Section 55 Requires Child‑Best‑Interests Review of Immigration Rules: Court of Appeal Orders Home Secretary to Reassess Child Refugee Family Reunion Policy; Differential Treatment Recognised under Article 14

Introduction

In DM, R (on the application of) v Secretary of State for the Home Department [2025] EWCA Civ 1273, the Court of Appeal (Civil Division) addressed the legality of the Home Secretary’s longstanding approach to family reunion for unaccompanied child refugees. The case concerns children granted asylum or humanitarian protection who arrived in the UK alone and wish to be joined by parents and siblings. Unlike the partners and minor children of adult refugees (who benefit from a largely relationship-based, “automatic” route under the Immigration Rules), the parents and siblings of a child refugee have been required to succeed on a case-by-case assessment focused on whether refusal would cause “unjustifiably harsh consequences,” typically framed through Article 8 ECHR proportionality.

DM challenged the Secretary of State’s policy on three grounds:

Section 55 ground: that the policy was formulated and maintained without having proper regard to the need to safeguard and promote the welfare of children in the UK, contrary to section 55 of the Borders, Citizenship and Immigration Act 2009 (the “2009 Act”).
Discrimination ground: that the policy discriminated against child refugees (or their families) contrary to Article 14 ECHR, read with Article 8.
Rationality ground: that the policy was irrational in public law.

The Administrative Court (Lavender J) had dismissed all grounds (save that the rationality challenge was adjourned and later also dismissed). On appeal, the Court of Appeal allows the section 55 ground on a new but tightly reasoned basis, recognises differential treatment for the purposes of Article 14, declines to determine justification (given imminent policy review and an unsatisfactory evidential record), and dismisses the irrationality challenge.

The decision carries wide systemic implications. It crystallises that the section 55 duty is not confined to individual casework: it requires that the policy framework itself—including Immigration Rules and guidance that structure decision-making—must be formulated having regard to the best interests of affected children. It also clarifies when maintaining an existing policy amounts to the “exercise of a function” under section 55, and it acknowledges that current arrangements produce differential treatment for child refugees for Article 14 purposes.

Summary of the Judgment

Ground 1 (Section 55 duty): Allowed. The Secretary of State failed to conduct the requisite section 55 “best interests” exercise in relation to the policy framework governing family reunion for child refugees. Even where a policy pre‑dated section 55, the duty required the Home Secretary, when section 55 came into force (2 November 2009), to ensure that the Rules and guidance were themselves formulated having regard to the best interests of children. That never occurred. The Court orders that the Secretary of State must now carry out a section 55-compliant review. The Court declined to hold that mere refusals to review policy trigger section 55; only a substantive review decision would do so. But the duty arose at commencement in 2009 to “best‑interests‑proof” the framework and remains unmet.
Ground 2 (Article 14 discrimination): Partial success. The Court finds differential treatment:
- Primary discrimination: a child refugee seeking to be joined by a parent is in an analogous situation to an adult refugee seeking to be joined by their minor child, yet treated differently (case-by-case “unjustifiably harsh consequences” threshold vs. largely automatic reunion based on relationship).
- Thlimmenos discrimination: child and adult refugees seeking reunion with parents are in relevantly different positions (dependency lies with the minor child), yet treated the same. That sameness where difference is required engages Article 14.
The Court does not determine justification. Given the section 55 relief, the suspension of the relevant Rules pending reform, dated evidence, and lack of a coherent evidential presentation by the Secretary of State, the Court invites submissions on whether to remit justification to the Administrative Court or treat it as academic.
Ground 3 (Irrationality): Dismissed. The policy is not irrational. The existence of the “anchor child” phenomenon and judgments about deterrent effects are within the Secretary of State’s lawful policy space; given the evaluative nature and institutional competence concerns, a high-threshold rationality challenge fails.
Relief and context: Despite a September 2025 suspension of new refugee family reunion applications pending reform (Appendix FRP “closed to new applications”), the section 55 duty applies to the policy as it stood, and the Secretary of State must now conduct a section 55-compliant review. Anonymity for the claimant continues.

Analysis

1) The policy architecture and its evolution

Historically, Part 8 of the Immigration Rules (paras 352A–352F) provided a largely relationship-based route for partners and minor children of refugees who met specified criteria (e.g., pre‑flight and genuine relationships). This route was described as “automatic” in the sense that eligibility turned on relationship and suitability, not a discretionary Article 8 balancing exercise. Child refugees were effectively excluded from sponsoring a partner by paragraph 277 (under-18 bar) and had no in‑Rules route to bring parents or siblings, although the Secretary of State’s guidance allowed case-by-case grants outside the Rules where refusal would breach Article 8 or amount to “compelling compassionate” circumstances.

