenship and Immigration Act 2009. The duty may also arise when the Secretary of State actively considers whether to amend the Rules and chooses between identified options, including making no change. It is not triggered whenever the Secretary of State merely continues, applies, repeats, defends or declines to alter an established policy. The evidence showed that, since section 55 came into force, the Secretary of State had not actively considered the option of creating a family-reunion route for child refugees. Ground 1 was dismissed.
3. Discrimination. The relevant Rules treated child and adult refugees alike in the respect complained of: neither could sponsor applications by parents or siblings. The claimant therefore failed to establish the alleged difference in treatment under Article 14. The alternative comparison with adult refugees in a relevantly different situation was also unpersuasive. The notion of a nuclear family is not fixed, and dependent parents or siblings may form part of an adult refugee’s family life. Ground 2 was dismissed.
4. Irrationality. The court was not asked to decide what the Rules ought substantively to provide. The 2000 decision introducing the relevant scheme was not open to challenge as irrational on the evidence presented, and there had been no later active consideration of the proposed change. The court adjourned ground 3 to allow the claimant, if so advised, to seek permission to challenge the alleged failure or refusal to give active consideration to the proposed amendment. No view was expressed on that potential challenge.

First-instance judicial review. Grounds 1 and 2 were dismissed. Consideration of ground 3 was adjourned to permit a possible amended challenge concerning failure or refusal to consider changing the Immigration Rules.