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

Section 55 of the Borders, Citizenship and Immigration Act 2009 required the Secretary of State, when it came into force, to ensure that the rules and policy framework for family-reunion decisions concerning child refugees had regard to children’s best interests. That duty was not met merely by guidance requiring decision-makers to consider best interests in individual cases.

A refusal simply to embark on a policy review does not ordinarily amount to exercising a function under section 55. However, the pre-existing policy had to be subjected to the statutory exercise when section 55 commenced. The policy’s distinction between child and adult refugees gave rise to differential treatment for article 14 purposes, but justification was left unresolved. The policy was not shown to be irrational.

The claimant was an Eritrean child refugee who sought family reunion with his parents and siblings. His own family-reunion appeal succeeded, but he continued a general challenge to the Secretary of State’s policy for child refugees.

The policy allowed a refugee’s partner and minor children to qualify for reunion on relationship-based criteria. A child refugee seeking admission of parents or siblings had instead to show that refusal would produce unjustifiably harsh consequences, ordinarily engaging article 8 of the ECHR.

Lavender J dismissed challenges under section 55, article 14 and irrationality in judgments reported at [2023] EWHC 740 (Admin) and [2024] EWHC 967 (Admin). The appeal concerned whether the policy had been lawfully formulated and maintained, whether it was discriminatory, and whether it was irrational.

1. Appeal allowed in part. The court allowed the section 55 ground. When section 55 of the Borders, Citizenship and Immigration Act 2009 came into force, the Secretary of State was required to make arrangements ensuring that the policy framework governing family-reunion decisions for child refugees had regard to their best interests. That required a section 55 exercise in relation to the existing policy itself, not merely guidance for individual decision-makers.

2. The Secretary of State had never conducted that exercise. The duty is procedural and does not dictate the policy outcome. Following a proper exercise, she may lawfully retain the existing policy if children’s interests are properly considered as a primary consideration and are outweighed by countervailing considerations of equal or greater weight.

3. The court rejected the claimant’s original section 55 argument. A minister does not exercise a relevant function merely by maintaining a policy, responding to pressure to change it, or declining to begin a review. A decision to maintain the status quo may engage section 55 only where it follows a substantive review process considering policy options. Neither the 2016 guidance change nor the 2018 review material established such a process.

4. The policy was correctly construed as requiring an evaluative, case-specific assessment of unjustifiably harsh consequences. If that threshold is met, the decision-maker must consider separately whether refusal breaches article 8 of the ECHR. If it does, leave must be granted; if it does not, leave may still be granted for compelling compassionate factors.

5. On article 14, a child refugee seeking reunion with a parent is in an analogous position to an adult refugee seeking reunion with a minor child. The policy also treated child and adult refugees seeking reunion with parents alike despite their relevant difference in presumed dependency. The court did not determine whether those differences were justified, because reconsideration was already required and the evidence was unsatisfactory. It invited submissions on remittal or dismissal of that ground.

6. The irrationality ground failed. It was rationally open to the Secretary of State, in a sensitive area of public policy, to regard the risk of incentivising hazardous journeys by “anchor children” as real and to judge that a case-specific route to reunion struck a lawful balance.

• Court of Appeal (Civil Division): Allowed the appeal on the section 55 ground. It dismissed the irrationality ground and deferred the article 14 justification issue: [2025] EWCA Civ 1273.
• High Court, King’s Bench Division, Administrative Court: Dismissed the section 55 and discrimination grounds: [2023] EWHC 740 (Admin).
• High Court, King’s Bench Division, Administrative Court: Dismissed the rationality ground after an adjourned hearing: [2024] EWHC 967 (Admin).