In April 2023, Appendix Family Reunion (Sponsors with Protection) (“Appendix FRP”) replaced the earlier rules. While not changing substance, it codified the Article 8 gateway (FRP 7.1) for applicants who do not meet the partner/child eligibility route, requiring caseworkers to consider “exceptional circumstances” and “unjustifiably harsh consequences.” “Compassionate factors” remained guidance-based, not rule-based. Notably, while the new guidance is more elaborate and cites section 55, it no longer expressly flags the specific case of parents/siblings of child refugees—a point the Court thought should be remedied to aid caseworkers.

The heart of the policy for parents/siblings of child refugees (both pre- and post-2023) is thus:

Case-by-case assessment focused on whether refusal would result in “unjustifiably harsh consequences,” often overlapping with Article 8 proportionality.
Possible grant outside the Rules on “compelling compassionate factors” even if Article 8 would not be breached, albeit rarely.
A structural contrast with the automatic partner/minor child route for adult refugees.

The Court cautioned against treating “exceptional circumstances” as a freestanding test. The operative standard is “unjustifiably harsh consequences”; the “exceptional” language signals rarity in most non-core family contexts, but that presumption may not hold for child refugees, whose welfare and dependency dynamics are materially distinct.

2) Precedents cited and their influence

R (PRCBC) v SSHD [2021] EWCA Civ 193: Consolidated the section 55 requirements. The Secretary of State must treat children’s best interests as “a primary consideration” and must identify, evaluate, and weigh those interests against countervailing considerations. Critically, PRCBC confirms section 55 applies to subordinate legislation and rules. The Court here leans on PRCBC to insist that the immigration policy framework itself must be section 55 compliant.
MM (Lebanon) v SSHD [2017] UKSC 10: States section 55 applies to the making of the Rules. The Court deploys MM to reject any suggestion that parliamentary procedure displaces section 55’s obligations.
R (SG) v SSWP [2015] UKSC 16 (Carnwath LJ at [108]): Articulates the evaluative task required when children’s interests conflict with other considerations. Referenced to frame what a compliant section 55 exercise must show: identification, weighting, and explanation.
MF (Nigeria) [2013] EWCA Civ 1192 and Hesham Ali [2016] UKSC 60; HA (Iraq) [2022] UKSC 22: The Court draws on these to deconstruct “exceptional circumstances” drafting habits. Lord Hamblen’s caution in HA (Iraq) against using exceptionality as a standalone legal threshold underpins the Court’s reading that “exceptional circumstances” is explanatory, not determinative; the operative test remains “unjustifiably harsh consequences.”
CAO v SSHD [2024] UKSC 32: Supports the structural distinction between ministerial policy-setting and individual decision-making by officials, bolstering the Court’s reading of section 55’s “make arrangements” architecture and why Rules/guidance are part of those arrangements.
R (Badmus) [2020] EWCA Civ 657: Demonstrates that a formal ministerial review producing options (including “do nothing”) constitutes a new, judicially reviewable decision. The Court uses Badmus to demarcate when a refusal to change policy is itself a “function” engaging process duties—namely, where there has been a substantive review.
R (Adiatu) [2020] EWHC 1554 (Admin) and R (the 3million) [2021] EWHC 245 (Admin): PSED cases indicating the duty engages in relation to the measures actually being taken and, arguably, when “actively considered.” The Court transposes this logic to section 55: mere refusal to consider change is not, without more, the “discharge” of a function.
R (Bridges) v South Wales Police [2020] EWCA Civ 1058: A PSED case emphasising the duty’s “continuing” nature and the need to monitor equality impacts, especially with novel systems. The Court stops short of importing a general continuous monitoring duty into section 55, but accepts—on a narrower ground—that at the point section 55 came into force, the Secretary of State had to undertake a best-interests review of existing frameworks.
R (SC) v SSWP [2021] UKSC 26, DA v SSWP [2019] UKSC 21, Carson v UK, Thlimmenos v Greece: Provide the Article 14 structure (status, analogous situation/difference, justification, margin). The Court uses this to find differential treatment but postpones justification.
Mosira v SSHD [2017] EWCA Civ 407: Confirms no treaty obligation to family reunion; UNHCR encourages but cannot compel. This frames the debate squarely in domestic statutory and Convention rights terms.

3) Legal reasoning

Ground 1: Section 55 duty and the policy framework

The Court’s analysis unfolds in two steps.

