CAO v Secretary of State for the Home Department (Northern Ireland)

Factual and Procedural Background

The Respondent, a Nigerian national born in 1971, entered the United Kingdom on 25 September 2018 with two minor children on visitor visas. On 8 November 2018 she sought asylum, asserting a risk of domestic violence from her estranged husband and the threat of female-genital mutilation (“FGM”) to her daughter.

By decision letter dated 10 April 2019, the Appellant (Secretary of State) refused the claim, finding the asserted risks unsubstantiated and concluding that internal relocation and state protection in Nigeria were available. A short “Section 55 Consideration” paragraph stated the children’s best interests had been weighed.

The Respondent appealed to the First-tier Tribunal (“FTT”). After a full rehearing the FTT (Judge A) on 25 February 2020 dismissed the appeal, holding that:

• Inconsistencies undermined credibility; no real risk of renewed domestic violence or FGM existed.
• Protection from Nigerian authorities and reasonable internal relocation were available.
• The children’s best interests lay in remaining with their mother; removal was proportionate under Article 8 ECHR.

Permission to appeal was refused successively by the FTT and the Upper Tribunal (“UT”). Following a judicial-review challenge, the UT granted permission but ultimately dismissed the appeal on 25 March 2022, finding no material error of law.

The Court of Appeal in Northern Ireland (“NICA”) (decision [2023] NICA 14) allowed the Respondent’s further appeal. It held the Secretary of State’s failure to reference Section 55(3) and accompanying guidance (“the Guidance”) was a breach rendering subsequent decisions unlawful, and remitted the matter to a differently constituted FTT.

The present appeal lies to the Supreme Court, which allows the Appellant’s appeal and restores the UT’s order dismissing the Respondent’s asylum and human-rights appeal.

Legal Issues Presented

1. The correct interpretation and scope of Section 55 of the Borders, Citizenship and Immigration Act 2009, particularly the duty in Section 55(3) to “have regard to” the Guidance.
2. Whether failure by immigration officials to cite Section 55(3) and the Guidance automatically violates Article 8 ECHR’s “in accordance with the law” requirement.
3. The effect, if any, of such a failure on subsequent appellate decision-making by the FTT and UT.
4. Whether the FTT was obliged to take additional inquisitorial steps (e.g., ordering an interview with the child) where the point was not raised by the legally represented parent.

Arguments of the Parties

Appellant's Arguments

• Substantive, not formal, compliance with Section 55(3) suffices; explicit reference to the Guidance in decision letters is unnecessary if children’s welfare is actually considered.
• Any earlier procedural defect by officials is cured because the FTT conducts a full de novo merits assessment; its decision, not the Secretary of State’s, is the operative one.
• The FTT lawfully treated the children’s best interests as a primary consideration and was entitled to rely on the evidence presented without ordering further inquiries.

Respondent's Arguments

• Absence of explicit reference to Section 55(3) and the Guidance in the decision letter shows a breach of statutory duty.
• Such a breach contaminates later appellate decisions, rendering them not “in accordance with the law” under Article 8 ECHR and infringing the procedural dimension of that Article.
• The Guidance required the daughter (then aged 12) to be consulted; failure to interview her was unlawful.

Table of Precedents Cited

Court's Reasoning and Analysis

The Supreme Court begins by construing Section 55. Subsection (3) obliges immigration officials, not tribunals, to have regard to the Guidance. Drawing an analogy with “due-regard” duties under equality legislation, the Court holds that:

• Substantive consideration of children’s welfare satisfies the duty; explicit citation of the Guidance is good practice but not mandatory.
• The First-tier Tribunal is not itself subject to Section 55(3); its statutory obligation flows from Article 8 via Section 6 Human Rights Act 1998. Accordingly, it need only treat the child’s best interests as a primary consideration.
• A failure by officials at first instance to reference Section 55 does not taint later appellate decisions if the FTT conducts a lawful de novo assessment.

The Court disapproves earlier Northern Irish authority (MK, JG, CAO) that inferred an automatic breach from silence and linked such breach to Article 8 illegality. It endorses the substance-based approach taken in AJ (India), Arturas and ZG.

Applying those principles, the Court finds:

1. The Appellant’s decision letter substantively evaluated the children’s best interests and the risk of FGM; omitting to name the Guidance did not breach Section 55(3).
2. Even had there been a breach, the FTT’s independent determination—treating the child’s welfare as primary—superseded any earlier procedural flaw.
3. The FTT was entitled to rely on the mother’s evidence without ordering an additional interview of the child, absent any “red-flag” conflict or request from the legally represented Respondent.
4. Accordingly, the UT correctly upheld the FTT; the NICA’s contrary reasoning was founded on an incorrect view of Section 55.

Holding and Implications

APPEAL ALLOWED. The order of the Upper Tribunal dismissing the Respondent’s appeal is restored.

Immediate Effect: The Respondent’s asylum and human-rights appeal remains dismissed; removal to Nigeria (subject to any fresh claim) is lawful.

Broader Implications: The judgment clarifies across the United Kingdom that:

• Compliance with Section 55(3) focuses on substantive consideration of children’s welfare, not formal citation of guidance.
• The FTT is not bound by Section 55 but must apply Article 8 directly, treating children’s best interests as a primary consideration.
• Earlier Northern Irish authorities requiring mandatory reference to the Guidance are overruled, promoting uniformity in immigration jurisprudence throughout the UK.