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

The claimant, Asylum Aid, judicially reviewed changes made by the Secretary of State by Statement of Changes HC 246 (effective 31 January 2024) which removed the bespoke family reunion route for dependants of stateless persons under Part 14 of the Immigration Rules and required such dependants to apply under Appendix FM instead. The claim advanced four grounds: (i) breach of the public sector equality duty (section 149 Equality Act 2010), (ii) breach of the duty to safeguard and promote the welfare of children (section 55 Borders, Citizenship and Immigration Act 2009), (iii) incompatibility with international obligations to stateless persons (notably the 1954 and 1961 Conventions), and (iv) irrationality.

The court rejected the international law challenge (Ground 3), holding there is no express obligation in the 1954 or 1961 Conventions to provide particular entry measures for dependants abroad and that general duties to "facilitate assimilation" do not impose the high threshold required to invalidate the Defendant's policy. The court accepted Grounds 4 and 2 (irrationality and section 55): the Ministerial decision-making was procedurally and substantively unreasonable, in particular because the change treated heterogeneous groups of dependants alike without reasonable justification and failed adequately to safeguard children’s interests. Ground 1 (PSED) succeeded in substance: contemporaneous equality analysis (the November 2023 materials) was deficient and later October 2024 material could not cure defects in the earlier decision-making process.

Background and parties: The claimant, a non-governmental organisation, challenged changes to the Immigration Rules (HC 246) which replaced the Part 14 bespoke family-reunion route for family members of stateless persons with a requirement that family members apply under Appendix FM. The defendant was the Secretary of State for the Home Department. The proceedings were judicial review; permission was previously granted. Counsel and officials filed a range of Ministerial submissions, Equality Impact Assessments and guidance which the court scrutinised.

Nature of application / relief sought: Declaratory and quashing relief challenging the lawfulness of HC 246 in respect of its treatment of dependants of stateless persons on the grounds identified below.

Issues framed:

• whether the Secretary of State breached the public sector equality duty (section 149 Equality Act 2010) in designing and adopting HC 246;
• whether the Secretary of State failed to discharge the section 55 Borders, Citizenship and Immigration Act 2009 duty to safeguard and promote the welfare of children;
• whether the change was incompatible with international obligations under the 1954 and 1961 Statelessness Conventions and related international instruments;
• whether the change was irrational or Wednesbury unreasonable in process or substance.

Court’s reasoning and conclusions: The court first considered international law. Although recognising the particular vulnerability of stateless persons and the relevance of instruments such as the 1954 Convention (Article 1 and Article 32) and the 1961 Convention, the court concluded there is no clear international obligation to provide a specific entry route for dependants abroad and that general obligations to "facilitate assimilation" did not establish the required legal threshold to invalidate the policy. On irrationality (Ground 4) the court found the contemporaneous Ministerial Submission (November 2023) and associated EIA gave inadequate weight to the special vulnerability of stateless persons and failed to differentiate between materially different classes of dependants (for example, stateless children, pre-flight dependants, and partners formed after grant of status). The court held the policy was a disproportionate, blunt measure which treated unlike cases alike and imposed needless burdens on children and other vulnerable applicants. On section 55 the court held that relying on the availability of Appendix FM did not discharge the statutory duty to give primary consideration to the best interests of the child and that the changes impaired those interests. On PSED the court concluded the November 2023 EIA and Ministerial decision-making did not constitute adequate "due regard"; the later October 2024 EIA post-dated the decision and could not cure that failure. The claim succeeded on Grounds 1, 2 and 4 and failed on Ground 3.

Procedural and evidential points: the court criticised the defendant's failure to file explanatory witness evidence on some aspects of rationale and data, and noted the late drafting of the April/October 2024 EIA which was not before the Minister at the time of decision-making.

At first instance the claim is allowed in part. The court held that the Secretary of State’s change to remove the bespoke family-reunion route under Part 14 and to require dependants to apply under Appendix FM was unlawful in public law: the decision-making was irrational and the Secretary of State failed to discharge duties under section 55 (Borders, Citizenship and Immigration Act 2009) and section 149 (Equality Act 2010). The international law challenge under the 1954 and 1961 Conventions was rejected because those instruments do not impose an express obligation to provide a specific overseas entry route for dependants and general duties to facilitate assimilation do not meet the high threshold required to invalidate the policy. The court invited the parties to agree a form of order reflecting those conclusions.