CAO v Secretary of State for the Home Department (Northern Ireland)

An immigration appeal to the First-tier Tribunal is a fresh determination. The tribunal becomes the operative decision-maker and must itself comply with article 8, including by treating an affected child’s best interests as a primary consideration.

The tribunal is not subject to section 55(1) or (3) of the Borders, Citizenship and Immigration Act 2009. A prior breach by the Secretary of State does not invalidate a lawful tribunal decision which supersedes it.

Compliance with the section 55(3) duty to have regard to statutory guidance depends on substance, not express citation. The guidance does not invariably require a child to be interviewed. Officials must obtain enough information to assess the child’s best interests and must adapt their procedure rationally to the circumstances.

The respondent and her two children claimed asylum after entering the United Kingdom from Nigeria. She alleged domestic violence and a risk that her daughter would be subjected to female genital mutilation. The Secretary of State rejected the claim. The First-tier Tribunal dismissed the ensuing protection and human-rights appeal after finding no relevant risk, adequate state protection and the availability of internal relocation.

The Upper Tribunal held that the First-tier Tribunal had made no error of law. The Northern Ireland Court of Appeal allowed a further appeal in [2023] NICA 14. It inferred from the decision letter’s failure expressly to mention the statutory guidance that the Secretary of State had breached section 55(3) of the Borders, Citizenship and Immigration Act 2009, and held that the breach had not been remedied by the tribunals.

The central issues were how compliance with section 55(3) is established, whether the guidance required an interview with the daughter, and what effect any breach by the Secretary of State has upon a fresh appeal determined by the First-tier Tribunal.

1. The Secretary of State’s appeal was allowed unanimously. The Upper Tribunal’s order dismissing the respondent’s appeal from the First-tier Tribunal was restored. Lord Sales and Dame Siobhan Keegan delivered the joint judgment, with which Lord Lloyd-Jones, Lord Hamblen and Lady Rose agreed.

2. An appeal under sections 82 and 84 of the Nationality, Immigration and Asylum Act 2002 is a full, fresh determination. The First-tier Tribunal decides the protection and human-rights claims on the evidence and circumstances before it. Its decision supersedes the Secretary of State’s decision and becomes the operative decision affecting the appellant’s Convention rights.

3. The duties in section 55(1) and (3) of the Borders, Citizenship and Immigration Act 2009 apply to the Secretary of State and specified officials, not to the First-tier Tribunal. The tribunal instead has its own duty under section 6 of the Human Rights Act 1998 to comply with article 8. It must treat an affected child’s best interests as a primary consideration. The contrary obiter reasoning in ZH (Tanzania), paragraph 24, could not be sustained and should no longer be relied upon.

4. Section 55(3) requires substantive regard to the statutory guidance. Express reference to section 55(3) or the guidance is neither necessary nor sufficient. The Northern Irish line of authority placing greater emphasis on the form of decision letters was erroneous. Express reference nevertheless remains desirable good practice, particularly where an official departs from the guidance.

5. The guidance is high-level and flexible. Its overarching purpose is to ensure that officials are properly informed about a child’s circumstances and best interests. It does not require every affected child to be interviewed. Age, maturity, expressed wishes, conflicts of interest, trafficking or protection concerns, health, disability and the possible harm caused by questioning may affect the procedure. Officials’ assessments are governed by public-law rationality, with anxious scrutiny appropriate because of the importance of children’s interests.

6. There was substantive compliance in this case. The mother and daughter had no conflicting interests concerning female genital mutilation, and interviewing the daughter would have added nothing material. The decision letter treated her best interests as a primary consideration and assessed the alleged risk and the family’s prospective return together.

7. Even if the Secretary of State had breached section 55(3), that would not have rendered the First-tier Tribunal’s later decision unlawful. The tribunal afforded a fair opportunity to present the family’s case, properly considered the daughter’s best interests and was entitled to proceed on the evidence adduced by the legally represented parent. There was no obvious evidential gap requiring use of rule 4(3)(d) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014.

1. United Kingdom Supreme Court: Allowed the Secretary of State’s appeal unanimously and restored the Upper Tribunal’s order dismissing the appeal from the First-tier Tribunal: [2024] UKSC 32.
2. Northern Ireland Court of Appeal: Allowed the respondent’s appeal, held that the First-tier Tribunal’s decision was legally erroneous and ordered a fresh determination by a different judge: [2023] NICA 14.
3. Upper Tribunal: Granted permission but dismissed the substantive appeal on 25 March 2022, holding that the First-tier Tribunal had made no error of law.
4. First-tier Tribunal: Dismissed the protection and human-rights appeal in a decision promulgated on 25 February 2020.