EK and Ors, R (on the application of) v Secretary of State for the Home Department

Under rule 17(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008, withdrawal requires the Tribunal’s consent. Consent will ordinarily be given where continuation achieves nothing, but that default does not confine the Tribunal’s broad discretion. Abuse of process is a powerful reason to refuse consent, but is neither necessary nor exclusive.

A delay while the Secretary of State explores reunification of a separated family in a safe third country will ordinarily be lawful where reunification remains realistically achievable within a reasonable time. The serious public interest in avoiding incentives for dangerous small-boat crossings may justify the resulting interference with article 8 rights. Exceptional and compelling cases capable of justifying reunification in the United Kingdom are likely to be rare.

The applicants, Turkish parents, were separated from their two children when the children reached the United Kingdom in a small boat and the parents remained in France. They sought judicial review after delay in deciding their applications for entry clearance, alleging breaches of articles 3 and 8 of the European Convention on Human Rights and section 55 of the Borders, Citizenship and Immigration Act 2009.

Interim orders requiring the parents’ admission were set aside by the Court of Appeal in [2024] EWCA Civ 1601. The Secretary of State then refused entry clearance, giving rise to an appeal to the First-tier Tribunal. The applicants sought to withdraw the judicial review claim. The central questions were whether consent to withdrawal should be withheld and whether articles 3 or 8 required the parents’ admission to the United Kingdom.

1. The Tribunal refused consent to withdrawal and dismissed the judicial review claim. Rule 17(2) required the Tribunal’s consent. Although the ordinary position is to permit withdrawal where no useful purpose remains, the rule confers a broad discretion. Abuse of process is powerful but is not a necessary or exclusive condition for refusal. The pleaded claim raised a wider and important public-law contention: that only entry clearance and reunion in the United Kingdom could avert breaches of articles 3 and 8. It was appropriate to determine that contention because of its potentially wider implications.

2. The challenge to delay in deciding entry-clearance applications had fallen away once decisions were made. The lawfulness of the refusals under section 6 of the Human Rights Act 1998 was for the First-tier Tribunal on the evidence before it. The Upper Tribunal confined itself to the narrower pleaded proposition that any course other than granting entry clearance was necessarily unlawful.

3. Article 8 was engaged by the continuing separation. However, the public interest in preventing criminal gangs from exploiting family separation and exposing further children to dangerous small-boat crossings was capable of justifying pursuit of reunion in France. A decision to delay entry clearance while reasonably investigating reunion in a safe third country is unlikely to be unlawful, unreasonable or irrational where reunion remains realistically achievable within a reasonable timescale. The timescale may include relevant Family Division proceedings and, after a refusal, the appeal process. Exceptional and compelling circumstances justifying reunion in the United Kingdom require a fact-sensitive assessment and are likely to be very rare.

4. The article 3 claim failed. The distress caused by prolongation of separation, on the evidence available, did not reach the high threshold for inhuman or degrading treatment. The Tribunal made no findings that would trespass on the First-tier Tribunal appeal or the Family Division proceedings.

5. No declaration of unlawfulness and no mandatory order requiring admission to the United Kingdom were made. The claim seeking a lawful decision on the entry-clearance applications was academic because decisions had already been made.

• Court of Appeal: In [2024] EWCA Civ 1601, the court set aside Upper Tribunal interim orders requiring arrangements for the parents’ admission to the United Kingdom. It held, for interim-relief purposes, that pursuing reunification in France could in principle justify the article 8 interference.
• Upper Tribunal: The Tribunal refused consent to withdraw the judicial review claim and dismissed its remaining public-law challenge. The later entry-clearance refusals were subject to an appeal before the First-tier Tribunal.