Secretary of State for the Home Department v EK & Ors

Interim relief which would effectively grant the final relief sought in judicial review requires a particularly strong case. When deciding whether continued family separation is justified under European Convention on Human Rights article 8, the court may give serious weight to a reasonable governmental assessment that immediate reunification would encourage conduct endangering other children.

A child’s best interests are a primary consideration, but they are not paramount. Any delay must remain proportionate to the prospects and likely timescale of achieving reunification by another lawful route. For article 3, the relevant suffering must reach the high Convention threshold and be attributable to the public authority rather than to the events which caused the original separation.

Two young children arrived in the United Kingdom by small boat after being accidentally separated from their parents in France. Kent County Council placed them with foster carers. The parents applied for entry clearance so that the family could reunite in the United Kingdom, while the Secretary of State explored reunification in France.

The Upper Tribunal granted interim mandatory relief requiring the Secretary of State to arrange the parents’ admission as soon as reasonably practicable. It considered the children’s continuing psychological harm and rejected as speculative the suggested risk that such admission would encourage people-smuggling gangs to separate other families.

The Secretary of State appealed. The Court of Appeal first considered whether the Upper Tribunal had erred in law and then remade the interim-relief decision using updated evidence. The central issue was whether the continued exclusion of the parents presented a particularly strong case of unlawfulness under articles 3 or 8 of the European Convention on Human Rights.

1. The appeal was allowed unanimously and the interim mandatory order was set aside. The order would in substance have granted the final relief sought because admission would realistically continue while the parents pursued asylum claims. Interim relief of that kind required a particularly strong case of unlawfulness: [2020] EWHC 2029 (Admin) applied.

2. The Upper Tribunal erred by dismissing reunification in France as an insubstantial possibility. There was evidence that discussions with the French authorities had begun. Given the high threshold and the effectively final nature of the proposed relief, the Tribunal should have taken that possibility seriously, sought further information, adjourned briefly or directed an expedited final hearing.

3. The Tribunal also erred by summarily rejecting the Home Office assessment that admitting the parents could encourage smugglers or migrants to send children across the Channel unaccompanied. Experienced officials were better placed to predict those behaviours. The fuller evidence showed a reasonable and legitimate risk, which was shared by the French authorities and engaged the protection of the rights and freedoms of others under article 8.2.

4. The absence of a decision on entry clearance could be treated as an interference with the family’s article 8 rights. It was nevertheless capable of justification while the Secretary of State pursued reunification in France. The harm caused by continued separation had to be balanced against the scale and gravity of the risk to other children. Under section 55 of the Borders Citizenship and Immigration Act 2009, the children’s best interests were a primary consideration, but they were not paramount. The stable foster placement and daily parental contact reduced the weight of the immediate harm, without eliminating it.

5. That justification could not continue indefinitely. Its proportionality depended on the prospects of reunification in France and the time reasonably required. The evidence disclosed a reasonable prospect of reunification within the timetable of the family proceedings, so the process should not be undermined by compelling immediate admission.

6. The article 3 case was not strong, still less particularly strong. The state was not responsible for the original traumatic separation. The additional distress attributable to prolongation of the separation did not, on the evidence, reach the article 3 threshold. Mayeka v Belgium [2006] ECHR 1170 and Tarakhel v Switzerland [2014] ECHR 1185 were factually distinguishable.

7. Singh LJ, with whom Baker LJ agreed, left open whether section 31 of the Senior Courts Act 1981 removes the court’s jurisdiction to make an interim mandatory order outside the statutory power of substitution. The broad proposition in RRR Manufacturing [2024] EWCA Civ 530 was not part of that decision’s ratio and should not necessarily be accepted without full argument.

1. Court of Appeal (Civil Division): Granted permission to appeal, allowed the Secretary of State’s appeal and set aside the Upper Tribunal’s interim mandatory order: [2024] EWCA Civ 1601.
2. Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Kamara granted permission for judicial review and ordered the Secretary of State, by way of interim relief, to arrange the parents’ admission as soon as reasonably practicable. Upper Tribunal Judge Hirst later refused a stay and directed compliance. No neutral citation for either decision is stated.