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

A longstanding immigration rule may be challenged by judicial review through the decision that created or maintained it, provided the claim is properly brought and is in time. However, it will be rare for irrationality to require a decision-maker to legislate, amend rules, or undertake active consideration of a particular policy change. The court must respect the Secretary of State’s responsibility for immigration policy, especially where the justification involves predictions about future risks. Section 55 of the Borders, Citizenship and Immigration Act 2009 governs the discharge of immigration functions; it does not impose a general duty to consider exercising a function. The absence of a straightforward route to family reunion for child refugees was not irrational, and the decision not to reconsider that policy was also within the range of rational decisions.

The claimant was a recognised child refugee who challenged the absence of an Immigration Rules route enabling child refugees to sponsor their parents and minor siblings on the same basis as adult refugees may sponsor partners and children. Following an earlier judgment, which dismissed the first two grounds but adjourned ground 3, the claimant sought permission to amend the claim to challenge: the decision made in 2000; successive decisions not to review the policy; and the Immigration Rules themselves.

The court also considered whether section 55 of the Borders, Citizenship and Immigration Act 2009 imposed a duty to consider changing the Rules, and whether permission to appeal against the earlier judgment remained available.

1. The proposed amendments were permitted. The decision made in 2000 was capable of challenge by judicial review, and the claim was not necessarily out of time because the claimant relied on the person-specific approach identified in Badmus.

2. The 2000 decision was not irrational. The Secretary of State was entitled to balance the benefits of family reunion for child refugees against the risk that a straightforward sponsorship route would encourage or pressure children to undertake hazardous journeys and expose them to criminal gangs. That was a predictive policy judgment. The absence of specialist evidence did not make the judgment irrational.

3. It was also not irrational for successive Secretaries of State to decide not to give active consideration to changing the Rules. Compelling a decision-maker to legislate, or even to consider legislating in a particular way, would be exceptional. Johnson turned on its own highly unusual facts and did not materially assist the claimant.

4. Section 55 of the Borders, Citizenship and Immigration Act 2009 does not imply a duty to consider exercising a function. It regulates what the Secretary of State must do when discharging an immigration function. The Secretary of State had not unlawfully frustrated the statutory purpose.

5. The court remained doubtful whether the Immigration Rules could be challenged in the abstract, rather than through the decision to make or maintain them. If that question were decided in the claimant’s favour, the Rules were nevertheless not irrational for the reasons already given.

6. The application for judicial review on ground 3 was dismissed. The procedural application concerning permission to appeal against grounds 1 and 2 was dismissed as seeking relief that was either unnecessary or unlawful, although the claimant remained entitled to apply for permission to appeal.

1. High Court (Administrative Court) — In the principal judgment dated 31 March 2023, reported at [2023] 1 WLR 4109, grounds 1 and 2 were dismissed and ground 3 was adjourned.
2. High Court (Administrative Court) — The present judgment permitted amendments but dismissed the judicial review on ground 3.