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

Permission to appeal in a judicial review concerning family reunion rights for child refugees was refused. A decision not to review relevant Immigration Rules is not automatically a statutory function each time the Secretary of State receives a recommendation for change. Such an approach would impose a continuing duty under section 55 of the Borders, Citizenship and Immigration Act 2009 whenever a proposal was not considered. A challenge to the rationality of decisions not to reconsider the Rules must engage with the reasons actually advanced, including judgments about future risks. Where the introduction of the Rules and subsequent decisions not to reconsider them are rational, the Rules themselves cannot be irrational on that basis.

The claimant sought permission to appeal against the dismissal of his judicial review claim concerning the absence of an Immigration Rules route enabling child refugees to sponsor applications for leave to enter by their parents or siblings.

Grounds 1 and 2 had been dismissed in the principal judgment of 31 March 2023, reported at [2023] 1 WLR 4109. Ground 3 was dismissed in a second judgment dated 26 April 2024, [2024] EWHC 967 (Admin). The central questions were whether section 55 applied to decisions not to review the Rules, whether the relevant treatment of child and adult refugees was discriminatory, and whether the Rules or decisions not to reconsider them were irrational.

1. Permission refused. The claimant’s application for permission to appeal was dismissed.
2. Ground 1 was not arguable. The proposed argument that the Secretary of State discharged a function for the purposes of section 55 of the Borders, Citizenship and Immigration Act 2009 whenever he decided not to review the relevant Immigration Rules was inconsistent with the approach of the Divisional Court in R (Adiatu) v HM Treasury, [2020] PTSR 2198. It would mean that every recommendation to change the Rules, from whatever source, triggered an obligation to comply with section 55 if the proposal was not considered.
3. Ground 2 was not arguable. Child and adult refugees were treated alike because neither could sponsor applications for leave to enter by parents or siblings. They were not differently situated for that purpose, since the parents or siblings of many young adult refugees would form part of their nuclear family.
4. Ground 3 disclosed no arguable error. The claimant did not substantively challenge the conclusion that the Secretary of State’s decision in 2000 not to introduce a family reunion route was not irrational. His challenge to later decisions not to reconsider the Rules did not displace the evidence or the reasons previously considered. The Secretary of State’s judgment that the proposed change could incentivise children to leave their families and undertake hazardous journeys, exposing them to associated harms and criminal gangs, was relevant and was not irrational.
5. If the rationality of the Rules themselves were considered, they could not be irrational where both their introduction and subsequent decisions not to reconsider them had been found rational. There was no compelling reason to grant permission, although the precise ambit of section 55 might be considered in a suitable future case.

• High Court (Administrative Court): Grounds 1 and 2 of the judicial review claim were dismissed in the principal judgment dated 31 March 2023, reported at [2023] 1 WLR 4109. Ground 3 was dismissed in the second judgment dated 26 April 2024, [2024] EWHC 967 (Admin).
• High Court (Administrative Court): Permission to appeal was refused in the present judgment.