Secretary of State for the Home Department v EK & Ors

Factual and Procedural Background

This appeal arises from the illegal and dangerous smuggling of migrants across the Channel in small boats, focusing on a family separated during such a crossing. The Claimants are a mother and father and their two young sons, all Turkish nationals of Kurdish ethnicity. The parents claim persecution in their home country due to political activities and sought asylum in Europe. After spending time in Belgium and France, the children crossed to the UK unaccompanied following a violent incident that separated them from their parents.

Upon arrival in the UK, the children were placed in foster care under the local authority's duties. The parents applied for entry clearance to the UK for family reunion, citing urgent compassionate grounds, but the Home Office delayed decision-making. The Claimants sought judicial review of the Secretary of State's failure to admit the parents, alleging breaches of Articles 3 and 8 of the European Convention on Human Rights and statutory duties under the Borders Citizenship and Immigration Act 2009.

The Upper Tribunal Judge granted interim relief ordering the Secretary of State to admit the parents promptly and permitted judicial review. The Secretary of State appealed and applied for a stay, which was initially refused but later granted by a higher court. Further family court proceedings were initiated concerning the potential return of the children to France. The matter proceeded to a rolled-up hearing before this court for determination of the appeal and stay applications.

Legal Issues Presented

1. Whether the Secretary of State’s failure to admit the parents to the UK pending entry clearance decision breaches the children’s rights under Articles 3 and 8 of the European Convention on Human Rights.
2. Whether an interim mandatory order requiring the Secretary of State to admit the parents was appropriate in the circumstances.
3. The extent of the court's jurisdiction to grant mandatory interim relief in judicial review proceedings affecting immigration decisions.
4. The legitimacy of the Secretary of State’s pursuit of reunification in France as an alternative to admission in the UK, balancing individual rights and wider public policy concerns.
5. Whether the risk that admitting parents in such cases incentivises people-smuggling gangs to separate families justifies delay in admission.

Arguments of the Parties

Appellants' Arguments (Claimants)

• The Secretary of State’s failure to admit the parents causes serious psychological harm to the children, amounting to inhuman treatment under Article 3 and unjustifiable interference with family life under Article 8.
• Immediate reunification in the UK is required given the traumatic and unintended separation of the family.
• Delay in processing the entry clearance application and failure to prioritize the case exacerbates the children’s distress.
• The proposed reunification in France is impractical, unsafe, and contrary to the children’s best interests.

Respondent's Arguments (Secretary of State)

• The application for entry clearance was premature as the Secretary of State was still exploring the possibility of reunification in France.
• The grant of interim relief was unjustified; the separation did not amount to a breach of Article 3.
• There are strong policy reasons to pursue reunification in France to avoid incentivising people-smuggling gangs to separate families deliberately.
• Allowing admission in this case risks creating a precedent motivating organised crime groups to place children unaccompanied on dangerous crossings.
• Discussions with French authorities demonstrated political will to reunify the family in France, with procedures underway.
• The Secretary of State’s delay in prioritizing the application was regrettable but does not justify overriding the wider policy considerations.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Mayeka v Belgium (2008) 46 EHRR 23	Establishment that in extreme circumstances immediate family reunification steps are required under Article 8 ECHR.	Used to support the claim that urgent family reunification was necessary given the traumatic separation of the children.
R (Zalys) v Secretary of State for the Home Department [2020] EWHC 2029 (Admin)	Test for interim relief in judicial review requires a serious issue to be tried and a real prospect of success; a more stringent test applies when mandatory relief effectively grants final relief.	Guided the evaluation of the strength of the Claimants’ case and the appropriateness of interim relief.
R (Medical Justice) v Secretary of State for the Home Department [2010] EWHC 1425	Application of the balance of convenience test in granting interim relief.	Informed the court’s assessment of whether to grant or refuse interim relief based on harm and prejudice.
Tarakhel v Switzerland [2014] ECHR 1185	Consideration of Article 3 ECHR in relation to the treatment of vulnerable individuals, particularly children.	Referenced in assessing whether the children’s suffering reached the threshold of inhuman or degrading treatment.
R (RRR Manufacturing PTY Ltd) v British Standards Institution [2024] EWCA Civ 530	Limits on court powers to substitute its own decision for that of a public authority in judicial review; mandatory orders require caution.	Discussed in relation to the legality of the mandatory interim order made by the lower tribunal.
R v Barnet LBC, ex parte Shah [1983] 2 AC 309	Traditional approach to quashing orders and remittal to decision-makers; limits on substitution of decisions.	Considered in the context of statutory amendments and the court’s jurisdiction to grant mandatory relief.
M v Home Office [1994] 1 AC 377	Example of interim mandatory orders in immigration cases requiring return to the jurisdiction pending judicial review.	Illustrated the court’s power to grant interim mandatory relief in appropriate cases.

Court's Reasoning and Analysis

The court began by assessing whether the lower tribunal judge erred in law in granting mandatory interim relief effectively amounting to final relief. It found two fundamental errors: first, the dismissal of the possibility of reunification in France as not serious, despite ongoing discussions and political will at high levels in both governments; second, the summary rejection of the Home Office’s evidence that admitting the parents in the UK would incentivise organised crime groups to separate families and endanger children. The court emphasized the need to take such evidence seriously, given the officials’ expertise and experience.

Having found the original order flawed, the court proceeded to reconsider the interim relief application in light of further evidence. It acknowledged the trauma and distress suffered by the children but recognized that the initial separation was not caused by the state. The court accepted the Secretary of State's assessment that the risk of incentivising dangerous crossings and family separations justified pursuing reunification in France, even though this would prolong the children’s separation from their parents.

The court noted the positive steps and political commitment from French authorities to facilitate reunification, albeit subject to child protection assessments and parental cooperation. It found no strong basis to conclude the parents would not cooperate, nor that the children’s Article 3 rights were breached by the delay. The Secretary of State’s delay in prioritizing the case was regrettable but did not outweigh the legitimate public policy concerns.

Regarding jurisdiction, the court acknowledged complex issues about the power of tribunals to grant mandatory orders substituting public authority decisions. While the lower tribunal may have erred in principle, the court expressed reluctance to categorically deny the power to grant such orders in appropriate circumstances, leaving the issue for future fuller consideration.

Holding and Implications

The court ALLOWED the Secretary of State’s appeal and set aside the interim relief order mandating admission of the parents to the UK at this stage.

The decision means that the parents will not be admitted to the UK pending the outcome of the entry clearance application and family court proceedings, prolonging the separation from their children. The court recognized the distress caused but accepted the Secretary of State’s legitimate public policy justification to pursue reunification in France to mitigate risks of further dangerous small boat crossings and family separations incentivized by admission policies.

No new legal precedent was established beyond the application of existing principles regarding interim relief in judicial review and balancing individual rights against wider public policy concerns. The case leaves open the possibility of future judicial consideration of the court’s jurisdiction to grant mandatory interim relief substituting public authority decisions.