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

International conventions concerning statelessness do not require a state to provide a particular family-reunion route for dependants of stateless persons. They do not, however, permit a policy imposing practically insuperable obstacles to family reunification.

A policy governing immigration rules is irrational where it materially understates the burdens imposed, treats materially different classes of dependants alike without objective justification, and fails to provide a rational proportionality analysis. The duty under section 55 of the Borders, Citizenship and Immigration Act 2009 is not satisfied merely because a technically available route to settlement exists. The public sector equality duty requires a rigorous, personal and timely assessment of the relevant equality impacts.

Asylum Aid challenged changes introduced by HC 246 to the Immigration Rules. The changes removed the bespoke, fee-free family-reunion route in Part 14 for dependants of stateless persons and required applications under Appendix FM.

The claimant alleged breach of international obligations, irrationality, breach of section 55 of the Borders, Citizenship and Immigration Act 2009, and breach of the public sector equality duty under section 149 of the Equality Act 2010. The central issues were whether the new requirements were internationally unlawful or irrational, whether they adequately addressed children’s best interests, and whether the equality duty had been discharged.

1. Ground 3 dismissed. The 1954 and 1961 Conventions contain no specific obligation to facilitate entry clearance for dependants of stateless persons. Article 32 of the 1954 Convention imposes a general obligation to facilitate assimilation or integration, but leaves substantial room for legitimate policy choices. The threshold would be crossed only if the rules made integration practically impossible or close to it. The evidence did not establish that the Appendix FM procedures were insuperable.
2. Ground 4 allowed. The relevant reasons were those recorded in the November 2023 Ministerial Submission and accompanying equality assessment, not reasons formulated after the policy had been implemented. The decision-making was irrational because it failed to recognise the particular vulnerability of stateless persons and their dependants; materially understated the burdens of Appendix FM; treated all dependants alike despite clear distinctions, especially between stateless children and later-forming non-stateless partners; treated dependants as equivalent to ordinary Appendix FM applicants without objective justification; failed properly to address the close comparator of pre-flight refugee dependants; relied on an inaccurately stated rationale; and asserted proportionality without analysing it. The policy was a blunderbuss approach and outside the range of reasonable policies.
3. Ground 2 allowed. Section 55 requires arrangements having regard to children’s welfare, with their best interests as a primary consideration. A merely technical route to settlement does not satisfy the duty where the route is exceptionally difficult, costly or pointless in the circumstances. Ground 2 added nothing on the facts to Ground 4, but succeeded for the same reasons.
4. Ground 1 allowed. Statelessness concerns the absence of nationality and falls within race, including nationality, under section 9 of the Equality Act 2010. The November 2023 assessment was deficient because it failed to recognise statelessness as a relevant protected characteristic and particularly vulnerable group, dealt inadequately with sex impacts, and repeated the irrational deficiencies identified under Ground 4. The October 2024 assessment was materially improved but still failed to satisfy section 149(1)(a).
5. The claim therefore succeeded on Grounds 1, 2 and 4 and failed on Ground 3. The parties were invited to agree the form of order.