First, it rejects the claimant’s original pathway to liability—that repeated ministerial refusals to review (a “red line”) amounted to a succession of exercises of “functions” that had to be section 55 compliant. The Court holds that:

Merely declining to embark on a review does not itself discharge a relevant function for section 55 purposes.
A decision to maintain the status quo can count only where it is the product of a substantive review process (e.g., officials present options and the Minister actively chooses one)—the Badmus paradigm. That did not occur here.

Second—and this is the decisive ground for allowing the appeal—the Court holds that when section 55 came into force on 2 November 2009, the Home Secretary was obliged to ensure that the arrangements by which immigration, asylum and nationality functions are discharged (including the Rules and policy guidance that structure decisions) were formulated having regard to the best interests of children affected. That exercise did not occur in relation to the family reunion policy for child refugees. The “Every Child Matters” guidance addresses individual decision-making by caseworkers, but it is not a substitute for undertaking a best‑interests analysis at the level of the policy framework itself. Thus, the Secretary of State must now conduct a section 55-compliant review of the policy.

The Court also offers a helpful conceptual refinement: the making of Immigration Rules is better understood as part of the Home Secretary’s “arrangements” under section 55(1) (rather than the discharge of an individual function under section 55(2)), but the practical effect is the same—policy frameworks must be child‑best‑interests‑compliant.

Ground 2: Article 14 discrimination (read with Article 8)

The Court departs from the High Court and holds that the policy does give rise to relevant differential treatment.

Primary discrimination: A child refugee seeking reunion with a parent is in an analogous situation to an adult refugee seeking reunion with a minor child, because in both cases the core family relationship of dependency is parent-minor. Yet the adult refugee’s minor child benefits from a largely relationship-based route, whereas the child refugee’s parent must meet the “unjustifiably harsh consequences” threshold on a case-by-case basis. This difference engages Article 14.
Thlimmenos discrimination: Child and adult refugees seeking to bring parents are not in the same position: the child refugee is in a relationship of presumed dependency; the adult is not. Similar treatment of relevantly different cases (same lack of an automatic route for parents) therefore also engages Article 14.

Crucially, the Court does not decide justification. The Secretary of State invokes a legitimate aim: avoiding incentivising families to send children on perilous journeys to act as “anchor children.” The Court recognises competing evidential narratives (including EMN materials and NGO/UNHCR research), but declines to adjudicate proportionality now due to the pending policy review, the fragmentary and dated evidence, and the absence of a coherent evidential statement from the Secretary of State. It invites submissions on remittal to the Administrative Court or dismissal as academic.

Ground 3: Rationality

The irrationality challenge fails. The Court identifies three evaluative steps underpinning the policy:

That an “anchor child” phenomenon exists to a non‑trivial extent.
That making family reunion automatic for parents/siblings of child refugees would increase that risk.
That the anticipated benefit (deterrence of dangerous journeys) outweighs the harm from insisting on a case-by-case Article 8-based process.

Each step involves judgment in a sensitive area of socio-legal policy. Given the high threshold for Wednesbury unreasonableness and institutional competence concerns, it was not irrational to hold that line—particularly as Article 8 should avert refusals producing disproportionate consequences. The Court emphasises the distinct standards applicable to irrationality as opposed to the more structured proportionality analysis under Article 14—especially where, as here, the policy will now undergo a section 55‑mandated review.

4) Impact

A. Immediate consequences for refugee family reunion policy

Mandatory section 55 review: The Home Secretary must carry out a best‑interests‑compliant reassessment of the policy framework for child refugee family reunion. This is not about individual casework; it requires evaluating the policy architecture (Rules and guidance) and documenting how children’s interests are identified, weighed, and balanced against competing objectives (e.g., deterrence, safeguarding).
Scope of discretion: The duty is procedural. The Home Secretary may, in principle, retain the current architecture, but only after a legally adequate section 55 exercise. Any new or maintained policy will be judicially reviewable—including on Article 14 grounds where differential treatment is now recognised.
Guidance clarity: The Court urged that guidance should explicitly flag how Appendix FRP 7.1 applies to parents/siblings of child refugees, to avoid caseworker oversight. That should be addressed in the forthcoming review.

B. Wider public law implications

Framework-level section 55 compliance is compulsory: Policies and Rules affecting children must be “best‑interests‑proofed,” not just decisions in individual cases. This principle will reverberate across the Home Office’s asylum/immigration portfolio (e.g., detention, age assessment, accommodation, family policy), especially where the governing framework pre‑dates section 55 or lacks an explicit best‑interests analysis.
When does maintaining a policy engage section 55? A refusal to review does not, without more, trigger section 55. A substantive review culminating in a ministerial decision does. However, where section 55 post‑dates a policy, an exercise at commencement was required; failure to do so leaves the duty outstanding.
Article 14 litigation posture: The Court’s clear recognition of differential treatment reshapes the terrain. Future challenges will turn on justification. The Secretary of State will need an up‑to‑date, cogent evidence base to demonstrate a legitimate aim and proportionality. The Court flagged the limits of the record to date and the need for a coherent evidential statement, not piecemeal references.

