CAO v Secretary of State for the Home Department

This appeal concerned the meaning and effect of section 55 of the Borders, Citizenship and Immigration Act 2009 and its interaction with article 8 ECHR as given effect by the Human Rights Act 1998. The Supreme Court held that the First-tier Tribunal (FTT), when determining an appeal under section 82 of the Nationality, Immigration and Asylum Act 2002, is not itself subject to the statutory duties in section 55(1) or (3) but is required by section 6 HRA to decide appeals compatibly with Convention rights and to treat any affected child’s best interests as a primary consideration.

The court rejected the approach that a decision by the Secretary of State which does not expressly refer to the Secretary of State’s guidance under section 55(3) must be treated as a breach of that duty. Compliance with section 55(3) is a matter of substance: where the content of a decision shows that regard was had to the child’s welfare and best interests, express citation of the Guidance is not required. On the facts the Decision Letter and the FTT’s reconsideration satisfied article 8. There was no material failure to interview the child and no procedural breach of article 8 by the FTT. The NICA’s allowance of the appeal was therefore set aside and the Upper Tribunal’s dismissal of the appeal reinstated.

The respondent (a Nigerian national) arrived in the United Kingdom in 2018 with her two children and applied for asylum, relying on past domestic violence and a risk that her daughter would be subjected to female genital mutilation (FGM) on return. The Secretary of State refused the claim by a Decision Letter which did not expressly refer to the statutory guidance issued under section 55(3) of the Borders, Citizenship and Immigration Act 2009. The respondent appealed to the First-tier Tribunal (FTT), which dismissed the appeal on credibility and country information grounds and treated the child’s best interests as a primary consideration.

Procedural and appellate history:

• FTT dismissed the respondent’s appeal (25 February 2020).
• Upper Tribunal refused permission to appeal; judicial review led to quashing of that refusal and remittal.
• Upper Tribunal (rolled-up hearing) granted permission but dismissed the appeal on the merits (25 March 2022).
• Northern Ireland Court of Appeal (NICA) allowed the respondent’s appeal ([2023] NICA 14) on the ground that the Secretary of State had breached section 55(3) by failing to refer to the Guidance in the Decision Letter; the NICA remitted the case to the FTT.
• The Secretary of State appealed to the Supreme Court.

Issues before the Supreme Court included:

• the meaning and scope of section 55 and the status of the statutory Guidance issued under section 55(3);
• whether failure to refer expressly to the Guidance in a decision letter establishes a breach of section 55(3);
• whether the FTT is itself subject to section 55 duties or must instead comply with article 8 and the HRA; and
• whether the FTT erred in law by failing to require an interview of the child or to take further investigative steps under its procedural powers.

Reasoning (concise):

• The FTT sits as a fresh decision-maker on appeals under section 82 NIAA 2002 and is bound by section 6 HRA to act compatibly with Convention rights; it is not itself subject to section 55(1) or (3), which are duties directed at the Secretary of State and officials exercising immigration functions.
• Section 55 operates in support of the overarching article 8/HRA obligation. Where an appeal proceeds, the FTT’s decision supersedes the Secretary of State’s decision; a prior breach of section 55 by officials does not render lawful the FTT’s later decision unlawful if the FTT itself properly fulfils its article 8 obligations.
• Compliance with section 55(3) requires substantive regard to the Guidance. The court followed the established authorities on “have regard” duties (analogy with section 71 RRA and the public sector equality duty): substance prevails over form and express citation is not determinative. However, good practice recommends recording engagement with the Guidance and explaining departures from it.
• On the facts, the Secretary of State’s Decision Letter and the FTT’s determination treated the child’s best interests as a primary consideration; there was no procedural breach of article 8 and no obligation in the circumstances to interview the daughter. The NICA’s inference that failure to mention the Guidance equated to breach of section 55(3) was therefore erroneous.

Outcome: the Secretary of State’s appeal was allowed; the order of the Upper Tribunal dismissing the appeal was restored. The court noted that circumstances may have changed since the FTT decision and that a fresh human rights claim remains open if material changes arise.

Appeal allowed. The Supreme Court held that (i) section 55(1) and (3) impose duties on the Secretary of State and officials, not on the FTT, which is instead bound by section 6 HRA and article 8 to treat a child’s best interests as a primary consideration; (ii) compliance with section 55(3) is a matter of substantive regard to the Guidance and does not turn on express reference to it in a decision letter; (iii) the FTT had lawfully applied article 8 and was not obliged in the circumstances to interview the child or to use its inquisitorial powers; and (iv) the NICA erred in concluding that the absence of express reference to the Guidance in the Decision Letter established a breach of section 55(3) that required remission.

FTT (Judge Grimes) dismissed the respondent's appeal (25 February 2020). The Upper Tribunal initially refused permission to appeal; judicial review quashed that refusal and remitted the application. Upper Tribunal Judge Rintoul granted permission but dismissed the appeal on the merits (25 March 2022). The Northern Ireland Court of Appeal allowed the respondent's appeal ([2023] NICA 14) and remitted the case to the FTT. The Secretary of State appealed to the Supreme Court, which allowed the appeal ([2024] UKSC 32).