CAO v Secretary of State for the Home Department

Factual and Procedural Background

The appeal arises from an unsuccessful asylum application made by the Plaintiff, a citizen of Nigeria and mother of two children, who entered the United Kingdom with her children in September 2018. The Plaintiff applied for asylum and humanitarian protection in November 2018, citing domestic violence by her husband and risks of female genital mutilation to her daughter if returned to Nigeria. The Secretary of State for the Home Department refused the application in April 2019, finding the claims lacked credibility, that adequate state protection and internal relocation in Nigeria were available, and that removal would not violate the Plaintiff's or her children’s rights under Articles 2, 3, or 8 of the European Convention on Human Rights (ECHR). The refusal also included a consideration under section 55 of the Borders, Citizenship and Immigration Act 2009 regarding the welfare of the children.

Subsequent appeals to the First-tier Tribunal (FtT) and the Upper Tribunal (UT) dismissed the Plaintiff’s claims, with the UT refusing leave to appeal to this court. The Court of Appeal granted leave to appeal. The case involves examination of the statutory duties under section 55, especially subsection (3), imposed on the Secretary of State and the tribunals concerning safeguarding and promoting the welfare of children in immigration decisions.

Legal Issues Presented

1. Whether the Secretary of State and tribunals properly discharged their duties under section 55(1) and section 55(3) of the Borders, Citizenship and Immigration Act 2009 to safeguard and promote the welfare of children affected by immigration decisions.
2. The legal consequences of a breach of the statutory duty under section 55(3) to have regard to the statutory guidance entitled "Every Child Matters: Change for Children".
3. The extent to which the statutory guidance under section 55(3) imposes obligations on the Secretary of State and tribunals in the decision-making process.
4. The appropriate remedial measures where a breach of section 55(3) is found, including whether remittal to the Secretary of State or the tribunal for a fresh decision is required.
5. The interaction between section 55 duties and the procedural dimension of Article 8 ECHR, particularly in relation to the fairness and adequacy of the decision-making process affecting children.

Arguments of the Parties

Appellant's Arguments

• The Plaintiff contended that the Secretary of State failed to comply with the statutory duty under section 55(3) by not having regard to the statutory guidance, thus failing to properly assess the best interests of her children, particularly her daughter.
• It was argued that the decision-making process was superficial and formulaic, lacking the depth and conscientious assessment required by the statutory guidance and relevant case law.
• The Plaintiff asserted that the failure to discharge the section 55(3) duty had a material impact on the assessment of the children’s best interests, warranting a fresh consideration of the case by the tribunal.

Respondent's Arguments

• The Secretary of State submitted that the breach of section 55(3) was uncontested but argued that the breach could be excused if the duty had been discharged in substance or if the failure was of no material consequence.
• It was contended that the tribunal’s role includes remedying any breach of section 55(3) and that the tribunal was equipped to undertake a proper assessment of the children’s best interests.
• The Respondent emphasized that issues under section 55(1) or (3) not raised at earlier stages would not necessarily be fatal to the decision and that the procedural framework limits remittal to the Secretary of State for fresh decisions.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by affirming the anonymity protections for the Plaintiff and her children. It then elaborated on the statutory framework under section 55 of the Borders, Citizenship and Immigration Act 2009, emphasizing the duty to safeguard and promote the welfare of children in immigration decisions. The court underscored the importance of section 55(3), which imposes a mandatory duty to have regard to statutory guidance ("Every Child Matters").

The court reviewed the factual matrix, noting the limited duration of the children’s residence in the UK and the lack of integration, but highlighted the necessity for a properly informed and conscientious assessment of the children’s best interests. It stressed that the Secretary of State’s decision lacked sufficient engagement with the statutory guidance and was formulaic, failing to discharge the section 55(3) duty effectively.

In examining the jurisprudence, the court discussed key authorities, including the Supreme Court’s decisions in ZH (Tanzania) and Zoumbas, which establish that the best interests of the child are a primary consideration though not paramount, and that decision makers must be properly informed. The court noted the Upper Tribunal’s recent decision in Arturas, which took a narrower view of the statutory guidance, but rejected its reasoning, affirming the broader and more rigorous approach established in Northern Ireland case law, particularly JG.

The court highlighted the procedural dimension of Article 8 ECHR, requiring a fair and proper decision-making process that respects the interests of children affected by immigration decisions. It found that every breach of section 55(3) prima facie violates this procedural right.

Regarding remedies, the court acknowledged that since legislative changes in 2014, tribunals cannot remit cases directly to the Secretary of State for fresh decisions, limiting remedial options. Nonetheless, it emphasized the tribunal’s case management powers and expertise to remedy breaches of section 55(3) through further evidence gathering and reconsideration.

Applying these principles, the court found that neither the FtT nor the UT adequately addressed the breach of section 55(3) in this case, leaving the breach unremedied. The court also noted the significant passage of time since the original decision, the absence of current evidence regarding the daughter’s circumstances, and the outdated country evidence concerning Nigeria.

Consequently, the court concluded that a fresh hearing by a differently constituted FtT was necessary to properly discharge the section 55 duties and conduct an informed assessment of the children’s best interests in light of up-to-date evidence.

Holding and Implications

The appeal is ALLOWED. The decision of the Upper Tribunal is set aside and the case is remitted to a newly constituted First-tier Tribunal for de novo consideration and determination in accordance with this judgment.

The direct effect of this decision is to require a fresh hearing and decision on the Plaintiff’s asylum claim with proper regard to the statutory duties under section 55(1) and (3), ensuring a conscientious and thorough assessment of the children’s best interests. No new precedent is established beyond reaffirming the existing Northern Ireland jurisprudence on section 55 duties and rejecting the narrower interpretation adopted by the Upper Tribunal in Arturas. The ruling underscores the solemn statutory obligation of the Secretary of State and tribunals to have regard to statutory guidance protecting children in immigration proceedings and the necessity of remedying breaches through appropriate tribunal processes.