C. For practitioners and decision-makers

During the suspension of FRP: The Appendix is closed to new applications pending review. Nevertheless, DM governs the legality of the pre‑suspension policy and informs the design of the replacement. Where legacy or pending decisions remain, representatives should cite DM to insist that, at framework level, section 55 must be demonstrably engaged and to guard against misapplication of “exceptionality.”
Preparing for the new policy: Expect a published best‑interests analysis (group and individual child impacts), options appraisal, and an explanation of how countervailing factors (e.g., deterrence, safeguarding, resources) are weighed. Comparative practice and empirical evidence on “anchor child” risks are likely to be scrutinised.
Casework now: Even under the existing architecture, caseworkers must:
- Apply “unjustifiably harsh consequences” as the operative standard (not “exceptionality” as a freestanding bar).
- Treat section 55 as a primary consideration in each child’s case.
- Record why compassionate factors and Article 8 do or do not justify a grant.

Complex Concepts Simplified

Section 55 duty (Borders, Citizenship and Immigration Act 2009): A process duty on the Home Secretary to “make arrangements” to ensure that immigration/asylum/nationality functions are performed having regard to the need to safeguard and promote the welfare of children in the UK. It applies both to the policy framework (Rules and guidance) and to individual decisions. “Best interests” are “a primary consideration”: not a trump card, but of high priority requiring identification, reasoned evaluation, and explicit weighting.
“Making arrangements” vs. “exercising functions”: Section 55(1) obliges the Home Secretary to set up systems (including Rules, guidance, training) to ensure children’s interests are considered. Section 55(2) lists the functions to which those arrangements apply. The Court suggests Rules/guidance are best seen as “arrangements,” but either way they must be best‑interests compliant.
When does refusal to change policy engage section 55? Only when there has been a substantive review culminating in a decision among options (including “do nothing”). Passive refusal to consider change is not itself an “exercise of a function.”
“Unjustifiably harsh consequences” vs. “exceptional circumstances”: The operative test in the family reunion policy is whether refusal would produce unjustifiably harsh consequences (often co-extensive with Article 8 disproportionality). “Exceptional circumstances” is not a separate legal threshold; it signals that grants outside the “automatic” routes are rare in the general run of non-core family cases.
Article 14 ECHR (discrimination): Requires four sequential inquiries: status; comparable situation/difference; justification (legitimate aim and proportionality); and margin of appreciation. “Thlimmenos discrimination” captures sameness of treatment where a difference is required by relevantly different circumstances. Here, dependency distinguishes child refugees seeking parents from adult refugees seeking parents.
Rationality vs. proportionality: Irrationality (Wednesbury) is a deferential test focused on whether a decision is outside the range of reasonable responses. Article 14 proportionality is more structured and searching (ends/means fit, necessity, fair balance). The Court found the policy rational but left proportionality undetermined.

Conclusion

DM v SSHD is a significant constitutional and administrative law decision with immediate consequences for refugee family reunion policy and broader implications for how section 55 operates on immigration frameworks.

Key holding: Section 55 requires that the policy framework itself (Rules and guidance) be formulated with children’s best interests as a primary consideration. That obligation applied at the point section 55 came into force in 2009 and was never discharged in relation to family reunion for child refugees. The Home Secretary must now conduct a section 55‑compliant review.
Discrimination clarified: The Court recognises that the current architecture produces differential treatment engaging Article 14. Whether that treatment is justified remains open and will likely turn on an updated and robust evidential assessment during the forthcoming review.
Rationality preserved: The policy is not irrational. Judgments about the “anchor child” phenomenon and deterrence lie within the Home Secretary’s evaluative remit, subject to Convention proportionality constraints and the independent section 55 process duty.

The judgment’s principal legacy is to hard‑wire children’s best interests into the design of immigration policy, not merely its day-to-day application. That recalibration will shape the imminent reform of refugee family reunion and, more widely, the Home Office’s approach to policy instruments affecting children. As the Secretary of State undertakes the ordered section 55 exercise, careful attention to evidence, to dependency and developmental realities, to comparative practice, and to the structured demands of Article 14 proportionality will be essential to ensure any renewed policy is both legally robust and child-centred.